Disposal of Low Medical Category Personnel as per Order of Indian Army

Regarding the rules and orders pertaining to retention of Low Medical Category soldiers who have been placed less than SHAPE-1 category, AO46/80 is the basic Army Order.  However, this provision has been partially amended in 2010. As per the amendment of 2010, a Commanding Officer could now discharge a soldier who is a permanent LMC SHAPE 2/3 and where no sheltered appointment was available in the unit to gainfully employ him, or he became surplus to the organisation. The Counsel further added that consequent to the issue of the amendment to AR 13, AG‟s Branch, IHQ of MoD(Army) issued a detailed policy letter incorporating all the amendments vide their letter No B/10210/Pt-IV-3(PBOR) dated 30.09.2010; „Disposal of Permanent LMC Personnel Below Officer Rank‟; he then explained in detail the contents of Para 5 and 6 of the letter dated 30.09.2010.

The Rules pertaining to discharge of personnel from the Army with respect to authorities empowered to authorise discharge are enshrined in Army Rule 13, framed under Section 177 of the Army Act, 1950. The implementation instructions are given in Army Order 46 of 1980 and certain policy letters issued by AGs Branch, IHQ of MoD (Army). Consequent to the Hon‟ble Supreme Court Judgement in the case of Rajpal Singh (supra) and the Hon‟ble Delhi High Court judgement in Sub Puttan Lal Vs UoI, W.P. (C) No. 5946 of 2007 and other connected matters, dated 20.11.2008, Army Rule 13 was amended vide Gazette of India SRO 22 dated 29.05.2010. AGs Branch, IHQ of MoD (Army) then issued an updated and detailed policy letter incorporating all the amendments vide their letter No B/10210/Pt-IV-3(PBOR) dated 30.09.2010; „Disposal of Permanent LMC Personnel Below Officer Rank‟.

The updated and detailed policy letter incorporating all the amendments issued by AGs Branch, IHQ of MoD (Army) vide their letter No B/10210/Pt-IV-3(PBOR) dated 30.09.2010; ^„Disposal of Permanent LMC Personnel Below Officer Rank‟ is reproduced below:-

“DISPOSAL OF PERMANENT LMC PERSONNEL BELOW OFFICER RANK

General

1. Please refer to the following

(a) Army Order 46/80.
(b) Army Rule 13.
(c) Army HQ letter No B/10122/LMC/MP-3 (PBOR) dated 15 Mar 2000.

Gazette Notification issued vide SRO 22 dated 13 May 2010

In the recent past, the aspect of management of Permanent LMC (LMC) personnel has been under consideration at all levels, in the light of the direction given by the Hon‟ble Delhi High Court on 20 Nov 2008 in the case of Sub (SKT) Puttan Lal V/S UOI and others, wherein permanent LMC personnel in SHAPE 5 only could be discharged from service on the recommendation of an Invaliding Medical Board. In compliance with ibid orders of the Hon‟ble Delhi High Court, Permanent LMC personnel in shape 2/3 could not be discharged from service on recommendation of Release Medical Board. The implementation of the Hon‟ble High Court directions have resulted in significant increase in the number of permanent LMC personnel in the Army including those reinstated, thereby adversely affecting its operational efficiency and management.

Amendment to Army Rule 13

3. The existing provisions of Army Rule 13 have since been amended by the Central Government by the Gazette Notification published vide SRO 22 dated 13 May 2010 under the powers conferred by Sec 191 of the Army Act,1950 (XLVI of 1950) and all other powers enabling in this regard. A copy of the subject Gazette Notification is placed at Appendix A.

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:-

Availability of suitable alternative appointments commensurate with their medical category.

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:-

Personnel in SHAPE 5. The minimum period of qualifying service actually rendered and required for an invalid pension is 10 years.

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).

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.

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.

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.

Consider the effect on pensionary/ disability benefits from central and state Govt/IHQ of MoD (Army)/ Non Government Organization and any other such organization.

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.

Sanctioning Authorities

7. Under the provisions of Army Rule 13, as amended, based on recommendations of the Release Medical Board/ Invaliding Medical Board as applicable, the Commanding Officer is competent authority to sanction discharge of JCO/OR who are in SHAPE 2/3 or have been found to be unfit for further service ie in SHAPE 5. In the existing circumstances the sanctioning authority would rest with the commanding officer, who would obtain the approval of following authorities prior to sanction of actual discharge:-

Battle Casualties – Head of Arm/Service (Willing to Serve).
Battle Casualties –  OIC RecordsNot below the rank of a Brigadier (Unwilling to Serve)
Non- Battle Casualties – OIC Records Brigadier – (Willing to Serve)
Non-Battle Casualties -OIC Records  (Unwilling to Serve)

In case of Regiment/ Corps Centres being commanded by officers below the rank of Brigadier, case will be forwarded to MP Directorate for obtaining sanction of Deputy Director General (Manpower Planning).

Disciplinary/ Indifferent Cases. No special provision is necessary or 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.

Withdrawal of Sheltered Appointment. Sheltered appointment will be formally withdrawn with effect from the date of approval for discharge by the competent authorities given at para 7 above. Discharge of the individual will be carried out within six months of the date of approval.

Procedure

Authority. Under the authority of Army Rule 13 as amended vide SRO 22 dated 13 May 2010, the discharge of permanent LMC personnel below officer rank may be sanctioned as under:-

.

11. Battle Casualties (Willing to serve).

(a) Requisite documents, including the following documents in triplicate, will be forwarded to the Parent Directorate at IHQ of MoD (Army), through the OIC Records:-

(i) Proforma as per Appendix B attached.

(ii) Willingness Certificate by the individual.

(b) Documents, along with the decision of the Head of Arm/ Service, will be returned to the unit though OIC Records by the Parent Directorate.

(c) Where approval has been accorded, the individual will be brought before an Invaliding/ Release Medical Board as applicable and discharge carried out as per laid down instructions. Copy of approval by the Head of Arm/ Service will

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be submitted to the Medical Board alongwith the medical documents.

Non-Battle Casualties (Willing to Serve). The procedure will be as above except that OIC Records will be the approving authority.

LMC Unwilling to Serve. Permanent LMC personnel, whether Battle Casualties or otherwise. unwilling to continue in service will sign an unwillingness certificate which shall be forwarded to OIC Records along with other documents for necessary approval. The individual will thereafter be brought before an Invaliding/ Release Medical Board as applicable and discharge carried out as per laid down instruction. Copy of approval by the OIC Records will be submitted to the Medical Board along with the medical documents.

Date of Effectiveness

These orders will be effective from the date of signing of this letter.

Conclusion

This letter supersedes all previous correspondence on the subject.

HQ Commands are requested to disseminate this letter down to unit level and instruct legal cells affiliated to the respective Hon‟ble AFT to bring to the notice of the Hon‟ble AFT the contents of the subject Gazette Notification.”

Validity of the AHQ Letter of 2010 : The petitioners in Sub Lakshmi Kant Mishra and Ors Vs Union of India & Ors. in O.A. No. 228 of 2012 had challenged the validity and legality of the Gazette notification dated 29.05.2010 as well the Army HQ letter dated 30.09.2010 on the grounds that the said notification and letter are contrary to Army Rule 30 read with Paras 421 and 424 (C) of Medical Regulations and judgement of the Hon‟ble Supreme Court in the case of Rajpal Singh (supra) and the judgement of the Delhi High Court in the case of Sub Puttan Lal (supra), and also contrary to Para 162 of Regulations of the Army 1987 edition. The matter was referred to a large bench which examined the issue and upheld the validity of the Gazette notification dated 29.05.2010 and the Army HQ letter dated 30.09.2010;