14-year legal battle: Jammu and Kashmir and Ladakh High Court raps Centre, upholds ex-serviceman’s disability pension

The government challenged the tribunal’s order, citing a circular from February 9, 2018, that the benefit of broad-banding for those who completed their term of engagement should only be granted from January 1, 2016.

What is broad-banding?

In the Indian Armed Forces, rounding off (or broad-banding) disability pension means increasing a medically assessed disability percentage to the next higher slab to provide higher financial benefits, specifically rounding disabilities of 20 per cent or more to 50 per cent. It applies to cases where disability is attributable to or aggravated by service.

Justices Sanjeev Kumar and Sanjay Parihar stated that an internal communication between the Centre and the Army chiefs can’t change the law.

Case of disability pension

• The legal battle originated from a claim by ex-serviceman NK Gurdeep Singh, who was discharged from the Indian Army on December 31, 2011, after completing his term of engagement.
• Although a medical board assessed his disability at 20 per cent and found it aggravated by military service, the authorities initially denied him the “rounding off” (broad-banding) benefit to 50 per cent.
• While the AFT, in July 2022, ordered the benefits to be paid from the date of his discharge in January 2012, the Union of India challenged this, citing a circular dated February 9, 2018.
• The government argued that the benefit of broad-banding for those who completed their term of engagement should only be granted from January 1, 2016.

‘Entitled to benefit’

• The issue which is sought to be raised in this petition is squarely covered by the judgment of the Supreme Court in the case titled “Union of India and others Vs SGT Girish Kumar and others, etc.
• The Supreme Court has, by placing reliance on the policy decision of the government of India, vide communication of April, 2016, reaffirmed the legal position settled in Ram Avtar’s case.
• The position is that all the armed forces personnel who had retired or were discharged on completion of engagement with disability, attributable to or aggravated by military service, are entitled to the benefit of rounding off from the date of their discharge/retirement with disability.
• The Supreme Court has also clarified that the judgment rendered in the case of Ram Avtar was a judgment in rem (binding judgment) and its benefit was available to all ex-servicemen who had been retired or discharged on completion of tenure with disability aggravated by or attributable to military service.
• With a view to giving effect to the judgment rendered by the Supreme Court in the case of Ram Avtar, the Ministry of Defence, Department of ex-servicemen welfare, D (Pension/Legal) communication on April 18, 2016, conveyed to all three service chiefs the approval of the competent authority.

• It conveyed that the benefit of broad-banding of disability element would be granted to all the armed forces personnel retired or discharged on completion of the term of their engagement with disability attributable to or aggravated by military service from the dates mentioned in their respective orders.
• We could have given serious thought to the position as emerging from the communication dated February 9, 2018, which was strongly relied upon by the state.
• But having regard to the fact that the Supreme Court in the case of SGT Girish Kumar has categorically and unequivocally held that the judgment rendered in Ram Avtar’s case is a judgment in rem and was, therefore, applicable to all the armed forces personnel retired or discharged on completion of terms of engagement with disability aggravated by or attributable to military service.
• The 2018 circular could not be used to “supplant” or override judicial declarations made by the highest court in the land.