Minimum qualifying service requirement of 10 years for INVALID PENSION stands abrogated for uniformed forces

Minimum qualifying service requirement of 10 years for INVALID PENSION stands abrogated for uniformed forces

This would probably be one of the most important moves in recent times for disabled personnel of the uniformed forces.

On judicial intervention of the Kerala High Court and further prodding by the Supreme Court, the Government has finally abrogated the minimum qualifying service condition for the grant of Invalid Pension, which till now stood at 10 years, for all those government organisations where services of employees are not protected on sustaining disability.

Concept of Invalid Pension:

Invalid pension is applicable to those government servants whose disability is not related to government service in any manner, even remotely, and for which 10 years qualifying service was prescribed. It is different than disability pension which is granted for disabilities which are related to or deemed to be connected with government service in any manner, such as any disease incurred while a person is in government service. In case of disability pension, there is no minimum service condition prescribed and it consists of two elements- service element and disability element.

The predicament faced by uniformed services:

The service of government servants who incur any kind of disability in service is protected by Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (now replaced by the new Act of 2016 wherein Section 20 provides the same protection). The said Act protects the employment of disabled government servants and provides that the government shall not dispense with the services of a disabled government employee. The provision also further provides that even in case a disabled government employee cannot be adjusted on any suitable post, he or she may be kept on supernumerary strength till the age of superannuation (60 years in case of Central Government) and resultantly be paid full pay and allowances, and pension thereafter, even if the affected employee is unable to attend to any official duty. The problem however was that the defence services and other uniformed services including the Central Armed Police Forces (CAPFs) were exempted from the operation of the above progressive provision by way of a notification. Resultantly, many members of uniformed services were denied any kind of pension (if their service was below 10 years) when released from service with disabilities without any connection or deemed connection with government service. Hence on one hand, their services were not protected in case of sustaining disability like other government employees, and on the other hand, they were denied pension also which was like double jeopardy for the members of uniformed forces. This issue had been commented upon by me in detail in the year 2012 which can beaccessed here for an even better perspective and a comparative chart showing the acute discrimination. The Seventh Pay Commission did not agree with the request of the defence services for abrogation of the minimum service requirement.

The new orders:

On account of judicial intervention by the Kerala High Court and further prodding by a Three Judge Bench of the Supreme Court, the Government has now abrogated the minimum 10 years requirement for grant of Invalid Pension for all those organisations where the service is not statutorily protected on sustaining any kind of disability. This mostly affects the uniformed services. This has been done by way of amendment of Rules 38 & 49 of the Central Civil Services (Pension) Rules, 1972 [CCS(Pension) Rules, 1972]. Changes in military pension rules should also be expected as a corollary, mutatis mutandis, as is the prevalent practice.

The net effect:

The net effect is that any member of a government service who is invalided out or seeks invalidation (seeking retirement on account of disability) shall now be entitled to Invalid Pension irrespective of his or her length of service. Of course, those with disabilities declared service-connected or deemed to be service-connected/attributable or aggravated by service, shall continue to remain eligible for disability pension for which no requirement of any minimum qualifying service is applicable. This directly and positively affects all disabled personnel who cannot continue in service due to medical reasons even when their disability is not related to government service in any manner. Though disabilities and diseases incurred while in service are deemed to be service-connected as per the liberal provisions of the Extraordinary Pension Rules, 1939 on the civil side and Entitlement Rules, 1982 on the military side, thereby entitling such personnel to disability pension without any linkage with length of service, as also time and again reiterated by Constitutional Courts, the maximum benefit of the change would accrue to such personnel who are released from service (or cannot continue in service) due to disabilities suddenly incurred soon after joining training or where there is an element of negligence in sustaining the disability or a purely genetic or congenital disability discovered after joining service etc. This change is valuable to such personnel and protects their livelihood and dignity since they would not have been discharged from service on account of any disability had they joined a non-uniformed service. The discrimination hence stands addressed to a large extent.

The effective date:

The new provision takes consequence from 4^th January 2019. However the effect on past retirees is a little ambiguous as of now but it is hoped and expected that past retirees also would be granted the benefit from the above date. This seems most logical since the provisions of CCS (Pension) Rules (which now stand amended from 4^thJanuary 2019) in any case do not apply to post-2004 appointees on the civil side who are now governed by the contributory New Pension Scheme (NPS). Therefore by this change, the persons directly affected are those who were governed by the 1972 Rules, that is, only those who were appointed prior to 2004. A minimum guaranteed pension under the NPS is however already under consideration which makes it probable that in view of the ibid change in the 1972 Rules, even post-2004 appointees under NPS would not be left high and dry if released with a non service-connected disability with less than 10 years of service. On the military side, there is bound to be no complication as such since there is no system of a contributory pension prevalent and the new provision should logically, when implemented, apply across the board but with financial effect from 4^th January 2019.