Stark discrimination between disabled employees of the defence services vis-à-vis their civilian counterparts

The tragedy of our country is that while there is ample lip service and pseudo-respect available to the cause of defence veterans, theory does not translate into actual action on ground. While there are many in the nation who perpetually brag about the facilities and benefits provided by the government to defence personnel, not even a fraction can actually fathom how innocuous sounding provisos and exceptions have been carved out to the detriment of  the men and women in uniform.

The following paragraphs contain a self-explanatory letter endorsed by me to various addressees which would go to show how disabled defence veterans are unduly being discriminated vis-à-vis their peers in other government services. While some of the addressees have replied stating that the cause and the grievances reflected are genuine, again not much has moved except lips, symbolically speaking.

Following is the reproduction of the letter referred above. If you find the data a little heavy on your time, may just have a look at the table in the middle.

Addressed for independent action to:

A. The Defence Minister, South Block, New Delhi

B. Chiefs of the Army / Naval / Air Staff, New Delhi

C. Secretary, Ex-Servicemen Welfare, South Block, New Delhi

D. Law Minister, Ministry of Law, Justice and Company Affairs, New Delhi

E. Minister-in-Charge, Ministry of Social Justice & Empowerment, New Delhi

F. Secretary, Department of Social Justice & Empowerment, New Delhi

NON-AVAILABILITY OF PENSION OR ANY KIND OF MONTHLY FINANCIAL ALLOWANCE TO DISABLED MEMBERS OF THE ARMED FORCES WHO ARE INVALIDED OUT / DISCHARGED WITH DISABILITIES THAT ARE DECLARED NON-SERVICE CONNECTED (NEITHER ATTRIBUTABLE TO, NOR AGGRAVATED BY SERVICE) WHICH IS IN STARK CONTRAST TO PROVISIONS APPLICABLE TO OTHER GOVERNMENT EMPLOYEES WHO ARE PROTECTED UNDER SECTION 47 OF PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT 1995

1.     As you must be aware, Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Annexure-A) protects the employment of disabled government servants. This proactive and welfare oriented provision provides that the government shall not dispense with the services of a disabled government employee. The said provision also further provides that even in case a disabled government employee cannot be adjusted on any suitable post, he or she may be kept on supernumerary strength till the age of superannuation (60 years in case of Central Govt) and resultantly be paid full pay and allowances, and pension thereafter, even if the affected employee is unable to attend to any official duty. The Act is applicable to State Govt also.

2.     The Govt however, as per proviso to the above Section 47, can exempt certain organisations from the operation of the said section through a gazette notification. In pursuance thereof, the central govt has exempted combatants in the armed forces from the applicability of the protection under Section 47 (Annexure-B) and similar notifications have also been issued for employees of certain other security organisations. The issuance of such notifications and the exemption of such organisations from the scope of Section 47 is well understood and well appreciated in light of the fact that security forces have to retain a young and fit profile in order to perform the cardinal duties set out for them.

3.     The problem however is that this exemption, which was primarily undertaken to retain a fit fighting profile for such organisations, has unwittingly resulted in a grave form of injustice for the disabled members of such forces who suffer disabilities on accounts of reasons declared as non-service connected or neither attributable to, nor aggravated by service. While in all government services, the employment, pay, allowances and pension of a person who suffers any kind of disability (whether connected with service or otherwise) are fully protected due to the applicability of the above Act, on the other hand, in the armed forces, neither the employment, nor the pay, allowances nor pension are protected and such individuals are discharged or invalided out of service without any kind of pension/disability pension or protection which may be very much required for leading a dignified life. It may be important to point out here that as per the current pensionary provisions, a member of the armed forces who is discharged or invalided out with a disability attributable to or aggravated by or connected to service conditions is entitled to ‘disability pension’ irrespective of length of service, but the same is not admissible to those who are discharged or invalided with disabilities not connected with service such as injuries sustained on leave. It is common practice for persons with disabilities to be discharged from military service on account of disabilities and the minimum service requirement for earning an ‘Invalid Pension’ for injuries, diseases and disabilities due to non-service reasons is 10 years whereas civilian employees cannot at all be discharged on account of disabilities and can enjoy full tenure with full pay & allowances till the age of superannuation and pension thereafter.

4.      Non-availability of any kind of monthly financial assistance or pension to such disabled military personnel with less than 10 years’ service who are invalided out or discharged with disabilities directly infringes their right to enjoy a dignified life. Such personnel are unable to support themselves or their families while their civilian counterparts face no such impediment. In a common recruitable population, it is highly demoralising to experience a disabled military personnel fighting against odds to make both ends meet for himself/herself and his/her family while his or her peer in civil employment enjoys complete protection in this regard. A major chunk of such disabled personnel are from the category of persons who suffer injury while on authorised military leave – even such personnel are not entitled to any form of disability or invalid pensionary benefits on being discharged as per current provisions. It may not be out of place to point out that in all developed democracies, personnel suffering injuries on authorised leave are entitled to disability pensionary benefits but the same has been denied to Indian soldiers, sailors and air force personnel despite the passage of more than 6 decades of freedom. It may also be pointed out that the Pensionary Entitlement Rules of the Indian Military are modelled after the American provisions (and not the British Rules) and the American Rules fully provide for disability benefits for disabilities suffered on authorised leave (Title 38, United States Code). In Canada, there is an Accidental Dismemberment Insurance Plan (ADIP) for non-service related injuries suffered by members of Canadian Forces which involves payment of a monthly amount. Even in Bhutan, which has just embraced full democratic principles, a disabled member of the forces is paid full pay and allowances till age of superannuation in case of inability of performance of military duties. In other countries even where service benefits are not admissible to such cases, a handsome disability allowance is admissible which is adequate to ensure a life of dignity.

5.       The stark variance between a civilian vis-à-vis a defence employee in this regard is discernible from the following tabulation :-

	Civil Govt Employee with 9 years of service who suffers a disability	Military Employee with 9 years of service who suffers a disability
Protection of Service	Full protection under Section 47 of the Act. Will not be discharged on account of disability.	Armed Forces exempted from operation of Section 47. Hence no protection of employment available in case of disability. Employee can be discharged on account of disability.
Pay and allowances	Full pay and allowances admissible till the age of 60 even if unable to attend any official duty. Can even be kept on supernumerary post and paid all pay and allowances.	NIL admissible.
Pension	Entitled to full service length till superannuation and pension thereafter.	NIL admissible.
Right to life of dignity for self and family.	Full pay and pension and complete govt protection/cover with entitled  facilities admissible to dependants.	NIL. No facilities or protection for self and dependants.

6.            The above would show that it is only in our country where members of the armed forces who suffer non-service related disabilities are made to suffer the life of ignominy with no protection whatsoever. Equity demands that our disabled who are discharged from service due to reasons not under their control should be made entitled to atleast some minimum allowance, irrespective of their length of service, that may be required to lead a decent dignified life. The lack of any such protection is not only dispiriting but also demoralizing for persons joining the armed forces vis-à-vis their peers joining other services. This also is a great disservice for our youth and highly discouraging for the men and women in uniform. Lack of protection of Section 47 hence has not only resulted in guarantee of employment in case of disability but also denial of pension and a right to a dignified life for military personnel and their families, a viewpoint that may not have been taken into account earlier. As stated above, while the reason for exemption from Section 47 is much appreciated, it should not have a detrimental effect in other arenas which could not have been visualised.

7.           I hope that the above would be appreciated in a pragmatic light and a way out of this acute problem would be addressed. Since the protection of disability laws is not available to armed forces, either the requirement of 10 years of service for invalid pension should be abrogated, or disability pension (for which already there is no minimum service requirement) should be made admissible for non-service related disabilities also, except perhaps those disabilities that may have been incurred during any illegal activity. This would not only be a great service to our brave armed forces but also to the disabled population as a whole. I am confident of positive action in this direction with your intervention.

                                                            Thanking You

                                                                                                            Sd/-

                                                                                                (Navdeep Singh)

Copy to:

1. Adjutant General, South Block, New Delhi

2. Chief of Personnel (COP), Indian Navy, Sena Bhawan, DHQ PO, New Delhi

3. Air Officer-in-Charge Personnel (AoP), Air Headquarters, New Delhi

4. Director, PS-4 (Legal), PS Directorate, Sena Bhawan, DHQ PO, New Delhi

5. Chairman, Rehabilitation Council of India (RCI), New Delhi

6. President, Disabled War Veterans (DIWAVE)

7. Secretary, Department of Personnel, Public Grievances and Pensions

8. Secretary to Govt of India, Ministry of Home Affairs, New Delhi

9. Directors General CRPF, BSF, ITBP

ANNEXURE-A

THE PERSONS WITH DISABILITIES

(EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995

 

PUBLISHED IN PART II, SECTION 1 OF THE

EXTRAORDINARY GAZETTE OF INDIA

MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS

(Legislative Department)

New Delhi, the 1st January, 1996 / Pausa 11, 1917 (Saka)

Section 47

47. (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

ANNEXURE-B

EXTRACT FROM THE GAZETTE OF INDIA PART II, SECTION 3, SUB-SECTION (ii)

Appearing on Page Nos. 3489-3490

Date: 13.4.2002

MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT

NOTIFICATION

New Delhi, the 28th March, 2002

S.R.O. 1179.- In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempts all categories of posts of combatant personnel of the Armed Forces from the provision of the said section.

(No. 16-27/2001-NI.I)

Sd/-

Smt. RAJWANT SANDHU, Jt. Secy.