MANOJ KUMAR GOPE Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Army as Operator Radio Artillery. In the course of inter-unit handball competition held on 13th of September, 1993, he suffered a knee injury which was diagnosed as Post Traumatic Osteo-Arthritis (left) knee. He was down graded medically to CEE(Temp) for 6/12 years on 3rd October, 2000. Subsequently, however, on 8th of April, 2001, he was upgraded to medical category SIHIA2(PERMT) PIEI(BEE permt). His next review medical board was due to be held on 3rd of April, 2003 which, however, could not take place in view of his alleged discharge order issued on 15th of February, 2003. His release medical board was held on 17th of April, 2003 granting him 20% minor disability pension.

(2.) The petitioner received a copy of a circular dated 15/19.02.2003 stating that he would be discharged from service with effect from 31st of July, 2003. He was sought to be discharged on the grounds: (a) being placed in low medical category, his retention in service was not considered necessary as per Army Order 46/80 since the strength of his trade/category had exceeded the sanctioned strength, and (b) being placed in permanent low medical category lower than SHAPE-I and being not upto the prescribed military physical standard under item I(iii) of the table annexed to Army Rule 13(3).

(3.) In pursuance of the aforesaid contemplated discharge, a show-cause notice dated 4.4.2003 was issued to the petitioner calling upon him to show cause as to why his services may not be terminated under Army Rule 13(3) being in a low medical category. The petitioner submitted a reply to the show-cause notice stating that notwithstanding his placement in low medical category since 3rd of April, 2001, he was performing his duties without any difficulty and that his case should, therefore, be considered sympathetically. He, however, did not receive any communication from the respondents thereafter. The petitioner felt aggrieved by the said show-cause notice and alleged discharge order. He, therefore, filed instant petition challenging the show-cause notice and his contemplated discharge and seeks issue of a writ of mandamus directing the respondents not to discharge him with effect from 31st of July, 2003 and to allow him to continue in service.