Highlighting a 2015 Defence Ministry report on denial of disability benefits to soldiers on hyper-technical reasons, the Supreme Court has rued the non-implementation of recommendation for immediate withdrawal of such cases by the government against disabled soldiers.
It had recommended withdrawal of cases, including those challenging disability pension to incapacitated soldiers. In all democracies, disabilities arising in service or during authorized leave are considered as attributable or aggravated by military service. The bench noted that the appeals before it challenged the orders passed by the Armed Forces Tribunal (AFT) and various high courts. The bench noted that in each of these cases, a release medical board had, at the first instance of assessment, opined that disability caused to the ex-serviceman was neither attributable nor aggravated (NANA) by military service. It noted that relying on the medical board’s opinion, the intra-departmental appeals of the ex-servicemen were dismissed. The ex-servicemen then approached the AFT or high courts, which proceeded to grant disability pension on the premise that disability was either attributable or aggravated by military service. “We are at a loss to understand as to why the position of a rule that governs pensionary benefits be shrouded in mystery.
The 2015 report had said many disabled soldiers in India are still denied disability benefits on hyper-technical reasons while the other countries have moved ahead. The top court dismissed 271 appeals filed by the Centre challenging the orders directing disability pension to ex-servicemen. The top court noted that the 2015 report observed, “While the world has moved much ahead… in India many disabled soldiers are still denied disability benefits on hyper-technical reasons… It is important to realize that there is inherent stress and strain in military service. The top court referred to the provisions of the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 1982, and the Entitlement Rules for Casualty Pensionary Awards to Armed Forces Personnel, 2008. The bench noted it appeared that the Entitlement Rules, 2008 is a collation of the modified executive instructions issued subsequent to the Entitlement Rules, 1982. The top court also dealt with whether the Entitlement Rules, 2008 make a significant departure from the Entitlement Rules, 1982.
In its verdict delivered on September 15, a bench of Justices P S Narasimha and Alok Aradhe referred to the Ministry of Defence’s “Review of Service and Pension Matters including Potential Disputes, Minimizing Litigation and Strengthening Institutional Mechanisms related to redressal of grievances” report, 2015 (Raksha Mantri Report). “Raksha Mantri Report recommended the immediate withdrawal of appeals of this nature pending against disabled soldiers, a recommendation that has not been faithfully implemented,” the bench said. It said appeals such as these are filed and continue to be filed, even after the Ministry of Defence accepted the committee’s recommendation for withdrawal of this class of litigation. It said the issue before the court was confined to entitlement to disability element of service pension upon retirement, that is, completion of service or engagement. Transparency, clarity and certainty are of enormous importance for any legitimate action,” it said. The bench said there should not be dissatisfaction and lack of confidence in the minds of ex-servicemen about the manner in which their claims and entitlement are being dealt with. “It is necessary, rather compelling, that the applicable rules/regulations are formulated and notified authoritatively by the competent authority as early as possible,” it said.
the bench noted that several special leave petitions and civil appeals against such orders have already been dismissed While dismissing the appeals. Because another view is possible, the bench said it find considerable force in the submission made by the attorney general that opinion of the medical board deserves to be given due weight and ought not to be substituted by a court merely.
“The mere addition of a causal requirement and a removal of the presumption that when a member joins service healthy, and, if, he leaves with a disability, it ought to be attributable to the military service, does not, by itself, change the core scheme of the Entitlement Rules 2008 because the other beneficial provisions broadly remain untouched,” it said. The bench said the onus to prove that the member’s disability is not attributable to service still lies on the employer. “The sad part of this litigation is that, out of around 271 civil appeals and special leave petitions, most of them are barred by limitation,” it said. “In pending matters, the Tribunal must scrutinize in detail the opinion and reasons expressed by the medical board before deciding upon the claims,” it said.
“If a claimant approaches the relevant forum after a period of fifteen years, the principle in Rule 7 of the Entitlement Rules 2008 applies and the burden shifts.
Onus in such a case will be on the applicant to prove the conditions of entitlement,” the bench said. (Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)
