SC Directs Grant Of Disability Pension To A Soldier Who Retired From Regular Army And Joined Territorial Army With Separate Pension Scheme

The Court rejected the argument that the Appellant had accepted the new terms of pension while joining the ETF, by noting–

"Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking reemployment in the Territorial Army, have an equal bargaining power."

Additional Solicitor General Mr. Vikramjit Banerjee appeared for the Respondent – Union of India, while Counsel Mr. Siddhartha Iyer before the Apex Court.

The Supreme Court was hearing an appeal against the order of Army Task Force (ATF) in which the appeal of the Appellant for the grant to disability pension came to be dismissed.

In this case, the Appellant after having served for 25 years in the Infantry of the Regular Army got re-enrolled in the Territorial Army as a full-time soldier. While he was on his way to rejoin his duty after a weeklong vacation, got injured in an accident. The Medical Board at the Artificial Limb Centre assessed the disability of the Appellant at 80%.

The Court of Inquiry (CoI) had held that the injury sustained by the Appellant was attributable to military service and it was not due to his own negligence. Thereafter, the Appellant was invalidated out of service with 80% disability.

The Appellant approached the AFT for the grant of disability pension as was applicable to the Regular Army as per Regulation No. 292 of the Pension Regulations for the Army, 1961. However, his claim was resisted by the Respondents on the ground that the Appellant was not entitled to any pensionary benefits in view of the letter of the Government of India, Ministry of Defence, dated 31^st March 2008.

The ATF while rejecting the claim of the Appellant had held that a separate scheme and service conditions were created for the Members of the ETF which was initially accepted by the Appellant, thus he was not entitled to disability pension.

The two issues which were dealt with by the Court were –

i) Whether the terms and conditions of service of a member of the Territorial Army (TA) during the period of his embodiment with the T.A. will be governed by the statutory rules which provide for the grant of 'disability pension' or by the departmental orders which deny the grant of the disability pension to the members of a particular unit of the T.A. to which such individual belongs; and

ii) Whether the members of Ecological Task Force of Territorial Army are entitled to pensionary benefits at par with the members of regular Army in spite of the aforementioned MOD letter dated 31.03.2008 whereby pensionary benefits have been denied.

It was argued by the Respondent – Union of India before the Supreme Court that separate terms and conditions were provided by it vide communication dated 31st March 2008, which provides that the members of ETF would not be entitled to disability pension.

The Apex Court noted, "An individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non­battle casualty and is assessed 20% or more, would be entitled to disability pension."

"It is thus clear that the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. It is not in dispute that the other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961," the Bench opined.

The Court also added that when the Appellant was enrolled as a member of ETF which was a company for 130 Infantry Battalion (Territorial Army), he could not have been denied the disability pension. The Court in this context further noted –

"We see no reason as to why the appellant was denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence."

The Court also asserted that AFT was not justified in rejecting the claim of the Appellant.

The Court rejected the contention of the Respondent that the Appellant had signed a document wherein he had agreed that he will not be getting an enhanced pension for having been enrolled in ETF and held that the said document dealt with enhanced pension and disability pension.

The Bench further gave the following observation –

"A Right to Equality guaranteed under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be."

Furthermore, the Court observed, "Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking reemployment in the Territorial Army, have an equal bargaining power."

In the light of these observations, the Court allowed the appeal and set aside and quashed the impugned order of the AFT.

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