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Friday, April 1, 2011

Supreme Court again to the rescue of disabled personnel : A historical watershed moment for disability pensioners

Call it a red letter day or a watershed moment, call it whatever you may but yesterday marked a very important moment in history for any and every disabled soldier in India.

Blowing every inch of the illegal and illogical stand of the Pension Wing of the Ministry of Defence to pieces, the Hon’ble Supreme Court rendered a judgement which vindicates and endorses what has in recent times been held by the Chandigarh Bench of the Armed Forces Tribunal and also what has remained a very sore source of discontentment amongst the disabled community.

The 5th Pay Commission, in order to overcome the subjectivity, mistakes and rigid mathematical calculation of medical boards, had recommended broad-banding (also commonly known as rounding-off) of disability percentages for the purposes of calculating disability element of pension. The concept was initiated for all central govt pensioners. The Department of Pension and Pensioners’ Welfare (DoPPW) of the Personnel Ministry accordingly issued an Office Memorandum (OM) dated 03-02-2000 implementing the broad-banding policy initially only for Post-1996 retirees which provided that people with disability less than 50% would be granted a disability element by taking the disability percentage as 50%, those with disability between 50 and 75% would be granted a disability element @ 75% and those with above 75% would be granted the benefits of 100% disability. The Ministry of Defence (MoD) also issued policy instructions with regard to OM dated 03-02-2000 for post-1996 defence retirees vide its own letter dated 31-01-2001. Later however the broad-banding benefits were implemented for pre-1996 retirees also with financial effect from 01-01-1996 vide another DoPPW OM dated 11-09-2001. though it was smoothly implemented for pre-96 civil retirees, the Ministry of Defence however did not issue further implementation instructions related to pre-1996 retirees and denied the benefit to such retirees of the defence services. The MoD also provided in the letter dated 31-01-2001 that the benefits of broad-banding would apply only to those who were ‘invalided’ out of service and not to those who were discharged on completion of terms or retired on superannuation. The letter of DoPPW, a copy of which was sent to the MoD for implementation remained confined to some file and no action was taken on it and neither were senior officers informed about the same. The benefits to pre-1996 retirees were however later granted by the MoD also to pre-96 retirees vide an order issued on 19-01-2010 but these were made applicable with financial effect from 01-07-2009 while for civilians these had already been made applicable from 01-01-1996.

There were hence two grave anomalies in the letter issued by the MoD :-

Firstly, that it only provided for broad-banding to invalided individuals and not to those who were discharged or retired with disability. This was patently illogical since the concept behind broad-banding was that it was to overcome medical subjectivity, a malaise which equally affected both invalided personnel as well as those who were retired or discharged with a disability. This amounted to saying that the medical boards were subjective only qua invalided individuals and not towards discharged personnel. This also led to many incongruous situations wherein, for example, an individual who may have suffered 20% disability was granted disability element @ 50% rates even if he / she had been invalided a day earlier than his / her actual retirement whereas a person who may have suffered 40% disability and retired on his actual date of retirement would have received a lesser disability element despite suffering higher distress. The argument of the MoD that broad-banding was only extended to invalided personnel to cater to their shortening of tenure was also flawed due to the reason that shortening of tenure is taken care of by the ‘service element’ while the ‘disability element’ only relates to the extent of disability. Moreover, it is already provided in the applicable rules that defence personnel discharged on completion of terms or on attaining the age of superannuation are deemed to be invalided out for the purposes of disability pension.

Secondly, the letter issued by MoD was also anomalous since it did not extend the same benefit to pre-96 retirees. This amounted to saying that the medical subjectivity of boards only came into effect from 01-01-1996 and the boards conducted earlier were perfectly objective. This also did not stand the scrutiny of law since similar benefits under the same very pay commission had already been extended to pre-96 civilian retirees from 01-01-1996. It had already been held by the SC in the famous Common Cause Vs UOI case that separate cut-off dates could not be prescribed for defence and civil pensioners.

On both the above points, the Chandigarh Bench of the AFT had rendered separate judgements. In Lt Gen Vijay Oberoi Vs UOI, it was held by the AFT that superannuated or discharged personnel would also be entitled to broad-banding at par with invalided personnel. And in yet another judgement pronounced just yesterday, the AFT had held that pre-96 retirees were also entitled to broad-banding benefits as granted to post-96 retirees.

But yesterday, the Hon'ble SC, by way of a judgement in a case which was already pending before it (Capt KJS Buttar Vs UOI), and which, though unrelated, in effect endorses both the conclusions rendered by the AFT mentioned above, has inter alia held the following :

A. Broad-banding would be applicable to pre-1996 retirees also with effect from 01-01-1996. The cut-off date of 01-01-1996 by which the benefits were denied to pre-96 retirees has been held to be arbitrary.

B. Personnel who are released on completion of terms would be treated as invalided from service and would also be eligible for broad-banding benefits.

Though this settles the issue once and for all and would also help in unburdening the dockets of Courts from the plethora of litigation on the subject, one can only hope that the pension wing of the MoD is wise, fair and humble enough to apprise the senior officers of the correct position in law. It would only be in the fitness of things if the MoD suo-moto rectifies the anomaly and issues universal orders on the subject rather than forcing litigation on affected personnel.

53 comments:

SATTY'S CORNER said...

Very good news. Hope the implementation is smooth.Also the DGAFMS must now issue a letter removing all anomalies related to attributability/aggravation/idiocracy and part percentage for a number of ailments which Navdeep has posted from time to time.Thanks Navdeep.

Anonymous said...

Dear Navdeep
Great, Very good news. Thank you so much for the update.
I still do have a question:-
Does the judgement pronounced yesterday have a bearing on the (non)recognition of disability at the time of superannuation for benefits of AGIF.
Thank you
nelson

s.Kanthiah said...

Dear Major Sir,
It is a great news, a very useful and long awaited judgement. Let us hope that the judgement takes shape as early as possible because so many disabled veterans are in the fag end of their life. Let them enjoy the fruits during their life time itslf. All the Pre-96, Post -96 , Invalided and discharged veterans are to be treated as comman disabled and the benefits are to be uniform.

I thnak you once again for publishing this valuable informations.
Sgt.S.Kanthiah
Exwel Trust,
Tirunelveli-Dist, Tamil Nadu

Anonymous said...

Dear sir,
You are giving latest & very useful news for the Veterans.
Our Heartest thanks to you.
Yours
Ramaswamy

Anonymous said...

Dear Navdeep,
This info is GOD send , because only yesterday I had asked on chat roll regarding progress of the case.I suppose we still have to wait for letter from dept of ESM welfare? Anyway very encoraging news.
Thanks a lot.
GURDEEP SINGH
GROUP CAPTAIN (Retd )

Brig RS Rawat said...

Very enlightening. Hope MoD now does what Maj Navdeep recommends. Thanks from ALL Disabled ESM.

Anonymous said...

Excellent excellent NEWS. Maj Navdeep is keeping us posted with far reaching good NEWS, everytime and then. Hope to see equally good NEWS in the near future for Non Functional Financial Upgradation, Rank pay anomaly and DACP.Regards

Lt Col G K Mohan Rao said...

Good news Maj Navdeep. I hope good sense prevail upon GOI, MOD to issue suitable orders rather than seeking flimsy grounds to circumvent the issue

Anonymous said...

My dear Maj Navdeep,
You have indeed given a very heartening news . Thank you very much.We deeply appreciate the manner in which you have so lucidly put across the beneficial implications of the judgment for lay readers.We can only wish and hope that the MoD pensioner welfare dept will act on the judgment in both letter and spirit and issue implementation orders with effect from 01-01-1996, the date on which the anomaly arose.Why should there be any other way? The least that the govt can do is to give the disabled soldiers what has been granted by them to the civilian employees.In this context,one can not help but wonder that the way things are now, people in govt are of the view that it is not the soldiers who fight the country's wars but people who do not don the uniform!I also hope that the MoD will not now file a review applicaton in this case for modification of the judgment as has been done in the rank pay case.
Finally, to all those who were involved in fighting for the cause of the disabled veterans, such disabled personnel owe them immeasureable debt of gratitude.
Thank you,once again.

Pokar Ram said...

My ear Major Navdeep sir,
1. You are doing invaluable service to the defence personnel and veterans.
2. May the God bless you for the excellent service being provided by you.

Ex-Maj S C Ghosh,Father Of Bhaskar Ghosh said...

Dear Navdeep,
My son Ex-naval & R.I.M.C cadet Bhaskar Ghosh while under going training at NDA in 1987 became 100% disabled due to "Anterior Poliomyletis" GOI,MOD after treatment could not improve and I have to withdraw and send him to USA for treatment.GOI,MOD sanctioned disability award,CAA & service element subject to review which was done before leaving for USA. As my son could not come to India for several review's PCDA(P)ordered that the said disability award was given to him only upto 24/07/2008 as Per PDA(UCO Bank)Govt. A/C cell vide memo GC/PEN/165/2010-11 dt.28-10-2010.
Thank you,
April 3,2011 2 PM

Anonymous said...

One must appreciate the concern of highest court. Everyone is aware that that it is very difficult for implementing authorities viz AHQ, Record Offices and PCDA(P) to implement the policies in right perpective becuase whenever the MOD issues any amendment based on the court order, the whole related policies are not connected properly. It is not visualised that what will be the repercussion if any policy is implemented for a particular section. Why we cannot make the rules simple and easy to understand. If anyone is in agreement with me or not but if we make rule rule easy and simple we may save crores of rupees in the long run :-
-Less no of court and legal department.
-The size of audit department can be curtailed.
-Other govt related agencies can be reduced.
-Most but not least the poor man will feel good.

On the other hand you may say that it may reduce job opportunities but there are other ways and means to resolve this problem.

All the govt department are overburdened these days because of extra workload. Computerisation had improved some systems in private companies but not in govt offices. Computer cannot move a physical file from one table to other etc.

ajay said...

i have 10% disability which is attributable to mil service!!!do i also get benefitted by this judgement or is it meant only for those pers with 20% disability and more?????may i request someone to clarify please

Penmil said...

@ ajay April 3, 2011 7:59 PM .
A reference to an earlier post by Maj.Navdeep on
Wednesday, February 16, 2011
"The 20% disability misconception"
http://www.indianmilitary.info/2011/02/20-disability-misconception.html ,
says,
"However, the said criterion of 20% minimum requirement has already been abrogated with effect from 01-01-1996 but only for invalided personnel. Hence, there is no requirement of minimum 20% disability for earning a disability element for those post-1996 retirees who were invalided from service and such invalided personnel are entitled to a disability element by rounding off the disability to 50% even in case they are medically boarded out with 01% disability. The minimum 20% disability requirement however remains intact for those disabled retirees who have been discharged on completion of terms or have superannuated."
If one is invalidde and that too after 01/01/1996,then one gets the benefit, even with a 1% disability.

Anonymous said...

Dear Maj Navdeep,

Thanks. The judgment is not yet in SC website. would you be kind enough to post the case No: for our future ref.

With regards,

RPG

Anonymous said...

Hope for executive orders from deptt of ESM welfare (MOD) without more breakers.
Refer anonymous comment 1 apr 11;6:11pm...AG's br also need to rctify / issue orders for paying disability benefits to superannuated disabled officers.
Refer Ajay's point ..well 100% disabled personnel do not get any additional benefits due to rounding off / broadbanding of disability.

ajay said...

@Penmil and Anonymous
firstly genuinely grateful to both of u to have addressed my query
wrt to this post(extract given below).
"Personnel who are released on completion of terms would be treated as invalided from service and would also be eligible for broad-banding benefits."
will i still not be considered for grant of 50% disability element being 10% disabled at present, after having completed my terms of service or being superannuated.

Anonymous said...

Dear Ajay ,
you should be getting the disability element of pension by the logic that all superannuated disabled personnel are to be treated as boarded/invalided out and as per rounding off / broadbanding it should be 50%.
Let us wait for actual executive orders from deptt of ESM (MOD) and hope for the best.
No wonders this verdict may meet the fate like that of Rank Pay.
I pray for better senses to prevail upon those who are in authority today.
AKJ

Penmil said...

@ Anony,April 5, 2011 7:41 PM
Dear AKJ,Thanks for refering/linking up the issue with the ruling that those superannuated with disability are considered invalided.
A grey/gray area,still is, are the prematurely retired(voluntarily) officers with disability , eligible for the twin benefits of broad banding and %age based disability element of disability pension.

Can you show any link which unambiguously states the rule?
Thanks.

Anonymous said...

Dear Penmil
Refer your comment at 9:35 am.
1. Disability element on percentage basis:
Please see PCDA(P) website to read their circular No. 456... para 3(i) Aplicability and para 3(ii) non-applicability
As I understand,it will be available to all those who were in receipt of disability pension .
2. Broadbanding/rounding off - detailed instructions have to be awaited for.
AKJ

ajay said...

even i have the same query if pers retired prematurely say after 20 yrs will also be eligible to this benefit of broad-banding or so to say at par with pers being superannuated

Anonymous said...

dear penmil and ajay
1 for disability on percentage basis-
please see PCDA(P) circular No. 456 dt 18-3-11
2. for rounding off / broadbanding-
executive orders by deptt of ESM (MOD) are have to be waited for.
AKJ

Penmil said...

@AKJ on April 6, 2011 5:00 PM & April 8, 2011 4:21 AM
Thanks for the clarification.Shall wait for MoD orders on Broad Band.
May be the time is not yet ripe for asking about disabled PMR cases.

Anonymous said...

Sir,

Kindly clarify the difference between
disability pension and liberised disability pension.

majorpremkumar said...

Dear Major,
Nobody seems to be doing
anything about DISABILITY PENSION
for pre 2006 voluntary retirees like
me,inspitr of various SC/HC verdicts
on the subject.
Any progress on this subject

major[retd]prem kumar
majorpremkumar@gmail.com

kamal said...

Dear sir,

iam getting 30%disability pension on behalf of my late husband.would like to know any progress lately??
Regards,
kamal

Anonymous said...

Maj Navdeep,
Refer comment by Kamal on 12 april.
I wonder if spouse is entitled for any disability pension at all.
As known to me,Disability pension is only for the disabled soldier / employee.
May you like to educate on the subject.

Anonymous said...

Has any one received the payment ?
PDAs appear to be taking too long.
I have not received my dues so far.
My bank is SBI.

Anonymous said...

Orders from depatt of ESM (MOD) are yet to be seen...
Then will be the PCDA(P) circular ..
Hope executive orders are issued and get translated into actual payment in this year for disabled soldiers.

Anonymous said...

DEAR ALL CONCERNED
After the letter by ESM dept and the PCDA letter dated 18.03.11, I approached my bank SYNDICATE.Initially they were reluctant and wanted the letter to come from their Head Office. But after disscusions and educating them as to how to download the said letter,they have agreed ( apparently they did send FAX to their Head Office for confirmation ) Today only it was confirmed that they are calculating and should credit it by weekend. Once it is done i will inform.I do hope it will definately be done next week, if not this weekend.
Best of luck to everyone involved.
GURDEEP SINGH
GROUP CAPTAIN (Retd )

Anonymous said...

Dear Navdeep
Please refer comments Kamal and Anonymous.
Really intresting . Would like to know if NOK is authorised for Disability/ War injury Pension.
Please educate us.
Thanks in advance
GURDEEP SINGH
GROUP CAPTAIN (Retd )

Anonymous said...

@ My comments dated 18 Apr .

The Syndicte Bank as promised has been prompt to credit the amount in my account. It did require one visit ( My pension comes in other place than where I live ) and a few tel calls.
I must say not only it was done reasoably fast but even the Manager rang up to confirm the task was accomplished
So those who have not yet got start chasing the authorties.
Best Of luck.

GURDEEP SINGH
GROUP CAPTAIN (Retd )

Anonymous said...

One complete month passed.
No orders from MOD are available so far.
Hope for the same in May 11.

Anonymous said...

Dear Major Navdeep,
What about people who have been invalided out of service with a disability but only draw service element of the pension because their injury is neither attributable to or aggravated by military service.I was invalided out after 10 years and six months service in March 1981 with 40 pct disability.But my injury sustained in September 1976 during my annual leave cum joining time on my way to CME Pune was not considered attributable military service or aggravated my military service.
Would appreciate your views and insight.

Regards
Captain Mahesh Nair
asianar@gmail.com

colonel harish Joshi said...

I had two kinds of disablities when I retired,(a) BC Op Pawan that is 40% (b) normal disablity 20%. How will these be up graded as per new rules.
Colonel Harish Joshi

Sridhar said...

I am pre 1996 retiree discharged with 20% disability wef 19/5/74 from IAF. I have recently been paid the broadbanding of disability as per 6th CPC of minimum 50% wef 1/7/2009
as per your blog on 1/4/2011 the supreme court upheld the AFT chandigarh ruling that even ex-servicemen should be paid the broadbanding wef 1/1/96 which was paid only to civilian central govt pentioners. Kindly update us on this information from when the arrers to be paid

Sridhar said...

Dear Navdeep
please let us know, is there any supreme court ruling prohibiting govt agencies from acquiring ex-servicemen agricultural property kindly let us know the ruling if any.
Thank you

LT COL(RETD) CK KAUSHIK said...

My dear Major Navdeep,
W all vetarns are grateful to you for what you are doing for all of us.Could you kindly give us copies of judgements regarding "Broadbanding" of disability pension in respect of pre-1996 officers who retired on completion of terms of service with disability pension as so far no progress is seen in the case.Thanks .
Lt Col(Rrtd) CK Kaushik
chanderkkaushik@yahoo.co.in

Anonymous said...

Dear Major Navdeep Singh,
I had written to Army HQ on the subject.AG"s Br wide their 12656/IC-17840/T-5/MP5(b) dt27 Jul 11 has written to AG/PS-5 "It is intimated that number of such cases are being received regarding broad banding of disability pension in respect of pre-1996 retirees.However no Govt order on the subject has been received.Hence you are requested to intimate whether any Govt orders on the subject have been issued or otherwise."Copy of the letter available on request.

Lt ColRetd) CK Kaushik.

Capt Sharma said...

Any information as to when Government is likely to issue authority letter promulgating the Supreme Court Decision of 01 Apr 11, on applicability of Broadbanding to pre 96 disabled exservicemen

Lt Col(retd) CK Kaushik said...

How long do we have to wait?Any chance of any decision in the matter.Will any one help? Maj Navdeep Singh please do some thing to get our dues setteled.

Raghav Tomar said...

Dear Sir,

Good Day!

I was a Cadet at Naval Academy under 10+2(X)NA Entry scheme before I was invalidated from service due to an injury attributable to military service. I have been awarded 20% disability for life. However, till date, neither have I been provided any revisions in benefits as per the 6CPC, nor is my percentage of disability treated as 50% (it is in fact treated at 20%) as mentioned by you in case of broad-banding.
Please advice as to whom should I approach to get my rights.
(If you remember me, I came to meet you at your home as well a few years back.)

Regards,
Raghav Tomar
contact@meetraghav.co.in

LT COL(RETD) CK KAUSHIK said...

Dear Major Navdeep,
Extract of AG's Br letter NO- B/41021/AG/PS5 dt 30 Nov 11 reproduced below for your comment/advice pl:-
BROAD BANDING DISABILITY ELEMENT
1. Pl ref 17840W/K/Pers dt 05 Nov.
2. Bd banding of disability percentage for computation of dis element is admissible on invalidment only.As per the extant provision,those who proceeded on superannuation are not eligible for above benefit.
3. The Supreme court judgement has been projected to MoD and a case has also been projected to MoD for extending the broad banding benefit on superannuation.
(Saroj Bala),Dy Dir, AG/PS5
Copy to: MoD/D(Pen/Pol)-For NA.
MAY FWD COPY IF E-MAIL ADD IS GIVEN

LT COL(RETD) CK KAUSHIK

Capt Sharma said...

The GOI(MOD) cannot be so inefficient that, it cannot issue a government letter to implement Supreme Court ruling in a period of 9 months. I opine that it maybe apropriate to move an RTI appication seeking MOD file notings dealing with the case of its implementation. Are there no yard sticks about time frame for implementation of Supreme Court Rulings? As the government has not challanged the judgement within the authorised time period of 3 months and the ruling stands finalised.
The picture will clear through this RTI application.

Capt Sharma said...

1. Given the insensitive and partisan attitude of civilian bureaucracy towards defence personnel,I wonder if they will ever implement the specific Supreme Court ruling dated 31 Mar 2011,given by Justice Markandey Katju & Justice Gyan Sudha Misra,in the case of ex-Capt KJS Buttar vide appeal filed by him against the judgement and order dated 13.9.2004 in C.W.P. No.20447 of 2002 of the High Court of Punjab and Haryana at Chandigarh, on the basis of which this opinion thread is based.
2. I opine that the expectant hope & wait for implementation of applicability by MOD for all other disabled defence persons is going to be unfounded.
3. It may require filing of another class case in Supreme Court.

Capt Sharma said...

MOD has filed an appeal in the Apex Court much against the advise of Law Ministry and Army Chiefs decision not to appeal against the AFT Chandigarh ruling about applicability of Broadbanding in favour of Lt Gen Oberoi and despite the fact that the point of law was settled in the case of Capt Bhutter vrs UOI in Supreme Court ruling of 31 Mar 2011. It appears that Deptt. of Ex-Servicemen Welfare is a LAW ON TO THEMSELVES.

LT COL(RETD) CK KAUSHIK said...

will the appeal against AFT judgment affect the Hon'able Supreme Court judgement since no appeal was filed within stipulated time against the Supreme Court judgment.Will some one clerify? Oh God where do we go?Can we think of getting justice in our life time?

LT COL(RETD) CK KAUSHIK

ckaushik42@gmail.com

Capt Sharma said...

Assuming that the SLP filed against the AFT judgement is admitted notwithstanding 400 days of delay beyond limitation period and even if eventually dismissed and the Government issues sanction to pay arrears to Lieut Gen Vijay Oberoi, still the Government may not consider it appropriate to consider it a settled law point and extend the broad banding to other similarly placed officers who had retired on superannuation with disability, on the similar lines of action taken by Government to file a SLP before Supreme Court even after Govt sanction to pay arrears to Maj AK Dhanapalan were issued, the benefit was not extended to similarly placed officers of the three Services.

Ex Sub BD Garg said...

There are lot of judgements regarding broadbandin/rounding of disability pension. The AFT has defined the defination of invalidment in a very simple language, which I feel the concerned Officers in the M of D should have no problem in understanding and got these orders implemented.So that each and every ex-servicemen can get the benefit withou going to AFT.

Ex Sub BD Garg

Anonymous said...

All talk and no play!!!!
Supreme Court to the rescue of disabled personnel??? OR Just to engrave the strong hold of bureaucracy .SC or no SC we shall prevail and for the affected among us .. keep on head banging.

SANTOKH said...

Dear Maj Navdeep,
I am sure many disabled veterans are eagerly waiting for the outcome of the case relating to BROAD BANDING OF DISABILITY PENSION to superannuated veterans.
Could you please post an update on the issue?
We know your busy schedule but let me apprise you that each and every veteran in the evening of their life looks up towards you as an authority on the latest news.
We wish you good health to help the veterans.
Warm Regards.
Lt Col S.S.Bhatia

vsunilkrltcol said...

Dear Navdeep sir,

I took premature retirement from army before completion of 20 years of service. I have been granted 20% disability. Accordingly I have been sanctioned disability element of pension. However what I have heard is that in some cases forces have sanctioned both service element and disability element to some officers who have taken premature retirement before 20 years. But I do not have any evidence on the subject. So please guide me whether service element is authorized to all those who have been sanctioned service element. What I have been told by some body is that any individual with any type of pension is eligible for service element of pension. Please guide.

LT COL(RETD) CK KAUSHIK said...

May I request that UPDATE on the hearings for appeals filed by the MOD against AFT & Supreme court judgments may be posted for benefit of all affected .

LT COL(RETD) CK KAUSHIK