New Delhi: The Supreme Court on Tuesday dismissed more than 270 appeals filed by the Centre against disability pension granted to Armed Forces personnel, noting that while the Entitlement Rules of 2008 modified clauses on attributability of the disability, it retained the protective framework of the 1982 rules.
The court said the 2008 rules removed the earlier presumption that a disability suffered by a personnel, who entered service in sound medical condition, was attributable to the armed forces job, the amended clauses retained the beneficial structure of the 1982 rules.
However, it stressed the importance of the medical board‘s opinion and directed that courts must give adequate weightage to it while deciding a case concerning disability pension.
A bench of Justices P. S. Narasimha and Alok Aradhe observed that the 2008 Rules “substantially reproduce the 1982 scheme of causal connection, onus, and attributability/aggravation”, subject to the qualification introduced by Rule 7.
The said rule shifts the onus to prove the entitlement on the claimant in case a challenge to the denial of disability pension is made 15 years from discharge, retirement, invalidation or release.
The court ultimately dismissed the present appeals on delay as well as merits, while laying down the three operative clarifications: medical board opinions deserve due weight; tribunals must scrutinise their reasoning; and claims brought after 15 years carry the burden on the claimant.
The judgement raised a more fundamental concern about the manner in which the 2008 regime evolved and questioned the logic behind it. It carried a sharp criticism for the government’s approach in handling such cases and for filing close to 200 belated appeals, arising out of decisions given by the Armed Forces Tribunal and high courts.
The court said the 2008 regime lacked transparency and reasoning. “We are at a loss to understand as to why the position of a rule that governs pensionary benefits be shrouded in mystery,” said the bench.
The 2008 rules appeared to be “a collation of the modified executive instructions issued subsequent to the Entitlement Rules 1982”, said the court, while asserting “clarity and certainty are of enormous importance for any legitimate action”.
It added that there should not be “dissatisfaction and lack of confidence” among ex-servicemen about how their pension claims are dealt with. The applicable rules, it said, must be “formulated and notified authoritatively by the competent authority as early as possible.” It asked the Centre to notify the 2008 Rules.
Referring to the Raksha Mantri Committee Report of 2015, which recommended immediate withdrawal of appeals against disabled soldiers, the court noted the recommendations were not followed earnestly.
The Committee had observed in its report that many disabled soldiers are still denied disability benefits on hyper-technical reasons, despite the inherent “stress and strain” of military service.
The scale of litigation was highlighted in the judgement. Around 271 appeals were pending before the top court, which was dismissed through the common ruling on Tuesday.
It was also noted that information received in response to an RTI application showed that 2,855 of 2,997 appeals before the First Appellate Authority were rejected, while only 142 were accepted; and at the second appellate stage, 439 of 456 were rejected and only 17 accepted.
The judgement drew a clear distinction between the 1982 and 2008 rules.
Under Rule 5 of the 1982 regime, a personnel was presumed to be in sound physical and mental condition when they entered the services. But when they were discharged on medical grounds, deterioration in health was presumed to be due to service.
The government relied on the 2008 Rules while arguing their appeals. The government said the regime altered the 1982 position, and that medical examination at the entry level was not exhaustive and that dormant, hereditary and congenital disease may manifest later.
This manifestation during military service did not per se establish that the disability was aggravated by military service.
However, the court advised against treating the modification in the Rules as a wholesale dismantling of the earlier protective framework.
It said that a mere addition of “a causal requirement and a removal of the presumption” does not, by itself, change the core scheme under the 2008 Rules. This is because the other beneficial provisions broadly remain untouched.
Further, it said, the onus to establish that a disability is not attributable to service was on the employer because the rules continue to provide reasonable benefit of doubt to service personnel.
But this burden would shift on the personnel if the claimant approaches 15 years from discharge, retirement or release. For this, the claimant must prove the conditions of entitlement.
The judgement, therefore, also limited the mechanical application of an earlier Supreme Court judgement on the issue and said that the Armed Forces Tribunal or high courts cannot routinely allow claims governed by the 2008 Rules, merely by invoking the presumption.
Holding that examination of evidence is necessary, the court called for revisiting such mechanical decisions.
The judgement kept the medical board’s opinion on a higher pedestal in cases of disability pension and said it cannot be displaced casually with a judicial forum’s assessment.
It held: “The opinion of the Medical Board deserves to be given due weight and ought not to be substituted by a Court merely because another view is possible.”
However, this does not make the Medical Board’s opinion immune from judicial scrutiny, the court said as it asked the tribunals to scrutinise in detail medical opinions in pending matters.
Advocate Sudhanshu Pandey, who represented one of the personnel, welcomed the judgement. “The judgment is an eye-opener on how the Department of Ex Servicemen, created by the babus, sitting in their AC cabins have been manipulating and abusing their power to deny the legitimate entitlement to the soldiers who have been serving in most difficult conditions at the borders.”
It’s ironic that the department is indulging in everything except the welfare of the soldiers for which they were created in 2004, he said.
(Edited by Ajeet Tiwari)
Also read: Why tax disability pension of soldiers who keep serving? It punishes loyalty