The Supreme Court on Thursday underscored that the Union of India must demonstrate “fairness, consistency and even-handedness” in administering benefits to those who have served the nation, as it declared that disability pension is a “valuable right” which, once found due, must be paid from the date it became due.
The court said that the government could not acknowledge a right in principle while denying its substantive content in effect. (Sanjay Sharma)
Pulling up the Centre for attempting to confine arrears to three years prior to the filing of claims, the court said that the government could not acknowledge a right in principle while denying its substantive content in effect.
Rejecting the Union’s contention that arrears of disability pension should be restricted to a period of three years preceding the filing of an original application before the Armed Forces Tribunal (AFT), a bench of justices PS Narasimha and Alok Aradhe held that once entitlement stands judicially affirmed, the benefit cannot be curtailed by invoking limitation or delay.
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“When a benefit is recognised by a policy and affirmed by judicial pronouncement, its application cannot be selective or uneven,” held the bench, adding that the Union, as a model employer, is expected to extend benefits proactively rather than compel ex-servicemen to litigate for what is already due.
The ruling came in a batch of appeals filed both by the Union of India and by ex-servicemen. The controversy arose from conflicting decisions of the AFT. While some benches had directed payment of arrears from specified cut-off dates such as January 1, 1996 or January 1, 2006, others had limited arrears to three years prior to the filing of the application.
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The Union’s grievance was confined to directions requiring payment of arrears without any time restriction. Represented by attorney general R Venkataramani, the Centre argued that claims for arrears were governed by the Limitation Act, 1963 and pertinent provisions of the AFT Act. Even in cases of a “continuing wrong”, it contended, arrears could not travel beyond the prescribed period of limitation.
Ex-servicemen, on the other hand, argued that their right to arrears crystallised only after the Supreme Court’s December 10, 2014 judgment in Union of India Vs Ram Avtar, which affirmed that armed forces personnel retiring on completion of tenure with disability attributable to or aggravated by military service were entitled to the benefit of “broad banding” of disability pension. Denial or restriction of arrears, they submitted, amounted to deprivation of a vested and recurring right.
Tracing the policy background, the court noted that the ministry of defence’s January 31, 2001 instructions implemented the Fifth Pay Commission’s recommendations on disability pension, followed by later communications in 2006 and 2010 that removed the 20% disability cap in certain cases and extended broad banding benefits more widely.
However, the 2001 policy had excluded personnel who superannuated with disabilities. The AFT struck down this exclusion in 2010, and in Ram Avtar (2014), a three-judge bench of the Supreme Court dismissed over 800 appeals by the Centre, holding that even those retiring on completion of tenure were entitled to broad banding if their disability was attributable to or aggravated by service. The ruling, binding on all courts and tribunals, “removed the impediment” to ex-servicemen asserting their right.
The court, in its Thursday verdict, emphasised that pension is neither a bounty nor an ex gratia payment dependent on the grace of the State. It is a deferred portion of compensation for past service and, upon fulfilment of governing conditions, matures into a vested and enforceable right. Pensionary entitlements partake the character of property and cannot be withheld, reduced or extinguished except by authority of law.
“This principle applies with full vigour to disability pension,” the bench said, describing it as not a matter of largesse but “a recognition of sacrifice made in service of the nation”.
It took note of communications issued by the government itself, including a September 15, 2014 letter and an April 18, 2016 order conveying approval for implementation of court and tribunal directions, which reflected a conscious policy decision to pay arrears of disability pension from January 1, 1996 or January 1, 2006, as applicable. These decisions, the court recorded, were taken with full financial concurrence.
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“Where the State itself, by a conscious policy decision, has determined that arrears of disability pension are payable from a specified cut-off date, it is not open to it to subsequently resile and contend that such arrears ought to be confined to a period of three years preceding the claim,” the bench held. To permit such a course, it added, would amount to acknowledging the right in principle while denying its substantive content in effect.
The court further held that any deprivation of accrued arrears, which had become due in view of judicial determinations as well as the government’s own policy decisions, would constitute deprivation of property and amount to an infraction of Article 300A of the Constitution.
Dismissing the Union’s appeals, the top court those AFT orders which had restricted arrears to three years preceding the filing of applications. The affected ex-servicemen were held entitled to disability pension, including the benefit of broad banding, with effect from January 1, 1996 or January 1, 2006, as the case may be, along with interest at 6% per annum.