New Delhi, Oct 28 Flagging the “uncertainty” over which rules, regulations and policies of the Ministry of Defence are applicable, the Supreme Court on Wednesday said it is high time the ministry issues a comprehensive and clearly identifiable subordinate legislation governing services.
The observation came from a bench of Justices P S Narasimha and Alok Aradhe, which dismissed a plea filed by the Centre concerning grant of war injury pension.
The Centre, through the Ministry of Defence, had challenged the concurrent findings of the Armed Forces Tribunal (AFT) and the Punjab and Haryana High Court granting war injury pension to the respondent in place of disability pension already granted to him for ‘rheumatoid arthritis’, which developed owing to his posting in Kargil as part of ‘Operation Rakshak’.
“As usual, there is uncertainty about which rules, regulations, instructions and policies of the Ministry of Defence (MoD) are applicable. We continue to wonder why this uncertainty about applicable rules continues,” the bench said in its judgment.
“It is high time that the MoD issues a comprehensive and clearly identifiable subordinate legislation governing the services. This is necessary for fairness in action and also for good governance,” it said.
The bench noted that the respondent was enrolled in the Indian Army in December 1996 and while being posted in Kargil from July 2003 to July 2005, he was diagnosed with ‘rheumatoid arthritis (seropositive)’.
The bench noted that having rendered more than 16 years of service, the respondent, who was discharged in 2013, was granted disability pension consisting of service element and disability element.
It said that after about six years, he approached the AFT seeking grant of war injury pension instead of disability pension on the ground that this disablement was a direct consequence of his posting in Kargil between 2003 and 2005.
The MoD opposed the application on various grounds, including that he was not entitled to war injury pension as his disability was not covered under Category E(i), Para 4.1 of the MoD policy letter dated January 31, 2001.
In April 2024, the AFT allowed the application, holding that ‘rheumatoid arthritis’ had originated in January 2005 when he served in Kargil.
Later, the high court dismissed a challenge to the AFT’s decision on the ground that the opinion of the release medical board proved that ‘rheumatoid arthritis’ originated when he was actually posted in Kargil during the said period.
In its verdict, the bench noted that the contentious issue was about the scope and ambit of sub-category E(i) relating to “operations specially notified by the government from time to time”.
The top court noted that it is the stand of the MoD that category E(i) would cover only those operations specially notified by the government, such as ‘Operation Sindoor’ or ‘Operation Snow Leopard’, etc., and not ongoing operations like ‘Operation Rakshak’ (covering entire J&K) or ‘Operation Rhino’ (covering entire Assam).
“There is no doubt about the fact that the power and jurisdiction to prescribe applicability of a policy to the concerned personnel or the conditions for its applicability are completely within the province of the defence administration. However, the policy formulations must clearly articulate their scope, ambit and application,” the bench said.
It said if an issue relating to applicability of a policy arises for consideration, the primary burden lies on the policy maker to demonstrate the circumstances in which the benefit would accrue or not accrue.
It said that normally, the policy maker’s prescription would not be interfered with, unless the court finds that its approach was beyond the range of reasonable meaning that could be given to the plain language of the policy.
“If the policy maker interprets its own policy against the plain language or in a manner that could be discriminatory, arbitrary, irrational or goes against the very purpose and object of the policy, the courts will disregard the interpretation offered by the policy maker,” the bench said.
“While interpreting the plain language of the policy, courts will simply declare what a policy says it is and not what is in the imagination of the policy maker,” it said while dismissing the plea.
(PTI News)
