Armed Forces Deserve Special Treatment, Should Not Be Harassed: Delhi HC

Armed Forces Deserve Special Treatment, Should Not Be Harassed: Delhi HC

The Delhi High Court has said that the members of the armed forces, who take the oath of laying down their lives for the country, deserve special treatment and should not be harassed unnecessarily.

A batch of 40 petitions were filed with the Court challenging an order issued by the Ministry of Defence (MoD) granting the benefit of pro-rata pension only to Commissioned Officers of the Defence Services and not to the Non-Commissioned Officers (NCOs)/ Persons Below Officer Rank (PBORs). The High Court bench of Justices Rajiv Sahai Endlaw and Asha Menon observed that the oath required to be taken by the President, Vice President, Governors of the States or by the Judges of the Supreme Court and the High Courts does not require them to lay down their lives in the service of the country.

The Court further said that only the members of the armed forces are required under the Constitution and other laws to take an oath of abiding by the command issued to them by the President or any officer set over them, even to the peril of their lives. The petitioners – NCOs/ PBORs who joined the Indian Air Force (IAF) as Airmen/ Corporals -- claimed pro-rata pension stating that the MoD's order is discriminatory. The high court allowed the petitions and directed the IAF to pay the petitioners within 12 weeks arrears of pro-rata pension from the date of discharge till the date of payment. It said the future pro-rata pension shall be paid from March 2021 to them and made it clear that if the arrears are not paid within 12 weeks, it will also carry interest at 7% per annum from the expiry of 12 weeks till the date of payment.

Pro-rata pension is the proportionate pension for the government service which is calculated as per the government pension rules. The bench said, "Members of a force, who take oath of laying down their lives for the country, form a distinct class and deserve special treatment. They are not to be harassed unnecessarily and made ping pong of, by sending them from one forum of adjudication to another."

The bench noted that the Air Force Tribunal (AFT), which had earlier held that the challenge to circulars could not be entertained by it, recently declined the relief of pro-rata pension to NCOs. The bench also rejected the Central government's plea to transfer this batch of petitions to the AFT for adjudication.

Terming the conduct of AFT as "adventurism", the Court stated, "We are rather surprised that the AFT, though bound by the law laid down by this court, has at the asking of the respondents refused to be bound by the judgment and law laid down by this court and ventured to take a contrary view and which was not open to the AFT."

"Once the orders of the AFT are subject to judicial review by this court, if AFT were to continue to pass orders disregarding the law laid down by the high courts, the same would result in chaos, with petitions under Article 226 being filed in the High Courts terming such orders of the AFT as patently illegal and would defeat the principle of stare decisis and purpose of tribunalisation i.e. of expeditious disposal of disputes of personnel of the Armed Forces," the bench said. The IAF submitted that the award of pro-rata pension carries with it a financial burden of `44 crore per month and of Rs. 250 crore in payment of arrears.

The bench, however, referred to an earlier judgement that the State could not take a plea of financial burden to deny the payment of legitimate dues.