JUDGMENT 1. - The petitioner who is an Ex-Army personnel and served in the capacity of Grenadier in the 13 Grenadiers (Ganga Jaisalmer) Wing of the Indian Army as per the Discharge certificate dated 27.08.1987 (Vide Annexure-1) has filed this writ petition under Article 226 of the Constitution of India wherein he has challenged the impugned order of his discharge from services dated 29.12.1987 (Annexure-2) on the grounds inter alia that the petitioner was enrolled in the defence services of the country and rendered his services satisfactorily for a period of 13 years 24 days in all reckoned w.e.f. 05.12.1974 till the date of his discharge, i.e. 29.12.1987. 2. The facts giving rise to the filing of this writ petition briefly stated, are that during the aforesaid tenure of service the petitioner has to his credit war service prom 02.01.1977 to 08.03.1979, 05.04.1983 to 17.10.1984 and 18.12.1985 to 16.03.1986. During his aforesaid service tenure he was decorated with commendations medals such as General Service Medal, Nav Vars Deergh Sewa Medal, High Altitude Medal and Mizoram-Binagadi Medals. During the year 1986, while the petitioner was rendering service as Grenadier in the high altitude at Chokewala due to inclement weather the petitioner had fallen sick and was examined by the doctors of Military Hospital at Srinagar (J & K) and was eventually placed in medical category "B" temporarily and was recommended two months annual leave with instructions to report to the nearest hospital. After the expiry of leave period which was recommended as above, the petitioner reported to the military hospital at Jaipur. After his examination by the Doctors at military hospital, the petitioner was permanently placed under medical category "B" w.e.f 13.05.1986 and was posted to his parental unit, i.e. 13th Grenadier at Jaipur. 3. Since his further retention in service was not recommended by the Doctors attending on him in Public Interest for health reasons as stated in the discharge certificate (Annexure-1), the brief spell of petitioner's service in Defence forces of the country came to end w.e.f. 27th August, 1987 when the petitioner was issued a Discharge certificate vide (Annexure-1) wherein it is mentioned that on account of having been placed in the lower medical category BEE "permanent", the petitioner has been discharged from Army service as no shelter appointment is available in the unit. It has further been, indicated in the said certificate that in accordance with the Army Headquarters' letter dated 27th March/ I4th April, 1976, show cause notice was served on the petitioner but he declined to receive the same or to sign in release medical board/discharge papers pertaining to him. 4. After the issuance of the aforesaid certificate, the petitioner was discharged from service of the army by an order of the Commanding Officer, 13th Bn Grenadier Regiment, Jaipur, respondent No. 4, (Vide Annexure-2) dated 29.12.1987 in accordance with Rule 13(2)(A) of the Army Rules, 1954 (for short "the Rules") after having rendered 13 years and 25 days of service in all. 5. During the course of hearing learned counsel for the petitioner has assailed the impugned order of discharge on the ground inter-alia that the medical authorities while placing the petitioner in medical category "B" "permanent" did not express any opinion to the effect that the petitioner was medically unfit to serve in the Army or was unfit for being retained in the service of the Army. The petitioner has also assailed the report of the medical board vide (Annexure-3) in this regard. Perusal of Annexure-3 which is captioned as Re-categorisation medical board, in the principal disability column it has been mentioned that the petitioner was suffering from "diabetes mellitus" in low medical category and the last medical board was held in October, 1985. It has further been opined by the Medical Board that the petitioner has been suffering from "Asymptomatic Appetite" with normal loss of O/E and there is no charged organ involvement and the medical treatment should continue. The petitioner has further contended that in the military service if any shelter happens to contract any disease for his fault or negligence, he is subjected to disciplinary action, but since the petitioner was not found negligent or at fault in contracting disease described in the medical certificate, no disciplinary action was taken against him which itself speaks that the aforesaid disease was not contracted by any fault or negligence of the petitioner. Learned counsel for the petitioner has further contended during the course of hearing that on perusal of the relevant documents as referred to above and which are forming part of writ petition, this court may come to the conclusion that the degree of disability is not in all cases of the nature as may interfere with the performance of normal working of functional capacity. It has further been pointed out by the learned counsel that this would by itself imply that a personnel who is kept in medical category "B" does not become waste for all the service and even if he is not found suitable for actual and close combat, he is fit for placement in the normal duties other than the duties of actual or close combat. In this connection the petitioner has contended in para 15 of the petition that even amongst the Grenadier as well as in the Grenadier Bn. or regiment, all Grenadiers deputed therein are not posted to actual or close combat and about 40 personnel are posted for internal management, arrangement and administration duties.and even if the petitioner was considered unfit for the same, he was fit for normal duties and could be placed for any duty in internal management, arrangement and administration. Hence the placement of the petitioner in medical category "B" could not render him unfit even if normal duties other than the actual or close combat were assigned to him. The petitioner has in this connection indicated that pursuant to the Army Order No. 146/77, there are medical categories running from A to E which may be temporary or permanent and his placement could have been done in any of the said categories. 6. During the course of hearing learned counsel for the petitioner has contended at the bar that notwithstanding the placement of the petitioner in medical category "B" as he was found unfit for actual or close combat, but since he had completed long spell of 13 years and 25 days of service and after completion of two more years in service i.e., 15 years in all, he could have become entitled to such other pensionary benefits as admissible to the personnel retiring on completion of 15 years of service. 7. 7. As regards the Army Order No. 146/77 which has the explanatory notes/appended to the same, at serial No. 2 of the said notes, it was contended by the learned counsel for the petitioner that all personnel who are placed in categories "B" and "C" whether temporary or permanent, are fit for employment on suitable duties. However, in deciding the employability of such personnel in specific instructions as laid down by the medical authorities as mentioned.in appendix "A" to the Army Order as aforesaid, shall be kept in view. This contention is borne out from para 18 of the petition wherein the petitioner has contended that the explanatory notes attached to the aforesaid Army Order created a right in favour of the petitioner to continue in service inspite of his placement in medical category "B" on such suitable duties which may be made available by the respondents and to this extent the impugned order of discharge dated 12.12.1987 (Annexure-2) is against the very spirit of the aforesaid Army Order vide Annexure 7. 8. With regard to the discharge order, Annexure-2, the petitioner has contended that his case is not at all covered by the provisions of Rule 13(ii)(i)(a) of the Rules which applies to Warrant Officers and not to the other ranks like the Grenadier of the petitioner's rank. It shall be appropriate to refer to Rule 13(2A) as well as 13(ll)(i)(a) of the Rules, 1954 which read as under : " 13(2-A)- Where the Central Government or the Chief of the Army Staff decides that an person or class of persons subject to the Act should be discharged from service, either unconditionally or on the fulfilment of certain specified conditions, then, notwithstanding anything contained in this rule, 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." "13(II)(i)(a) - On completion of the period of service or tenure specified in the Regulations for this rank or appointment, or on reaching the age limit, whichever is earlier, unless retained on the active list for a further specified period with the sanction of the Brigade/Sub-Area Commander or on becoming eligible to release under the Regulations." 9. The petitioner has assailed the aforesaid provisions of the Rules 1954 on the ground that the class to which the clause (ii)(i)(a) of Rule 13 is applicable may apply is only to the category of "Warrant Officer". Even if the said Rule is made applicable to the petitioner under any analogy whatsoever, the petitioner should have been discharged only on completion of minimum service tenure provided in Regulations which is 15 years of service. 10. Even if the said Rule 13(2)(i)(a) of the Rules is held applicable to the petitioner under any analogy whatsoever, the petitioner should have been discharged from service only on completion of minimum period of service tenure, i.e., 15 years for the purpose of regular pensionary benefits and since the petitioner has been discharged from service on recommendation of Invalidating Board, on completion of 13 years and 25 days of service, he has been put to loss of regular pensionary and other benefits as admissible to the similarly placed employee who would get the same on completion of 15 years of service. The petitioner has also placed reliance upon Army Order No. 29/73 as per which any personnel who is placed permanently in low medical category lower than category A, efforts should be made to provide alternative employment to him in his own trade. 11. As regards the authorities which are empowered to authorise discharge of the personnel in accordance with the Rules of 1954, the authority who is competent to discharge the personnel from service should not be below the rank of Commanding Officer, Commanding Corps or the department to which the concerned individual belongs. As per the table appended to the Rules in respect of personnel who have been found medically unfit to be retained in service, the authority competent to discharge has been specified as the Commanding Officer and the manner of discharge as has been indicated has to be carried out on the recommendation of Invalidating Board as specified in table of the Rules. In all other cases of discharge, the authority competent to discharge has been specified as Brigadier/Sub-Area Commander, it has been further specified in the Rules that in no case the discharge can be made retrospective. 12. In all other cases of discharge, the authority competent to discharge has been specified as Brigadier/Sub-Area Commander, it has been further specified in the Rules that in no case the discharge can be made retrospective. 12. During the course of hearing learned counsel for the respondents has contended that as per the record of the department, it is evident that the petitioner has proved to be ineffective and a sick Soldier and remained admitted in Army Hospital. He was medically boarded out in category "BEE" permanent due to diabetes medius which is constitutional disease and does not have the effect of external factors. Hence no recommendations of the Invalidating Board further retention of the petitioner is service was not found desirable. 13. As regards the payment of disability pension, it has been contended by the learned counsel for the respondents that no service element of disability pension was granted to the petitioner as his case does not fall under the provisions of Rule 173 of the Pension Regulations of the Army. However, as per the Rules he was granted appropriate pension for a service period of 13 years and 23 days amounting to Rs. 312/- p.m. w.e.f. 30.12.1987 for life. The amount of Rs. 312/- p.m. was required to be raised to Rs. 375/- p.m. by the pension payment authority on the request of the petitioner under the provisions of Government of India, Ministry of Defence letter dated 13.10.1987. The petitioner has since been advised to report to his pension payment authority to do needful and is at liberty to draw the arrears of the pension at the revised rate. 14. On merits of the respondents have controverted the claim of the petitioner to continue in service for a minimum period of 15 years or till attainment of 40 years of age on the ground that continuity in service of an army personnel is dependent upon various factors including the physical fitness and his health. Since the petitioner was discharged from the service of Army as he was found medically unfit for further retention by a duly constituted medical board, he was accordingly medically boarded out. Since the petitioner was discharged from the service of Army as he was found medically unfit for further retention by a duly constituted medical board, he was accordingly medically boarded out. It has further been contended that notwithstanding the fact that the respondents had provided all necessary facilities for proper treatment of the petitioner brit since his health did not improve and as he had been rendered unfit for active service and he was even attached to Grenadier Regimental Centre in May, 1984 in a Shelter appointment, his further retention in Army service was not found desirable in Public Interest. 15. I have heard learned counsel for the parties at length and have their rival claims and contentions with reference to Army Rules, 1954 as referred to above. I am of the considered opinion that the contentions of the petitioner are wholly unfounded and not tenable since he has not placed logical interpretation on the provisions of the Rules, more particularly rule 13(2-A). Under the said Rule, prior sanction of either the Central Government or the Chief of the Army Staff is not necessary for discharge of any such personnel of the rank of the petitioner. If this provision is correctly construed, it gives contrary interpretation to what the learned counsel for the petitioner has contended. The said provision states inter-alia that where the Central Government or the Chief of Army Staff decides that any person or class of persons subject to the Act should be discharged from Army service, either unconditionally or on the fulfilment of certain specified conditions, then notwithstanding anything contained in the said Rule, the Commanding Officer is also the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision. Hence, apart from Central Government or the Chief of Army Staff, the Commanding Officer of the concerned unit is also the competent Authority to pass the order of Discharge. Thus the action of the respondents in recommending the discharge of the petitioner from service of the army on the recommendations of the duly constituted Medical Board is fully justified and is in accordance with the rules. Thus the action of the respondents in recommending the discharge of the petitioner from service of the army on the recommendations of the duly constituted Medical Board is fully justified and is in accordance with the rules. I am further of the view that the Defence services demand perfect physical fitness of the concerned official or any other junior rank in the interest of the services and the said physical fitness should be in accordance with the prescribed standards as laid down in the Rules. If any officer or junior rank is falling short of fulfilment of specified requirements, then, the concerned authority is fully competent to order the discharge of the said personnel from service. I am consequently of the view that it is not open to the petitioner to challenge his discharge from service of the army on the ground that since he had not completed the minimum service tenure of 15 years, his discharge from service on completion of 13 years and 23 days of service was either premature or not justified. I am further of the view that in the instant case, any further retention of the petitioner in service would not have been justified in public interest which fact has also been asserted by the Commanding Officer in the relevant extract of the Army Order No. 46/80 vide F.X.R. 6 placed on the record by the respondents. It is specifically mentioned therein that the employment of permanent low medical category personnel, at all times, is subject to the availability of the suitable alternative appointment commensurate which medical category and also subject to the proviso that this can be justified in public interest and that their retention in service will not exceed that sanctioned strength of the Regiment/Corps. It has further been provided in the said Rules that when such an appointment is not available or when the retention is either not considered necessary or in the interest of service or it exceeds the sanctioned strength, the said personnel will be discharged irrespective of service put in by them. It is, thus, clear from the import of the above Rules that the petitioner cannot claim continuity in service as a matter of right as the same would not be justified in public interest being not permissible under the Rules. 16. It is, thus, clear from the import of the above Rules that the petitioner cannot claim continuity in service as a matter of right as the same would not be justified in public interest being not permissible under the Rules. 16. The petitioner has thus not made out any case for interference by this court on merits and the writ petition deserve to be dismissed. However, with regard to the amount of pension which is being paid to the petitioner, since he is getting only a paltry sum of Rs. 312/- p.m. w.e.f. 30.12.1987 for life and the said amount was required to be raised to Rs. 375/- p.m. by the pension payment authority on acceptance of the petitioner's representation by the Army Authorities in accordance with the provisions of Government of India, Ministry of Defence letter dated 13.10.1987 and said fact has not been disputed by the respondents, I deem it just and proper to direct the respondents that the petitioner should be paid a sum of Rs. 375/- p.m. as pension by the pension payment authority and since the petitioner had already been advised to report to the said authority for doing the needful and also to draw arrears of pension on the said revised rate in accordance with Rule 173 vide Ex.R. 1. Respondents are accordingly directed to pay to the petitioner the amount of pension at the revised rate of Rs. 375/- p.m. and a sum of Rs. 90/- p.m. on account of the Disability Element @ 20% i.e. Rs. 90 p.m. as per Para 14.3 (A)(iii) & (h) of the letter dated 30.10.87- Ex-11. The petitioner shall further entitled to such other benefits at the revised rate as may be admissible to him in accordance with the Rules and he shall also be entitled to payment of arrears of pension at the aforesaid revised rate from due date till actual payment. 17. In the light of the above observations the writ petition is partly allowed as indicated above. There will be no order as to costs.Petition allowed. *******