Supreme Court: In a case where a soldier, after serving in the Regular Army for 25 years, was re-enrolled in the Infantry Battalion (Territorial Army), Ecological Task Force (ETF) and was denied disability pension in view of the letter of the Government of India, Ministry of Defence, dated 31st March 2008 which provides that the members of ETF would not be entitled for disability pension, the bench of L. Nageswara Rao and BR Gavai*, JJ has held that it was wrong to deny the claim as the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army and the other officers or enrolled persons working in the Territorial Army are entitled to disability pension.
Factual Background
- After serving for about 25 years in Infantry of the Regular Army, the appellant got re-enrolled in the Territorial Army as a full-time soldier on 1st August 2007.
- After availing the annual leave, when the appellant was coming back on his scooter to rejoin his duty, on 24th April 2009, he met with a serious accident.
- The Medical Board assessed the appellant’s disability to be 80%. However, it could not give any opinion about the attributability aspect of the injury.
- The Court of Inquiry (CoI) found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence.
- Subsequently, on the basis of the opinion of the Invaliding Medical Board, on 1st January 2012, the appellant was invalided out of service with 80% disability which was attributable to military service.
- The AFT though held, that the injury sustained by the appellant which resulted into 80% disability was found by the competent authority to be aggravated and attributable to the military service, it rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the Members of ETF, which was accepted by the appellant and hence, he was not entitled to disability pension.
What does the law state?
- as per Government of India, Ministry of Defence’s letter, dated 31st March 2008, the members of ETF would not be entitled for disability pension. Vide the said communication, the Government of India has communicated to the Chief of Army Staff, the sanction of the President of India for raising two additional companies for 130 Infantry Battalion (Territorial Army) Ecological under Rule 33 of Territorial Army Act, Rules 1948.
- every such officer or enrolled person in Territorial Army when holds the rank, shall be subject to the provisions of Army Act, 1950 and the rules or regulations made thereunder, equivalent to the same rank in the Regular Army.
- as per the Regulation No. 292 of the Pension Regulations for the Army, 1961, the grant of pensionary awards to the members of the Territorial Army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the Army except where they are inconsistent with the provisions of regulations in the said chapter.
- as per Regulation No. 173 of the Pension Regulations for the Army, 1961, an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed 20% or more, would be entitled to disability pension.
Analysis
Disability pension to member of ETF
The ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. Since 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 appellant, who is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), cannot be 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.
Signing on a “Certificate” agreeing to not getting any enhanced pension
The appellants had signed a document dated 30th August 2007, titled “Certificate”, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in ETF. However, the same cannot be used to deny disability pension to the appellant for the following reasons:
- the said document deals with enhanced pension and not disability pension. A conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension.
- even accepting that the appellant has signed such a document, it needs to be noted that 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.
“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.”
Conclusion
The Union of India was, hence, directed to grant disability pension to the appellant in accordance with the rules and regulations applicable to the Members of the Territorial Army with effect from 1st January 2012 and to also clear arrears from 1st January 2012 within a period of three months from the date of this judgment with interest at the rate of 9% per annum.
[Pani Ram v. Union of India, 2021 SCC OnLine SC 1277, decided on 17.12.2021]
Counsels
For appellant: Advocate Siddhartha Iyer
For UOI: Additional Solicitor General Vikramjit Banerjee
*Judgment by: Justice BR Gavai
