This would probably be one
of the most important moves in recent times for disabled personnel of the
uniformed forces.
On judicial intervention of
the Kerala High Court and further prodding by the Supreme Court, the Government
has finally abrogated the minimum qualifying service condition for the grant of
Invalid Pension, which till now stood at 10 years, for all those government
organisations where services of employees are not protected on sustaining disability.
Concept
of Invalid Pension:
Invalid pension is
applicable to those government servants whose disability is not related to government
service in any manner, even remotely, and for which 10 years qualifying service
was prescribed. It is different than disability pension which is granted for
disabilities which are related to or deemed to be connected with government
service in any manner, such as any disease incurred while a person is in government
service. In case of disability pension, there is no minimum service condition
prescribed and it consists of two elements- service element and disability element.
The
predicament faced by uniformed services:
The service of government
servants who incur any kind of disability in service is protected by Section 47
of Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (now replaced by the new Act of 2016
wherein Section 20 provides the same protection). The said Act protects the
employment of disabled government servants and provides that the government
shall not dispense with the services of a disabled government employee. The
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 Government) 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 problem however was that the defence services and other
uniformed services including the Central Armed Police Forces (CAPFs) were
exempted from the operation of the above progressive provision by way of a
notification. Resultantly, many members of uniformed services were denied any
kind of pension (if their service was below 10 years) when released from
service with disabilities without any connection or deemed connection with government
service. Hence on one hand, their services were not protected in case of
sustaining disability like other government employees, and on the other hand,
they were denied pension also which was like double jeopardy for the members of
uniformed forces. This issue had been commented upon by me in detail in the
year 2012 which can be accessed here for an even better perspective and a comparative
chart showing the acute discrimination. The Seventh Pay Commission did not
agree with the request of the defence services for abrogation of the minimum
service requirement.
The
new orders:
On account of judicial
intervention by the Kerala High Court and further prodding by a Three Judge
Bench of the Supreme Court, the Government has now abrogated the minimum 10
years requirement for grant of Invalid Pension for all those organisations
where the service is not statutorily protected on sustaining any kind of
disability. This mostly affects the uniformed services. This has been done by
way of amendment of Rules 38 & 49 of the Central Civil Services (Pension)
Rules, 1972 [CCS(Pension) Rules, 1972]. Changes in military pension rules
should also be expected as a corollary, mutatis
mutandis, as is the prevalent practice.
The
net effect:
The net effect is that any
member of a government service who is invalided out or seeks invalidation (seeking
retirement on account of disability) shall now be entitled to Invalid Pension irrespective
of his or her length of service. Of course, those with disabilities declared
service-connected or deemed to be service-connected/attributable or aggravated by
service, shall continue to remain eligible for disability pension for which no requirement
of any minimum qualifying service is applicable. This directly and positively affects
all disabled personnel who cannot continue in service due to medical reasons even
when their disability is not related to government service in any manner. Though
disabilities and diseases incurred while in service are deemed to be service-connected
as per the liberal provisions of the Extraordinary Pension Rules, 1939 on the
civil side and Entitlement Rules, 1982 on the military side, thereby entitling
such personnel to disability pension without any linkage with length of
service, as also time and again reiterated by Constitutional Courts, the
maximum benefit of the change would accrue to such personnel who are released
from service (or cannot continue in service) due to disabilities suddenly incurred
soon after joining training or where there is an element of negligence in
sustaining the disability or a purely genetic or congenital disability discovered
after joining service etc. This change is valuable to such personnel and
protects their livelihood and dignity since they would not have been discharged
from service on account of any disability had they joined a non-uniformed
service. The discrimination hence stands addressed to a large extent.
The
effective date:
The new provision takes consequence
from 4th January 2019. However the effect on past retirees is a
little ambiguous as of now but it is hoped and expected that past retirees also
would be granted the benefit from the above date. This seems most logical since
the provisions of CCS (Pension) Rules (which now stand amended from 4th
January 2019) in any case do not apply to post-2004 appointees on the civil
side who are now governed by the contributory New Pension Scheme (NPS).
Therefore by this change, the persons directly affected are those who were governed
by the 1972 Rules, that is, only those who were appointed prior to 2004. A
minimum guaranteed pension under the NPS is however already under consideration
which makes it probable that in view of the ibid
change in the 1972 Rules, even post-2004 appointees under NPS would not be left
high and dry if released with a non service-connected disability with less than
10 years of service. On the military side, there is bound to be no complication
as such since there is no system of a contributory pension prevalent and the
new provision should logically, when implemented, apply across the board but with
financial effect from 4th January 2019.
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