W.P.(C) 1181/2025 Page 1 of 19

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 19.03.2026

Judgment delivered on: 20.04.2026

Judgment uploaded on: 20.04.2026

+ W.P.(C) 1181/2025

DHARAMVIR SINGH .....Petitioner

versus

UNION OF INDIA AND ORS .....Respondents

Advocates who appeared in this case

For the Petitioner : Petitioner (in person)

For the Respondents : Mr. Amit Gupta, SPC and Major Kanika

Sharma Army

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

JUDGMENT

MANMEET PRITAM SINGH ARORA, J.

1. This petition has been filed under Article 226 of the Constitution of

India, 1950, challenging the order dated 09.10.2024, passed by the Armed

Forces Tribunal [the ‘Tribunal’] in the Original Application 1376/2023 [‘the

O.A.’] and the order dated 30.08.2024 [‘impugned order’] and the discharge

order dated 11.01.2022 [‘impugned discharge order’] dispensing with the

services of the Petitioner.

2. The Petitioner joined the Indian Army as a Sepoy in the EME Branch

on 15.03.2011. The Petitioner was found to be suffering from Primary

W.P.(C) 1181/2025 Page 2 of 19

Hypertension vide Medical Board conducted on 13.06.2020, and on

recategorization on 25.01.2021, the Petitioner was diagnosed with 30%

disability.

3. Thereafter, the Petitioner was served with a Show Cause Notice

[‘SCN’] dated 24.11.2021, proposing to terminate the Petitioner’s service

for the disability incurred and granting the Petitioner 24 hours to submit his

reply. Thereto, the Petitioner submitted his reply on 25.11.2021, requesting,

inter alia, his retention in the service under the prevailing medical category.

4. It is stated that, however, the Petitioner was made to sign Appx ‘DE’

on 25.11.2021, the same day as his reply to the SCN, during the process of

raising a report on JCOs/OR downgraded to Permanent Low Medical

Category. The report was signed by the Dean, FEME, MCEME,

Secunderabad, on 30.11.2021. Pursuant thereto, the impugned discharge

order dated 11.01.2022 was issued, discharging the Petitioner from the

service under Rule 13(3), Clause III (iii)(a)(i).

5. The Senior Officer of EME Record Office fixed the date of discharge

on 31.05.2022. The Petitioner preferred the O.A. before the Tribunal,

challenging the impugned discharge order dated 11.01.2022 and praying for

reinstatement in service. However, the Tribunal disposed of the O.A vide

order dated 30.08.2024.

6. Being aggrieved, the Petitioner preferred an application to review its

judgment; however, the Tribunal dismissed the said application vide order

dated 09.10.2024, whilst stating that the Petitioner should avail remedy

before the appropriate forum.

7. In these facts, the Petitioner has preferred the present petition.

Submissions by the Petitioner

W.P.(C) 1181/2025 Page 3 of 19

8. The Petitioner states that the Respondents suo moto initiated his

discharge contrary to the mandatory Rule 13(3) Clause III(iii)(a)(i) of the

Army Rules 1954 [the ‘Army Rules’], as in the instant case the discharge

was contemplated without the conduct of Release Medical Board which is

sine qua non for initiating the discharge or invalidment from service, which

is axiomatic from the SCN where there is no such mention of Release

Medical Board.

8.1. He states that he had not completed the minimum qualifying service

to earn the pensionary benefits, which is fifteen [15] years, and in order to

dispense with the services of such person on medical disability, the Medical

Board is sine qua non.

8.2. He states that vide the recategorization dated 25.01.2021, he was

found to be suffering from Primary Hypertension [LMC

1

Permanent];

however, no recommendation was made by the Medical Board with regard

to the Petitioner not being fit for Army service.

8.3. He states that he had not appeared before the Release Medical Board

because the impugned discharge order dated 11.01.2022 was issued before a

Release Medical Board was constituted, which is contrary to the Army

Rules. He states that he requested continuation of services and completion of

his minimum serving period; however, the Respondents took a contrary

plea, as they first stated in their communications that the Petitioner had an

indifferent attitude, and in the counter affidavit, they stated that there was no

availability of an alternate sheltered appointment.

Submissions by the Respondents

9. Mr. Amit Gupta, learned SPC for the Respondents, states that the

1

Low Medical Category

W.P.(C) 1181/2025 Page 4 of 19

Petitioner was placed in the LMC P3(T-24) for Essential Primary

Hypertension w.e.f. 28.12.2019, and was later downgraded to permanent

LMC P2 (P) w.e.f. 25.01.2021.

9.1. He states that as per EME ROI II /2006 (Para 1223(c), 1228 & 1230)

[‘Appx ‘DE’], personnel in permanent LMC may be retained only against

sheltered appointments, if available.

9.2. He states that the Petitioner’s unit confirmed that there was no

sheltered appointment available, triggering initiation of discharge

proceedings under Army Rule 13(3) Clause III (iii)(a)(i).

9.3. He states that the SCN was in accordance with the Army Rules. The

Petitioner had vide his reply conveyed his willingness to continue service;

however, the OC unit clearly recorded his indifferent attitude to

trade/administrative duties, and therefore recommended non-retention.

9.4. He states that the discharge order issued on 11.01.2022 was read out

twice to the Petitioner.

9.5. He states that vide the impugned order, the Tribunal had directed the

Petitioner to appear before the Release Medical Board; however, the

Petitioner has not complied with the same, and therefore, pension formalities

could not be concluded.

9.6. He states that the procedure contemplated in the Army Rules has thus

been duly followed before the Petitioner was discharged from the services.

Court’s Findings

10. This Court has heard the parties and perused the record.

11. The Respondents, for discharging the Petitioner, have relied upon

Rule 13(3) Clause III (iii)(a)(i) of the Army Rules, and Army Order 46 of

1980 [‘AO 46 of 80’] to submit that the procedure prescribed in law has

W.P.(C) 1181/2025 Page 5 of 19

been duly followed before issuing the impugned discharge order dated

11.01.2022. Rule 13(3) Clause III (iii)(a)(i) reads as follows: -

12. The Respondents have also relied upon the letter dated 30.09.2010

2

[‘Guidelines of 2010’], which sets out the Guidelines to be followed by the

competent authority while considering continuation or discharge of PBORs

3

,

who are categorised by the Medical Board as SHAPE 2 or SHAPE 3, i.e.,

permanent LMC category. The relevant paragraph nos. 4, 5 and 6 of the said

policy read as follows: -

“Aim

4. To lay down the guidelines for effective management of permanent LMC

personnel in the Army as also to ensure that such personnel are not deprived of

various benefits offered from time to time by the Central/State Governments,

IHQ of MoD (Army), Non Government Organization, and so on.

Sheltered Appointment

5. AO 46/80 lays down instructions for disposal of permanent LMC personnel.

The retention of such personnel is now subjected to the following conditions:-

(a) Availability of suitable alternative appointments commensurate with

their medical category.

2

Letter No B/10210/Pt-IV-3(PBOR) dated 30.09.2010; “Disposal of Permanent LMC Personnel Below

Officer Rank”

3

Personnel Below Officer Rank

W.P.(C) 1181/2025 Page 6 of 19

(b) Such retention will not exceed the sanctioned strength of the Regiment/

Corps.

6. Guiding Principle. The guiding principles that should be considered by the

commanding officers and OIC Records for retention/ discharge of permanent

LMC Personnel are as under:-

(a) All endeavour should be made to allow such personnel to complete their

minimum pensionable service in their present rank as under:-

(i) Personnel in SHAPE 5. The minimum period of qualifying service

actually rendered and required for an invalid pension is 10 years.

(ii) Personnel in SHAPE 2/3. The minimum period of qualifying

service actually rendered and required for earning service pension will be

15 years (Auth – Para 5.1.2 of MoD, Department of Ex Servicemen

Welfare letter No 17 (4)/2008(2)/D(Pen/Pol) dated 12 November 2008).

(b) Take into consideration the nature of disability and capability of the

individual to look after himself outside the service and the need to continue

treatment at Service Hospitals which may not be located in the vicinity of

the individuals home station.

(c) Take into consideration the circumstances and which the injury has been

sustained and / or aggravated. No differentiation should be made between

attributable and non attributable cases, except for Battle Casualties. Each

case should be examined on merit.

(d) Ensure provisioning of requisite medical treatment to the individual

including fitting of artificial limbs or such aids which will assist the

individual to carryout his normal functions post discharge.

(e) Consider the effect on pensionary/ disability benefits from central and

state Govt/IHQ of MoD (Army)/ Non Government Organization and

any other such organization.

(f) Discharge of such permanent LMC personnel should help maintain the

operational efficiency of the unit as also man management. Every case

should be decided on its merit after analysing effect on state of manpower

holdings in the Regiment/ Corps and time required to recoup The void so

created.”

(Emphasis Supplied)

13. The Guidelines of 2010 refer to AO 46 of 80, which is the primary

document that regulates the retention and/or discharge of the Army

Personnel who are placed in the LMC [permanent]. The Army Order 46 of

1980 reads as follows: -

W.P.(C) 1181/2025 Page 7 of 19

“AO 46/80 Disposal of Permanent Low Medical Category Personnel Other

Than Officers

Aim

1. The aim of this Army Order is to lay down implementation instructions for

the disposal of permanent low medical category JCOs/OR in terms of

Ministry of Defence Letter No. A/32395.VIII/Org 2 (MP) (c)/713-S/A/D

(AG) dated 10-5-1977 as amended vide Corrigendum No. A/32395.X/Org 2

(MP) (c)/7167.A/D (AG) dated 26-11-1979, reproduced as Appendices A and

B respectively to this Order.

Retention

2. General Principles

(a) The employment of permanent low medical category personnel, at all

times, is subject to the availability of suitable alternative appointments

commensurate with their medical category and also to the proviso that this

can be justified in the public interest, and that their retention will not exceed

the sanctioned strength of the regiment/corps. When such an appointment is

not available or when their retention is either not considered necessary in the

interest of the service or it exceeds the sanctioned strength of the

regiment/corps, they will be discharged irrespective of the service put in by

them.

(b) Ordinarily, permanent low medical category personnel will be retained in

service till completion of 15 years' service in the case of JCOs and 10 years in

the case of OR (including NCOs). However, such personnel may continue to

be retained in service beyond the above period until they become due for

discharge in the normal manner subject to their willingness and the fulfilment

of the stipulation laid in sub-para (a) above.

3. All personnel retained in service in terms of Para 2 above will, under all

circumstances, be discharged on completion of their engagement

periods/retiring service limits. For this purpose, NCOs and JCOs will be

treated as under:

(a) NCOs will be discharged on completion of the retiring service limits

appropriate to ranks as opposed to the extended limits laid down in AO

13/77. However, their retention beyond the contractual period of engagement

will be regulated under the provisions of Paras 144 to 147 of the Regulations

for the Army, 1962.

(b) JCOs will be discharged on completion of the normal retiring service

limits as opposed to the extended limits laid down in AO 13/77.

4. Personnel suffering from pulmonary tuberculosis, including those who may

be cured of the disease, will be disposed of in accordance with the provisions

W.P.(C) 1181/2025 Page 8 of 19

of Ministry of Defence Letter No. 22679.DGAFMS/DG-3A/2721/D/ME

dated 18-7-1974 (reproduced in AO 150/75), as amended/amplified from

time to time.

5. Cases of all permanent low medical category personnel will be reviewed by

all concerned accordingly. In the case of those personnel who become due for

discharge as per the instructions contained in the preceding paragraphs,

immediate action will be taken in the normal manner to carry of (sic out) their

discharge, as expeditiously as possible.

6. This Order only lays down the general policy and procedure with regard to

the disposal of permanent low medical category personnel. The actual

discharge will, however, be carried out in accordance with the provisions of

Ministry of Defence Letter No. A/32395.VIII/Org 2 (MP) (c)/713-S/a/D (AG)

dated 10-5-1977, as amended vide Corrigendum No. A/32395.X/Org (MP)

(c)/7167.A/D (AG) dated 26-11-1979 (reproduced as Appendices A and B

respectively) and this HQ Letter No. 8861.AG/PS 2 (c) dated 18-8-1964, read

with Letter No. 8861.AG/PS 2(c) dated 26-3-1970/1-4-1970.

7. Cases of permanent low medical category personnel already decided under

the existing provisions, will not be reopened.

8. This supersedes all previous instructions on the subject.

A/32395.X/Org 2(MP)”

[Emphasis Supplied]

14. The Petitioner contends that Respondents have failed to follow the

procedure set out in Rule 13(3) Clause III (iii)(a)(i) regulating his discharge;

he therefore seeks the setting aside of the impugned order, the impugned

discharge order and seeks his reinstatement.

15. To appreciate the submissions of the Petitioner, this Court deems it

appropriate to trace the litigation history which led to the amendment of

Rule 13(3) and the insertion of Clause III (a)(i) on 13

th

May, 2010, for

prescribing a procedure for the discharge of Army Personnel, who have been

found in permanent LMC SHAPE 2/3.

16. In a Civil Appeal titled Union of India and Others v. Rajpal Singh

4

,

the Supreme Court, while upholding a judgment of the High Court of Delhi

5

,

4

(2009) 1 SCC 216 [Decision dated 07.11.2008]

5

Nb. Sub. Rajpal Singh v. Union of India and Others, decision dated 07.10.2005 [2005 SCC OnLine Del

W.P.(C) 1181/2025 Page 9 of 19

held that a Junior Commissioned Officer [‘JCO’] could not have been

discharged on account of his being placed in the LMC SHAPE 2/3 without

holding an Invalidating Medical Board. The said findings were returned by

the Supreme Court with reference to Rule 13(3)(I)(ii) of Army Rules as

applicable to the JCO. The Court held that an executive authority must

scrupulously follow the procedure prescribed under the Rule for the

discharge of the JCO. The concerned officer had been discharged on account

of non-availability of sheltered appointment on the recommendation of

Release Medical Board by referring to AO 46 of 80, however, the Supreme

Court held that effectively the officer had been removed from service for

being medically unfit, and therefore, the procedure contemplated in Clause

(I)(ii) was applicable and rejected the reliance placed by the Respondents on

clause (I)(iii). Accordingly, the discharge order was set aside, and the JCO

was directed to be reinstated.

17. The aforesaid judgment of the Supreme Court in Rajpal Singh

(supra) was followed by the Division Bench in the batch petitions, Subedar

(SKT) Puttan Lal v. Union of India

6

, whereby the Respondents, in

pursuance of a policy letter dated 12.04.2007, discharged PBORs, who were

in SHAPE 2/3, without holding an Invalidating Medical Board, in

contravention of Rule 13(3), Clause (III)(iii) of the Army Rules. The

Division Bench held that the aforesaid pronouncement of law of the

Supreme Court pertaining to Rajpal Singh (supra) would be equally

applicable to PBORs and set aside all the discharge orders on the ground of

non-holding of the Invalidating Medical Board. The PBORs were directed to

be reinstated, and these orders have since been implemented.

1078]

6

W.P.(C) No. 5946/2007; 2008: DHC: 3075 dated 20.11.2008

W.P.(C) 1181/2025 Page 10 of 19

18. Significantly, in the judgment of the Supreme Court in Rajpal Singh

(supra), AO 46 of 80, as applicable to the Army Personnel found in SHAPE

2/3 categories, was discussed in detail as the Respondents had placed

reliance upon the same to justify the discharge. The submissions of the

Respondents on the procedure to be followed for discharge as per AO 46 of

80 read as under: -

“19. It is the say of the appellants that the release of certain medical category

(permanent) personnel is regulated by Army Order 46 of 1980, which

contemplates that the army personnel, who is placed in low medical category

(permanent), is to be retained in service for a minimum period of 15 years (for

Sepoy) and 20 years (for JCO) and during this period he is entitled to all

promotions as per the Rules; the discharge of low medical category is

regulated as per the abovementioned Army Order and before the discharge,

the personnel is placed before the “Release Medical Board” for a mandatory

examination before the order of discharge is passed. An army personnel who

is categorised as SHAPE V is considered to be not fit for further service of the

Army and on placing such a personnel in SHAPE V he is mandatorily brought

before the Invalidating Board in terms of Rule 13(3), whereas an army

personnel who is in SHAPE II or in SHAPE III, is to undergo different

Medical Boards apart from annual medical examination. The said personnel

are not totally unfit but at the same time they are not fit for all the army duties

and, therefore, they are retained for 15 years or 20 years, as the case may be,

on the sheltered post mandatorily.”

[Emphasis Supplied]

However, reliance placed by the Respondents on AO 46 of 80 for

justifying the discharge of the JCO was rejected as they did not find any

place in the statutory provision of Rule 13. The finding of the Supreme

Court is as follows: -

“30. A plain reading of the Army Order shows that it comes into operation

after an opinion has been formed as to whether a particular personnel is to be

retained in service or not, if so for what period. If a person is to be retained in

service despite his low medical category for a particular period as stipulated in

Army Order 46 of 1980, the question of subjecting him to the Invalidating

Board may not arise. However, if a person is to be discharged on the ground of

W.P.(C) 1181/2025 Page 11 of 19

medical unfitness, at that stage of his tenure of service or extended service

within the meaning of the Army Order, he has to be discharged as per the

procedure laid down in Clause I(ii) in Column 2 of the said Table.”

The Supreme Court concluded that the legal effect of the discharge of

SHAPE 2 JCO was that the JCO had been held by the Army to be medically

unfit for further service, and for such a determination, the Court held that it

should be only on the basis of the recommendation of an Invalidating

Medical Board.

19. In the background of the aforesaid judgments, the Central

Government on 13

th

May, 2010 amended Rule 13 and inserted separate

Clauses in the Table for prescribing a distinct ground for discharge of JCO,

Warrant Officer and persons enrolled under the Act who have been attested

respectively, when they are found to be in permanent LMC SHAPE 2/3 by a

Medical Board and either no sheltered appointment is available in the unit or

the officer/personnel is surplus to the organisation. The newly inserted

Clauses also provided for the manner of discharge. In this petition, we are

concerned with the compliance of the procedure contemplated under the

newly inserted Clause III (iii)(a), as the Petitioner herein is a Sepoy.

20. The aforesaid judgment of the Division Bench in Subedar Puttan

Lal (supra) also led to the Respondents issuing the letter dated 30.09.2010

7

,

formulating the Guidelines for management of the permanent LMC in

SHAPE 2/3 with respect to PBORs, for the due implementation of Rule

13(3), Clause III (iii)(a) and AO 46 of 80.

21. The judicial pronouncements in Rajpal Singh (supra) and Subedar

Puttan Lal (supra) show that the Respondents would have to ensure that a

7

Letter No B/10210/Pt-IV-3(PBOR) dated 30.09.2010; “Disposal of Permanent LMC Personnel Below

Officer Rank”

W.P.(C) 1181/2025 Page 12 of 19

discharge of a PBOR, who has been medically categorised as LMC SHAPE

2/3, is discharged strictly in accordance with the procedure contemplated in

Rule 13(3), Clause III(iii)(a). The plain reading of the said Clause shows

that the provision stipulates that personnel, who are found to be in

permanent LMC SHAPE 2/3, and when either no sheltered appointment is

available in the unit, or he is surplus to the organisation, such an individual

will be discharged from service on the recommendation of the Release

Medical Board by the Commanding Officer.

AO 46 of 80 stipulates that the Army Personnel, who are in

permanent LMC SHAPE 2/3 will ordinarily be retained in service for a

minimum period of 15 years [for Sepoy] and 20 years [for JCO]. The

Guidelines of 2010 circulated for implementation of Rule 13 Clause III

(iii)(a), at paragraph 6(a), again clarifies that all endeavour should be made

to retain the PBOR falling in SHAPE 2/3 so as to enable the concerned

individual to complete his minimum pensionable service. The Respondents

in their submissions before the Supreme Court in Rajpal Singh (supra) as

recorded at paragraph 19 [extracted above] had submitted that it is their

understanding that an Army personnel, who is categorised in SHAPE 2/3

will be retained in service to enable him to serve the minimum pensionable

service period, and thereafter, his discharge will be regulated on the

procedure stipulated in Army Order 46 of 1980.

Thus, on a conjoint reading of Army Order 46 of 1980, Guidelines of

2010 and the submissions of the Respondents recorded in the Supreme Court

judgment, it becomes apparent that PBORs falling in SHAPE 2/3 will

ordinarily be permitted to complete pensionable service. The reason for

ordinarily stipulating retention of PBORs, who are in SHAPE 2/3 until they

W.P.(C) 1181/2025 Page 13 of 19

complete pensionable service is apparent, as a PBOR who is in the SHAPE

2/3 category is not per-se unfit for service in the Army but is only unfit for

certain duties. It is also the stand of the Respondents that SHAPE 2/3 are not

personnel who are otherwise medically unfit for service in the Army because

that category of personnel would be SHAPE 5.

22. We shall now proceed to examine the facts of the present case in light

of the aforesaid settled law.

23. The Petitioner, at the time of his enrolment on 15.03.2011, was in the

SHAPE 1 category. Subsequently, on 08.12.2019, he was placed in medical

classification P3(T-24), i.e., LMC temporary. He was thereafter categorised

in medical classification P2(T-24), i.e., LMC temporary w.e.f. 28.11.2020.

Finally, on 25.01.2021, in pursuance of Medical Board proceedings, he was

re-categorised as P2(P), i.e., LMC permanent and therefore his overall

medical category stood at S1H1A1P2(P)E1. The specialist opinion dated

21.01.2021 formed the basis of this re-categorisation.

The sole disability for categorising Petitioner as P2(P) was Primary

Hypertension, and his disability was assessed at 30%.

24. The Petitioner was served with the SCN on 24.11.2021, which simply

stated that permanent LMC personnel are required to be discharged from

service in accordance with the Corps percentage and the individual’s

willingness. It was further stated that the Petitioner is required to show cause

why he should not be discharged in the public interest.

25. The Petitioner responded in writing on 25.11.2021 and stated that he

was willing to continue in service and submitted that he is capable of

carrying out his duties, i.e., of a Cook. He sought to be permitted to continue

in service.

W.P.(C) 1181/2025 Page 14 of 19

26. The Petitioner was provided with Form Appx ‘DE’ on 25.11.2021,

where Part I has to be filled in by the individual. The Petitioner duly filled it

up and once again recorded that he is willing to continue in service. On this

relevant date, Petitioner had served for 11 plus years, and he was therefore

short of his minimum pensionable service, i.e., 15 years.

27. Part II of Appx ‘DE’ had to be filled in by the competent officer, i.e.,

OC

8

of the Unit. In the relevant questions at points 2(g), (h) and (j), the

competent officer did not recommend the Petitioner’s retention and recorded

the reason for the non-recommendation to be an ‘indifferent’ attitude

towards trade-work/admin work. The view of the OC Unit was endorsed on

30.11.2022 at Part III by the Dean, FEME, MCEME. In this background, as

on 30.11.2022, the Petitioner was not recommended for further retention and

was ordered for discharge from service by OIC EME Records by an

endorsement of 02.01.2022.

28. The discharge order was passed on 11.01.2022. The relevant entry

pertaining to the Petitioner at serial no. 28 is as follows: -

29. As can be seen from the above, the Respondents have referred to

Army Rule 13(3) Clause III (iii)(a)(i) as the relevant Rule under which the

Petitioner has been discharged. The said Clause, as discussed hereinabove, is

applicable in either of two circumstances, one of which is that no sheltered

appointment is available in the unit. The Respondents, in their pleadings and

8

Officer Commanding Unit

W.P.(C) 1181/2025 Page 15 of 19

arguments, are categorical to the effect that there was no sheltered

appointment available in the unit at the relevant time, and this is the basis for

discharging the Petitioner on 11.01.2022. This stand has also been reiterated

by the Respondents in their letter dated 09.03.2026, placed before this Court,

the relevant paragraph reads as follows: -

“2. As per IHQ of MoD (Army) letter No B/10201/Vol-VI/MP-3 (PBOR) dt 30

Sep 2010 (copy att), Commanding Officer is the competent auth to provide

sheltered appt to permt LMC indl. Retention in r/o No 17013259F Sep

Dharamvir Kumar in LMC under sheltered appointment was not recommended

by MCEME, Secunderabad due to non-availability of sheltered appt in the

unit.”

30. In view of this categorical stand of the Respondents, we have

examined the correspondence and documentation initiated by the

Respondents post 25.01.2021 to examine the plea of unavailability of a

sheltered appointment, which led to the passing of the final order of

discharge on 11.01.2022 to see if the procedure contemplated under Rule 13

(3), Clause III (iii)(a)(i) has been followed or not.

31. We note that significantly, the SCN dated 24.11.2021 addressed to the

Petitioner did not state that there was no sheltered appointment available in

the unit. Similarly, Appx ‘DE’ at part-II, III and IV also did not record that

there was no sheltered appointment available in the unit. Part II of the Appx

‘DE’ was filled in by the Commanding Officer, and while answering

question 2(j), which required reasons for not recommending retention, there

is no entry that a sheltered appointment is unavailable in the unit. On the

contrary, it is written that the Petitioner is not recommended for retention

due to indifferent attitude to trade work/admin work.

32. The ground of ‘indifferent’ attitude to trade work/admin work is not

the ground on which Rule 13(3) Clause III (iii)(a) can be invoked for

W.P.(C) 1181/2025 Page 16 of 19

discharging a Sepoy. The procedure for discharging a Sepoy on the ground

of ‘indifferent’ attitude is governed by a distinct procedure and is considered

a disciplinary case. This becomes amply evident from the Respondents

Guidelines of 2010, which expressly clarify this at paragraph 8, which reads

as follows: -

“8. Disciplinary/Indifferent Cases. No special provision is necessary for

discharge of permanent LMCs who become disciplinary case or adopt an

indifferent or casual attitude to work. In such cases, necessary disciplinary or

administrative action, and if required, discharge proceedings, may be initiated

by the Commanding Officer in accordance with existing orders/procedures.

These cases will, therefore, not be governed by the provisions of this letter.”

In these facts, therefore, it is evident that the Commanding Officer did

not even consider the availability of the sheltered appointment in the unit,

and therefore, this reason offered by the Respondents in their pleadings and

recorded in the impugned discharge order is not supported by the record.

33. Before we adjudicate on the correctness of the procedure followed by

the Respondents in this case, we note that, as per Clause III (iii)(a)(i), the

Commanding Officer cannot discharge the Petitioner without first seeking

the recommendation of the Release Medical Board. In the facts of this case,

the Petitioner’s discharge was recommended as per Appx ‘DE’ on

30.11.2021, and the discharge order itself was issued on 11.01.2022.

Admittedly, no recommendation of the Release Medical Board was taken

before recommending the discharge on 30.11.2021 or even prior to the

issuance of the discharge order itself on 11.01.2022.

The Respondents, in their counter-affidavit

9

filed before this Court

have stated that the documents for the Release Medical Board were prepared

and handed over to the Petitioner on 04.02.2022.

9

Paragraph 12

W.P.(C) 1181/2025 Page 17 of 19

It is thus apparent from the record that the impugned discharge order

has been passed without any recommendation of the Release Medical Board,

which, as per Rule 13(3) Clause III (iii)(a), is a mandatory condition

precedent.

34. We have perused the impugned order passed by the Tribunal and find

that the Tribunal has presumed that the recommendation made by the

Commanding Officer for the Petitioner’s discharge is based on the Release

Medical Board; however, the said finding of the Tribunal is contrary to the

record placed before this Court.

35. In view of our findings above, it can be summarised that the

Petitioner’s recommendation for discharge was issued by the unit on

30.11.2021, and the discharge order was issued on 11.01.2022.

Therefore, this recommendation for the Petitioner’s discharge was not

based on the non-availability of a sheltered appointment in the unit; nor was

the discharge order issued on the recommendation of a Release Medical

Board.

It is thus apparent that the jurisdictional conditions for invoking

Clause III (iii)(a)(i) of Rule 13(3) do not exist in the facts of this case, and

therefore, the discharge order is not in accordance with the procedure laid

down in law.

36. We also note that, as on 30.11.2021, when the Petitioner was

recommended for discharge, he had not completed his minimum

pensionable service and therefore it was all the more incumbent for the

Respondents to make best efforts to assess whether the Petitioner could be

accommodated in a sheltered appointment within the unit or offered an

alternative employment. The Petitioner was short of approximately 3½ years

W.P.(C) 1181/2025 Page 18 of 19

of pensionable service. The discharge has resulted in him not being entitled

to any pension despite having served well for 11 plus years. The failure of

the Commanding Officer to bear this vital issue in mind has resulted in non-

compliance with the mandate of AO 46 of 80 and Guidelines of 2010, which

contemplate that ordinarily a Sepoy shall be permitted to complete his

minimum pensionable service. We find from the pleadings that the

Respondents have not even applied their mind to this inequity before issuing

the discharge order, which has been caused to the Petitioner, who has

approximately served for 11 plus years. The impugned discharge order is

liable to be set aside on this ground of non-consideration as well.

37. The Tribunal in the impugned order has taken note of the fact that the

Petitioner will not receive any service pension due to non-pensionable

service and has observed in obiter that the Petitioner’s case may be

considered for disability element of the pension or invalid pension.

However, the Respondents in Appx ‘DE’ have concluded that the disease of

Primary Hypertension is not attributable to service, and therefore it is

evident that they have no intention to pay him disability element of pension.

Moreover, since the Petitioner is not being discharged on the

recommendation of the Invalidating Medical Board, the Respondents will

not even sanction his invalid pension. It is thus clear that in these facts, the

Petitioner, who has served for approximately 11 plus years and has

expressed his willingness to continue in service, has been compulsorily

discharged without him having earned service pension. In our considered

opinion, the Petitioner’s discharge is in contravention of its stated objectives

set out in AO 46 of 80 and Guidelines of 2010, where the service pension of

the Sepoy in SHAPE 2/3 is intended to be facilitated, as far as possible.

W.P.(C) 1181/2025 Page 19 of 19

38. For the reasons recorded hereinabove, the impugned discharge order

dated 11.01.2022 is hereby quashed. The Petitioner is hereby reinstated in

the services with effect from 31.05.2022. The Petitioner will be entitled to

all consequential benefits, including continuity of service, pay and

allowances and seniority as per the Rules. The Petitioner will report to the

concerned unit from where he was discharged within a period of 30 days

from today. The pay and allowances and other benefits to which the

Petitioner is entitled will be remitted within three months from today, after

adjusting any payments

10

already made to the Petitioner after 31.05.2022. In

case there is any delay in making payments of the arrears, the Respondents

will be liable to pay interest at 8% per annum, w.e.f. 31.05.2022.

39. In view of our findings above, the impugned order of the Tribunal

dated 30.08.2024 is also hereby set aside.

40. With the aforesaid directions, the petition, along with pending

application[s], if any, are disposed of.

MANMEET PRITAM SINGH ARORA , J

V. KAMESWAR RAO , J

APRIL 20, 2026/hp/aa

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Paragraph 15 of the impugned order of the Tribunal records the payments made to the Petitioner post

31.05.2022