Judgment:-

D.K. Jain, J.

Leave granted in SLP (C) No.6037 of 2007.

2. This appeal raises a short question whether the holding of an "Invalidating Board" is a condition precedent for discharge of a Junior Commissioned Officer (JCO) on account of low medical category?

3. For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would suffice. These are:

The respondent, a Junior Commissioned Officer (JCO) was enrolled in the Army on 9th March, 1980. While serving 20 JAT Regiment, on 31st July, 2000, he fell ill; was admitted to the military hospital and was discharged after treatment on 7th November, 2000, but was placed in low medical category S1H1A1P2E1 with effect from 6th November, 2000 for six months. On account of disability, namely, Ischaemic heart disease, again in May, 2001, he was continued in low medical category for another six months. Later, he was brought for review and was then placed in low medical category (permanent) for a period of two years from October, 2001.

4. However, before the expiry of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appointment was available and his unit was deployed in a field area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below:

"20 JAT C/O 99 APO 2062/A/ February, 2002 JC 48893 IX Mb Sub Rajpal Singh 20 JAT C/o 99 APO SHOW CAUSE NOTICE

1. During re-categorization board held at 178 Army Hospital on 24.10.2001, as per AF MSF-15A you have been declared in permanent low medical category.

2. Because the unit is deployed in field area, there is no sheltered appointment. As a result of the above, show cause as to why you should not be discharged from service because your retention in service is not in public interest.

3. Please send reply of the show cause notice by 10.3.2002.

Sd/- xxxx (Rajesh Ahuja) Colonel Commanding Officer"

5. In his reply tothe said notice, the respondent pleaded that on doctors advice he could perform light duties and expressed his willingness to continue in service. A ‘Release Medical Board was constituted, which recommended his discharge. Accordingly, by an order passed by the Officer In-charge (OIC) of 20 JAT Regiment, the respondent was discharged from service with effect from 31st August, 2002.

6. Being aggrieved, the respondent challenged his discharge by preferring a writ petition under Article 226 of the Constitution in the High Court of Delhi at New Delhi. Before the High Court the plea of the respondent was that:-

(i) as a JCO he could be discharged for low medical category under Army Rule 13 (3) (I) (ii) by the Commanding Officer after obtaining the opinion of an "Invalidating Board" and not under Rule 13(3) (I)(iii)(c) read with Rule 13 (2A) which had been applied in his case and since the opinion of the Invalidating Board had not been obtained, his discharge was contrary to the rules; (ii) as per the mandate of the afore-noted Army Rule, the recommendation of the Invalidating Board is to precede the decision for discharge and a "Release Medical Board" cannot replace the requirement of "Invalidating Board"; (iii) as per the policy directive issued by the Government on 15th March, 2000, Army Rule 13(3)(I)(iii)(c), he could be discharged only by the Chief of Army Staff and not by OIC, 20 JAT Regiment even though under Rule 13(2A), such power could be delegated to the commanding officer but in the present case no such decision had been taken; (iv) there was no adverse report against him either from his CO or any of the superior officers regarding performance of his duties and general behaviour and, therefore, his continuation in service could not be said to be against public interest; (v) the OIC (Records) ord