ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

T.A.NO.41 OF 2010 [WP(C) NO.12055/2006 OF THE HIGH COURT OF KERALA] MONDAY, THIS THE 4TH DAY OF APRIL, 2011/14TH CHAITHRA, 1933 CORAM: HON'BLE MR. JUSTICE K.PADMANABHAN NAIR, MEMBER (J) HON'BLE LT.GEN.THOMAS MATHEW, PVSM, AVSM, MEMBER (A) APPLICANTS/PETITIONERS: 1. EX-SERVICEMEN NON-PENSIONERS ASSOCIATION, REG. NO.947/2002, KADAKKAVOOR, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS GENERAL SECRETARY, K. CHANDRAMOHAN @ VAKKOM CHANDRAMOHAN, S/O.LATE KUNJAN, RESIDING AT VADAKKEVILA HOUSE , VAKKOM P.O. THIRUVANANTHAPURAM.
2. K. CHANDRAMOHAN, S/O.LATE KUNJAN, RELEASED FROM INDIAN NAVY-

AS LEADING TELEGRAPHIST NO.69328, THE GENERAL SECRETARY, EX-SERVICEMEN NON-PENSIONERS ASSOCIATION, REG. NO.947/2002, KADAKKAVOOR, RESIDING AT VADAKKEVILA HOUSE, VAKKOM P.O., THIRUVANANTHAPURAM DISTRICT.
3. T.V. JOSEPH, S/O. T.P. VARGHESE, RELEASED FROM AIR FORCE,

RESIDING AT: THADIKKARAN HOUSE, NORTH KUTHIYATHODE, ERNAKULAM DISTRICT, ( MEMBER OF EX-SERVICEMEN NON-PENSIONERS ASSOCIATION, REG. NO.947/2002, KADAKKAVOOR,). 4. P.M. VARGHESE, S/O. MATHEW VARKEY, EX-SEPOY NO.1346325, RESIDING AT: VANIYAMPURAKKAL. THIRUMOOLAPURAM, THIRUVALLA, PATHANAMTHITTA DISTRICT, ( MEMBER OF EX-SERVICEMEN NON-PENSIONERS ASSOCIATION, REG. NO.947/2002, KADAKKAVOOR,) BY ADV. SRI . M.V. THAMBAN

RESPONDENTS/RESPONDENTS:
1.UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI 11. 2. CHIEF OF ARMY STAFF, ARMY HEADQUARTERS, NEW DELHI -11. 3. CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI -11. 4. CHIEF OF AIR STAFF, AIR HEADQUARTERS, NEW DELHI 11. 5. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), ALLAHABAD. BY ADV. SRI. S. KRISHNAMOORTHY, SENIOR PANEL COUNSEL

THIS TRANSFERRED APPLICATION HAVING BEEN FINALLY HEARD ON 4.4.2011 THE TRIBUNAL ON THE SAME DAY PASSED THE FOLLOWING:

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JUSTICE K. PADMANABHAN NAIR, MEMBER (J) & LT. GEN. THOMAS MATHEW, PVSM, AVSM, MEMBER (A)
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T.A. No.41 of 2010

----------------------------------------------Monday, this the 4th day of April, 2011 ORDER Thomas Mathew, Member (A): The petitioners in this case are Ex-servicemen of Army, Navy and Air Force and members of the Ex-Servicemen Non-Pensioners

Association.

The members of the Association are aggrieved by the

denial of service pension since they have not completed 15 years of service in the armed forces. The petitioners have filed this application

before the Hon'ble High Court of Kerala with a prayer for grant of pensionary benefits to all those servicemen who have not completed 15 years of service in the forces. The application was transferred to this Tribunal on its formation.

2. It has been averred by the petitioners that this Association has more than 900 members in Kerala out of which 600 members have served in the forces between 10 to 15 years. They have been

discharged/released on becoming surplus in their service, or own

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request due to domestic compulsion, or declared service no longer required by their respective service or on medical grounds. They had made numerous representations to the respondents and since no positive response was forthcoming, the Association moved the Hon'ble High Court for grant of pensionary benefits. The first respondent was asked to consider the representation by the Hon'ble High Court. It has

been submitted that a response was given by the Army Headquarters without application of mind or considering the issues that were raised (Ext.P4).

3. It is averred by the petitioners that minimum service of 15 years to be eligible for pension for personnel below officers rank was fixed a long time ago. The minimum service in case of civilian

government employees to earn pension both at the Centre and some of the State Governments was 20 years. This has been reduced to

10 years whereas the Government is still persisting with the 15 years rule for the armed forces personnel. It is contended that while other

government employees have had their grievances addressed through their associations and unions, the armed forces personnel not being permitted to form such associations have continued to be neglected by the authorities.

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4. The petitioners have submitted that service personnel undergo great hardships during their service and their fundamental rights are also curbed to a certain extent. A very large number of them live a

perilous life, face to face with hostile elements in difficult and hazardous terrain and unfamiliar climatic conditions. The forces demand a very strict and disciplined way of life away from the support of family members most of their life. They are also unable to help in the day to day problems a wife, children or aged parents face at their home. Continuous service under such circumstances is physically and mentally taxing. On the other hand, they see their friends in the Government service enjoying a stable family life with great support and if they want, serve beyond 50 years of age or if necessary leave the service after 10 years with pension. A service personnel has no such luxury, he has

to serve for 15 years in very taxing and difficult conditions or leave without pension, medical support or other attendant benefits. It has been argued that a soldier, a sailor and an airman is a valuable part of the security and prosperity of the nation as a whole. 5. It is submitted that certain category of Air Force personnel who seek discharge for employment in Public Service Undertakings have been granted pro-rata pension with even less than 10 years of service.

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This itself is a discrimination towards the personnel of the Army and the Navy. In other government services those who are discharged are Those

compensated and also offered alternate appointment.

discharged from the Armed Forces have to fend for themselves and find a secure career to support his family. In majority cases of those

discharged on medical grounds, the medical boards categorise them as 'Not Attributable and Not Aggravated', in other cases, the Pension claim on flimsy

Sanctioning Authorities reject the disability pension grounds. Such personnel with

disability have to get a suitable job

and also cater for medical expenses. The petitioners have averred that on the whole, the armed forces personnel who ensure security of the country serving under difficult circumstances are discriminated only

because they are unable to form unions and raise their grievances. Therefore, they have approached the Hon'ble High Court for redressal through this petition which has now been transferred to this Tribunal. The petitioners have prayed for grant of pension to all Ex-Servicemen who have put in 9 years and 1 day service to be rounded to 10 years without insisting on service upto 15 years. There is also a prayer for exgratia pension to those ex-servicemen who have put in less than 10 years service. There is a request to amend the existing pension Along with the monetary

regulations to bring in these changes.

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benefits, other allied facilities like medical, canteen, reservation for employment, admission for wards in professional colleges and

resettlement of the Ex-servicemen have also been prayed for.

6. The respondents in their counter affidavit have averred that 15 years qualifying service is a government policy, which cannot be challenged in the Tribunal. There have been representations in the past also for grant of pro-rata pension based on the years of service of an individual, which was not agreed to by the Government. It has been

submitted that a High Level Committee headed by the Rajya Raksha Mantri had in its report in 1984 recommended stricter definition of the term of Ex-servicemen to ensure better utilisation of the available resource. It is also averred that the 6th Central Pay Commission has not recommended any changes in the qualifying period for being eligible for pension. Ministry of Defence has been extending financial assistance and medical assistance to those Ex-servicemen who are in financial

difficulties. It is submitted that as per the directions of the Hon'ble High Court of Kerala in the Civil Writ Petition No.21437 of 2004(B), the issue was considered by the Ministry of Defence and a detailed reply explaining the situation was given to the petitioners vide Army Headquarters letter of 10.5.2005 (Ext.P4).

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7. We heard both sides and perused the documents made available to us. It is evident that, there exist no regulations or orders

to support the prayer made by the petitioners. This was admitted to by the learned counsel for the petitioners himself during the hearing. However, their contention has been that the issue is something beyond the purview of existing regulations and has to be viewed in the light of discrimination via-a-vis other government servants, hardships endured and the lack of job opportunities outside for a discharged soldier specially for an older person. We have considered the pros and cons

of the issue dispassionately and have our own views on the subject. We are fully aware that this being a policy matter, any decision on these issues can be taken only by the Central Government.

8. We fully endorse the view that the types of duties and the work environment of a soldier, or a sailor or an airmen are a class apart from other professions in Government and Civil. It is their dedication to duty that enables the rest of the country to sleep peacefully at their home with their loved ones. Very few people spare a thought for soldier keeping vigil in the difficult borders, sailor in the high seas or the airman who ensure aircraft readiness and surveillance 24 hours of the day. It

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has been very aptly engraved in the Kohima War Cemetery, We gave our today, for your tomorrow. It is also commonly said that soldiers are remembered and felicitated at times of war and afterwards discarded. We see a trend like that even in the reply given by the They are still

respondents to the order of the Hon'ble High Court.

quoting a High Level Committee's recommendation made 26 years ago in 1984. It has been averred that the 6th Central Pay Commission has

not recommended any change, whcih is because neither the Service Headquarters nor the Ministry asked for it. Another commonly held

belief is that it will cost a large amount to the exchequer. When one sees prosperity all around in the country, high growth rate and development, it is but natural for an ex-serviceman without pension or benefit to ask the question 'Why am I being ignored and left behind'. It is our considered opinion, therefore, that a nuanced and contemporary approach has to be taken to the issues that have been raised by the petitioners.

9. All uniformed personnel are well aware when they enroll that they have to serve for 15 years to earn pension. All of them commence their service with the intention to complete at least that service, if not more. However, due to some reason or the other, some are discharged

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before completing 15 years service. A 'service gratuity' is not adequate compensation for the years he has given to the nation. Compensation

should be provided based on the nature of his discharge and the possibility to take up another employment suitable to him. The

alternate option is to provide pension commensurate with the service that the individual has put in. A reasonable service of 10 years as

accepted for other Government employees should be considered for armed forces personnel also by the Government. For any service

rendered between 5 years and 10 years ex-gratia pension and below 5 years gratuity, would in some manner address the requirement of a discharged person. The other major issue of those discharged concerns medical facilities. Having perused the large number of cases concerning disability pension, we are of the considered opinion that any soldier invalided out of service must be provided medical assistance. At present a pensioner can have his dependents including parents treated though ECHS. This benefit can be given to the present non-pensioners also in a calibrated manner. For service below 5 years only the service person can be provided the benefit; for those between 5 to 10 years the spouse could also be included. Those with more than 10 years service upto two children could be covered by ECHS. It could also be considered if

medical insurance cover through a one time payment could be

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introduced to those below 15 years of service.

facilities are concerned, we do not feel that it will be a burden on the three services to establish Ex-servicemen's canteen in stations where armed forces are not present. Number of them are already functioning in various parts of the country. Additional canteens will not be a burden on the exchequer either. It is a well known fact that all the Canteen Stores Department outlets are doing brisk business and are self sustaining. 10. In the matter of rehabilitation and a second job, we have been told that a great deal of effort is being put in by the Ministry of Defence and the Service Headquarters, which is well appreciated. The 6th Central Pay Commission has further recommended lateral induction to para military forces and State Police also. The need of the hour is to implement these recommendations in letter and spirit.

11. We do fully appreciate the problem of the respondents since there already exist 20 lakhs ex-servicemen and every year 65,000 is added to that number by the Army alone. It is in the interest of the

nation to utilise the expertise of this trained and disciplined man-power in the appropriate manner and to ensure that their welfare is looked after with compassion and dignity. There is no doubt that amongst all

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government employees, serving and retired, it is the ex-servicemen non-pensioners who are the most neglected. A time has come to have a re-look into their problems and implement practical and satisfactory remedies. In our discussions, we have suggested certain steps without the benefit of expert opinion. These should therefore be considered

favourably in its entirety by a group of experts.

12. In the result, the T.A. is disposed of with a direction to the respondents to consider each of the issue raised by the petitioners in a nuanced manner by an expert committee for a reasonable and satisfactory solution, as expeditiously as possible, not later than six months from the receipt of this order. No costs. Issue free copies to all.

Sd/-

Sd/-

LT. GEN. THOMAS MATHEW, MEMBER (A) DK.

JUSTICE K.PADMANABHAN NAIR, MEMBER (J)

(True copy) Prl. Private Secretary