Armed forces deserve special treatment, should not be harassed: Delhi High Court

Members of the armed forces, who take the oath of laying down their lives for the country, deserve special treatment and are not to be harassed unnecessarily and "made ping pong of" by being sent from one forum of adjudication to another, the Delhi High Court has said.

The high court 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.

It is only the members of the armed forces who 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, a bench of Justices Rajiv Sahai Endlaw and Asha Menon said.

The court’s observation came on a batch of 40 petitions 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 petitioners -- NCOs/ PBORs who joined the Indian Air Force (IAF) as Airmen/ Corporals -- said the MoD’s order is discriminatory and claimed pro-rata pension.

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 cent 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.

Earlier, another bench of the high court had held that the AFT could not entertain a challenge to the MoD order and allowed pro-rata pension to the petitioners therein.

Thereafter, several other benches of the high court also allowed various similar petitions.

Although the IAF sought to distinguish the order passed by the high court from the orders passed by the AFT, the bench refused to form a view different from that of the co-ordinate bench in the earlier matter.

The bench also rejected the Central government's plea to transfer this batch of petitions to the AFT for adjudication.

“We are rather surprised that the AFT, though bound by the law laid down by this court, has at the asking of the respondents IAF 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,” it said and termed the conduct of AFT as “adventurism”.

“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.

IAF submitted that the award of pro-rata pension carries with it a financial burden of Rs 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.