Updated: March 5, 2015 10:18:18 pm
When the Supreme Court on December 10 dismissed more than 800 appeals filed by the Ministry of Defence against decisions of High Courts and tribunals awarding disability pension benefits to disabled and war disabled soldiers, many wondered: how many times will the courts have to rule against the MoD for the latter to desist from filing these appeals against its own men.
Thousands of disabled soldiers fight painful legal battles against the MoD’s Department of Ex-servicemen Welfare (DESW) to upgrade their pensions, often for paltry sums ranging from Rs 155 to Rs 1,000 a month. Many impoverished ex-servicemen have died before they got their dues, several others have abandoned their cases since they could not afford expensive legal battles against government lawyers.
Major Navdeep Singh, a lawyer who has taken up scores of such cases, says, “Though the SC has given relief to disabled and war disabled soldiers with its decisions, successive governments did nothing about it. The present government could have used the opportunity to earn the goodwill of military veterans by suo moto withdrawing the pending appeals but it too didn’t.”
It all goes back to the Fifth Pay Commission in 1996, which introduced the concept of ‘broad-banding’ while calculating the disability element of a soldier. The Commission provided that those with a disability of anything below 50 per cent would be granted a disability element at the rate applicable to 50 per cent disability. Those with 50 to 75 per cent would be granted the benefit of 75 per cent and above 75 per cent would be considered as 100 per cent. The idea behind the concept was to minimise subjectivity by medical boards.
While implementing the concept, the MoD granted it only to post-1996 personnel invalided out on medical grounds and not to pre-1996 or those who were released with disability pension on superannuation, retirement or completion of terms. In almost all these cases, the MoD refused to implement the broad-banding, which meant that a soldier with, say, 30 per cent disability only got disability pension at the rate applicable to 30 per cent and not 50 per cent as the Pay Commission had recommended. When the soldiers approached the court and got a verdict in their favour, the MoD would appeal in a higher court.
Following a series of litigation, in 2011, the Supreme Court, in a detailed judgment, held that pre-1996 disabled personnel and those released on completion of terms or on superannuation could not be deprived of broad-banding (which has attracted the maximum litigation). The decision was reinforced in January 2014 when a review petition filed by the government was again dismissed by the SC. But DESW continued to appeal on the ground that “the decisions are against the settled policy of the government.”
The BJP in its election manifesto had promised to minimise litigation of defence pensioners. The sustained filing of civil appeals has, however, continued even after the NDA government took charge. Veteran organisations repeatedly pointed out that the maximum number of cases filed by the MoD in the SC are appeals against its own disabled, war disabled and military widows.
Lawyers also point out that often the DESW refuses to implement the favourable judicial verdicts on the “pretext” that the ministry intends to file appeals. Organisations representing ex-servicemen say many appeals are filed after the mandated period. Singh estimates that thousands of disability pension and regular pension cases are not implemented leading to heartburn among military veterans and unnecessary burden on the courts. The DESW is swamped with work from its appeals because 90 per cent of the judgments that require implementation (after it has exhausted all legal courses) remain unexecuted, forcing aggrieved veterans to file contempt petitions. Sometimes ex-servicemen remain unrepresented in the SC leading to ex-parte proceedings against them.
In 2011, the then chief of army staff Gen (retd) V K Singh had taken a decision not to file appeals against judgments that went in favour of
disabled soldiers. The DESW ignored it. More recently, Defence Minister Manohar Parrikar said on the occasion of Good Governance Day, “Minimisation of litigation is a priority and I have instructed the officers concerned to evolve a policy for reducing court cases in service matters including pensions.” Following the SC ruling, the government is withdrawing appeals in 4,000 similar cases relating to broadbanding of disability. But many more are being filed each day in other matters.
As Navdeep Singh, the lawyer, says, “If a person has lost his leg in a mine blast, does the disability cease to exist if he chooses to retire before his due date? There are still more like Naik Surajbhan where the army or the MoD is insisting that disability is not ‘attributable to military service’.”
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