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Friday, December 2, 2016

Tribunalisation in India: my op-ed in Swarajyamag

My oped that appeared in Swarajyamag: “The Problem Of Indian Judiciary Everyone’s Talking But Doing Nothing About-Tribunals”

Go slow on tribunals, strengthen real Courts

Reckless tribunalisation must be halted

Navdeep Singh

The recent statement of the Chief Justice of India on non-availability of Chairpersons, Members and Infrastructure for Tribunals again reflects a dangerous obsession with these bodies which have their roots in the emergency era and the 42nd Amendment. While much focus remained on the NJAC verdict, what escaped notice is the irony that the cardinal principle of separation of powers is more under threat via reckless tribunalisation in our country, which tacitly, is not only ensuring the control of the uninitiated over judicial functioning but also curtailing access to justice for the common citizen. Away from the real or perceived friction between the executive and the judiciary, it is widespread tribunalisation which is slowly eating away core judicial functions thereby denuding real Courts and imperiling actual independence of the judiciary. Even the Prime Minister’s very valid and introspective question last year on the desirability of tribunalisation has failed to dent our complacent thought-process. And it seems that many in the judiciary and government also are not keen to rock the boat for the concept provides comfortable post retirement sinecure. It further appears odd that provisions for appointment of senior retired Constitutional Court judges have been made in many tribunals which at times are just courts of first instance. It is yet another interesting matter that the ostensible motives behind creation of tribunals, that is, of easing the burden of the regular judiciary and quicker dispensation of justice, are the biggest myths, with the backlog increasing, rather than decreasing, after creation of tribunals in certain jurisdictions.

So how does tribunalisation affect judicial independence furtively?

Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making. Despite deprecation of this arrangement and constant efforts by the Ministry of Law & Justice to bring all tribunals under its own nodal control to offset such conflict of interest, there has been steadfast resistance by ministries eager not to loosen their respective grips. Even as back as in August 2001, Mr Arun Jaitley, the then Law Minister, had informed the Parliament about the positives of bringing tribunals under the said Ministry in line with Supreme Court directions, but fifteen years down the line, the situation remains the same despite the desire of the political executive to undertake reforms. More than anything else, the confidence of litigants is shaken by the very thought of approaching a quasi-judicial body which operates under the aegis of the department against whom the case has been filed.

Secondly, the Secretary of the said ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the Defence Secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said Secretary is that very officer against whom all tribunal orders are to be passed.

Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court. The very valid dicta of the Constitution and Three Judge Bench of the Supreme Court  in the cases of L Chandra Kumar and RK Jain respectively, favouring judicial review by the affordable and accessible  High Courts from the orders of tribunals, has had no positive effect.

Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective. This is not to suggest that all non-judicial members are alike, some of them might be outstanding in approach, but it is too dangerous to rely on fortuitous personality-oriented traits. Further, they might be excellent professionals in their own fields, but just as legal or judicial professionals cannot be expected to be trained in other fields, members of different vocations cannot be expected to imbibe judicial temper one fine day, and judicial functions are not hit and trial experiments.  As back as in 1951, Simon Rifkind, an American Judge, for the same reason, famously lambasted specialized courts by stating that such systems reinforce the seclusion of that branch and further immunize it against the refreshment of new ideas which constitute the very tissue of any living system of law. He added, “in time, like primitive priest-craft content with its vested privileges, it ceases to proselytize”.

Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench. 

Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.

The Supreme Court and many of our High Courts have expressed grave concern on almost all aspects flagged above. As stated at the outset, the Prime Minister too, last year, spoke about his dissatisfaction with tribunalisation, but then directions of Constitutional courts and words of the highest of the political executive are being held hostage to administrative lethargy, cussedness and not so praiseworthy intentions, which should be unacceptable in a constitutional democracy.

To salvage, and to ensure that tribunalisation does not threaten the judicial fabric of our country, the following pointers may warrant attention:

(A) All tribunals must be immediately placed under the Ministry of Law & Justice and finally an independent National Tribunals Commission, totally out of the purview of parent ministries. The Income Tax Appellate Tribunal (ITAT) which functions under the Law Ministry (and not the Finance Ministry) is a healthy example of such an arrangement. Members of tribunals must be given the best of facilities to attract the finest talent, but then the facilities and infrastructure must not be from the departments against which the tribunals are meant to pass orders.

(B) To offset conflict of interest, the Secretary of the department against which the tribunal is to pass orders must not be associated with the selection process. Further, the ‘dangling carrot’ syndrome of re-appointment must be abrogated for former judges as well as non-judicial members. Legislation dealing with tribunals must ensure that at best High Court Chief Justices or Judges or lawyers with impeccable credentials fulfilling the criterion of appointment are made eligible for appointment of Chairperson or Judicial Members, and not Supreme Court Judges, in order to maintain the majesty and dignity of the highest Court of the land.

(C) Tribunals should only be allowed to be constituted in highly technical matters where scientific expertise of non-judicial members is required, such as engineering and electricity, or in benign areas such as consumer rights where an informal approach is preferred.

(D) Tribunals must not be allowed to encroach upon core judicial functioning of regular Courts in disputes which are essentially civil in nature or disputes between individuals and the State involving fundamental rights. Instead, regular judiciary should be strengthened to relieve their burden and judges should be allocated consistently stable subject-wise rosters as per their aptitude and expertise. Another desirable system is introduction of a concept akin to the newly introduced Commercial Courts which exercise special jurisdiction and decide cases in a time-bound manner and within the existing judicial set-up thereby boosting the confidence of litigants and the citizenry.

(E) There must be no direct appeal to the Supreme Court from a tribunal with original jurisdiction. At least a three tier hierarchy with a time-bound framework be conceptualized for all tribunals out of which one should be a vested right of appeal or judicial review. It must also be realized that High Courts are much more accessible and affordable for litigants than the highest Court of the land approaching which is almost impossible for the common citizen. The appeal thereafter from the High Court to the Supreme Court should be restricted only to the rarest of rare cases involving points of law of general public importance. The system being followed from orders of the Central Administrative Tribunal (CAT) is a perfect positive example worth emulation.

(F) All tribunals must be provided with the power of civil contempt and a statutory execution procedure to give effect to their decisions so as not to render them toothless.

Paradoxically, the landmark verdicts on judicial independence throughout our independent history or the much cherished concept of separation of powers would remain consigned to the book if we allow reckless and extensive tribunalisation, since in this roundabout manner, though the Courts would remain independent in theory, their functions practically would stand transferred to tribunals thereby bringing to naught all positive strides in this direction, and if, in the words of the Calcutta High Court, which I often quote, “matters of justice and equity are left to tribunals manned by the uninitiated to pronounce upon, justice becomes the casualty and inequity the order of the day”.

A shrill alarm raised by the Courts as well as the highest of the political executive, but would it awaken the legal-judicial ecosystem?


Thursday, November 17, 2016

Why hold back?

Truth never damages a cause that is just, so said Mahatma Gandhi, famously.

In the age of transparency, this rings truer today. It is said that those who have nothing to hide, those who embrace truth, need not be afraid of inquisitive eyes. To clarify, I am referring to the inquisitive eye of the public here.

The above thought came rushing to me once again when I saw in today’s paper a report on the Central Information Commission’s orders to the Army to provide documents related to the court martial of five soldiers and a related Court of Inquiry to an applicant under the Right to Information Act. The documents were being refused to the said applicant.

Brings me back to the same question- why hold back when there is nothing to hide?

As soon as the Army, or for that matter, any organisation holds back information, or attempts to block information, the natural reaction of the public is negative- ‘there must be something that they are trying to hide!’ Why should we give this kind of an impression to the public at large? All actions taken by any government organisation are official in nature and law provides adequate protection to sever the parts of such information which might fall within the exceptions provided by the law itself. But those exceptions are to be invoked judiciously in the right spirit behind the said provisions and not by way of artificial hair-splitting. 

Though I am not aware of the facts of this case, and it also seems to be an old issue, it is felt that while the Services Headquarters of the three services are quite open and transparent about their functioning, there is inertia by lower formations related to provisioning of legal documents such as Court of Inquiry proceedings, especially opinion and findings. Often Rule 184 of the Army Rules is cited out of context to refuse such documents. The said rule actually only talks of provisioning statements and documents of a Court of Inquiry, it does not contain any negative stipulation for not providing the opinion and findings. Moreover, the said rule must yield to Section 22 of the RTI Act which overrides all other laws, including the Official Secrets Act. But it must even otherwise be realized by us that if an action is taken against a person based on the opinion and findings of a Court of Inquiry, then the person most definitely is entitled to the information based on which the action was taken against him or her. More importantly, such information may be required by a Court of law to apply its judicial mind to the proposition as to what went in the mind of an authority before taking any such action. The Constitutional Courts have emphasized time and again that a person needs to be informed of all material and findings against him in order to defend himself/herself, and this is not a luxury or a favour but a cardinal feature of any society governed by the rule of law. The fact that Courts of Inquiry are also open to judicial review was well established by the Supreme Court in Sanjay Jethi’s case. Further that opinions and findings of such inquiries (enquiries) are also to be supplied was well ruled by the Delhi High Court in Col PP Singh’s case. It is the substantive law of the Parliament and the law declared by Constitutional Courts that has to prevail on us, not personal opinions or legal opinions recorded on file. Reminds me again of Veena Kohli’s case wherein death related documents to a mother of an officer who died in Jammu & Kashmir were refused to her under the RTI Act on the pretext that the said Act is not applicable to the State of Jammu & Kashmir, as if the Indian Army based in J&K is a State force and not a Central force! When the Central Information Commission ruled in favour of the mother, the decision was challenged by the system, probably not out of the need for it but out of ego, in the Delhi High Court, which of course ruled in favour of the mother.

Without taking any particular position, I only wish to say here that the Defence Services are amongst the cleanest institutions in our country, and holding back of such information leads to adverse conclusions and bad press also resulting in embarrassment which does not reflect upon the actual state of an institution which the nation is proud of. The top brass of the defence services is all for transparency, even the RTI Cells at the headquarters of the three defence services are doing an impeccable and admirable job, it is just hoped that the same spirit percolates down to each officer in every military establishment. 

Wednesday, November 9, 2016

Divine Justice for Naval personnel not placed on reserves due to change of policy in 1976

This is a case wherein the Indian Navy tried its hand in enthusiastically getting the reservist pension granted by the Chennai Bench of the Armed Forces Tribunal to an old sailor set aside by the Supreme Court but ended up with an order for grant of ‘Special Pension’ in favour of all similarly placed personnel, irrespective of whether they have approached Courts or not.

The Navy had a system of 10 years active service followed by 10 years in the fleet reserve similar to the colour + reserve scheme of the Army & the Air Force. Reservist Pension was admissible to such personnel after 15 years of combined active and reserve service. In the year 1976 however, the system of placement on reserve fleet was discontinued and all those who were on rolls (even those who had joined before 1976) were released after 10 years thereby resulting in non-grant of pension to some of such sailors.

The Chennai Bench of the Armed Forces Tribunal however held in the case of one such sailor that such sailors were entitled to reservist pension since it was not these personnel who had opted out but it was the Navy which discharged them on change of policy. But on the other hand, the Principal Bench of the Tribunal dismissed such claims by similarly placed sailors. The claim for ‘Special Pension’ which is granted to personnel with 10 years of service who are released on ‘reduction in establishment’ was also not accepted for the affected sailors.

Thereafter while the Navy challenged the order of the Chennai Bench of the Tribunal against the grant of Reservist Pension, the sailors led by TS Das whose cases were dismissed by the Principal Bench, also challenged the denial of pension.

The Supreme Court in a detailed order has agreed that such sailors are not entitled to Reservist Pension essentially for the reason that even under the erstwhile system, placement on fleet reserve was not mandatory and was only to be effectuated ‘if required’. However, on threadbare examination of the issue, the Supreme Court has reached the conclusion that discontinuing the system of active-reserve service amounted to reduction of establishment and such personnel would definitely be entitled to ‘Special Pension’. Consequently, the Court has ordered that Special Pension be released to all such affected sailors, not just limited to those who had filed cases before the Tribunal.

One ideally would have expected the top Naval brass to come to the rescue of such sailors, some in extreme old age, who had been denied reservist pension due to sudden change in policy by convincing the Government to come up with a scheme to help such sailors tide over difficulties in the twilight of their lives, but instead, they chose to fight tooth and nail against benefits granted to one such sailor. It can also be said with due certainty that the Navy would have not even informed the Supreme Court that a Committee of Experts constituted by the Raksha Mantri had already rendered a positive recommendation for such personnel as far as their pension is concerned.

But then, divine justice by the Court wherein not just the litigants, but all such affected sailors would now have a comparatively comfortable life in the few years that they are left with. One can only hope that the few such personnel who are now living are identified at the earliest by the Navy and the decision given effect to without posing any further hyper-technical impediments.

Saturday, November 5, 2016

Q & A on the edit page of Times of India

The Times of India has published a Q & A with me on its edit page.

The questions were drafted by Nalin Mehta, consulting editor, Times of India.



Thank You.

Saturday, October 29, 2016

Pension instructions for pre-2016 retirees issued, based on 7th Pay Commission orders

The Ministry of Defence has issued the instructions for payment of pensions implementing the recommendations of the 7th Central Pay Commission.


The rates of disability element have not been reduced for now and shall continue to be paid as per existing amounts under the existing percentage based formula till the issue is resolved by the Anomalies Committee.

The note under Paragraph of 12 of the new letter related to non-grant of additional quantum of pension to pensioners aged 80 years and above as far as their disability/war injury elements are concerned is incongruous and shall be taken up with the Government for rectification at the earliest. The same is the strange result of an incoherent recommendation which was discussed earlier in the post of 30 September 2016 in the following terms:

Enhancement of old age pension for disability and war injury pensioners: The strangest part of this entry is the fact that the Defence Services had indeed asked for this, and the commission actually rejected it and the Ministry of Defence has accepted that rejection. I say it is strange because the Government had already clarified way back in 2010 that additional old age pension very much applies to disability and war injury pensioners. Hence the Defence Services HQ had demanded and the 7th CPC and the Ministry of Defence rejected something that stood granted and clarified way back in 2010 by the Government which becomes clear from this letter issued in 2010 which can be accessed by clicking here. This single instance should be an indicator enough of the expertise and institutional memory available at various echelons of our systems. Unfortunate, to say the least!

Saturday, October 22, 2016

My op-ed in ‘The Hindu’ on disabled soldiers

My op-ed published in The Hindu:

Questions of Compensation

India has the distinction of exhibiting disdain towards the cause of disabled soldiers

Navdeep Singh

Quite a paradox India is. While on one hand there is excessive chest-thumping for our men and women in uniform, on the other we pride ourselves in laying a constant siege on the benefits and legal rights of those very personnel whom we superficially cheer during parades.

Bearing the brunt at the forefront are our disabled soldiers. The deleterious effect of stress and strain of military service on health is a universally recognised phenomenon. Nations go out of the way to make lives more comfortable for their troops with rising payouts for their loss of health, but India has the unique distinction of showing utter disdain towards the cause of disabled soldiers. At a very rudimentary level, it is questioned, mostly by defence accountants, as to how ailments such as heart disease, neurosis, backache, seizures et al, which are also common in civilians, could be affected or aggravated by military service. Well, it is not quite complex to discern that a highly regimented life away from family most of the year- at times under the shadow of the gun, inability to cope up with domestic commitments, lack of community living, lack of sexual fulfillment and physical proximity, curtailed freedoms and rights, all lead to aggravation of common medical conditions. The life of military or even paramilitary troopers who are on duty 24 hours a day and who require the permission of their seniors to even use the washroom or visit a market after signing multiple registers, cannot be compared with those employees who are living with their families and working fixed office hours five days a week.

The inherently balanced disability rules, in India and other democracies, aptly provide that there is a presumption of service-connection of disabilities incurred during military service, but our army of accountants and financial wizards mostly reject such disability claims leading to judicial intervention. However when disability benefits are awarded by Courts and Tribunals after a long haul, the Ministry of Defence appeals against disabled soldiers till the highest Court of the land, at times for amounts of a few hundred rupees. In the year 2012-2013, ninety percent of all appeals filed in the Supreme Court by the Ministry of Defence were against disabled soldiers, a shamefully dubious distinction. The efforts of the current Defence Minister to control the litigation malaise are being met with strong resistance from the official-legal ecosystem which thrives on the miseries of disabled soldiers.

A recent example of this attitude was the sadistic recommendation of the 7th Central Pay Commission for slashing disability pension rates which created quite a commotion. Out of the blue, without there being any demand for it, the commission made an observation that there was an increase in the percentage of disabled officers in the defence services vis-a-vis lower ranks and hence the benefits needed to be slashed from the ‘percentage of pay system’ to a ‘slab system’ which would be more equitable for ranks other than officers. It was recommended that from the current formula of ‘30% of pay for 100% disability’, disability element should be granted at the fixed rate of Rs 27000, 17000 and 12000 for Commissioned Officers, Junior Commissioned Officers and Other Ranks respectively for 100% disability, proportionately reduced for lesser disability. Surprisingly, no such corresponding ‘equitable’ change was recommended for civilian disability pensioners, including those from the Central Armed Police Forces, who continue to receive benefits on ‘percentage of pay’ basis.

Needless to state, statistically, there is higher probability of incurring disability by officers than jawans since while the latter start retiring in their 30s with about fifteen years plus of service, officers retire in their 50s with a service spanning thirty years or more. What reflects a heartless mindset however is that instead of being concerned about the increasing stress and strain in the military and a deteriorating health profile and also the recorded information that military personnel are dying earlier than their civilian counterparts, the commission went ahead and cast aspersions on the maimed and the infirm. Which sane nation would condone this?

Shockingly, the above recommendation was made suo moto based on some data provided by the Defence Accounts Department to the commission without being authenticated by the Defence Services and without even granting a chance of discussion or rebuttal to the stakeholders. The jugglery is even more jarring since the slab system would result in a better payout only to those rare cases in the lower ranks who are medically boarded out in the beginning of their careers, while it results in a loss to all those jawans who are released on completion of regular service terms. In the higher ranks, the difference is even more outrageous. Whereas a 100% disabled Lieutenant General who was in receipt of disability element of Rs 52,560 as on 31-12-2015 would now be relegated to Rs 27000 on 01-01-2016, his civilian counterpart, who was at par, would now receive Rs 67,500. While the pay commission handsomely increased all pensions, including civil disability pensions, it slashed military disability pensions drastically- at places by more than half. The fact that certain vested interests chose to inject twisted figures on this sensitive issue on to social media platforms citing ‘government sources’ sets an even more dangerous tone.

One cannot just help thinking about the futility of all that pomp and show and regalia at military displays or revelling in our military achievements if we cannot sensitively take care of our disabled soldiers. Can we live with the hope that one day the establishment might perhaps find some other punching bag to expend its negative energy, leaving this minuscule and frail portion of our veterans in peace?



Tuesday, October 18, 2016

Disabled Generals and the Truth!

The media reported a letter written by a former Director General of Armed Forces Medical Services on the subject of disability benefits to officers of the rank of Major General and above. Though the media reported the issue objectively without taking sides, the mere existence of such a letter causes concern and also paints an untrue picture of the entire military establishment besides causing fissures between various ranks. I have penned a detailed opinion piece on the subject which appears in Swarajya Magazine :

DISABLED GENERALS AND THE TRUTH

Navdeep Singh

It was bewildering to see the circulation of a letter purportedly written in 2014 by the then Director General Armed Forces Medical Services (DGAFMS) to the Defence Secretary insinuating that Generals of the Army were wrongly claiming disability benefits for personal gain. Of course it got wide coverage, and amongst others, the following points were raised in the said communication:

  • Generals present themselves with disabilities at the fag end of their careers and doctors working in hospitals under their command find themselves constrained to oblige “these officers”.
  • The provision of post-discharge claims is being misused for claiming benefits for disabilities such as corns, eczema and hearing loss.
  • That Generals should be examined at a central place and not in establishments under their command.
  • That disability pension claims should be decided two years prior to retirement and tax benefits should be abrogated.
  • Concept of a disability arising in a peace area or field should be done away with and any disability occurring in any area should be taken as connected with service and entitling a person to disability benefits. 

 One by one, let me attempt to clear this muddle:

Generals presenting themselves with disabilities at the fag end of their careers and doctors obliging them

The DGAFMS should have known that medical science is not mathematics wherein disabilities can be controlled or planned. Generals retire at the age of 58 onwards and the likelihood of incurring certain disabilities is higher at such an age profile and merely because a person attains a higher rank cannot be considered a disqualification from flow of benefits entitled under the rules. The rules do not discriminate between a Sepoy or a General and even this author is personally aware of many instances wherein senior officers developed diseases towards retirement, including Coronary Heart Disease, Ischemic Heart Disease necessitating angioplasty and even open heart surgery, and also back problems. So is the DGAFMS implying that a senior rank shields a person from disease? It should be absolutely clear that unless it is shown that a person has feigned a disability (used to happen in the times of yore when diagnostic tools were not advanced- with hearing loss and backache being the most commonly faked disabilities which could not be objectively discerned), there is no question of discriminating a person based on rank. Interestingly much water has flown from the date this letter was written by the DGAFMS and which factum has not been reported by any of the media houses and this very issue had been duly deliberated upon by a Committee of Experts constituted on the directions of the Raksha Mantri, of which this author too was Member and which recorded its conclusion on this subject in the following words:
“…The Committee notes that the rank of a claimant is immaterial for claiming disability pension if admissible under the rules, however cases of feigning disabilities where none exist should be dealt with strongly and medical boards should also be extra careful in examining cases where individuals have reported with a medical condition just before retirement.”

Hence, instead of scandalizing the issue out of proportion, the DGAFMS could have simply written to all medical authorities to exercise due care. Moreover, if medical boards, in the opinion of the DGAFMS, were being pressurized by senior officers, then the fault lies with those medical boards which are under the overall command of the DGAFMS for being so fickle. Also, if the DGAFMS felt that officers were declaring themselves fit during the most part of their careers and disclosing their disabilities just before retirement, then it is again the fault of the annual and periodic medical boards for not being able to identify disabilities and lowering the medical categorization of officers at the correct time. It was an issue that could have been resolved in-house and the Defence Secretary had nothing to do with this malaise, if any. Also, it is none of the concerns of the DGAFMS about the relationship between career advancement of officers and their disabilities and the medical board cannot go beyond certifying the disability and its connection with service.

Post-discharge claims for corns, eczema and hearing loss

This is a surprising averment. Firstly, the rules provide for the system of post-discharge claims for both civilians as well as defence retirees. Secondly, merely submitting such a claim does not result in grant of benefits and a proper medical board is still held to confirm whether the disability was such that could have had a basis in service but fully manifested itself after retirement and whether it had a service-connection or not, and the said exercise is to be conducted by the office of the DGAFMS itself through a proper medical board. Floating a claim by a General does not mean the automatic grant of such a benefit. Moreover, medical documents of the disability under consideration initiated during the course of service are always required to be produced for any such claim to be accepted. Regarding eczema and corns, it seems that the two medical conditions have been mentioned in the letter just for effect, and I would be surprised if any person after retirement has been granted disability benefits for these two disabilities at all, and in case true, then the number would be negligible and if this hunch of mine is correct then the argument of the then DGAFMS self-destructs. However, to add, if such instances are true, I agree that disability benefits for such minor ailments giving rise to no functional problems should not be considered after retirement. On the point of hearing loss, I think that the then DGAFMS should have been in a better position to understand that noise above 85-90 decibels is harmful to the ear and even a single gunshot over 140 decibels can damage the ear. The 5.56 shot of the standard issue infantry weapon produces a sound of over 150 decibels and there is no system of using hearing protection devices in the Indian Army. All troops of all ranks undertake regular firing practices all throughout their careers and hence cases of hearing loss should not have been broad-brushed in such a manner by the highest medical authority of the Armed Forces casually unless there was diagnostic evidence to prove that a particular General had faked his disability. The office of the DGAFMS should restrict itself to commenting whether a disability exists or not and if a person is faking a disability, it should raise the red flag, nothing more, nothing less.

That Generals should be examined at a central place and not under hospitals under them

Wonderful idea that should be acceptable to all stakeholders since it would reflect objectivity in the entire process and offset any conflict of interest. The letter of the DGAFMS should have limited itself to this aspect instead of casting aspersions on senior ranks of the defence services. Going a step further, medical boards could be held at hospitals of other services. For example, if a Major General of the Army is being examined, the board could be held at an Air Force establishment, and vice versa.

That disability pension claims should be decided two years prior to retirement and tax benefits should be abrogated

A ridiculous suggestion, to say the least, which unfortunately also shows the lack of knowledge of basic disability law by the highest medical authority. As per law, disability benefits are determined on the basis of Release and Invalidation Medical Boards at the time of release from service and the medical condition persisting at the time of severance from service, and not earlier. Also, why should a General be held responsible only because a disability emerges at the later stages of his career? While calling for abrogation of tax benefits, the then DGAFMS has transgressed all limits of his jurisdiction. What is he? The Chairperson of the Central Board of Direct Taxes? The Finance Secretary?

Concept of disability arising in a peace area or field should be done away with and any disability occurring in any area should be taken as connected with service entitling a person to disability benefits

Very pertinent suggestion and to support the DGAFMS I would forcefully state that this is already provided under the rules which prescribe that incurring of a disability in a peace or field area has no implication on disability benefits. However, there is a twist to this. Despite this rule and various High Courts and the Supreme Court adversely commenting upon the peace/field distinction perpetrated by military medical boards, it is the same office of the DGAFMS which has illegally, and in contravention of rules, issued personal and Demi Official letters to medical establishments asking them not to consider cases of certain disabilities arising in peace areas. The same office of the DGAFMS has also illegally omitted to reproduce the beneficial disability rules to the said effect while compiling its “Guide to Medical Officers, Military Pensions”. It is therefore ironic that after issuing illegal communications to its lower formations and also issuing guidelines contrary to rules, the senior most authority of the said office makes a somersault and talks of something that his own office is responsible for. In fact, this suggestion, though very much relevant and correct, is contrary to the first part of the DGAFMS’s communication to the Defence Secretary. The DGAFMS therefore is suggesting that though all disabilities incurred in service should (rightly) qualify for disability benefits, if the disabled officer happens to shoulder a heavier brass, he or she should be disentitled. It would have been in the fitness of things if all of us had rather been deeply concerned about the fact that defence personnel of all ranks are dying earlier than their civilian counterparts due to a deteriorating health profile and increase in stress and strain of service. In any case, the issue has been decided in detail by the High Courts and the Supreme Court, and any aberration suggested would not just be unethical but also contemptuous. The entire length and breadth of the matter has also been deliberated upon in much detail in Paragraph 2.2.1 of the ibid Committee of Experts which thrashed out the subject from all corners.  

To conclude, I would only say that the issue of disability benefits to our soldiers of all ranks is much too sensitive to be discussed without due background or with little knowledge and such matters which involve precious rights of our troops concerning their health, irrespective of their rank, cannot be held hostage to a short three page note which turns the entire law and practical realities upside down. Also, assuming that there had been a few undeserving cases or rotten apples, which could anyway be counted on our fingertips where disabilities were supposedly faked, though not quite an agreeable proposition, the responsibility of letting such disabilities pass rests squarely on the multiple medical boards which allowed the same to happen and then the medical authorities who approved them- all of whom function under the office of the DGAFMS.

The letter therefore clearly appears to have been written with a background, and dare I say it, with a foreground. It is yet another matter of concern that the subject that should have been addressed to the three Chiefs of the Defence Services was endorsed to the then Defence Secretary who had no role in the subject thereby providing a leverage to many elements within the system to inject further chaos in the matter.

Tuesday, October 11, 2016

More on implementation of the new dispensation of disability pensions : Swarajya Magazine

As discussed at a number of places in the past few days, the new disability pension formula recommended by the 7th Central Pay Commission and accepted by the Government is not equitable for the defence services. The 7th CPC recommendations for disabled personnel were faulty and unethical, to say the least.

Some quarters have pointed out that the new slab system would be beneficial for all ranks other than commissioned officers. However this is incorrect since the slab system would only be beneficial for those with very little service. It would not be beneficial for any person of any rank who would be retiring on completion of terms. Also, a minimum protection slab could have been introduced in case it was felt that lower ranks would benefit more through the slab system.


Saturday, October 1, 2016

Delinking of service requirement of 33 years for full pension: Orders issued by Ministry of Defence


The orders delinking service of 33 years for earning full pension, as directed by the High Court and affirmed by the Supreme Court, have been issued for pre-2006 defence pensioners by the Ministry of Defence and can be downloaded/accessed by clicking here.

Please do not send me individual mails/texts/messages/queries regarding this subject or on the latest pensionary notification issued with respect to the 7th Central Pay Commission. Whatever needs to be commented upon by me would be stated here on this blog. Please however feel to discuss the issue under the comments section.

Thank You

Friday, September 30, 2016

7th Central Pay Commission notification for defence pensioners issued: Some Good News, Some Bad News- good on OROP fitment, very bad for rates of disability pension

The Ministry of Defence has today issued the notification for grant of pensionary awards based on the recommendations of the 7th Central Pay Commission. The same can be downloaded and accessed by clicking here.

While there is good news for regular pensioners in the sense that the Government has decided to grant a fitment of 2.57 on the pension drawn by pensioners as on 31 Dec 2015, which includes 'One Rank One Pension' (OROP) pension drawn on the said date, the notification very regressively has reduced the amount of disability benefits admissible to disability pensioners. They have relegated the rates to the ‘slab system’ as was prevalent prior to the 6th Central Pay Commission thereby placing defence disability pensioners at a sharp disadvantage as compared to civil disability pensioners.

My analysis on each entry in the notification:

1.    Revision of Pension of pre-7th CPC retirees: A good move. Both options accepted. The first option of notional pension based on fitment as per service in the pay level in which the person had retired has been accepted subject to feasibility study. The second option of multiplication fitment of 2.57 of the pension as on 31 Dec 2015 has been implemented with immediate effect. This translates into OROP X 2.57. One must congratulate the Defence Services Headquarters, especially the Adjutant General of the Army, for ensuring the judicious implementation of this aspect. This also puts an end to the needless rumour-mongering that OROP shall not be configured with the new pay commission modalities. 

2.    No comments required.


3.    No comments required.

4.  Pre-2006 Honorary Naib Subedars: The stated position of the 7th CPC that this ‘closed matter’ may not be reopened has been accepted by the Government. This is clearly not in order. It may be recalled that while post-2006 retiree Honorary Naib Subedars were paid the pension of a Regular Naib Subedar, the same was refused to pre-2006 retirees. This statement of the 7th CPC and its acceptance is legally not in order since there already is in force judicial dicta, upheld till the Supreme Court, providing that pensions of pre-2006 Honorary Naib Subedars are also to be calculated based upon the pay of a regular Naib Subedar. The non-acceptance of this issue means that litigation on the subject shall continue since the anomaly has not been addressed.


5.    No comments required.

6.    Pension of Territorial Army personnel: This issue has also been addressed by way of judicial verdicts and should have been resolved by the 7th CPC.


7.    No comments required.

8.   Disability pension rates: This is the single most condemnable recommendation by the 7th CPC which has strangely been accepted by the Government. Frankly, I never thought that this regressive recommendation would ever be accepted. While recommending this aspect, the 7th CPC had made unfounded and uncharitable remarks against disabled soldiers by casting aspersions on those who have incurred disabilities while in service. I had discussed the issue in detail earlier on this blog post dated 21 Nov 2015. While the heading of this entry is “Enhancement in rate of disability pension”, it has actually resulted in a massive decrease resulting in a payout even lower than 6th CPC rates. The 6th CPC had removed an anomaly wherein disability pension was being earlier calculated based on percentage of pay for civilians but on slabs for defence personnel. This (the slab system) was leading to an enormous discrimination between civilians and defence personnel except at lower ranks where defence personnel were getting a slightly better deal. The 6th CPC hence equated civilians and defence personnel after which in both cases the disability pension was directed to be calculated on percentage basis (30% of emoluments for 100% disability). A protection clause was further introduced so that the lower ranks did not face any disadvantage due to the percentage system. All anomalies were therefore addressed for all ranks and all sections of employees. The 7th CPC, based on totally vague and unsubstantiated grounds, which should have been actually expunged from the report itself, recommended the reversion to the slab system. This is totally uncalled for and should be strongly contested by the Defence Services HQ by requesting the Raksha Mantri to immediately review these orders. The arbitrariness of this decision becomes evident from the following chart:

(100% Disability)
Rank
Rates under the 6th CPC as on 31 Dec 2015
Rates applicable after the 7th CPC as on 01 Jan 2016
Lt Gen
Rs 52,560
Rs 27,000
Head of Central Armed Police Force
Rs 52,560
Rs 67,500

9.  Broad-banding of disability pension: The Government has accepted broad-banding of disability pension for cases other than invalidation, that is, all cases irrespective of manner of exit. But the catch is that this has only been made applicable from 01 Jan 2016 whereas the anomaly arose from 01 Jan 1996 which the Supreme Court adjudicated. Hence, regrettably there would be no change or reduction in litigation for claims of broad-banding from 01 Jan 1996 till 31 Dec 2015 as mandated by Supreme Court orders. Practically this helps only those who retire on or after 01 Jan 2016 while for the rest the legal position for claiming benefits remains the same.

10. Enhancement of old age pension for disability and war injury pensioners: The strangest part of this entry is the fact that the Defence Services had indeed asked for this, and the commission actually rejected it and the Ministry of Defence has accepted that rejection. I say it is strange because the Government had already clarified way back in 2010 that additional old age pension very much applies to disability and war injury pensioners. Hence the Defence Services HQ had demanded and the 7th CPC and the Ministry of Defence rejected something that stood granted and clarified way back in 2010 by the Government which becomes clear from this letter issued in 2010 which can be accessed by clicking here. This single instance should be an indicator enough of the expertise and institutional memory available at various echelons of our systems. Unfortunate, to say the least!


11. Disability Pension to “Neither Attributable to, Nor Aggravated by Military Service” Cases: The recommendation of the 7th CPC is redundant in this aspect since the Supreme Court and various High Courts have already ruled that in case a person is fit at the time of enrollment, then any disability arising during service is deemed to have a connection with service thereby entitling a him/her to disability pension.

12. No comments required.


13. No comments required.


14. No comments required.