No Pension for Sheltered Appointment Unwilling Cases of Soldiers ?

New rules of disability pension named ” Casualty Pensionary Awards and Disability Pension Entitlement Rules 2023” has brought many changes for grant of disability pension. An audit report pointed out some abnormal ratio of disability pensioners in Commissioned Officers category at the beginning of this year and it is assumed that the negative effect in the rules has been enforced to cut down disability pension of soldiers.

Earlier, all kind of disabled soldiers were allowed to get disability pension if the disability assessed as attributable or aggravated by military service. The new rules has brought several changes – including no such disability pension is allowed to the soldiers who retires voluntarily (discharge at own request) or retire normally. Instead they will be allowed to get an Impairment Relief (IR) per month or captalised IR whatever applicable. The amount of such kind of IR is also very little and nominal in comparison with disability pension. Disability Pension consists service element and disability element and the total amount is not less than service pension entitled to the pensioner.

Now the question is what kind of pension will be allowed to the soldiers who has not rendered 15 years qualifying service to earn pension ? According to the new rules, if such a soldier who is LMC (Permt) and not willing to accept sheltered appointment, he will not be treated as Invalided out of service.

Definition of Invalided out of service which earlier (ER 2008) was included the sheltered appointment unwilling cases is now deleted. Whereas, Entitlement Rules 2008 and Regulation 81,82 and 95 of Pension Regulation for the Army, Part -I, 2008 instructs that the Discharge due to Unwilling to accept alternative appointment /Sheltered appointment will be treated as Invalided out of service. ER 2008 has been suppressed due to intorduction of ER 2023 but the Pension Regulation 2008 is still stands valid.

The difficulties arises here at the  sanctioning level that an instructions was issued by ADG/MP-3 (PBOR) on 30 Sep 2010 instructed that, “ All endeavors should be made to allow LMC personnel to complete their minimum pensionable service (i.e 15 years) in their present rank before considering their case for disch under permanent LMC due to non-availability of sheltered appointment.”  The Unwilling certificate of all LMC persons with less than 15 years of service is being returned by the Record office  to reconcile the cases in adherence with the letter of ADG(MP) of 30 Sep 2010 to avoid future litigation/court case.

Army Order 46 of 1980 has been issued for disposal of LMC category employees and simply contemplates that the employment of LMC class employees at all times, is subject to the provision of appropriate alternative appointments commensurate with their medical categories and also challenge to the conditions that such a sheltered appointment may be justified in the public interest.

A undeniable reading of the Army Order shows that it comes into operation after an opinion has been shaped as to whether or not a particular employee is to be retained in service or no longer, in that case for what duration. If someone is to be retained in service no matter his LMC for a specific duration as stipulated inside the Army Order forty six of 1980, the question of subjecting him to Invalidating Board may not arise.

However, if someone is to be discharged on the ground of medical unfitness, at that level of his tenure of carrier or extended provider within the which means of the Army Order, he needs to be discharged as consistent with the system laid down in Clause I (ii) in Column 2 of the stated Table. Similarly, Sub-rule (2A) of Rule 13, closely relied upon through the appellants does no longer bring the case of the appellants any further.

Army Headquarters letter No. B/10122/LMC/MP-3 (PBOR) dated 15.3.2000 which spells out the policy of the Indian Army for rehabilitation by offering sheltered appointments.  Later on extended guidelines on discharged in Low Medical Category issued in terms of IHQ of MoD(Army) letter No.B/10201/06- 08/Vol-I/MP-3(PBOR) dt 12 Apr 2007.  These orders do not speak anything about entitlement criteria of pensionary benefit to such LMC personnel. So, the pensionary benefit should be regulated by the Pension Regulations for the Army in effect and ER 2023 wef 21 Sep 2023.

Since all the disability/casualty pension related awards are strictly governed by the ER in conjunction with Pension Regulations, it may be assumed that the unwilling to accept sheltered appointment may not be treated as invalided out of service and as per the recommendation of CGDA in an expert committee report of 2017, as mentioned below ,such a discharge will be treated as Discharge at own request. You may read the Report of the Expert Committee here.

What are the benefits applicable to Sheltered Appointment Unwilling Cases ?

The soldiers with less than 15 Years of service and unwilling to accept sheltered appointment will now are not eligible for service element and will get only Impairment relief. So, no pension is applicable. As a result ECHS facility is not applicable and not entitled to get Exserviceman Status also.

However, if a sodier is discharged from service due to no alternative appointment is available in the unit, will be treated as invalided out of service and will get service element, disability element/IR, CSD facility, ECHS facility and Exserviceman Status also.

Expert Committee Report of 2017 and Opinion of CGDA (Para 11)

2017 में, रक्षा मंत्रालय की विशेषज्ञ समिति ने सीजीडीए के विचारों की सिफारिश की है, जिसमें कहा गया है कि LMC persons की केवल एक Option (Shelter appointmet के लिए अनिच्छुक) दे के डिस्चार्ज जाना अपने अनुरोध पर डिस्चार्ज माना जा सकता है और ऐसे मामले में, सेवा अगर उसने 15 साल की सेवा पूरी नहीं की है तो उसे Service Element नहीं दिया जाना चाहिए।