Supreme Court rings the bell but would we ever wake up ?

“Why are you after disabled military personnel ?” was the query of a Division Bench of the Hon’ble Punjab & Haryana High Court recently while dismissing a Letter Patents Appeal (LPA) filed by the Union of India against a Single Bench decision awarding disability pension to an old veteran. In reply, the Central Govt Counsel very fairly informed the Hon’ble Court that though legal advice was tendered against filing of an appeal and the issue involved was a covered matter, the authorities still insisted on challenging the decision.

The very topical remarks of the Hon’ble Supreme Court hence did not come as a surprise to me at all. I have discussed it here on this blog before. It is time to tame these legal pundits in Delhi who are acting like raging bulls and filing mindless appeals against verdicts rendered in pensionary matters in favour of disabled veterans. These scheming legal minds work in a simple and rudimentary fashion – file appeals in almost all cases, take the cases to the Hon’ble Supreme Court - take a chance and in case of even one single verdict in favour of the govt, the same would be flaunted all over to introduce impediments in the system of grant of benefits to released and retired service-members. These old hands in the legal advisory system clearly know that poor veterans would not be able to (afford and) represent themselves properly before the Apex Court which in turn gives them a free hand to twist legal issues while articulating them before the Supreme Court which sometimes results in decisions that can hardly be labelled well-rounded. Two examples that come to mind are Lt Col P K Kapur’s case where the govt faultily, incorrectly and misleadingly informed the Apex Court that rounding-off / broad-banding of disability percentage for calculating disability element was introduced as a benefit to cater for decreased service tenure of invalided personnel and hence was not applicable to personnel who retire on completion of terms of engagement or superannuation. The retired officer concerned, who was arguing in person without proper legal assistance, could not rebut the contention leading to a verdict against him. Needless to say, broad-banding / rounding-off was actually introduced to counter medical subjectivity and mistakes & disagreements of medical boards and not to cater for shortened tenures on invalidation. In yet another case, the govt appealed to the Supreme Court against grant of disability pension for an injury sustained while on leave and contended that the verdict of the High Court was untenable since the person did not have the requisite length of service to earn a disability pension, again there was no proper assistance rendered to the Court and the decision of the High Court was reversed. But the decision of the High Court was reversed on the basis of a false statement again by the Union of India, since in reality, there is no minimum service requirement for earning a disability pension and disability pension in fact is even admissible to recruits under Regulation 181 of the Pension Regulations. Fortunately this false statement of the Union of India which was not rebutted by the poor veteran’s counsel (if there was any) is recorded in the order of the Apex Court and shall ultimately prove to be an albatross around the Union’s legal neck, mark my words.

In cases involving disability pension, the central govt has been getting away by informing the Hon’ble Apex Court that ‘medical opinion regarding attributability / aggravation is supreme’ and that High Courts cannot brush aside medical opinion. There have been decisions by the Apex Court endorsing this view, but Hon’ble High Courts and the Benches of the Armed Forces Tribunal have subtly distinguished such Apex Court decisions by ruling that in order to have primacy, the medical opinion must be within the four corners of the rules, and that perverse opinion in contravention of rules and regulations would have no value in the eyes of law. For the uninitiated, for a person to be entitled for disability pension, a disability needs to be declared as either attributable to, or aggravated by service. The Hon’ble Apex Court has never been informed by the Union of India that ‘attributability / aggravation’ is legally not to be determined by the Medical Board but by the Entitlement Rules (1982) and the same is clearly codified in Regulations 48 & 173 of the Pension Regulations which provide that attributability / aggravation shall be determined under the ‘Entitlement Rules’ which form a part of the Pension Regulations under Appendix II. The medical board has to work within the rules and is not a body above law. Rule 5(b) of the said rules clearly provides that there would be a presumption of attributability in case the disease occurs in service and Rule 9 further provides that service-members shall receive the benefit of doubt and would not be called upon to prove entitlement. Rule 15 read with Annexure III of the rules lists out diseases which are usually affected by stress and strain of service, but still, military medical boards routinely declare even such scheduled diseases as ‘constitutional’ or ‘idiopathic’ and ‘not connected with service’. Now having said that, Rule 18 further points out that even if there is a constitutional disposition, still the disease can be attributable to service. Rule 19 clearly says that if any disease is at a worsened stage at the time of discharge, aggravation is to be accepted which in fact covers almost every single member of the military who is discharged as an LMC. Rule 20 (a) also points out that if nothing is known of a disease then attributability is to be conceded unless it is rebutted by evidence. The medical boards of the defence services are functioning without an iota of proper application of mind on the entitlement rules. Relation with service of disabilities is not purely a medical game but also involves interpretation and application of the Entitlement Rules. While military boards have been time and again rejecting diseases such as schizophrenia, psychosis and neurosis being ‘constitutional’ in nature, the same diseases are routinely being correctly held as ‘aggravated by service conditions’ by medical boards of the para-military forces. Moreover, military medical boards and adjudicating authorities have been rejecting claims of psychiatric diseases or even heart diseases by stating that the ‘onset was in peace area’ hence the disease is ‘not connected with service’. Even a child could tell that such diseases manifest over a long period of time and merely since these are discovered in a ‘peace area’ would mean nothing. There are official letters written by the office of DGAFMS which, in utter contravention of rules, direct medical boards not to grant ‘aggravation’ if the onset of disability is in peace areas, whereas the rules do not pose any such prohibition. Even otherwise, there may be instances wherein the stress and strain in a peace area may be much higher than in a particular field area, can there by a mathematical formula to determine attributability / aggravation as the office of DGAFMS would want us to believe ? Research shows that post-traumatic stress disorders can arise even after a period of 5 five years or more (‘delayed onset’) of the stressor / triggering event. Again, there is no such problem being faced by paramilitary personnel in medical boards convened by CPOs. Same diseases, similar service conditions but different opinion on attributability / aggravation ? Does the medical science differ for the Central Police Organisations ? One would rarely find an appeal before the Hon’ble Supreme Court filed by the Ministry of Home Affairs against decisions of High Courts granting disability pension to paramilitary personnel, but the Ministry of Defence alongwith the PS Directorate of the Army Headquarters have both made it their bread and butter of filing appeals with impunity. The Hon’ble Courts in the US have also since settled the law and held that medical opinion cannot be granted primacy if it is against legal principles or settled law. In Wagner Vs Principi (2004), the US Court of Appeal for the Federal Circuit clearly opined the following :

“…When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service…”

The natural parallel of the above with the Entitlement Rules as applicable to the Indian defence services seems strangely surreal. It has been hence held both by Indian and American Courts that to rebut the presumption of attributability / aggravation, the medical board has to present proper evidence and reasons backed with credible medical and pathological basis concerning the aetiology of the disease. Merely stating that the disease is ‘constitutional’ or ‘not connected with service’ is not enough. In yet another landmark decision rendered last week (Jones Vs Secretary allowed on 25-03-2010), the US Court of Veterans’ Appeals has re-iterated that while dealing with service related disabilities ‘medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus’ and that ‘the absence of actual evidence is not substantive negative evidence’. These decisions of the US Courts are in fact reflective of what the Hon’ble Delhi High Court had held in cases such as SS Gautam Vs UOI and Naveen Chandra Vs UOI rendered by a Division Bench which had as its senior member Justice Swatantar Kumar, now a Judge of the Supreme Court. The decisions also seem to have found a sounding board in the order rendered by the Principal Bench of the AFT in Nakhat Bharti Vs UOI and the decisions of Chandigarh Bench of the AFT in a series of recent judgements. The Courts have time and again distinguished decisions of the Supreme Court in Damodaran and Balachandran Nair cases based on the doctrine of sub-silentio since it has been authoritatively held, as explained in the preceding paragraphs, that medical opinion shall only be binding if rendered as per rules. A decision of the Supreme Court on any issue is anyway not binding on other Courts if a particular argument has not been discussed or deliberated in the said judgement [Raipur Ruda Meha Vs State of Gujarat (AIR 1980 SC 1707)].

While dealing with disabilities of military personnel, the much argued comparison with an ordinary person on the street by medical authorities is also incomprehensible. There are times when it is remarked that such a disease may also have arisen had the particular person not been in the Army and that the Army is one of the most stress-free organisations in the country. The question arises that here is a man who is 24 hours / 365 days on call, sometimes under the shadow of gun, mostly away from his family, in a strictly regimented routine, can he be simplistically compared with say a civilian employee who goes to office at 9 in the morning returns at 5, only five days a week, lives with his family, in his hometown, enjoys his gazetted holidays, retires at 60 ? !. It won’t take an expert to reply in the negative. Wouldn’t common ailments such as hypertension or IHD or minor psychiatric illnesses or psycho-somatic disorders get aggravated by even seemingly insignificant incidents at the home front such as non-performance of children in school, property disputes, sarkari red-tapism in other spheres, family problems etc ? The answer would be in the positive. To top this, the provisions of Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ are not applicable to the armed forces – the direct implication of this is that if a civilian employee gets disabled whether on duty or off duty, whether due to service or otherwise, whether due to his own negligence or not, in whichever circumstance, his or her service is protected under the ibid Act and if the said employee is not able to work, still he or she is to be kept on supernumerary strength and paid all pay and allowances till the age of 60. While on the other hand, if similarly placed service-members get disabled, then what to talk of full pay and allowances or even pension, it is ensured by the system that most are discharged on medical grounds without even a disability pension. The very non-applicability of Section 47 of the Act should have ideally resulted in liberalising the rules or liberalising the approach in determining attributability and aggravation but with the current mindset of internal and external bureaucracy, the same seems unlikely and the Hon’ble judicial fora seem to be the only saving grace in this myriad imagery of officially-sponsored (paper) violence. The rules are being interpreted ‘literally’ and not ‘liberally’, the letter is being followed by dumping the spirit. The concerned authorities defend their decisions of jumping on to the ‘appeal’ bandwagon saying that the ‘rule-position’ does not allow them to disburse such benefits, but instead of appealing, why don’t we change these damn restrictive and otiose rules themselves ? Rather than putting up a noting sheet recommending appeal by saying how a particular High Court or Tribunal has erred in interpreting law, why can’t a noting sheet be moved to amend the particular rule which has given rise to a plethora of litigation ? There are no winners in this vicious circle of obstinacies.

As this letter written by an ex-servicemen organisation and its enclosure would show, even legal advice rendered by the office of Solicitor General asking the MoD not to file appeals has been brushed under the carpet by lower level officers of the Ministry. The Army Headquarter has in fact pointed out in certain specific instances that the govt is defending cases in Hon’ble Courts despite fully being aware of the settled position of law in favour of disabled soldiers. In such actions, it is not just perversity but also sadism at play because anyone who opts to go in for his or her constitutional remedies by approaching Hon’ble Courts is viewed as an ‘enemy of the system’ as rightly pointed out in the ibid letter.

The buck stops there, at Delhi, at the offices of the Legal Advisor (Defence), the Director (Pensions) and to an extent the Director PS-4 (Legal). Mr Antony should instill a sense of judiciousness in these authorities. By filing frivolous and mindless appeals and by tacitly misleading Hon’ble Courts, they are not showing any loyalty to the Indian State or the Auditors but on the contrary are displaying a sense of insensitivity and disregard to this great nation and its even greater protectors. The disparaging remark of the Hon’ble Supreme Court is landmark in the sense that it signifies that from now on frivolities may not be accepted. There is a requirement of a shriller alarm bell, I see it coming round the corner, but would we still wake up ? Beggary is illegal, ban it here too !.