MoD FILES APPEALS AGAINST DISABLED VETERANS DESPITE CONTRARY DIRECTIONS BY THE COAS AND DESPITE LEGAL POSITION SETTLED BY THE SUPREME COURT
The appeal in the SC on 17th Feb 2012 by the Defence Ministry against the enhancement of war-injury pension of 1965 war-hero and former Army Vice Chief Lt Gen Vijay Oberoi has again brought into focus the deep scorn of the MoD’s Department of Ex-Servicemen Welfare (DESW) towards disabled defence veterans. Gen Oberoi is 70% war-disabled and the Chandigarh Bench of the Armed Forces Tribunal (AFT) had granted him enhancement of five percent from 70% to 75%.
The DESW has filed an appeal in the SC despite the fact that the matter has already been settled by the SC in two cases in 2011 in favour of disabled veterans, namely KJS Buttar Vs UOI and UOI Vs Paramjit Singh. The SC refused to grant a stay on the AFT’s decision in Gen Oberoi’s case when the case came up for hearing.
To off-set medical subjectivity, rigidity and mistakes of medical boards, the 5th Pay Commission had introduced broad-banding of disability percentages for calculation of disability pension wherein it was provided that disabilities upto 50% would be considered as 50% for purposes of computation of disability pension, those between 50-75% would be treated as 75% and above 76% would be taken as 100%. This was considered imperative since different medical boards were granting varied percentages for similar disabilities leading to errors.
However while implementing broad-banding, the MoD extended the policy only to those prematurely invalided from service and not to those who had been granted disability pension on completion of terms or on superannuation though the latter were also affected by the same medical subjectivity. This action of MoD was also against existing rules since defence pensionary provisions provide that all personnel released in low medical category were to be deemed as ‘invalided’ for purposes of disability pension.
The AFT’s Chandigarh Bench had ruled in August 2010 that discrimination between invalided and other low medical category personnel was not justified. This was followed by similar favourable judgements by the Supreme Court in 2011 following which the Army HQ and the Chief of the Army Staff had directed that no further appeals were to be filed in SC on similar matters. It may be recalled that it’s the Adjutant General’s Branch which is responsible for taking a decision whether to implement a Court decision or to file an appeal against it.
Despite directions by the COAS and SC judgements, the MoD has gone ahead and filed such appeals, which, ex-servicemen opine, is not only demoralising but shows the convoluted approach of lower bureaucracy which keeps the top brass of the MoD in the dark about the actual position. Veterans feel that rather than amending its arbitrary policies in favour of disabled and war-injured personnel, the MoD is more inclined to pay hundreds of crores of rupees as legal fee to Govt lawyers in the SC out of tax payers’ money. In fact, it is learnt that the former Secretary of DESW, Ms Neelam Nath, had, in 2011, granted an in-principle approval of rectification of the anomaly but the file was given a negative twist by lower-level staff.
Even on other occasions, the Defence Ministry has been clogging the dockets of the SC by filing appeals against verdicts granting disability pension to disabled and war-disabled. Most of the appeals filed by the MoD in the Supreme Court against High Court and AFT decisions relate to handicapped veterans and their claims to disability pension. In many cases, the Ministry fields top govt lawyers including the Solicitor General by spending heavily in issues involving grant of a disability pension amounting to a few hundred rupees. Defence personnel of lower ranks are mostly unable to afford legal help in the SC because of the exorbitant costs involved leading to uncontested decisions at times.
