What is Sheltered Appointment of Indian Army ?
Based on the Rules and Regulations of the Army, judgements of AFT in some cases of disability pension has stated that all units of the army are organised and authorised specific manpower based on their ‘War Establishment’ (WE), where the specific role of each person is defined to achieve the intended overall capability of the unit. There is no formal or specified slot or appointment earmarked as sheltered appointment . The concept of sheltered appointment or alternative appointment is purely for the purpose of consideration for retaining low medical category personnel, especially ‘battle casualty’.
Sheltered appointment at Public Interest
Sheltered appointment was a creation of considerations of welfare and would be dependent on “public interest, the manpower state of the unit, place of employment, the individual’s capacity for gainful alternate employment, unit efficiency etc”. According to the judgement of AFT in a dispute of medical pension / compensation the judgment said that in case no sheltered appointment could be found, discharge is to be regulated as per rules. ” In other words, a sheltered appointment is not a right,”. On the procedure of discharge, after recommendation from the CO for discharge of a disabled soldier, it would be approved by the Service HQ through Record Office in case of PBOR and then Discharge order will be released for the soldier. Accordingly he would be placed before the RMB.
Basic Guide on disposal of LMC Personnel and Alternative Appointment
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. It is handiest an permitting provision to authorise the commanding officer to discharge from service a person or a class of serving personnel in recognize whereof a decision has been taken by way of the Central Government or the Chief of Army Staff to discharge him from provider either unconditionally or on the fulfilment of sure unique conditions. The stated provision isn’t in any way in struggle with the scope of the closing part of Rule 13, in order to provide it an overriding impact, being a non obstante provision.
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.
Problem arises for below 15 Years service cases of PBOR
Now the problem arises for the permanent LMC personnel who have not completed qualifying service for service pension i.e minimum 15 years of service and unwilling to accept sheltered appointment. Such PBOR with less than 15 years of service in whose disability (permanent LMC) is attributable/ aggravated by military service and have been discharged from service due to no sheltered appointment available in the unit is granted both the element viz service element and disability element as the case is treated as medical invalided out of service as per regulations 95 of PRA 2008 Part I. Whereas such PBOR who are unwilling to accept the sheltered appointment is treated as “Discharged at own request” which is contrary to provisions of Regulation 95 of the PRA 2008 Part I. Accordingly the disability element is only granted to such PBOR and service element is denied to them as applicable to “discharged at own request” cases.
Provisions Exist in Pension Regulations for the Army 2008
In 2008, the Pension regulations has been amended and provisions regarding treatment of pensionary benefit in respect of personnel who placed permanent LMC and discharged due to (i) Non availability of alternative appointment/sheltered appointment in the regiment (ii) Unwilling to accept alternative appointment/sheltered appointmet cases.
As per Pension Regulations for the Army 2008 Part-I, Sub-Section-III , Regulations 95, Individual who is placed in a low medical category (other than E) permanently and who is discharged because no alternative employment in his own trade/category suitable to his low medical category could be provided or who is unwilling to accept the alternative employment or who having been retained in alternative appointment is discharged before completion of the engagement, shall be deemed to have been invalided out of service.
As per Regulation 81. (a) Service personnel who are invalided out from service on account of a disability which is attributable to or aggravated by such service may, be granted a disability pension consisting of service element and disability element in accordance with the Regulations in this section. It has been also clarified that there shall be no condition of minimum qualifying service for earning service element.
In view of the above it is clear that a disabled soldier with less than 15 years of service whose disability is attributable or aggravated (or both) by military service (with minimum 1% disability which is broadbanded to 50%) and has been discharged from Service on the grounds of Unwilling to accept sheltered appointment is to be treated as invalidated out of service (as per Regulation 95 of PRA 2008 Pt 1). As per Regulation 81(a) of PRA 2008 Pt 1, such disabled soldier may be granted disability pension consisting two elements i.e service element and disability element.
Cases have been noticed that where the permanent LMC personnel who are unable to perform their duties in combatant units due to their medical problems are unwilling to accept alterative appointment. Such cases should be treated as per provisions of disability pension regulated in the PRA 2008 but the defence authority treated such release as “Discharge at Own Request” and no service element is granted to the PBOR with less than 15 years of service.
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।
To read the report of the committee – click here.
Rules mentioned in Handbook of pension for PBOR issued by PCDA (Pension) available in public Domain
Procedure for Adjudication of Disability Pension Claim
Para 15. (i) Invalidation from service with disablement caused by service factors is a condition precedent for grant of disability pension. However, disability element will also be admissible to personnel who retire or are discharged on completion of terms of engagement in low medical category on account of disability attributable to or aggravated by military service, provided the disability is accepted as not less than 20%.
- (ii) An individual who is boarded out of service on medical grounds before completion of terms of engagement shall be treated as invalided from service.
- (iii) PBOR and equivalent ranks in other services who are placed permanently in a medical category other than SHAPE 1 or equivalent and are discharged because (1) no alternative employment suitable to their low medical category can be provided, or, (2) they are unwilling to accept alternative employment, or, (3) they having been retained in alternative employment are discharged before the completion or their engagement, shall be deemed to have been invalided out of service.
In view of the above context, we may come into a conclusion that the Defence Pension authority is confused and created contradiction with their own Rules. So the matter need to be disposed and come into a concrete decision by the appropriate authority so that the confusion ends and a clear picture of admissibility of service element of the specific category of personnel as discussed in this article is brought as specified in the eyes of law.
