The Armed Forces Tribunal’s Chandigarh bench has dismissed a petition filed by the Army Headquarters asking for ‘Leave to Appeal’ in the Supreme Court to challenge the grant of pension to a handicapped son of a former soldier even though a cabinet decision exists to grant pension in such cases.
Handicapped children of government employees and pensioners are eligible for lifelong pension irrespective of age in case there is no other eligible claimant in the family. Vinod Kumar, an 80 per cent handicapped son of an Army jawan of the rank of Naik was, however, refused his pension on the interpretation that handicapped children who got married were not eligible for pension. The AFT had held in 2010 that no such condition could be imposed and had directed the Government to release the pension to Vinod Kumar.
Later in the year 2013, on the directions of the Union Cabinet, a letter was issued by the Central Government clarifying that even married handicapped children shall remain eligible to pension thereby settling the controversy once and for all.
Contrary to government policy issued after cabinet’s sanction, the Army HQ filed an application in the AFT seeking leave to appeal to the SC stating that it wanted to challenge the verdict since it involved a point of law of “general public importance”.
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Lawyers familiar with litigation, involving the Defence Services, say that the Army HQ has been directing government lawyers to file such appeals in many cases which have attained finality even at the SC. There has been a spate of applications for filing appeals and reviews against disabled soldiers and even in the issue of enhanced pension of Honorary Naib Subedars which have already been decided by the SC and in which even the Attorney General had asked the three service chiefs not to file further appeals since it was causing embarrassment to the government.
Lawyers further say that unlike the Air Force and the Navy, the Army HQ seldom strongly protests or informs the senior functionaries about the correct legal position when any entity in the MoD asks it to file an appeal, opting to rather obey rather than recording on file the law laid down by the SC.
The All Indian Ex-Servicemern Association had earlier pointed out to the Defence Minister that litigation by the Government had become “lucrative business” and officers were flaunting ‘legal opinions’ to justify appeals when the matter had been settled by the apex court and directions had been issued even by the Prime Minster and Defence Minister to reduce such litigation.
A lawyer dealing with the subject says that nothing would change unless courts impose personal costs on officers of the Army and MoD who are directing the filing of such appeals and reviews in settled matters.
In the past, while the Army HQ has been claiming that it is the MoD which asks it to file appeals, the MoD has been putting the blame on the Army HQ. Recently, multiple applications for appeals against disabled soldiers were filed by the Army HQ even when the SC had directed the grant of disability pension to them based on a series of consistent orders.
Sources say, crores of rupees are spent on govt lawyers by the three services by filing infructuous appeals in settled matters by alleging artificial distinctions. It is also said that rather than following law laid down by the SC or the political executive, officials tend to give more weight to legal advice by government lawyers in favour of filing appeals.