Judgment

KRISHNA IYER, J.:- The appellant Capt. Virendra Kumar appeared in person and argued his case with refreshing clarity and merciful brevity. The judgment of the High Court, which went against him, sets out the facts in detail and so we do not have to go over the grounds again except to highlight the decisive facts and the relevant law. The appellants writ petition before the High Court was dismissed and he has secured special leave for this appeal.

2. Captain Virendra Kumar was an Emergency Commissioned Officer who joined the army way back in 1964. Apparently, he was fighting in the front line and sustained a spinal injury while in action. From the materials on record, we notice that he had been a brilliant and courageous officer, but bullets do not discriminate between the brave and the pusillanimous, between the splendid and the stupid. Anyway, the appellants continuance after having sustained the injury became an issue for the Army authorities to decide, and he was released by the Chief with the offer of a pension of a pittance. It was represented to us that Rs. 51-50 per month was the amount of pension preferred. What a magnificent sum for one who had fought on the warfront and exposed his life to extinguishment so that the security of the nation might be defended. Indeed, if such be the parsimony with which the Army prices patriotism, the morale of the defence services may be adversely affected. We are disturbed by this unimaginative attitude which may have long range impact on our jawans who deserve special solicitude having regard to the supreme sacrifice they are sometimes called upon to make.

3. Going back to the facts; constitutive of the grievance of the appellant, we may state that the Army Act and the Rules and Regulations and instructions thereunder govern the fate of commissioned officers including those on emergency commissions like the appellant. When an emergency commissioned officer has to be released on grounds which are provided for, Army Instruction 9/5/62 dated November 24, 1962 applies. This Instruction, according to the appellant, does not have statutory status and, therefore, does not bind him. We do not agree. On the other hand, the technical gloss put by the appellant (is?) legalistic and does not appeal to us and we concur with the High Court in the view taken that the said instruction governs Emergency Commissioned Officers. Sections 21, 22, 27 and 191 to 193 together with the residuary executive power cannot be done by technical truncation of the sense and sweep of the rules. That, indeed, is the submission made by Shri Francis, appearing for the Union of India and we accept it. On that footing. paragraph 15 of the said Instructions is attracted.

4. It is common ground that the appellant was released or discharged on account of physical disability. This is also vouched for by the communication from the Presidents Secretariat to the appellant dated 13/23 April, 1971 extracted in the paper book. Once, we assume that the termination of the emergency commission of the appellant was on the basis of medical unfitness or physical disability, the procedure to be followed in releasing the officers becomes important. In Service Jurisprudence, procedural safeguards are of prime significance.

5. Paragraph 17 of the Army Instruction aforesaid runs thus :

"17. GENERAL. All other terms and conditions of service, where not at variance with the above provisions, will be the same as for regular officers."

6. So much so, for emergency commissions the conditions of service of regular commission will apply except where it is separately provided.

7. On February 14, 1965 the appellant was granted Emergency Commission into the Regular Army under A/I. 9/9/62.

8. In accordance with the intention expressed in para 15 (c) of the A.I. 9/9/62 that an officer granted emergency commission, if eligible and suitable in all respects may be considered at the appropriate time for permanent regular commission in the Regular Army, Army