Judgment

KHALID, J. :- The appellant joined the Indian Army on 9-2-1964, as an Emergency Commissioned Officer. During his service, he was promoted to the rank of Acting Captain. He was released from the Army with effect from May 30, 1970, as per letter dated February 19, 1970. The appellant states that he sustained three injuries during service. The first injury was sustained while he was on patrolling duty and the second injury during military service. These two injuries were detected in time. There was a third injury linked to the first injury. It was not detected in time but was discovered subsequently. He was placed in temporary medical category CEE for the first two injuries. Subsequently, on 24th April, 1969, this category was upgraded and he was placed in temporary medical category BEE-l. After re-examination on 17-1-1970, he was given medical category BEE-2 permanent.

2. The appellants case is that his release from service must be on medical grounds after complying with the procedure laid down in Army Rule 15A. This was not done. Therefore, he made various representations to the higher authorities, without success. He filed a suit in the Civil Court, Gurdaspur, for a declaration that his release was not valid in law. The suit was dismissed. He then moved the High Court of Delhi in Writ No. 53/82, for the issuance of an appropriate direction that his release order was unjust. The writ petition was dismissed. He then moved this Court by special leave. When the special leave petition was pending, he received a communication dated 16th May, 1983, from the Union of India to the effect that the disability caused to him should be regarded as attributable to military service. On receipt of this letter, he requested this Court to permit him to withdraw his special leave petition with liberty to make suitable representation to the authorities concerned. This Court permitted the request as per its order dated 9-9-1983. Thereafter he made a representation on 3-10-1983. This was rejected and he was told by order dated 3-1-1984 that he had been discharged on the basis of a phased programme. The appellant moved the Delhi High Court again challenging this order by filing a writ petition. The writ petition was dismissed in limine. Hence this appeal by special leave.

3. As stated above the appellant contends that his release should be under R. 15A, Army Rules, and that the order of release based on the alleged phased programme is bad because the procedure laid down in the said Rule has not been followed. According to him, this order had been so worded to escape the procedure laid down in R. 15-A. He strongly relied upon a decision of this Court under similar circumstances in the case of Virendra Kumar v. Union of India, AIR 1981 SC 947. In that case the release order was quashed as the procedure laid down under R. 15A was not complied with and the officer was directed to be given all the benefits from the date of relase to the date of Judgment. The case of the respondent as disclosed from the counter-affidavit in this case is that the release was not under R. 15A but under a phased programme. The counter-affidavit is sworn to by an Assistant Military Secretary. It is stated that the appellant was granted emergency commission for the duration of National Emergency and for so long thereafter as his services were required. Emergency Commission was liable to be terminated at any time by the Government of India under para 15 of the Army Instructions.

4. It is further stated in the counter-affidavit that the appellants contention that he was at all times governed by R. 15A, Army Rules, 1954, is incorrect since the said provision was not applicable to him. He was released from emergency commissioned service as he was ineligible to apply for grant of permanent commission. Regarding the three injuries it is stated that the first injury was sustained "in a field area on 13th March, 1966, during the course of routine check of night picket/patrol in th