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Thursday 23 February 2012

ARMY VS MINISTRY OF DEFENCE ANOTHER CLASH IN MAKINNG

http://www.ndtv.com/video/player/the-buck-stops-here/army-vs-govt-another-clash-in-the-making/224538

The appeal filed by the Ministry of Defence in the Supreme Court against the orders of the Armed Forces Tribunal enhancing the war injury pension of former Vice Chief of Army Staff, Lt Gen Vijay Oberoi appears to be contrary to the legal advice rendered on the issue by Army Headquarters and directions thereon of the Army Chief as well as the directives issued by the Ministry of Law.

Besides Lt Gen Oberoi, the issue of pension rationalisation affects an estimated 2,000 cases that have been decided in favour of disabled soldiers by the High Courts and the Armed Forces, sources said. Information obtained under the Right to Information Act reveals that in Lt Gen Oberoi’s case the decision not to file an appeal was taken by the Army Chief on August 20, 2011. The same decision was also taken in similar cases.

The Department of Ex-Servicemen’s Welfare in the MoD fled the appeal despite the fact that the point of law in the matter has already been settled by the Apex Court in two cases in 2011, KJS Buttar Vs UOI and UOI Vs Paramjit Singh. Further, the law ministry had last year, in an effort to reduce the litigation burden, issued directives that appeals are not to be filed in cases where the legal position has been settled by earlier judgements, lawyers dealing with service matters said.

To off-set medical subjectivity, rigidity and mistakes of medical boards, the Fifth Pay Commission had introduced the concept of “broad-banding” disability percentages for calculation of disability pension wherein it was provided that disabilities up to 50 per cent would be considered as 50 per cent for purposes of computation, those between 50-75 per cent would be treated as 75 per cent and above this would be taken as 100 per cent. This was considered imperative since different medical boards were granting varied percentages for similar disabilities leading to errors.

However, while implementing, the MoD extended the policy only to those prematurely invalided from service and not to those who had been granted disability pension on completion of terms or superannuation though the latter were also affected by similar medical subjectivity.

This action of MoD was also considered against rules since defence pensionary provisions provide that all personnel released in low medical category were to be deemed as ‘invalided’ for purposes of disability pension.

The AFT’s Chandigarh Bench had ruled in August 2010 that discrimination between invalided and other low medical category personnel was not justified. This was followed by similar judgements by the Supreme Court in 2011, consequent to which Army HQs and the Chief of the Army Staff had directed that no further appeals were to be filed in the SC on similar matters.

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