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Monday, December 4, 2017
Armed Forces Tribunal: Larger Bench clarifies grant of arrears of pensions, calls for sensitivity, Legal aid to ex-servicemen community
In very important decision rendered by a Larger Bench of the Armed Forces Tribunal, New Delhi (AFT) which should bring succour to the military veteran community, the tribunal has held that arrears of pension cannot be restricted to a period of three years where there was an existing right which had been held back by instrumentalities of the Government or where there was a failure of the Government to give effect to in rem decisions of Constitutional Courts forcing affected parties to litigate and such arrears could only be restricted to a period of three years preceding the filing of the case in matters decided in personam where there was no existing right but the individual benefit was granted by way of interpretation of the Court.
The matter, emerging from the case of a former Air Force Sgt Girish Kumar, was referred to the larger bench comprising the Chairperson Justice Virender Singh, Justice Surendra Vikram Singh Rathore and Lt Gen SK Singh when certain benches of the tribunal had started restricting arrears of ‘broad banding’ of disability pension to 3 years while other benches were granting arrears from 01-01-1996 or date of retirement.
Broadbanding was introduced with effect from 1996 by Ministry of Defence (MoD) to certain medical subjectivity wherein disability were calculated in 3 bands of 50%, 75% and 100% for the purposes of calculation of disability pension. However it was extended only to “invalided out” individuals by the MoD and not to those who were released on completion of terms or super-annuation. It was initially also not granted to pre-1996 retirees.
The SC had however directed the MoD to grant the benefit to all disabled personnel irrespective of the manner of exit and also to pre-1996 retirees with arrears from 01-01-1996. When despite SC’s decision the benefits were not suo moto released, many disabled personnel were forced to move the AFT, however certain AFT benches had restricted the arrears for only 3 years.
The larger bench has observed that such restriction was not correct since on earlier instances, the SC and the Punjab & Haryana High Court had set aside such restriction imposed by the AFT since arrears were flowing out of judicial decisions which had not been honoured by the Government.
The larger bench has also held that restriction cannot be imposed if there was an existing legal right emanating from an in rem decision or which had been held back or snatched but has clarified that restriction would be justified in cases such as disabilities declared ‘neither attributable, nor aggravated by service’ by the medical board and when the benefit is granted only on legal interpretation on an in personam basis.
The bench has also called upon the MoD to be more sensitive to the requirements of pensioners so that the AFT can devote time for more meaningful matters. The larger bench has also called for a legal aid scheme for ex-servicemen as a mark of respect for their service also in tune with the remarks of the President of India during the recently held Constitution Day Celebrations.
Expansion of Legal-Aid Services to Ex-Servicemen and their Families:
The Bench also took note of the fact that umpteen number of Ex-Servicemen and their dependants are unable get their wrongs redressed and continue to suffer in either ignorance of judicial mechanisms or inability to access the same on account of financial hurdles and other disabilities. The Bench observed that it is imperative to initiate a mechanism for improved accessibility to judicial redressal for Ex-Servicemen (particularly disabled soldiers) and their families, through legal-aid under the Legal Services Authority Act, 1987, the same being also in consonance with Article 39-A of the Constitution which is the foundation for the provision of legal-aid.
The Bench also observed that the heart of the legal aid programme must address the Ex-servicemen and it is pertinent to note that population of Ex-servicemen is almost double to that of the serving fraternity.
The Bench remarked,
A large quantum of them are residing in remote areas and are unaware of their legal rights and several of them belonging to schedule tribes and other marginalized section of society. Let the intention of the legal aid be focused to target this large section of society of ex-servicemen, who have spent their better years serving the nation in a disciplined forum, unaware of the dimension of their rights.