RAJ PAL SINGH Vs. UOI

JUDGEMENT

(1.) Nb. Sub. Raj Pal Singh had filed a petition under Article 226 of the Constitution of India praying for issuance of appropriate writ, order or directions with a prayer that the order of discharge dated 31st August, 2002 be quashed.

(2.) The petitioner who was enrolled in JAT regiment on 9.3.1980, was promoted to the rank of Nb. Subedar. On 24.10.2001, he was placed in low medical category P-2 (Permanent). On 27.2.2002, he was issued a show cause notice stating that he was in low medical category and no sheltered appointment was available. On 22.4.2002, he was subjected to Release Medical Board and he was discharged on 31.8.2002. The writ petition was contested by the respondents who had stated before the court that the petitioner was discharged on medical grounds under Rule 13(3) I (iii) (c) read with Rule 13(2)(A) in accordance with Army Order 46/1980 and as such, the petitioner was not entitled to the relief prayed for in the writ petition. Vide detailed judgment dated 7th October, 2005, the Division Bench allowed the writ petition and directed reinstatement of the petitioner. The respondents did not prefer any appeal against the said judgment of the Division Bench but filed a review application being RP No. 307/2006 praying for review of the judgment of the court and stating that there was no requirement of holding an invaliding medical board inasmuch as the petitioner was discharged in low medical category by a release medical board as no sheltered appointment was available. According to the respondents, Rule 11 ordains that once a person becomes entitled to discharge, the same would not be delayed and a discharge certificate would be issued. Under Sub-Rule (2A) of Rule 13, there is a special provision for discharge of a member subject to the Forces. Merely that a wrong provision might have been mentioned in the order of discharge would not by itself vitiate the exercise of power so long as the power is vested and existed under the Law. Reference in this regard was made to the judgments in the cases of N.Mani Vs. Sangeetha Theatre (2004) 12 SCC 278 and B.S.E. Broker's Forum Vs. SEBI (2001) 3 SCC 482. It is also the case of the respondents that after decision as to person/class of person and conditions of discharge are decided upon by the competent authority, the Sub Rule merely enjoins upon the Commanding Officer the responsibility to implement such a decision of the Central Government/the Chief of Army Staff. The petitioner was of a low medical category personnel and was discharged under Sub Rule (2A) of Rule 13 on the decision of the Central Government in terms of Army Order 46/1980. In these circumstances, it is contended that the judgment of the court is liable to be reviewed and the petition of the petitioner should be dismissed.

(3.) CM No. 10708/2006 has been filed by the respondents/applicants praying for stay of operation of the judgment of the court dated 7.10.2005.