Can Territorial Army Officers claim Pension on the lines of regular Indian Army? SC replies

  

The Supreme Court of India has held that the Right to Equality under Article 14 of the Constitution will extend to anyone who entered a Contract without bargaining powers irrespective of the terms and conditions so provided.

The division bench of Justice LN Rao and Justice BR Gavai while allowing grant of Disability Pension to a member of the Territorial Army has rejected the document submitted by Centre Govt which shows the appellant's signed consent at the time of enrollment, whereby he had apparently willfully waived his right to get enhanced pension.

Noting that the Parties had 'unequal bargaining powers', the Court observed:

"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. We find that the said observations rightly apply to the facts of the present case. 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 re­ employment in the Territorial Army, have an equal bargaining power."

 The pivotal fact of the case was that the appellant-solider sustained an 80% disability which the Court of Inquiry confirmed was duely attributable to Military Service and the same wasn't due to his own negligence. The report was approved by the Station Commander and later confirmed by the re-categorization Medical Board.

The appellant was accordingly invalided out of service with 80% disability which was attributable to military service.

He then approached AFT for grant of disability pension in accordance with Regulation No 292 of the Pension Regulations for the Army, 1961.

His appeal was opposed by Respondent on the ground that the appellant was re-enrolled in the Territorial Army and was not entitled to any pension as he himself agreed to waiver off of the same as per the document.

Although the AFT 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, but it rejected the claim on the ground that a separate scheme and service conditions have been created for the Members of Ecological Task Force ('ETF'), which was accepted by the appellant and held that as such, he was not entitled to disability pension.

Later, in MA filed by the appellant , assailing the above order, he framed a question of law for general importance:

"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 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."

The AFT then allowed the application for grant of leave to appeal but framed a different question of Law.

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"Whether the members of the 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."

Arguements and Supreme Court Observation

The Union of India had argued that it had provided separate terms and conditions were provided vide communication dated March 31, 2008 as per which members of the ETF wouldn't be entitled for disability pension.

Placing reliance on the document titled 'Certificate' dated 30th August 2007, signed by the appellant wherein under condition (f), it was stated that, "I will not be getting any enhanced pension for having been enrolled in this force.", it opposed grant of pension.

The Court apart from interpretting the Right Equality under Article 14 also relied on Section 9(1) of the Territorial Army Act, 1948 which deals with Application of the Army Act, 1950, observed that,

"Every such officer or enrolled person in the Territorial Army when holding 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."

Referring to Chapter 5 of the Pension Regulations for the Army, 1961 which deals with Territorial Army, the bench said:

"It could thus be seen that 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."

 Relying on Chapter 3 of the Pension Regulations for the Army, 1961 which deals with Disability Pensionary Awards, the bench said;

"A perusal of the same revealed that an individual who was invalided out of service on account of disability, which was attributable or aggravated by Military Service in non­ battle casualty and was assessed 20% or more, would be entitled to disability pension."

 In view of the above, the Bench noted:

"The EFT was established as an additional company for 130 Infantry Battalion of Territorial Army and it was not in dispute that the other officers or enrolled persons working in the Territorial Army were entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961."

  It thus observed that when the appellant was enrolled as a member of ETF, he couldn't saw no reason as to why he was denied the disability pension and specifically when the Medical Board and the COI found that the injury sustained by the appellant was attributable to the Military Service and was not due to his own negligence.

Holding that the AFT wasn't justified in rejecting the calim and allowing the appeal, the Court held:

"In case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail. 

Read Judgement Here: