Members of Force Who lay down their lives for the country deserve Special Treatment

On 24th of November, the High court of Delhi gave a prominent statement in a case of Air force personnel relating to economic benefits available to them. The Judgement combined 40 petitions made in the same context. 

Background:

The civil Writ petition was filed by Brijlal Kumar to which 40 other similar petitions were tagged. The petitioners had all joined the air force as airmen or corporals.

Kumar was enrolled as an Airman in 1998 with Indian Air Force (IAF) and was later promoted to the rank of Corporal. He then applied for the post of Technical Officer in Air India, which is a PSU. 

On 4th July 2008, NOC was issued by the respondents IAF permitting the petitioner to take up employment with Air India and the petitioner was discharged from IAF after having served for 10 years and 1 month as of 2008. 

In 2016, he applied for pro-rata pension which was rejected. This became the reason for the current petition. 

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The main contention of the petitioners was that the Respondents IAF has discriminatory policies regarding pro-rata pensions for different persons serving under it. For the same, the petitioners cited circular from February 1987, which grants benefit of pro-rata pension to only commissioned officers of defence force and not to Non-Commissioned Officers (NCOs)/Persons below Officer Rank (PsBOR).

The Respondents on other hand, IAF, put forth that all pension, gratuity or allowances are regulated by Pension Regulations for the Air Force, 1961 (Regulations). As far as Airmen/PsBOR/NCOs are concerned, to which category all the petitioners belonged, the qualifying service, to be eligible for pension according to Regulation 121, is of 15 years.

It was not the case of IAF that this policy did not exist or was any different for the petitioner. It also noted that for all personnel such as the petitioners had the option to apply into civil posts under State or Central Government and PSUs. Further, those who have left the service of the IAF having issued an NOC after 7 years of service, but without finishing 15 years were not eligible for pensions. 

Proceedings in the Court:

The bench comprising Hon’ble Mr. Justice Rajiv Sahai Endlaw and Hon’ble Ms. Justice Asha Menon looked through various documents which included orders, circulars, previous notices/ letters, regulations of the IAF; and also various precedents. 

The two recent precedents that the court looked under had to do with challenge to the 1987 circular mentioned above.

The first that stood out to the court was a writ petition from 2017, wherein, the petitioners were ex-airmen who were working for various PSUs, having been transferred from the air force. 

These petitions also asked for pro-rata pensions, however, maintainability was challenged by the respondents, IAF. It was held that since the petitioners were a part of the air-force, such matters were in the jurisdiction of the Air force Tribunal and the petitions were thus transferred therein.  

Another petition from 2019 was similar, however, the petitioners stated, that the tribunal did not give much importance to the 1987 circular and focused on an order from 2018 given by its principle bench. This order stated that the tribunal could not entertain matters in form of writs as the tribunal did not have the power to issue writs. 

Accordingly, the first issue put by the respondents which was the maintainability of the current writ(s) held no merit as the tribunal could not entertain it. 

Looking at the situation of the current petitioner, the court related it to similar cases of ex-airmen and personnel of the IAF. Various points were discussed wherein different sections of the Regulations and Armed Forces Tribunal Act were cited, as well as relations with other precedents given by the co-ordinate bench.

Decision of the Court:

Taking into view the overall proceedings from both parties, the court was not persuaded by the respondents, IAF. It stated that their view was no different from that of the precedents mentioned above. The Court gave various reasons for it. Some of it was as follows:

1. As for maintainability, it is a well settled law that even in existence of any other statute, the exercise of Writ jurisdiction does not affect the HC as given by Art.226 of the Constitution. 

2. The petitioners are members of armed forces who are the ones required to take an oath under the constitution of India and other laws, and abide by any order given to them even to the peril of their own life. Such an oath is taken by no one else which requires them to lay down their lives in the service of the country. 

3. “Members of a force, who take oath of laying down their lives for the country, form a distinct class and deserve a special treatment. They are not to be harassed unnecessarily and made ping pong of, by sending them from one forum of adjudication to another.”

4. The circular/letter dated 19th February, 1987 is discriminatory and directed that the Airmen/PsBOR/NCOs who fulfill the conditions as prescribed for Commissioned Officers for entitlement to pro-rata pension are also entitled to pro-rata pension.

5. The oath given by them as members of armed forces must not be forgotten and discriminating on such bases (commissioned and non-commissioned etc) can be a sheer act of harassment; forcing such petitioners to come to the courts.

6. It further stated that the AFT could not give decisions disregarding law laid down by the HC and force people to petition in HC.

The petitions were thus allowed by the HC of Delhi, and issued the respondents to clear pro-rata pensions within a time of 12 weeks with the due process.

Also, from the month of March 2021, it is to issue future pensions to the respondents. In case 0of non-payment of arrears, an interest of 7% was to be applied. 

Story by Sai Kulkarni- Intern

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