Open Letter to The PM

BROAD BANDING OF DISABILITY PENSION
FOR THE WAR-DISABLED

Dated: March 20, 2012

Honourable Prime Minister,

For years now, disabled ex-Servicemen, many of them wounded in combat while fighting for our country, have been struggling with a war within which has become a source of resentment among war veterans. The very fact that disabled soldiers have to endlessly fight for what is considered their legitimate due, underlines the fact that despite the platitudes heaped on our soldiers, neither the political nor the bureaucratic establishment really cares for their welfare. This letter, Prime Minister, is the voice of your disabled countrymen, reaching out to you to finally put a speedy and humane end to this endless fiasco.

Primarily, there are two issues relating to disability pension which have become a bone of contention a) the broad-banding of disability element of pension and b) differential rate of disability element depending on the manner of exit / release from service.

The 5^th Central Pay Commission, in order to rationalise and minimise medical subjectivity, disagreements and mistakes of medical boards and to overcome the rigid mathematical calculation of disability, provided that disability percentages would be broad-banded and rounded off in three bands. However, the Ministry of Defence’s orders dated 31 Jan 2001 restricted broad-banding benefit only to those invalided out, excluding those released with disability on completion of terms / discharge / superannuation etc.

This led to a spate of litigation wherein Tribunals and Courts right up to the Supreme Court have routinely upheld that broad-banding shall apply to all categories of disabled personnel, on the basis of the following –

(a) The principle of medical subjectivity equally applies to all cases of disability, whether the affected individual is invalided out or retained in service after disability. Broad-banding concept is connected with disability only and has no logical relationship with the manner of exit /release from service. As you are aware, this is a special provision that is applicable only to the defence forces; civilians retained in service after incurring disability get lump sum compensation in lieu of disability pension.

(b) Pensionary provisions in the defence services provide that personnel released or discharged with disability on completion of their terms of service shall also be treated as having been invalided out. This is explicitly provided in Rule 1 of Entitlement Rules 1950, Rule 4 of Entitlement Rules 1982, Para 3 of Govt of India MoD dated 18 June 1971 and Regulations 53 and 179 of the Pension Regulations as amended from time to time. The 1961 Pension Regulations initially stated “….as if he/she had been retired on account of the disability…..”. Subsequently, the Regulations 53 & 179 were amended to make the provision more explicit by stating that all personnel retiring with disability “shall be deemed to have been invalided out.”

The Supreme Court has already upheld, more than once, the principle of granting broad-banding to all those who are released / retired / discharged with a disability and treating them as invalided out. With these judgments, granting broad-banding benefit to all categories of disabled ex-servicemen and treating them as invalided out irrespective of the manner of exit /release from service, have become the Settled Legal Position. However, instead of revising the disability pension policy in implementation of the above judgments, Ministry of Defence keeps on filing SLPs in similar cases. The latest example is the case of Lt Gen Vijay Oberoi vs the Union of India.

Thus, MoD is neither respecting its Rules & Regulations nor the settled legal positions arrived with SC Judgments. This is causing demoralisation among the disabled ex-servicemen. MoD keeps wasting huge amount of money in litigation dragging disabled ex-servicemen right up to the apex court level, The ex-servicemen can ill afford to fight legal battles with the Government. The number of such cases runs into several hundred.

On 06 March the Raksha Mantri had called a meeting of the Vice Chiefs of the three Services to discuss the issue of applicability of broad-banding to ex-servicemen who were retained in service after permanent disability. Adjutant General and other concerned officers from the Army also participated in the meeting. MoD was represented by Secretary (ESW) and his team.

As differences between MoD and AHQ could not be reconciled, the RM has sought the Attorney General’s opinion in the matter. It is not our intention to decry the officials of the MoD but the fact remains that for reasons best known to them, the information being fed to the RM is incorrect. For example, even though there is no accurate data base, the number of affected cases that are being cited by MoD are almost five times the actual reality. Apart from the divergent interpretation of the rules, MoD also alluded to the large number of disabled, to deny enforcing the just dues, and hence financial implications in case broad-banding concept was applied to all disabled ex-servicemen, whether invalided out or not. The number of disabled is debatable as earlier the MOD had declared over 40,000 war disabled/battle casualties which after a statistical survey turned out to be a mere 7,500.

In addition, the RM referring the matter to the attorney and the Soliciter General is an incorrect step as the very same officers are now going to defend MoD’s appeal vs General Oberoi and others. This is against the principles of natural justice.

For disabled ex-Servicemen to be made to struggle in this manner against our very own Union of India surely cannot be tolerated by you or by your Government. The matter has dragged on and on for years and years and almost all those affected are already senior citizens whose numbers get further diminished by the day. As our Prime Minister we feel it is your moral and ethical duty to step in and resolve this pending issue.

Jai Hind!

Signed by:

List of Signatories