Disability pension: Retired soldiers feel betrayed as BJP challenged 800 cases despite promise

During the India-Pakistan war of 1971, M Baweja led a company of Indian soldiers that opened a strategic route to a military base in Pakistan Occupied Kashmir by occupying a crucial picket in Ladakh. The feat won him the Vir Chakra, a battlefield gallantry award but cost him all his toes: he lost them to severe frostbite.

Baweja, now 75, retired from the Army in 2000 as a brigadier. It took him less than 10 days to accomplish the 1971 mission, Baweja recalled, but more than 10 years to get his disability pension for the war injury. He kept running from pillar to post for his pension but did not want to approach the courts because they took excessively long to settle such cases back then, he said. In 2007, when the Armed Forces Tribunal was formed, Baweja approached it. Three years later, he won the case and started receiving his pension.

But his troubles did not end there. In 2015, the Centre appealed the tribunal’s decision in the Supreme Court, arguing, according to the case records, that Baweja was not entitled to a disability pension because he had opted to retire prematurely by four months. The court dismissed the appeal in 2016.

“It seems the government stops caring for disabled soldiers once they retire,” Baweja said.

In its manifesto for the 2014 election, the Bharatiya Janata Party promised “to improve the efficiency of Armed Forces Tribunal and minimise appeals by the government”. Yet, after coming to power, it did not stop filing fresh appeals until 2017.

From 2014 to 2017, the BJP government filed 800 appeals in the apex court against tribunal’s rulings in favour of disabled soldiers, members of ex-servicemen bodies and lawyers dealing with such cases said. It lost all but one. The Supreme Court dismissed over 1,000 appeals against disability pensions, some of them pending from before the BJP took power, between 2014 and 2018. Though most of the appeals were turned down on the grounds that too much time had lapsed, they said, many were dismissed on merit as well.

In a recent case that made the headlines, the Supreme Court on October 22 dismissed the appeal against a disability pension being granted to Puneet Kumar Pareek, a retired squadron leader with the Indian Air Force. Pareek suffered a spinal injury while working on a Jaguar aircraft and was declared permanently disabled. He was denied a disability pension because he opted to take premature retirement in 2004.

The Armed Forces Tribunal ruled in his favour in 2017, only for the defence ministry to appeal in the apex court. The Centre even sent Solicitor General of India Tushar Mehta to argue its case, which was eventually dismissed on the grounds of excessive delay.

Since June 2017, the government has not filed new appeals against disability pensions but it has not yet withdrawn appeals pending in the Supreme Court. This goes against the recommendations of its own expert committee, formed in 2015, to look into the armed forces’ concerns about service conditions and pensions. According to senior officials, the defence ministry accepted the recommendations but is yet to implement them. The committee’s report noted that as on December 1, 2014, almost 90% of the appeals filed by the defence ministry pertained to disability pensions.

“We live in the age of hypernationalism when the country is divided on issues like standing up for the national anthem, chanting slogans like Bharat Mata ki Jai in public,” said retired Lieutenant Colonel SS Sohi, head of the Ex-Servicemen Grievances Cell. “The BJP government has endorsed this idea of extreme nationalism and it has skillfully used the plight of soldiers for its politics. But the way they have treated soldiers is no different from that of the previous government, which is absolute hypocrisy.”

Caught up in appeals

Scroll.in accessed records of 10 cases in which the Centre challenged the Armed Forces Tribunal’s rulings in favour of military personnel. These cases were decided by the tribunal between 2012 and 2018, and the affected soldiers range from sepoys to a former vice chief of the Army who had lost a leg in the 1965 India-Pakistan war.

In nine of these cases, the government argued that the retired soldiers were not at all eligible for disability pensions. In the other, the dispute was over the amount of the pension. Two of these soldiers are yet to receive their pensions despite the Supreme Court dismissing the Centre’s appeals. One is Lila Singh, 53, a resident of Jakhepal in Punjab’s Sangrur who retired as a naik in 2002. Singh sustained a major injury in a road accident in 1994 while returning to his village on a night pass, a system that allows a soldier to be away from his unit for a limited period. Singh suffered multiple fractures on both legs, leaving him partially disabled. When he claimed a disability pension on retiring, it was denied on the grounds that his disability could not be attributed to military service or considered to have been aggravated by it.

In 2008, he approached the tribunal and won a favourable ruling after four years. The government appealed the ruling in the Supreme Court but it was dismissed in 2015. Still, Singh did not receive his pension, forcing him to move the apex court earlier this year, seeking contempt of court proceedings against the defence ministry. “I have been running from courts to offices for 16 years,” Singh said. “It seems people like us are abandoned by the government and now I have given up all hope.”

Around two months ago, Singh said, he got a letter from the government saying he was entitled to 40% disability pension, along with arrears for 16 years and the accumulated interest. He still did not receive anything. “I am scared to go and confront the officials, only to be rejected again,” he added.

Political issue for BJP

In India, armed forces have received disability pensions since the colonial era, retired military officials noted, but legal disputes over them started mainly in the 1980s. There is a reason for that: the armed forces increased their operational deployment during that period, meaning more soldiers were subjected to the strain of service postings. Claims shot up, particularly for disabilities that had not been caused by injuries sustained in war or when the soldier was on duty. Though the rules were always liberal, the retired officials said, they were often implemented restrictively, leading to the denial of pensions.

When a soldier is released from service, he is examined for disabilities by a medical board, whose report is sent to the defence ministry’s Controller of Defence Accounts to determine if the soldier is eligible for a disability pension. Though military officers are involved in reviewing and approving each claim, the final call is taken by a civilian bureaucrat. This is why, several retired military officers claimed, disputes over disability pensions are essentially “a bureaucratic issue”. Others, however, argued that military officers involved in approving the claims should be held equally accountable for emphasising “technical issues” over the inherently liberal nature of the rules.

By the late 1990s, lower courts across India were clogged with disability pension cases. To address this, the Armed Forces Tribunal was proposed in 1999. The tribunal eventually came into existence in 2007. It is entrusted with adjudicating and trying complaints and disputes concerning the “commission, appointment, enrolment and condition of service” of armed forces personnel.

Currently, the tribunal has benches in nine cities, each comprising a judicial member and an administrative member employed by the government.

The trend of appealing the tribunal’s rulings in favour of soldiers in the Supreme Court started around 2010, the retired officers said, reaching its peak by 2012-’13 under the previous Congress-led government. But the success rate of the government in such cases has always been abysmally low, they added.

Soon, it became a political issue.

Ahead of the 2014 election, Smriti Irani, then the BJP’s vice president, spoke against disability pensions being denied to soldiers and urged the Congress-led government to “ensure soldiers who made sacrifices for the nation get rightful and respectful due”. Subsequently, in its manifesto for the election, the BJP pledged “to improve the efficiency of Armed Forces Tribunal and minimise appeals by the government”.

In 2015, Manohar Parikkar, defence minister at the time, formed a committee to review service and pension matters of the armed forces. Its members were retired Lieutenants General Mukesh Sabharwal and Richard Khare, retired Majors General T Parshad and DP Singh, and advocate Navdeep Singh. The committee asked the Centre to stop filing appeals in matters settled by the courts and withdraw all appeals against disabled soldiers pending in the Supreme Court.

By August 2016, the defence ministry had formally accepted 32 of the committee’s 75 recommendations, with the rest “under perusal”, said members of ex-servicemen welfare bodies and experts privy to the drafting and implementation of the committee’s report. The accepted recommendations include an end to the filing of new appeals and the withdrawal of pending appeals, they added.

The first recommendation was implemented last year. On June 29, 2017, the defence ministry wrote to the Department of Ex-Servicemen Welfare stating it would stop filing fresh appeals in disability pension cases. But the letter was silent about pending appeals. In January, Defence Minister Nirmala Sitharaman said there was no proposal to withdraw pending appeals. So they keep coming up in the Supreme Court now and then. In fact, most of the recommendations accepted by the government have not been properly implemented so far, retired military officers claim.

“What is the point of such acceptance if it remains only on paper?” asked retired Lieutenant Colonel SS Sohi, head of the Ex-Servicemen Grievances Cell.

Retired Lieutenant Colonel Dinesh Nain, general secretary of the United Front of Ex-Servicemen, accused the BJP government of betraying India’s armed forces. “This government preaches nationalism, but its attitude and actions against disabled soldiers have not only been anti-armed forces but anti-national,” he said.

On November 22, Scroll.in mailed a questionnaire to the defence ministry’s spokesperson, asking about the implementation of the expert committee’s report. A few hours later, the ministry put out this tweet:

There was still no clear word on any formal proposal to withdraw pending appeals. The article will be updated if the defence ministry responds to the questionnaire.

On December 13, while addressing a gathering of soldiers in Pune, Indian Army chief Bipin Rawat warned army personnel against feigning disability to get benefits or to avoid duty. He assured the “truly disabled soldiers” of the Army’s support. “But I am warning those who feign disability to earn extra money, will soon face action from the Army headquarters that they will not like,” he said.

‘Default reaction to appeal’

Several retired military officers Scroll.in spoke with said disability pension has always been a tricky issue and it should ideally be dealt with on a case to case basis. In most cases, the dispute centres on whether the disability was the result of or aggravated by the soldier’s service.

In six of the 10 cases examined by Scroll.in, the government challenged the tribunal’s rulings saying the disabilities were not attributable to or aggravated by service. One had sustained the injury that led to his disability while on leave; two were denied on the grounds of premature retirement and one for not being “boarded out” by a medical team when he sustained a war injury.

Several retired soldiers contested these grounds. “How can the government overrule the board of doctors when it found such cases to be attributable to services?” asked Sohi. “Secondly, most cases that landed in lower courts and later tribunals ended up in judgements favouring the soldiers. If the tribunal’s rulings are to be challenged so frequently then what’s the point of having it in the first place?”

The Supreme Court ruled earlier this year that any disability sustained in the course of military service shall be attributed to service conditions unless the disease causing it could not have been detected in the pre-selection medical examination.

The expert committee made the same point. Pointing out that “stress and strain” is inherent in military service, it recommended that “attributability or aggravation need only be refused in cases of gross negligence, gross misconduct or intoxication”.

It went on to criticise the government for adopting “a default reaction to appeal” in all cases that go in favour of soldiers and perceiving litigants as “acting against the interest of the state”.

The government appears unmoved, if its continued reluctance to withdraw pending appeals is any indication.

Attempting course correction

In 2014 and again the following year, the BJP government did seek to address the matter of pending appeals, but did not go far.

On August 29, 2014, the defence secretary directed all the defence ministry’s administrative divisions to proceed with or drop disability pension cases or appeals only on the basis of previous judgements of the Supreme Court.

On September 18, 2015, Mukul Rohatgi, then the attorney general, wrote to the ministry, urging it to consider reviewing its pending appeals in the apex court. Rohatgi mentioned two cases from earlier that year where the court had awarded penalties of Rs 5,000 each to the government after dismissing such appeals. “It is advised to pass necessary instructions to the concerned departments to avoid loss to State and embarrassment to the Government,” he said in his letter, addressed to the chiefs of the Army, Air Force and the Navy.

Nothing came of either intervention.

Some names have been changed to protect identities.