Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.

Thursday, July 30, 2015

Final closure to the agony of pre-2006 pensioners: Universal orders issued today for revision of enhanced pension from 01-01-2006 rather than 24-09-2012


Following the decision of the Armed Forces Tribunal and the Central Administrative Tribunal, as upheld by a judgement of the Delhi High Court (which in turn was based upon a decision of the Punjab & Haryana High Court) and then endorsed by the Supreme Court, and further after various twists and turns, the Department of Pension and Pensioners’ Welfare (DoPPW) has finally issued universal orders regarding revision of pension of pre-2006 pensioners with effect from 01 Jan 2006 rather than 24 Sept 2012.

All affected pensioners (and not just litigants) shall now be eligible for arrears from 01-01-2006 till 23-09-2012.

A big thank you to all stalwarts who were at the forefront of this fight, including Mr V Natarajan, Lt Cdr Avtar Singh and members of the Bharat Pensioners Samaj.



Thank You. 

Wednesday, July 29, 2015

“We the People” on NDTV, Kargil, OROP, Military litigation and more....

On Kargil Vijay Diwas, Barkha Dutt conducted a special episode of “We the People” on NDTV where I too participated in the panel discussion. 



The stories and the narratives can bring a tear to the strongest eye. 

Thursday, July 23, 2015

Naysayers, please relax on the Panel of Experts on Defence Matters!

Some disinformation is floating around on the Committee of Experts constituted by the Raksha Mantri. I would like to clear the haze on some issues.

Some myths and their replies:

That the panel has been setup to divert attention from OROP

Totally incorrect. The formation of the panel was first discussed by the Raksha Matri in February, much before the current scenario, and the orders have been issued in July. The two are totally separate issues and do not overlap. The Committee would not be touching upon OROP at all.

That it is an attempt to appease and silence the voices of those who are its Members

Far from the truth. If this is the level of trust expressed for the Members of the Committee, then it is not only unfortunate but it is also clear that persons making such loose statements are not aware of our conviction and sincerity. Also, I think I should make it clear to everyone that all Members are functioning in a purely honorary capacity without any monetary gain and that too after squeezing out time from their respective professions with the aim of service to the society in mind.

The Committee would be handling grievances of soldiers and veterans

Untrue. The Committee is not mandated with such an unwieldy task. The Committee is not supposed to look into individual grievances but is supposed to suggest ways and means to decrease litigation involving the Ministry of Defence as well as the Defence Services and also to increase the level of trust and goodwill amongst the stakeholders in this regard by suggesting broad institutional and progressive changes to the system of redressal of grievances. The Committee would be looking into pending cases related to service matters and pensions and ways to minimize litigation so that the officialdom can focus on areas of core governance.

The panel is recommendatory and its recommendations may never see the light of the day

It is true that the report is recommendatory. All such commissions, expert panels and committees are recommendatory. But keeping in view the fact that it has been constituted by the Raksha Mantri himself and in line with the PM’s focus on governance, it is certainly not going to be an empty formality. Almost all major policy decisions concerning the nation are taken by way of reports of experts and panel inputs. Moreover, it is quite surprising to hear some minority voices of pessimism which say that though it is a good move, it would not be able to achieve its aim. So what should be done? Should such a proactive move taken for the first time since independence be aborted just because a minority feels it would serve no purpose? I would only emphatically like to say that it is much better to have a body of experts viewing these issues with a sharp spotlight so as to iron out the creases than having nothing at all. Also I must place on record that the there has been no pressure on us from any quarter related to our functioning and we are lucky to have such a situation wherein we have been tasked by the apex level of governance to work in a free and independent manner with full support of the political executive without fear or favour.


So naysayers, please relax. The move is in the right direction and a very progressive initiative of the Minister with his full personal involvement under the aegis of the Prime Minister. Let us not spread negativity till the flowers fully bloom. 

Saturday, July 18, 2015

Committee of Experts constituted on the orders of the Raksha Mantri

You may read more about this historic decision through the following links:







Thursday, July 9, 2015

Another landmark decision of the Supreme Court for pensioners

The Supreme Court has rendered another landmark decision on the subject of pension in a case titled State of Rajasthan Vs Mahendra Nath Sharma.

The Court, inter alia, has reiterated the following, tacitly and directly:

A. Pension is property and not a bounty based upon the sweet will or grace of the employer. DS Nakara therefore reiterated.
  
B. Arrears have to flow from date of inception of anomaly.

C. Employees who are not on rolls on the date of a subsequent revision of pensionary benefit(s) are also eligible for future revision of pension.

D. Govt should not perpetrate litigation.

The parting shot of the Apex Court:

“...It will be appropriate and apposite on the part of the employers to remember the same and ingeminate it time and again so that unnecessary litigation do not travel to the Court and the employers show a definite and correct attitude towards employees. We are compelled to say so as we find that the intention of the State Government from paragraph 5 of the circular/memorandum has been litigated at various stages to deny the benefits to the respondents. It is the duty of the State Government to avoid unwarranted litigations and not to encourage any litigation for the sake of litigation. The respondents were entitled to get the benefit of pension and the High Court has placed reliance on the decision of another High Court which has already been approved by this Court....”


Sunday, July 5, 2015

Transmission of Signals from the Supreme Court for Military Pensioners

Those who have followed the blog closely, especially this post of 27 May 2015, most of the verdicts on pension anomalies emanating out of the 6th Central Pay Commission stand decided in favour of pensioners by the Supreme Court, both for military as well as civilian retirees.

An update on the same is as below:

Removal of pension anomaly from 01-01-2006 rather than 24-09-2012 for pre-2006 retiree Central Government pensioners: Appeal filed by the Govt stands dismissed by the Supreme Court in March 2015. 

Removal of pension anomaly between Honorary Naib Subedars who retired prior to 01-01-2006 vis-a-vis those who retired after 01-01-2006: Appeal filed by the Govt stands dismissed in May 2015. An unfortunate saga indeed

Removal of pension anomaly between Viceroy Commissioned Officers and post-independence Honorary Commissioned Officers who retired prior to 01-01-2006: Appeal filed by the Govt stands dismissed in May 2015.

This invariably would result in multiple execution applications before the Armed Forces Tribunal since most of these verdicts had not been implemented by the Army HQ/Ministry of Defence as per the time prescribed even in those cases where there was no stay by any higher court.

It would be in fitness of things if the Army HQ (in conjunction with Record Offices) keeps lists of affected personnel ready so as to grant government sanction at the earliest to avoid complications as already experienced in the cases of disabled soldiers upheld by the Supreme Court. This is also a good opportunity to oil the implementation machinery well and bring it in line with the law of the land. Six years after the AFT was created, it is now clear that disregard of judicial orders may not be taken so lightly, as was the case till now.

Regular updates shall now also be available on my Facebook page. 

Wednesday, June 24, 2015

Some myths doing the rounds, and the truth thereon

Since many improbable queries are being raised on One Rank One Pension, more so on social media, let me attempt to clarify some of these again to put an end to misinformation, especially for those not connected with the Armed Forces who may be unaware about the modalities of the concept.

Here are the three biggest myths doing the rounds on Social Media.


Myth No 1: Since OROP is to cater for early retirement, why should those officers who retire at 60 be granted OROP?

Truth: Nobody in the military retires at 60 except Lieutenant Generals. Civil employees retire at 60.



Myth No 2: Pay progression in civil service is faster and hence pension is higher but civil services cannot be compared with defence services and when an officer joins up, he/she knows what he/she is getting into.

Truth: Though many civil services had a faster career graph, the situation has gravely deteriorated since the 6th Central Pay Commission (w.e.f 01-01-2006) when Non-Functional Upgradation (NFU) was introduced for Organised Group A Civil Services. The said scheme provides that all officers of such civil services, if otherwise eligible, shall be granted the higher pay of promotional grades, even if they are not promoted. Hence, by default, officers who are unable to be promoted in their cadres are now retiring with the pay of an Additional Secretary to Govt of India (HAG) which results in (almost) de facto OROP. This concept of NFU has been denied to the defence services but remains applicable to civil officers working shoulder to shoulder even under the Ministry of Defence. For example, today, a Chief Engineer (CE) of the Military Engineering Services who may be a military officer of the rank of Brigadier may have his Civilian Superintending Engineer (SE) who would be serving under him, drawing the pay of a Lieutenant General under NFU and hence also the pension of a Lt Gen. So the boss gets a lower pay and pension than his subordinate!



Myth No 3: Personnel of the forces are granted employment on the civil side after being released from the Army, why then are they demanding OROP?

Truth: Absolutely untrue. There is no job protection for defence personnel after they are released from the forces, and by the way, they start retiring at the age of 34 years. Most of the personnel of lower ranks end up guarding our neighbourhood ATMs and a minuscule percentage is given the opportunity of government employment but much below their erstwhile military status and at Group D levels at times. Junior Commissioned Officers (JCOs) who are Group-B (formerly known as Class-II) gazetted officers are being offered appointments below the rank of Sepoy. To make this more understandable for those on the civil street, it is like offering a job profile below the rank of Constable to a recently retired Deputy Superintendent of Police. Is this fair?


Those who may like to know more about One Rank One Pension and related issues may like to peruse my two recent opinion pieces on the subject:



Monday, June 15, 2015

Tables issued for implementation of enhancement of disability and war injury elements of pension based on minimum of pay within the pay band for each rank, rather than minimum of pay-band itself

As most readers would be aware of this post of 21 April 2015, five months after similar orders were issued for civilians, the Ministry of Defence had enhanced the disability and war injury elements of disabled and war disabled defence pensioners based on the fitment of minimum of pay within the pay-band for each rank, rather than the minimum of pay-band itself.

Though the benefits were granted from September 2012, according to the decision of the Central Administrative Tribunal, the Armed Forces Tribunal and the Delhi High Court, as upheld by the Supreme Court, the benefits are actually to flow from January 2006. The file for extension of the benefits from the correct date is currently pending with the Department of Pension and Pensioners’ Welfare.

Meanwhile, the office of the Principal Controller of Defence Accounts (Pensions) has issued the tables for implementation of the above mentioned orders of enhancement of casualty awards and the same can be accessed and downloaded by clicking here.


Please note that this letter has NO relation with the matter related to broad-banding of disability percentage for cases of release on completion of terms/discharge/retirement/superannuation. 

Sunday, June 7, 2015

My op-ed for the 'Deccan Chronicle' and 'The Asian Age' on Capt Kalia's case and institutional malaise


Unabridged version of my op-ed that has been published in the Deccan Chronicle and The Asian Age today (07 June 2015):


Captain Kalia, pain, agony and an institutional malaise

Navdeep Singh


Seldom have I picked up a pen to write an opinion with a hazy mind. Hazy not because I am unclear about the issue at hand, but because I feel I have no solutions to recommend, and those who were tasked and legitimately expected to find an answer many moons ago, have washed off that responsibility and thrown the ball, literally, in the court of Courts.

Late Capt Saurabh Kalia’s case, the casualness shown thereon and the quandary, nay inertia, over invocation of the jurisdiction of the International Court of Justice (ICJ), paradoxically, emanated from a different matter, and that was a Public Interest Litigation filed by the Late Lieutenant General Jagjit Singh Aurora in 1999 before the Gujarat High Court seeking a declaration that 54 Prisoners of War believed to be in Pakistani jails may not be treated as “presumed dead” but “on duty” for all purposes till the notional date of retirement and their kin accordingly be released all benefits of such declaration and that the Government take the issue to international fora for justice.

Accepting his plea in 2011, the Gujarat High Court, in a 57 page decision, recording chilling details of the travails of such Prisoners of War held in Pakistani detention which could bring a tear to the toughest eye, directed the Government to grant all service and retirement benefits by treating such Prisoners of War as alive, and more importantly, in Paragraph 27(a) directed the Government of India to approach the ICJ on the issue of non-release of our Prisoners of War.

It was similar relief that the father of Capt Saurabh Kalia had sought from our Government, and having failed so, also approached the Supreme Court for respite.

However, what most are not aware of is, that during the currency of the last regime, on 02nd May 2012 to be precise, rather than taking steps towards implementing the judgement, the Government of India appealed against the decision of the High Court before the Supreme Court and also obtained a stay on the directions on approaching the ICJ.

The stand of the Government was hence clear on the subject, whether it is our Prisoners of War or the ghastly incident of Capt Kalia’s torture- the ICJ could not be approached since its jurisdiction is consent-based and both parties to the dispute need to permit the lis being adjudicated by the said Court. There is some truth in such a claim and agreeable is the suggestion that the hands of Government are somewhat tied, but the question arises whether it was prudent for the Government to oppose such a claim in the Supreme Court or file an appeal in General Aurora’s case? The answer is absolutely in the negative.

By opposing genuine and legitimate claims of the families of soldiers who have suffered the horrors of war, the Government does not send the right signals to the nation at large. In fact, it is also not entirely accurate that the Government cannot approach the ICJ without the consent of Pakistan. There was a way out. Rather than opposing the plea in the Supreme Court, the Government of the day could have invoked the jurisdiction of the ICJ under the unilateral application clause without the consent of Pakistan within the meaning of Paragraph 5 of Article 38 of the Rules of the ICJ (Forum Prorogatum) under which the ICJ would have transferred the petition to Pakistan for its response to the same. There are only two instances where such an approach has finally succeeded but at least the bona fides of the Government of India would have been clearly enunciated thereby bringing the horrendous war crime into sharp global focus, even if it had hypothetically resulted in a rejection at the ICJ ultimately. The saving grace though is the pleasant news that India’s current no-nonsense Minster of External Affairs has decided to render a relook at the entire issue.

Which brings me back to a very pertinent question, and that is, whether the issues related to the dignity and welfare of martyrs, their families, military veterans, military widows and even serving soldiers should shuttle between protests, distrust, disdain and from pillar to post to Court, or should the Government itself be sensitive enough and ensure that the disquiet is relieved through a temporal unguent?

The last few years have not only seen families of martyrs up in arms but also the Government, especially the Ministry of Defence, taking a stand contrary to the genuine claims of the military community including disabled and war disabled soldiers by filing thousands of appeals right up till the Supreme Court against, at times, just a few hundred rupees of benefits granted to them by Courts and Tribunals. The Government also placed a plea before the Supreme Court, and got a favourable verdict, that poor soldiers, veterans and widows aggrieved by the decisions of the Armed Forces Tribunal (AFT) would not be able to challenge the same before the High Courts, thereby snatching away their fundamental rights which are otherwise guaranteed to every citizen of the Country. The only way to question AFT verdicts now is to approach the Supreme Court directly but the same is permitted under law only if the case involves a “point of law of general public importance” and which approach anyway is unaffordable and inaccessible for the petty amounts and issues that most of such litigation involves.

Though the current Government has tried to improve the interface with the military community, things are not moving as swiftly as expected since the perilous hold of the lower bureaucracy in the Central Secretariat remains the same, and then, as we know, while political executive is variable, the babudom is a constant. If the Government is serious about assuaging sentiments, then it should no longer be business as usual.

I shall now fall back upon my disclaimer. There is not a solution I can recommend in Capt Kalia’s case, but unfortunately neither can the Court. It is the Government’s bounden duty to protect the interests of those who protect our borders. It is the system’s responsibility to find a way out of the logjam and to iron out the creases. As citizens, we expect the Government not only to raise the issue internationally and robustly with Pakistan, but also the highest of the political executive to personally reach out to Capt Kalia’s family and others affected by such horrors and to alleviate their hurt.

Per Thomas Carlyle, “endurance is patience concentrated”, but then, let us not stretch it to the extent of causing a rupture in our national pride we so very cherish.

----


Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He is a Member of the International Society for Military Law and the Law of War at Brussels.


He is also the author of “Maimed by the System”, a collection of real life accounts of military veterans and their families who fought to claim their rights.

Thursday, June 4, 2015

My op-ed @ Rediff: Soldiers’ Welfare- Prime Minister proposes, bureaucratic machination disposes

The following op-ed was published @ Rediff on OROP and also the need to look beyond the same:


Soldiers’ Welfare: Prime Minister proposes, bureaucratic machination disposes


Navdeep Singh


The bogey of the “paramilitary” perceivably demanding the applicability of “One Rank One Pension” (OROP) at par with the military is yet another case of throwing an additional spanner in the works by the lower bureaucracy of our great nation, thereby totally confusing the political executive.

As most even slightly connected with the subject would be aware, though concept of OROP seems ideal for all government employees, it is the defence services which deserve it the most and the foremost because of their early retirement with no guarantee of post-release employment.

What should put the otiose comparison to rest is the fact that while personnel of the defence services start retiring at the age of 34 onwards, members of Central Armed Police Forces (CAPFs) are released in their late 50s. So at certain ranks, the latter serve even two decades more than the former thereby not only garnering higher lifetime earnings and financial protection but also multiple pay and emolument revisions due to the fact that they get the benefit of serving during the currency of subsequent pay commissions by which time their comrades in the military may have long retired, and some, faded away.

It is an open secret that accountants and lower bureaucracy in the Ministry of Defence have always misguided the higher bureaucracy and military brass and also the political executive of the reality concerning the defence services. File notings are prepared in a mischievous manner so as to elicit negative replies. Not only their own bosses, but an attempt is made to fool even the Courts and Parliamentary committees, or else how could one justify the straight lie peddled by the Ministry of Defence before the Koshiyari Committee of 2011 that OROP would be difficult to implement since documents of defence personnel are destroyed after 25 years? Hogwash it was since it is the documents of non-pensioners which are destroyed after 25 years while the documents of pensioners (to whom OROP applies) are retained till perpetuity.

While I have full faith in the Prime Minister’s commitment towards OROP, and also of Mr Manohar Parrikar, who is as well-intentioned as one can get, I would just want to warn them not to take at face-value what is presented to them by the bottom of the hierarchy. It is the political executive through the higher bureaucracy from the top that has to impose the policy decisions on to the lower layers and not the other way round. The Government has to be run by the top echelons and not by the army of Section Officers and Under Secretaries. Policy has to be determined by the Government under the Rules of Business and not by Accountants of the Defence Accounts Department. Decisions must be taken by due discussion and inputs from experts and insulation from reality by a coterie ensconced in a web of negativity should be avoided. The attempt to water down the definition of OROP must also be fervently resisted. There is only one definition of OROP, and that stands solidified by the Government itself- similar amount of pension for each rank with similar length of total service, with the benefit of future enhancements passed on to past retirees. 

Which also brings me to the role of military veteran organisations. Veterans should not jump the gun with every move or indication that they perceive to be against them. Instead they should be united, not bicker amongst themselves, shun their differences, present a cohesive front and then fight for their rights in a dignified manner. Statements of no less than the Prime Minister assuring veterans of his concern should not be brushed aside lightly and the tendency of hyper-technical hairsplitting of every public announcement with a negative connotation is best avoided, more so when we are so close to the goal. Due regard should definitely be rendered to what the Prime Minister has stated, but that is again not to say that in a free democracy we are entitled to advise others to muzzle their voices but one can definitely counsel to dignify the tone.   

One can hope that now that the issue is in national consciousness it is implemented swiftly. It is also hoped that all stakeholders, including military veteran bodies, would not lose sight of other insidious, and in fact, even more important issues that are staring them straight and which may not be glamorous enough or monetary in nature but still are a cause of major concern. Pertinent amongst these being the way disabled soldiers are treated by the system with the official establishment filing appeals till the Supreme Court in cases of disability pension awarded to disabled soldiers by Courts and Tribunals, the constant decline of the status and the sheen of the military rank in the official pecking order and also the society at large, guaranteed post-retirement employment with protection of military status and dignity, and most importantly the recent Supreme Court decision rendered on a plea of the Ministry of Defence and the Army wherein it was held that soldiers, veterans and military widows aggrieved by decisions of the Armed Forces Tribunal would not be able to approach the High Courts for relief- a disaster since it has snatched a fundamental right that is otherwise available to every  citizen and also to similarly placed civil government employees of approaching the High Court under the writ jurisdiction and thereby leaving the military community remediless thus making the Armed Forces Tribunal the first and the last court for them with no tiers or layers of judicial hierarchy at their disposal which is guaranteed to all citizens in all democracies. An unaffordable and inaccessible direct appeal to the Supreme Court under the Armed Forces Tribunal Act is also only permissible if the matter involves a “point of law of general public importance”, which is not the case with 99.99% of litigation before the Tribunal. This has come as the biggest blow since independence, but veterans, totally engrossed in OROP, do not seem to have realized the gravity of the situation.

While OROP remains an important emotive issue for veterans, the focus hence should not just remain limited to it but also on subjects which on the surface do not seem attractive enough since these have no nexus with finances, but affect the very basic existential rights of the military community which stand obliterated for them but remain available to all other citizens. 

While summing up, we, as citizens, should hope and pray that the Prime Minister’s sentiment is not held ransom by machinations and craftiness of a few junior babus who throw in an imaginary impediment at every welfare measure and resultantly snigger and giggle at the sidelines every time a soldier is ill at ease, and also trust that the veteran community continues to pay attention to persistent issues that will haunt their survival in life that shall be beyond their current aim- OROP.

-----

Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He was the founding President of the Armed Forces Tribunal Bar Association. He is a Member of the International Society for Military Law and the Law of War at Brussels. He is also the author of “Maimed by the System”, a collection of real life accounts of military veterans and their families who had to fight to claim their rights.