REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6587 OF 2008

(Arising out of S.L.P. (C) No. 6037 of 2007)

UNION OF INDIA & ORS. —APPELLANT (S)

VERSUS

RAJPAL SINGH —RESPONDENT (S)

WITH

[SLP (C) NOS. 14338-14339 OF 2008 AND

SLP (C) NO.15430 OF 2008]

J U D G M E N T

D.K. JAIN, J.:

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

1

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 9

th

March, 1980. While serving

20 JAT Regiment, on 31

st

July, 2000, he fell ill; was admitted

to the military hospital and was discharged after treatment on

7

th

November, 2000, but was placed in low medical category

S1H1A1P2E1 with effect from 6

th

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.

2

4.However, before the expiry of the said period of two years, a

show cause notice was served on the respondent on 27

th

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”

3

5.In his reply to the said notice, the respondent pleaded that

on doctor’s 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 31

st

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

4

and a “Release Medical Board” cannot replace the

requirement of “Invalidating Board”; (iii) as per the policy

directive issued by the Government on 15

th

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) order of his discharge without providing an

opportunity of hearing is violative of the principles of

natural justice and (vi) a number of similarly situated JCOs

had been retained in service and, therefore, he had been

discriminated against.

7.The stand of the Government before the High Court was

that retention of low medical category personnel is always

5

subject to the availability of suitable sheltered appointment,

commensurate with their medical category and since no

suitable sheltered appointment was available with the unit

due to deployment in field area, the respondent had to be

discharged from service. It was also urged that since the

respondent’s disability had already been assessed by the

Release Medical Board, he was discharged under Army Rule

13 (3) (I) (iii) (c) read with Rule 13 (2A) and Army Order

46/80 in public interest.

8.The High Court, by a well reasoned order, concluded that

the discharge of the respondent without holding an

“Invalidating Board” in terms of Rule 13 (3) (I) (ii) was

illegal. As regards the applicability of Army Order 46 of

1980, which contemplates that the employment of

permanent low medical category personnel at all times is

subject to availability of suitable sheltered appointment,

commensurate to their medical category, the High Court

held that before the opinion is formed as to whether a

person is to be retained or not on medical grounds, there

6

has to be an opinion of the Invalidating Board to the effect

that further retention in service on medical ground is not

possible. The question of suitable sheltered appointment

commensurating the medical category will be relevant only

thereafter. According to the High Court, there is no rule

stipulating that as soon as a person is placed in permanent

low medical category, it will be presumed that he is unfit for

further service. Consequently, the High Court allowed the

writ petition; quashed the order of discharge and directed

the appellants herein to reinstate the respondent in service.

9. Aggrieved by the said order, the appellants filed a Review

Petition along with a number of other miscellaneous

applications for interim relief. The Review Petition as well

as the applications were dismissed on merits as well as on

the ground of limitation. The main order dated 7

th

October,

2005 as well as the order in Review Petition dated 25

th

January, 2007 are under challenge in this appeal.

10.It was strenuously urged by Mr. Vikas Singh, learned

Additional Solicitor General, that since the respondent was

7

in low medical category, he was discharged under Army

Order 46 of 1980 read with Rule 13 (3) (I) (ii) (c) of the Army

Rules, 1954 (for short ‘the Rules’) whereunder there is no

requirement for convening an Invalidating Board. It was

submitted that the source of power of discharge of the

respondent was Sub-rule (2A) of Rule 13, which creates a

special provision for discharge, notwithstanding anything to

the contrary contained in Rule 13. It was contended that

the meaning of the expression ‘unfit for further service’ as

used in clause (ii) of Rule 13 (3) (I) is very clear and

unambiguous and, therefore, “Invalidating Board” as

contemplated under the said Rule is meant only for those

army personnel who are found medically ‘unfit for further

service’ by the Review Medical Board not for those who are

placed in ‘low medical category (permanent)’, as is the case

here. In support of the proposition that when the words of

the statute are clear, plain and unambiguous then the

courts are bound to give effect to that meaning, irrespective

of the consequences, reliance is placed on the decisions of

this Court in Gurudevdatta Vksss Maryadit & Ors. Vs.

8

State of Maharashtra & Ors.

1

and Jitender Tyagi Vs.

Delhi Administration & Anr.

2

. Reference is also made to

Shailendra Dania & Ors. Vs. S.P. Dubey & Ors.

3

to

contend that a long past practice followed by the

department is also a valid factor in seeking a particular

interpretation.

11.Per contra, Mr.P.P. Rao, learned senior counsel appearing

for the respondent, vehemently contended that in terms of

Sub-rule (3) of Rule 13 which specifies the category of

officers, competent to discharge; the grounds of discharge,

and the manner of discharge, a JCO like the respondent,

who had been placed in low medical category (permanent)

for a period of two years, could be discharged from service

only if he had been found “medically unfit for further

service” on the recommendation of the Invalidating Board.

According to the learned counsel, though in the order of

discharge the respondent has been found to be in “low

medical category (permanent)” but in effect, for the purpose

1

(2001) 4 SCC 534

2

(1989) 4 SCC 653

3

(2007) 5 SCC 535

9

of discharge, he has been found medically “unfit for further

service”, and, therefore, his case would clearly fall within

the ambit of clause (ii) of Rule 13 (3) (I). In support of the

proposition that where power is given to do a certain thing

in a certain way, the thing must be done in that way or not

at all and that other methods of performance are

necessarily forbidden, reliance was placed on the decision

in Nazir Ahmad Vs. The King Emperor

4

, followed in

State of Uttar Pradesh Vs. Singhara Singh & Ors.

5

.

Learned counsel argued that the requirement of

recommendation of Invalidating Board is a safeguard

against arbitrary curtailment of statutory tenure and being

a benevolent provision, requires to be liberally construed.

The stand of the respondent is that the Rules relating to

discharge do not make any differentiation between

categorisation of the personnel on the basis of their health

status and as long as a person is discharged on medical

grounds as being unfit for further service, provision of Rule

13 (3) (I) (ii) would apply, irrespective of categorisation. In

4

L.R. 63 I.A. 372

5

[1964] 4 SCR 485

10

so far as Army Order 46 of 1980 is concerned, the learned

counsel submitted that it cannot override the statutory

rule. Placing reliance on the decision of this Court in Capt.

Virendra Kumar Vs. Union of India

6

, learned counsel

urged that the appellants having failed to follow the

prescribed statutory procedure, the termination of service of

the respondent was illegal and, therefore, the High Court

was fully justified in setting aside the same.

12.Having examined the issue in the light of the statutory

provisions, we are of the opinion that answer to the

question posed has to be in the affirmative.

13.It needs little emphasis that fitness of the personnel of

Armed Forces at all levels is of paramount consideration

and there cannot be any compromise on that score. It is

with this object in view, the Legislature has enacted the

Army Act, 1950; the Armed Forces Medical Services Act,

1983 and framed the Rules. Army Orders are also issued

from time to time in order to give effect to these statutory

provisions in letter and spirit. As per the procedure

6

(1981) 1 SCC 485

11

detailed in the written submissions, filed on behalf of the

appellants, annual or periodic medical examination of the

army personnel is done on certain specific norms. The

medical status of an army personnel is fixed on the basis of

these norms, containing five components viz. (a) psychology

(b) hearing (c) appendarist (d) physical and (e) eye — which

is collectively known as SHAPE. The medical status SHAPE

is again characterised in five components known as:—

SHAPE I—physically fit for all purposes.

SHAPE II & SHAPE III—not fit for certain

duties and are required not to undertake

strain.

SHAPE IV—those who are in hospital for

certain ailments and

SHAPE V—unfit for further service of the

Army.

14.It is pointed out that army personnel are put in the afore-

mentioned medical categories i.e. SHAPE on the basis of a

periodical Medical Board which is held for an individual

after the age of 35 years and thereafter at an interval of

every 5 years. If the army personnel is in SHAPE I, he is

12

not required to undergo further Medical Board except

annual medical examination. However, the army personnel

who is placed in SHAPE II and SHAPE III on the annual

medical examination, he is placed in low medical category

(temporary) for a period of six months. After six months, he

is placed before the Review Medical Board and if at the end

of six months, his category remains unchanged, that

category is awarded to him on permanent basis and he is

placed in “low medical category (permanent)”. After award

of low medical category (permanent), the army personnel is

placed before the Review Medical Board after every two

years. In Review Medical Board, the medical category of the

personnel may be changed keeping in view the change in

any component of SHAPE. Thus, SHAPE II or SHAPE III

may be placed in SHAPE I also and vice versa. It is the say

of the appellants that the release of certain medical

category (permanent) personnel is regulated by Army Order

No.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

13

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 above-mentioned 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 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.

15.Having noticed the basic parameters which are applied for

categorisation of the physical status of the army personnel,

14

it will be useful to briefly refer to relevant statutory

provisions.

16.Chapter IV of the Army Act, 1950 (for short ‘the Act’) deals

with the conditions of service of the army personnel.

Section 18 of the Act provides that every person subject to

the Act shall hold office during the pleasure of the

President. Section 19 clothes the Central Government with

the power of dismissal or removal from service any person

covered under the Act subject to the provisions of the Act

and the Rules and Regulations made thereunder. Section

20 provides for dismissal, removal or reduction by the Chief

of the Army Staff and by other officers. Section 22 of the

Act provides for retirement, release or discharge from the

service by such authority and in such manner as may be

prescribed. Sub-Section (xix) of Section 3 of the Act states

that ‘prescribed’ means prescribed by rules made under the

Act. Section 191 empowers the Central Government to

make rules as regards removal, retirement, release or

discharge from the service of persons subject to the Act.

15

Pursuant to and in furtherance of the power conferred on

the Central Government under Section 191 of the Act, the

Central Government framed the Rules.

17.Rule 13 which is the pivotal provision reads thus:

“13. Authorities empowered to authorise discharge.—(1) Each of the

authorities specified in column 3 of the Table below, shall be the

competent authority to discharge from service person subject to the Act

specified in column 1 thereof on the grounds specified in column 2.

(2) Any power conferred by this rule on any of the aforesaid authorities

shall also be exercisable by any other authority superior to it.

[(2A) Where the Central Government or the Chief of the Army Staff

decides that any person or class or persons subject to the Act should be

discharged from service, either unconditionally or on the fulfillment of

certain specified conditions, then, notwithstanding anything contained in

this rule, the Commanding Officer shall also be the competent authority

to discharge from service such person or any person belonging to such

class in accordance with the said decision.]

(3) In this table “commanding officer” means the officer commanding the

corps or department to which the person to be discharged belongs except

that in the case of junior commissioned officers and warrant officers of

the Special Medical Section of the Army Medical Corps, the “commanding

officer” means the Director of the Medical Services, Army, and in the case

of junior commissioned officer and warrant officers of Remounts,

Veterinary and Farms, Corps, the “Commanding Officer” means the

Director Remounts, Veterinary and Farms.

TABLE

Category Grounds of

discharge

Competent

authority to

authorise

discharge

Manner of

discharge

1 2 3 4

16

Junior

Commissioned

Officers

I.(i)(a) On completion

of the period of

service or tenure

specified in the

Regulations for his

rank or

appointment, are on

reaching the age

limit whichever is

earlier, unless

trainee on the active

list for further

specified period with

the sanction of the

Chief of the Army

Staff or on becoming

eligible for release

under the

Regulations.

Commanding

Officer

(b) At his own

request on transfer

to the pension

establishment

Commanding

Officer

(ii) Having been

found medically

unfit for further

service.

Commanding

Officer

To be carried out

only on the

recommendation

of an

Invalidating

Board.

(iii) All other classes

of discharge.

(a) In the case

of Junior

Commissioned

Officers

granted direct

commissions

during the first

12 months

service Area/

Divisional

Commander

If the discharge

is not at the

request of the

Junior

Commissioned

Officer the

competent

authority before

sanctioning the

discharge shall if

the

circumstances of

the case permit

give the Junior

Commissioned

Officer

concerned an

opportunity to

show cause

against the order

of discharge.

17

(b) In the case

of JCOs, not

covered by (a),

serving in any

Army or

Command the

General Officer

Commanding-

in-Chief of that

Army or

command if

not below the

rank of

Lieutenant

General.

(c) In any

other case the

Chief of the

Army Staff.”

18.The afore-extracted Rule 13 (1) clearly enumerates the

authorities competent to discharge from service, the

specified person; the grounds of discharge and the manner

of discharge. It is manifest that when in terms of this Rule

an army personnel is discharged on completion of service or

tenure or at the request of the person concerned, no

specific manner of discharge is prescribed. Naturally, the

Regulations or Army Orders will take care of the field not

covered by the Rules. However, for discharge on other

grounds, specified in Column (2) of the Table, appended to

the Rule, the manner of discharge is clearly laid out. It is

18

plain that a discharge on the ground of having been found

“medically unfit for further service” is specifically dealt with

in Column (I) (ii) of the Table, which stipulates that

discharge in such a case is to be carried out only on the

recommendation of the Invalidating Board. It is a cardinal

principle of interpretation of a Statute that only those cases

or situations can be covered under a residual head, which

are not covered under a specific head. It is, therefore, clear

that only those cases of discharge would fall within the

ambit of the residual head, viz. I (iii) which are not covered

under the preceding specific heads. In other words, if a

JCO is to be discharged from the service on the ground of

“medically unfit for further service”, irrespective of the fact

whether he is or was in a low medical category, his order of

discharge can be made only on the recommendation of an

Invalidating Board. The said rule being clear and

unambiguous is capable of only this interpretation and no

other.

19

19.Having reached the said conclusion, we feel that the

appellants were bound to follow Rule 13 (3) (I) (ii), more so

having placed the respondent in low medical category

(permanent) for a period of two years from October, 2001 he

was discharged from service on 31

st

August, 2002, relying

on the recommendation of the Re-categorisation Board held

on 24

th

October, 2001. As noted in the show cause notice,

extracted above, the said Board had placed the respondent

in “permanent low medical category”. Be that as it may, the

main ground of discharge being medical unfitness for

further service, the appellants were bound to follow the

prescribed rule.

20.It is well settled rule of administrative law that an executive

authority must be rigorously held to the standards by

which it professes its actions to be judged and it must

scrupulously observe those standards on pain of

invalidation of an act in violation of them. This rule was

enunciated by Justice Frankfurter in Viteralli Vs. Saton

7

,

where the learned Judge said:

7

359 U.S. 535 : Law Ed (Second series) 1012

20

“An executive agency must be rigorously held to the

standards by which it professes its action to be

judged… Accordingly, if dismissal from employment

is based on a defined procedure, even though

generous beyond the requirements that bind such

agency, that procedure must be scrupulously

observed…This judicially evolved rule of

administrative law is now firmly established and, if I

may add, rightly so. He that takes the procedural

sword shall perish with that sword.”

21.The afore-extracted observations were approved and

followed in Sukhdev Singh & Ors. Vs. Bhagatram

Sardar Singh Raghuvanshi & Anr.

8

and then again in

Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab &

Ors.

9

wherein, speaking for a three-Judge Bench, P.N.

Bhagwati, J. had observed that though the above view was

not based on the equality clause of the United States

Constitution and it was evolved as a rule of administrative

law but the principle remains the same, namely, that

arbitrariness should be eliminated in a State action. (Also

see: Ramana Dayaram Shetty Vs. International Airport

Authority of India & Ors.

10

).

8

(1975) 1 SCC 421

9

(1975) 3 SCC 503

10

(1979) 3 SCC 489

21

22.In view of the foregoing interpretation of the relevant rule,

we are in complete agreement with the High Court that

where a JCO is sought to be discharged on the ground of

medical unfitness for further service, his case has to be

dealt with strictly in accordance with the procedure

contemplated in Clause I (ii) in Column 2 of the Table

appended to Rule 13. The Rule prescribes a particular

procedure for discharge of a JCO on account of medical

unfitness, which must be followed and, therefore, any order

of discharge passed without subjecting him to Invalidating

Board would fall foul of the said statutory rule.

23.In the present case, it is evident from Column 9 of the

order of discharge that respondent has been discharged on

account of his having been placed in a low medical category

(permanent) by the Re-categorisation Board. As noted

above, he was not discharged immediately and was

apparently detailed for sheltered appointment. However,

suddenly within a few months of his evaluation by the “Re-

categorisation Board”, he was served with a show cause

22

notice, seeking to discharge him on the aforementioned

grounds. We are convinced that although the discharge is

purportedly shown to be also on account of non-availability

of a sheltered appointment, the main ground for discharge

was undoubtedly on account of permanent low medical

category i.e. medical unfitness. In that view of the matter,

the order of discharge of the respondent would not fall

under the residual ground, namely, I (iii) in Column 2 of the

Table.

24.That takes us to the next question whether the case of the

respondent for discharge could be dealt with in accordance

with Army Order 46 of 1980, de hors Rule 13, as contended

by the appellants.

25.Relevant portion of the said order reads as follows:

“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 Min of Def Letter No. A/32395/VIII/Org 2

(MP) (c)/713-S/A/D (AG) dated 10 May, 77 as amended vide

Corrigendum No. A/32395/X/Org 2 (MP) (c)/7167/A/D (AG)

dated 26 Nov 79, reproduced as Appendice ‘A’ and ‘B’ respectively

to this order.

23

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

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 of Min of Def letter No.

22679/DGAFMS/DG-3A/2721/D(ME:- dated 18 Jul 74

(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

24

taken in the normal manner to carry of 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 Min of Def letter No.

A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77,

as amended vide Corrigendum No. A/32395/X/Org (MP) (c)/

7167/A/D (AG) dated 26 Nov 79 (reproduced as Appendices ‘A’

and ‘B’ respectively) and this HQ letter No. 8861/AG/PS 2 (c)

dated 18 Aug 64, read with letter No 8861/AG/PS 2(c) dated 26

Mar/1 Apr 70.

7. Cases of permanent low medical category personnel already

decided under the existing provisions, will not be re-opened.

8. This supersedes all previous instructions on the subject.

A/32395/X/Org 2(MP)”

26.It is manifest that the said Army Order has been issued for

disposal of permanent low medical category personnel and

merely contemplates that the employment of permanent low

medical category personnel at all times, is subject to the

availability of suitable alternative appointments

commensurate with their medical categories and also

subject to the conditions that such a sheltered appointment

can be justified in the public interest. 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

25

period. If a person is to be retained in service despite his

low medical category for a particular period as stipulated in

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

to Invalidating Board may not arise. However, if a person is

to be discharged on the ground of 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. Similarly, Sub-rule (2A) of Rule 13, heavily

relied upon by the appellants does not carry the case of the

appellants any further. It is only an enabling provision to

authorise the commanding officer to discharge from service

a person or a class of persons in respect whereof a decision

has been taken by the Central Government or the Chief of

Army Staff to discharge him from service either

unconditionally or on the fulfilment of certain specified

conditions. The said provision is not in any way in conflict

with the scope of the remaining part of Rule 13, so as to

give it an overriding effect, being a non obstante provision.

26

27.For the foregoing reasons, we wholly agree with the

reasoning and the conclusion of the High Court that the

discharge of the respondent was not in accordance with the

prescribed procedure and was, therefore, illegal. We do not

find any illegality or infirmity in the impugned

judgment/order, warranting our interference. The appeal,

being devoid of any merit, is dismissed accordingly with

costs.

SLP (C) NOS. 14338-14339 OF 2008 & SLP (C) NO.15430

OF 2008

28.These tagged special leave petitions have been preferred

against the orders passed by the High Court, declining to

grant interim relief to the writ petitioners. Since the main

issue now stands decided, there is no point in entertaining

these petitions. All the petitions are dismissed accordingly

without observing anything on merits. It will be open to the

High Court to now take up the main writ petitions for

disposal in accordance with law.

27

…………………………………………J.

(C. K. THAKKER)

..….…………………………………….J.

(D.K. JAIN)

NEW DELHI;

NOVEMBER 7, 2008.

28