Supreme Court again to the rescue of disabled personnel : A historical watershed moment for disability pensioners

Call it a red letter day or a watershed moment, call it whatever you may but yesterday marked a very important moment in history for any and every disabled soldier in India.

Blowing every inch of the illegal and illogical stand of the Pension Wing of the Ministry of Defence to pieces, the Hon’ble Supreme Court rendered a judgement which vindicates and endorses what has in recent times been held by the Chandigarh Bench of the Armed Forces Tribunal and also what has remained a very sore source of discontentment amongst the disabled community.

The 5th Pay Commission, in order to overcome the subjectivity, mistakes and rigid mathematical calculation of medical boards, had recommended broad-banding (also commonly known as rounding-off) of disability percentages for the purposes of calculating disability element of pension. The concept was initiated for all central govt pensioners. The Department of Pension and Pensioners’ Welfare (DoPPW) of the Personnel Ministry accordingly issued an Office Memorandum (OM) dated 03-02-2000 implementing the broad-banding policy initially only for Post-1996 retirees which provided that people with disability less than 50% would be granted a disability element by taking the disability percentage as 50%, those with disability between 50 and 75% would be granted a disability element @ 75% and those with above 75% would be granted the benefits of 100% disability. The Ministry of Defence (MoD) also issued policy instructions with regard to OM dated 03-02-2000 for post-1996 defence retirees vide its own letter dated 31-01-2001. Later however the broad-banding benefits were implemented for pre-1996 retirees also with financial effect from 01-01-1996 vide another DoPPW OM dated 11-09-2001. though it was smoothly implemented for pre-96 civil retirees, the Ministry of Defence however did not issue further implementation instructions related to pre-1996 retirees and denied the benefit to such retirees of the defence services. The MoD also provided in the letter dated 31-01-2001 that the benefits of broad-banding would apply only to those who were ‘invalided’ out of service and not to those who were discharged on completion of terms or retired on superannuation. The letter of DoPPW, a copy of which was sent to the MoD for implementation remained confined to some file and no action was taken on it and neither were senior officers informed about the same. The benefits to pre-1996 retirees were however later granted by the MoD also to pre-96 retirees vide an order issued on 19-01-2010 but these were made applicable with financial effect from 01-07-2009 while for civilians these had already been made applicable from 01-01-1996.

There were hence two grave anomalies in the letter issued by the MoD :-

Firstly, that it only provided for broad-banding to invalided individuals and not to those who were discharged or retired with disability. This was patently illogical since the concept behind broad-banding was that it was to overcome medical subjectivity, a malaise which equally affected both invalided personnel as well as those who were retired or discharged with a disability. This amounted to saying that the medical boards were subjective only qua invalided individuals and not towards discharged personnel. This also led to many incongruous situations wherein, for example, an individual who may have suffered 20% disability was granted disability element @ 50% rates even if he / she had been invalided a day earlier than his / her actual retirement whereas a person who may have suffered 40% disability and retired on his actual date of retirement would have received a lesser disability element despite suffering higher distress. The argument of the MoD that broad-banding was only extended to invalided personnel to cater to their shortening of tenure was also flawed due to the reason that shortening of tenure is taken care of by the ‘service element’ while the ‘disability element’ only relates to the extent of disability. Moreover, it is already provided in the applicable rules that defence personnel discharged on completion of terms or on attaining the age of superannuation are deemed to be invalided out for the purposes of disability pension.

Secondly, the letter issued by MoD was also anomalous since it did not extend the same benefit to pre-96 retirees. This amounted to saying that the medical subjectivity of boards only came into effect from 01-01-1996 and the boards conducted earlier were perfectly objective. This also did not stand the scrutiny of law since similar benefits under the same very pay commission had already been extended to pre-96 civilian retirees from 01-01-1996. It had already been held by the SC in the famous Common Cause Vs UOI case that separate cut-off dates could not be prescribed for defence and civil pensioners.

On both the above points, the Chandigarh Bench of the AFT had rendered separate judgements. In Lt Gen Vijay Oberoi Vs UOI, it was held by the AFT that superannuated or discharged personnel would also be entitled to broad-banding at par with invalided personnel. And in yet another judgement pronounced just yesterday, the AFT had held that pre-96 retirees were also entitled to broad-banding benefits as granted to post-96 retirees.

But yesterday, the Hon'ble SC, by way of a judgement in a case which was already pending before it (Capt KJS Buttar Vs UOI), and which, though unrelated, in effect endorses both the conclusions rendered by the AFT mentioned above, has inter alia held the following :

A. Broad-banding would be applicable to pre-1996 retirees also with effect from 01-01-1996. The cut-off date of 01-01-1996 by which the benefits were denied to pre-96 retirees has been held to be arbitrary.

B. Personnel who are released on completion of terms would be treated as invalided from service and would also be eligible for broad-banding benefits.

Though this settles the issue once and for all and would also help in unburdening the dockets of Courts from the plethora of litigation on the subject, one can only hope that the pension wing of the MoD is wise, fair and humble enough to apprise the senior officers of the correct position in law. It would only be in the fitness of things if the MoD suo-moto rectifies the anomaly and issues universal orders on the subject rather than forcing litigation on affected personnel.