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Tuesday, April 15, 2014

Peer Jealousy- Democratic decisions : Need of the hour

What is the problem with us?

The problem is jealousy, and the lack of a democratic decision-making process.

While democracy can hardly be expected in operational or military matters per se, but it is the call of the times in personnel policies and policies affecting our pay, allowances and pensionary benefits.

Recent history stands witness, that whether it is the Ministry of Defence or the Defence Services internally, most of the problems emanate from the fact that the stake-holders have no say in the decision-making process, and power, or rather the voice, is concentrated in the chosen few who tend to impose their own opinions and views on millions of others who then suffer in silence.

Examples of self-defeating moves are many. An example which again raised its head was that of grant of Dynamic Assured Career Progression Scheme (DACP) for doctors. Documents reveal that the Chief of Staffs’ Committee (COSC) again opposed better pay and allowances under DACP for military doctors on the pretext that they would start getting higher pay and perks than other arms and services. What they did not realize was the fact that, firstly, doctors have historically enjoyed an edge in pay over other arms and services, and secondly, when other departments of the Govt, including the Central Armed Police Forces, have not had any problem with a similar dispensation, what makes the defence services deny dues to their own? Glaringly, the COSC/PPOC had then decided to tacitly state that DACP should only be granted to doctors if Non-Functional Upgradation (NFU) is implemented for the others. While the correct approach was to smoothly implement DACP and then raise the issue of NFU putting across that now that an anomaly in one cadre stood resolved, let us move for resolution of the other. In this bargain and with this bright idea of denial of an approved scheme of the cabinet for all central govt doctors w.e.f 2008, they lost out on both- DACP as well as NFU. While civilian doctors have been enjoying the benefits of DACP since 2008, military doctors remain without it till date, thanks to our own. Thankfully though, it was the Supreme Court which upheld the grant of DACP for military doctors, something denied by our own brethren. A similar problem was faced in the Central Armed Police Forces (CAPFs) where DACP was given prospective effect, and not retrospective effect from 2008, but that has also now been resolved after a judgement of the Karnataka High Court which has been smoothly implemented by the Ministry of Home Affairs for all combatised doctors in CAPFs.

Another spanner in the works currently seems to emanate from the Navy during the implementation of One Rank One Pension scheme since it seems that the Navy wants to deny some benefits to a certain section of officers who have risen from the ranks. Rather than going with the flow and letting all officers and men reap the benefits of the classical definition of OROP propounded even by the Raksha Mantri, the Navy, it seems, wants to tinker with the definition, thus giving ammunition to those who are already waiting in the sidelines to deny benefits to military pensioners.

What senior officers at the Services HQ should understand is that the voice of the stake-holders must be heard before taking decisions with multiple implications. They should also appreciate that their knowledge in most of these matters is zilch and they need the inputs from experts and the affected parties to reach well-rounded conclusions. Benefits cannot be denied or held mortgage to a coterie’s thought-process. This must change.

Also at the Ministry of Defence level, especially with a change looming large, a decision needs to be taken to make the Defence Services a part of the decision-making machinery. The Rules of Business contain no reference to the Defence Services currently and the Defence Secretary happens to be responsible for the defence of the nation, and not the military. The easiest way out would be to conceptualize a Defence Board on the lines of the Railway Board which could be a mix of generalists, experts and military officers and which could take decisions in a much more holistic manner than the current system.

Besides the systemic change above, I’ll say it again- please do not be jealous of your peers. Do not deny others their respective dues only since in your perception you may have been disallowed yours. This is damaging. And with this attitude, you yourself shall not remain damage-proof. It all comes back. 

Tuesday, April 1, 2014

The Judges’ pension case : Much needed respite and setting of a great precedence

Many murmurs have been heard regarding the landmark decision of the Supreme Court granting pension to Judges of the High Court elevated from the bar at par with those who are elevated from judicial service. Some have remarked that the judges have granted themselves the benefit of “one rank one pension”.

This is pure negative appreciation of the subject and also not in the correct perspective.

Many would not know the genesis of the issue. Judges of our High Courts who are elevated from the bar face acute discrimination vis-a-vis those appointed from the quota of judicial service/district judges. So much so, that Judges elevated after long standing practice at the bar and with long service on the Bench were getting much lower pensions than those Judges who were from the quota of judicial service and who may have spent a minuscule period on the Bench as compared to the former. This discrimination was unique to High Court judges and this is what was the source of the controversy before the Supreme Court and has consequently been struck down.

Also, as is well known, for post-2006 pensioners the system of linkage of length of service with amount of pension has been abrogated for all central government employees and they are now entitled to 50% of basic pay drawn at the time of retirement as their pension as soon as they complete the requisite qualification of earning a pension under the rules, irrespective of the length of service. Prior to 2006 of course there was a requirement of 33 years’ service for earning full pension. However, what is not known to the public at large is the fact that the said stipulation of abrogation of linkage of length of service with amount of pension was not graciously extended to High Court judges and the pension of High Court judges, including those retiring after 01-01-2006, was linked with the years on the bench, which of course was discriminatory on the face of it.

Yes, the Supreme Court has remarked that there should be one-rank one-pension for pensioners retiring from constitutional posts also. And why not? Officers of the rank of Secretary to Govt of India and above on the civil side and Officers of the rank of Lt Gen (Army Commander grade) and above on the military side who retire from a fixed scale are in receipt of one-rank one-pension by default, so why not High Court judges who are in the same pay-grade and actually placed on a higher article in the Warrant of Precedence?

A very fine judgement that should pave way for resolution of anomalies for other categories of pensioners.

Monday, March 24, 2014

Interim Orders of the Supreme Court on voting rights of defence personnel

As many readers would be aware, the Supreme Court is looking into the aspect of effective voting for armed forces personnel, including voting at their places of posting.

The problem originates from the fact that the Election Commission of India by way of an order has ordained that only personnel with more than 3 years of residence at their place of posting would be permitted to register as general voters at the said place. Of course, this 3 year rule does not find basis in any statute.

The case was listed today and it seems that the Apex Court has directed in its interim directions that armed forces personnel would be allowed to be registered as voters without insisting on the 3 year clause in all those constituencies where the poll process has not yet commenced. The main petition remains pending and may be decided by a larger bench.

Readers may like to view an opinion on the subject on StratPost.

More when the Supreme Court order is made available.

Sunday, March 16, 2014

An ‘apolitical’ military : convoluted theories- A surge in political awareness was expected

An ‘apolitical’ military : convoluted theories

A surge in political awareness was expected

Navdeep Singh

One keeps hearing that the military must remain apolitical. Of course in a democracy it must. But what is the definition of ‘apolitical’? Does it mean that the members or former members of the military must not take part in the political process of the nation, or does it simply mean that organizationally the military must not have political inclination and should not interfere in the political process?

While the latter thought is acceptable, the former is unconstitutional.

The advocates of the theory that individual members of the uniformed forces should be politically inert are flirting with the extreme which goes against the grain of a democracy. When the lowest ranking Sepoy or the highest ranking Chief of the Army Staff goes out to press that button in the Electronic Voting Machine (EVM), does he not have in mind a political party which is going to receive his vote? Or is there an option for ‘military apolitical party-less vote’ on EVMs?

In any true democracy, the military must not interfere with the political process of the nation and should not harbour any political dreams and should also not institutionally support any form of political order. But that does not mean that individual members of the military would not have a say in the political process or the voting process or that they would cease to have in their minds an inclination towards any political entity. Had it been so, then Article 326, which provides for adult suffrage, would have been suspended for members of the armed forces.

The sudden debate on military and politics stems from the fact that after an inordinately long never-ending era of being totally ignored, military personnel, veterans and their families have realized that the most potent tool in a democracy is the power of vote.

Treatment meted out to this community does not only have bearing on their votes but also touches the emotional chord of the nation at large thereby resulting a huge emotional sway of sorts, something that political parties must realize at the earliest. So when you hear that the maximum number of appeals filed by the Indian Ministry of Defence in the Supreme Court are against their own disabled  and war disabled soldiers related to disability benefits granted by High Courts and Tribunals, it does not only affect military voters but also influences the collective conscience of the nation.

Military voters suffered in silence for long. Then came a stage when they became vocal and open about their grievances, especially after the Sixth Pay Commission. That did not work, then they returned their medals, even that did not cut any ice. It is at this point that they probably realized that the only factor that could work in a democracy was not anger or dissatisfaction or exasperation, but that button on the EVM. And No, I’m not referring to the ‘None of the Above’ (NOTA) option!

It would be too mild to state that the Government has not treated its military well. The writing has been there on the wall- that of dissatisfaction, especially of veterans. Even well meaning Raksha Mantris and Secretaries of the Department of Ex-Servicemen Welfare (DESW) have been blinded and hoodwinked by the anti-military sentiment perpetuated by lower level staff of the said department where the show is ruthlessly run by a handful of officers who play around with the higher echelons with misleading inputs and deceptive file notings. The blame is to be shared by the higher level decision making bodies for not applying mind and not seeking across-the-table inputs from stakeholders. Even Courts have not been spared. One Under Secretary of DESW recently wrote to a Major General asking him to desist from sending letters on issues of military welfare since such communications ‘clog the department’. Another officer who since times immemorial had remained in the pension wing of DESW was clandestinely re-employed as an ‘Officer on Special Duty‘ (OSD) in DESW by circumventing and flouting rules. Ironically the said officer has been re-employed to fight cases against defence pensioners and disabled soldiers in courts but he is getting his salary disbursed from the ‘Armed Forces Flag Day Fund’ which is meant for the welfare of those very people he is pitted against. Though top brass of the DESW realizes that the department is plagued with ‘negative attitude’ they feel that they cannot do without such officers since they have become indispensable to the system. Strikingly, the Department of Pension and Pensioners’ Welfare (DoPPW) on the civil side works in a completely positive framework by inculcating positivity and an all-inclusive approach. DoPPW decisions are taken by consensus by involving stakeholders and by holding regular meetings between the ‘official side’ and the ‘staff side’, something unheard of in the Defence Ministry in general or the DESW in particular.

Repeated pointing out of such issues by serving personnel, Services Headquarters, veterans, veterans’ associations, MPs and Ministers to the set-up has not moved them into action and hence a political tinge was not entirely unexpected. Irrespective of political parties, naturally the military community would be looking at entities who promise to positively resolve their long pending demands.

While glamorous issues such as One-Rank One Pension (OROP) have hogged the limelight, it is insidious issues which have escaped notice and resolution. Today, jawans start retiring at the age of 34 onwards without any assurance of employment thereafter. The Government with much fanfare announces re-employment opportunities which are in fact not commensurate to the ranks held by such soldiers. For example, the Railways went about town advertising vacancies for ex-servicemen but what was not highlighted was the fact that they were offering Group-D (Formerly known as Class-IV) level employment  on posts such as water carriers and Multi Task Workers to ex-servicemen holding Group-C (Class-III) and Group-B (Class-II) Gazetted appointments from the ranks of Sepoy to Subedar. Thousands of appeals in the Supreme Court are proposed to be filed by the Defence Ministry against benefits granted to disabled soldiers by Courts and Tribunals, egged on by recommendations of lower level bureaucracy and blindly approved by top brass. This may bring about handsome payments to Government lawyers in the Supreme Court but would only bring miseries to the old, infirm and disabled. Disabled soldiers with non-service related disabilities with less than 10 years of service are not entitled to any pension but the employment of civil employees is fully protected enabling them to earn full pay and allowances during their service and then full pension on retirement. Why would a person want to join as a jawan of the forces and not as a civilian employee enjoying stability and a settled life probably even in his/her own hometown, employment-protection, retirement at 60, staying with family, working for fixed hours, holidays, weekends?. Women officers are being discriminated since ego-based actions become impediments in harmonizing policies and identifying the middle path. The sheen of the military rank has been on the decline, there is no role for military in the Rules of Business or in the decision making process and policies concerning them are forcibly imposed, unlike say, in the Railways which has a Railway Board looking after them. The Armed Forces Tribunal has been placed under the Ministry of Defence reflecting a complete conflict of interest and lack of independence and without any powers of civil contempt and whose decisions are simply ignored and not followed by the Ministry. The list is never-ending and moving towards infinity by the day.

What the above signifies is that though there is nothing wrong in being a part of the political process, the fact that this participation has come out so sharply in the recent past is because of the slackness in addressing long pending issues by successive governments.

Rather than debating whether this political awakening of the military community is desirable or not, efforts on the contrary should be made to ensure that they are retained as an integral process of the political system of our nation. Veterans, just like other citizens, are entitled to be a part and parcel of our rich electoral arrangement, de hors the perceived pitfalls. Special efforts should be made to inform them about the modalities of the electoral process, since they, having served away from the real world for most of their military careers, are at a loss in understanding the same, and of course, gullible too at times. Serving personnel and local military commanders should also be properly educated about the process and the various forms of voting including postal ballot. For those posted (and not merely temporarily deployed) in locations other than inaccessible field areas, the easiest and the most effective way is to get themselves registered as ordinary electors at their places of posting. This can be done during house-to-house enumeration conducted by election staff or by filling up and submitting Form-6 which appended with Registration of Electors Rules, 1960. The most epigrammatic way to the aim of clearing doubts in this regard is a simple visit to the local electoral office at the place of posting. Of course, the interpretation of the Election Commission of India in this regard also remains a point of litigation now pending before the Supreme Court.

Besides educating the military community about the minutiae of the electoral process and welcoming them with open arms in light of the new found political awareness, all political parties should take a cue and devote time and energy in understanding what has gone wrong and how it should be addressed, rather than centering on whether political awareness of the military community is virtuous or not- It is, and they will. The law allows them to vote, irrespective of amusing ideas that some seem to have to the contrary, which thankfully do not find basis in the Constitution of India.

Political parties, please brace up and lend a hand.

Sunday, March 9, 2014

When the (military) hedge eats its own grass!

Now this is yet another classic case of the hedge eating the grass.

Earlier in many cases disability pension of disabled veterans used to be discontinued if such veterans failed to report for re-survey medical boards in time. And then if they reported at a later date, pension of the interim period used to granted only on discretion of the authorities and arrears used to be restricted. Ditto was the case in appeals against rejection of disability pension. After a long fight, the issue was resolved and the Ministry of Defence very graciously issued instructions to medical boards to opine upon the percentage of disability during the interim period so as not to deny disabled veterans their disability pension during the gap.

However, even though explicit instructions have been issued by the Govt, our Record Offices, and in certain cases even the Services HQ, have still been denying disability benefits for the interim period and insisting upon illegal undertakings from disabled personnel that their cases would only be processed in case they were ready to forfeit their pension for the interim period. On being pointed out the latest Govt instructions to the effect, rather than just following such instructions, elements in our own establishment have been seeking clarifications from civilian officers as if just expecting to get a negative reply that can be further imposed on our disabled soldiers. It is also not understood as to why our officers in uniform do not have any confidence in their own understanding and art, so much so that they keep on seeking infructuous clarifications on explicit and clear-cut instructions thereby giving a leverage to chances of negative interpretation from some quarters.

A self-explanatory letter on the subject, addressed to the AG by me, is reproduced below. Needless to state, no positive action has been taken till date:

Adjutant General
South Block, New Delhi-11

                                                                                                    06 Oct 2013


1.        This seems a clear-cut case of the hedge eating the grass and I feel duty-bound to point this out to you for resolution before bringing it to the notice of the Chief of the Army Staff and the Raksha Mantri. This is an issue wherein the Govt has agreed to a long pending demand of military veterans and disabled soldiers but elements in the Personnel Services Directorate (PS Directorate) at the Army HQ and Record Offices are still putting in an unnecessary spoke in the wheel.

2.           Since times immemorial, there had been cases of disability pensioners missing out on their re-survey medical boards due to various reasons including lack of knowledge and ambiguity of rules and of claims of disability pension not being processed in time or appeals against rejection of disability pension being processed after an inordinately long period which resulted in such disabled personnel losing out on their disability pension for the interim period, that is, the period between release from service or discontinuance of disability pension till the date of the fresh medical board or the appeal/review medical board. In some cases, certificates of undertaking were being taken from such pensioners that they would not claim arrears for the interim period or that arrears would be restricted for 3 years prior to making of the application or the medical board. In yet some other cases, no arrears were paid and disability pension was started from the date of the fresh or the appeal/review medical board and there were other cases where all arrears for the interim period were duly paid. There also was total confusion and grant of arrears for the interim period was more or less discretionary at the hands of administrative authorities.

3.        To offset this problem and to ensure that disabled personnel do not lose out on their monetary disability benefits, the Services HQ took up the issue with the Govt of India / Ministry of Defence that arrears for the period between the release of the person from service/earlier medical board till the fresh/appeal/review medical board should be payable in terms of a universal policy. The Govt of India very kindly agreed to the request and issued a policy letter No 16(01)/2009-D(Pension/Policy) dated 10 Nov 2010  wherein it was now provided that from now onwards, all medical boards shall comment upon the percentage of disability during the interim period for which the pension had not been granted and the same shall be then processed for release of benefits. The contents and salient points of the letter were also very nicely explained in another letter issued by PS-4 (Legal), that is, Letter No  46453K/Misc/AG/PS-4(L)/BC dated 17 Oct 2011 which was endorsed to all concerned. Copies of both the above mentioned letters are enclosed.

4.          It is however a matter of great concern that elements in the PS Directorate and also Record Offices are still insisting on taking certificates from disabled personnel that they would be claiming disability pension only from the date of the Re-Survey Medical Board or Appeal Medical Board and that they would not be claiming arrears. In other cases, the PS Directorate is taking certificates from officers that since there is a delay in processing the claim, they would not be claiming arrears of more than 3 years of the interim period.  The claims for disability pension are not being processed unless the affected personnel submit the said certificates. One such example in respect of No 3376751 Ex-Naik Avtar Singh of the Sikh Regiment is enclosed herewith wherein his disability pension claim was only processed after he submitted the enclosed certificate and he was paid his disability pension only from the date of the fresh board.

5.          It is a matter of even greater concern that the MoD has informed me in writing in the past that they have NOT imposed any such restriction on the disability benefits of disabled personnel and the same is being done locally by the Army HQ. In fact, the MoD has made it mandatory for all medical boards to incorporate a column of disability percentage for the interim period to facilitate the processing of such claims.  To put it crudely, this amounts to black-mail wherein our soldiers and officers are informed that their claims would not be processed unless they submit such self-incriminating certificates.

6.         You are hence requested to rein in such elements of the Army HQ as well as the Records Offices who insist on exterminating the benefits of disabled personnel which have been granted by the Govt of India to them. It defies logic as to what pleasure do such elements derive by sadistically illegally restricting such benefits when no such restriction has been put by the Govt of India? Even otherwise there should be an element of positivity while dealing with such claims and policies should be interpreted liberally and positively rather than restrictively and narrowly.

7.        You are requested to look into the matter in detail without being blinded by noting sheets put up from below which I’m sure they would do in order to justify the illegal actions perpetrated by some of our own. Strict instructions may be issued to the MP Directorate, PS Directorate and all Record Offices to follow the instructions of Govt of India/MoD Letter No 16(01)/2009-D(Pension/Policy) dated 10 Nov 2010 and PS-4 (Legal) Letter No 46453K/Misc/AG/PS-4(L)/BC dated 17 Oct 2011 in letter and spirit and not to insist on submission of such undertakings which have become illegal with effect from 15 Nov 2010.

Thanking You


Friday, February 28, 2014

Terms of Reference of the Seventh Central Pay Commission approved by the Cabinet

Terms of Reference of 7th Central Pay Commission have been approved by the Cabinet and are as follows:

a)      To examine, review, evolve and recommend changes that are desirable and feasible regarding the principles that should govern the emoluments structure including pay, allowances and other facilities/benefits, in cash or kind, having regard to rationalization and simplification therein as well as the specialized needs of various Departments, agencies and services, in respect of the following categories of employees:-

Central Government employees-industrial and non-industrial;

Personnel belonging to the All India Services;

Personnel of the Union Territories;

Officers  and   employees   of  the   Indian  Audit  and   Accounts Department;

Members of regulatory bodies (excluding the Reserve Bank of India) set up under Acts of Parliament; and

Officers and employees of the Supreme Court.

b)      To examine, review, evolve and recommend changes that are desirable and feasible regarding principles that should govern the emoluments structure, concessions and facilities/benefits, in cash or kind, as well as retirement benefits of personnel belonging to the Defence Forces, having regard to historical and traditional parities, with due emphasis on aspects unique to these personnel.

 c)      To work out the framework for an emoluments structure linked with the need to attract the most suitable talent to Government service, promote efficiency, accountability and responsibility in the work culture, and foster excellence in the public governance system to respond to complex challenges of modern administration and rapid political, social, economic and technological changes, with due regard to expectations of stakeholders, and to recommend appropriate training and capacity building through a competency based framework.

d)     To examine the existing schemes of payment of bonus, keeping in view, among other things, its bearing upon performance and productivity and make recommendations on the general principles, financial parameters and conditions for an appropriate incentive scheme to reward excellence in productivity, performance and integrity.

e)      To review the variety of existing    allowances presently available to employees in addition to pay and suggest their rationalization and simplification, with a view to ensuring that the pay structure is so designed as to take these into account.

f)      To examine the principles which should govern the structure of pension and other retirement benefits, including revision of pension in the case of employees who have retired prior to the date of effect of these recommendations, keeping in view that retirement benefits of all Central Government employees appointed on and after 01.01.2004 are covered by the New Pension Scheme (NPS).

 g)      To make recommendations on the above, keeping in view:

 (i)   the economic conditions in the country  and need for fiscal prudence;

(ii) the need to ensure that adequate resources are available for developmental expenditures and welfare measures;

(iii) the likely impact of the recommendations on the finances of the State Governments, which usually adopt the recommendations with some modifications;

(iv) the prevailing emolument structure and retirement benefits available to employees of Central Public Sector Undertakings; and

(v) the best global practices and their adaptability and relevance in Indian conditions.

 h)      To recommend the date of effect of its recommendations on all the above.

The Commission will make its recommendations within 18 months of the date of its constitution.  It may consider, if necessary, sending interim reports on any of the matters as and when the recommendations are finalised.

Tuesday, February 25, 2014

Two book releases in the near future that deserve our attention

I would like to introduce the readers of our blog to two books which are soon to be released.

The Avatari: The book is being published by Hachette and being marketed as ‘The Adventure Thriller of the Year’. Authored by a serving Army Officer, Col Raghu Srinivasan, the book can be pre-ordered online at a discount from Amazon by clicking this link. A description of the book as reflected @ Amazon, is as follows:

A Mythical Kingdom: Legend has it that only those chosen by destiny can gain entry into Shambhala, the mythical kingdom believed to hold the ancient wisdom that humanity will need to resurrect itself from the inevitable apocalypse. They are the Avatari.

An Ancient Artefact: When Henry Ashton, a retired British Army officer settled in the Yorkshire dales, receives a letter from a monk entreating him to prevent a 'hidden treasure' stolen from a Laotian monastery from being misused, he finds himself honor-bound to respond. Assisted by a retired Gurkha Sergeant, a high-strung mathematician from Oxford with a Shambhala fixation of her own and an American mercenary on the CIA's hit list, Ashton's mission leads to an ancient map that dates back to the time of the great Mongol, Kublai Khan.

A Secret that Must Not be Revealed: The group follows the trail, risking the perils of the inhospitable deserts of Ladakh, turmoil in Pakistan and the rugged mountains of Northern Afghanistan, where the Afghan War is at its height. But they are up against a deadly adversary with seemingly unlimited resources, who will stop at nothing to get possession of the ancient secret – a secret that, if revealed, could threaten the very fabric of human civilization

Beyond NJ 9842– The Siachen Saga : Authored by well known defence journalist, Mr Nitin Gokhale, the book is a tribute to the Indian soldiers who have served at the Glacier. And 2014 also marks the 30th Anniversary of Operation Meghdoot. Details of the book and the process of pre-ordering the same at a discount can be perused by clicking here.

Happy Reading!

Thursday, February 20, 2014

Totally farcical and eyewash of a Bill introduced in Rajya Sabha to address concerns regarding functioning of Tribunals

As expected and discussed on the blog earlier, THE TRIBUNALS, APPELLATE TRIBUNALS AND OTHER AUTHORITIES (CONDITIONS OF SERVICE) BILL, 2014, has been moved in the Rajya Sabha, ostensibly to implement various judgements rendered by Courts to streamline the functioning of Tribunals.

But what this Bill does proposes is just the opposite of what Constitutional Courts, including Constitution Benches of the Supreme Court, have ruled.

The greatest fright in India in this regard has been the lack of independence of Tribunals since these are functioning under parent administrative ministries, including those very ministries against which these Tribunals are expected to pass orders. Constitutional courts have already directed that it is the Department of Justice under the Ministry of Law and Justice which should look after the functioning of Tribunals, a direction which the Government has incorrigibly not implemented till date.

Another issue that had been engaging the attention of Courts was the fact that there was huge variance in terms and conditions of Chairpersons and Members of different Tribunals and this was also an issue being looked into by the Supreme Court in Writ Petition (Civil) No 120 of 2012 titled Rajiv Garg Vs Union of India.

To tide over the strong observations of the Supreme Court in Rajiv Garg’s case, which remains pending, the aforesaid Bill has been moved, and the same can be accessed by clicking here.

However a bare perusal of the Bill would show that the same has been drafted and introduced as a merely formality, and though it talks of universalisation of service conditions, it does not, in any manner, even touch upon the issue of independence of Tribunals, and in fact goes against the very spirit of the judgements of Courts related to independence of Tribunals and also against the grain of the concept of independence of judicial institutions as enshrined in our Constitution.

The following parts of the Bill may be perused meticulously and carefully:

Section 4 provides for the system of re-appointment of members after culmination of their initial term, making them again susceptible to the ‘carrot syndrome’.

Section 7 provides that in case a Member of a Tribunal is faced with unfinished arbitration work at the time of appointment to the Tribunal that he may have taken up, the ‘Central Government’ may permit him/her to finish the same. Of course, the term ‘Central Government’ in practical terms means the Secretary of the said department.

Section 20 provides that the leave sanctioning authority for the Chairperson for all kinds of leave would be the Minister of the concerned Ministry and so would he/she be for the foreign travel of all other Members. The Members are hence expected to seek leave of the Minister of that very Ministry against which they are supposed to pass orders and directions.

The financial memorandum under the Bill reinforces and underlines the fact that the Tribunals shall remain under the administrative control of parent ministries, which of course is in teeth of the judgement of the Supreme Court in R Gandhi’s case and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India.

The statement of objects and reasons of the Bill, signed by Kapil Sibal, also misleadingly states that the Bill addresses the issues related to Tribunals that have arisen in various cases before the judiciary. This again is factually incorrect since the most basic dicta of the Courts, that is, the independence of Tribunals from parent ministries, remains unaddressed and untouched, and in fact defeated.

Monday, February 10, 2014

Defence Minister withdraws controversial circular ordaining en masse litigation against military veterans

This is in reference to the post of 12 January 2014 in which it had been pointed out that the Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence (MoD) had issued a letter ordaining en masse appeals in the Supreme Court against judicial verdicts rendered by Courts in favour of military veterans without seeking legal opinion on individual cases. The MoD had also officially admitted that it had filed appeals against disabled soldiers in the Supreme Court in ‘almost all types of cases’.

Mr Rajeev Chandrasekhar of Bangalore, Member of Parliament, had consequently taken up the issue with Mr AK Antony through a letter endorsed on 18 January 2014 followed by another one on 28 January 2014. Now the Raksha Mantri has informed Mr Chandrasekhar that the controversial circular is being withdrawn.

The defence of Mr Antony (though I am sure not his own, but of one of the Under Secretaries of the DESW) in the said matter is interesting. He says that the letter had been issued to simplify decision-making.

Mr Antony, decision-making on what? Of filing ruthless appeals against your own disabled veterans? You wanted to simplify the process of unleashing legal terror on the defenders of your own nation?

Though the circular stands withdrawn, it would be otiose to expect any positive change on ground.

The sadism shall continue unabated till the time the higher bureaucracy and the political executive apply their minds properly to the problems at hand without blindly affixing initials on noting sheets put up from below. 

Sunday, February 2, 2014

Cabinet decision towards implementation of judgements related to freeing of Tribunals from control of the Executive. A superficial step, but a step nevertheless!

As most readers would know, we have been emphasizing on the independence of judicial functioning of various Tribunals existing in India. Some posts on the subject can be accessed here, here, here and here.

The Hon’ble Supreme Court in R Gandhi’s case had passed detailed directions related to functioning of Tribunals and ensuring that they are not placed under any administrative or parent ministry. This was followed by a judgement by the Hon’ble Punjab & Haryana High Court in a Public Interest Litigation (PIL) filed by me wherein it was directed that the Armed Forces Tribunal (AFT) must be placed under the purview of the Department of Justice under the Ministry of Law & Justice and not under the Ministry of Defence.

Another Writ Petition was recently filed by the majorly public-oriented Madras Bar Association against the newly notified Company Law and Company Law Appellate Tribunals which have been placed under the Ministry of Corporate Affairs rather than the Law Ministry. The Supreme Court has been pleased to record the statement of the Government in its interim order that no appointments shall be made in the said Tribunals till further orders.

The Ministry of Law and Justice has in fact been trying to tame this issue since long, but other Ministries have been resisting the move and seeking to wield control over Tribunals which clearly goes to show their interest in emasculating independence of these bodies. In fact, the Government has till date not realised that implementation of judgements of Constitutional Courts in this regard is not subject to opinions of various Ministries. The issue has been ignored since long, and illegally and contemptuously so, as is evident from this press report of the year 2001 and this official press release issued way back in the year 2004.

Now, two days back, on 30 Jan 2014, the Union Cabinet has finally given the approval to recommendations of a Group of Ministry on various Tribunals. However, the move falls short of expectations since though it talks of introducing an over-arching legislation for prospective universalisation of tenure, pay & allowances, appointments, retirement, facilities etc of Members of Tribunals, it does not apparently touch upon the biggest quandary in the concept of Tribunalisation, and that is, the control of administrative and parent ministries over them. For example, the Armed Forces Tribunal (AFT) has to pass all orders against the Ministry of Defence which is the opposite party for all military litigants but the AFT is functioning under the same Ministry which not only controls its infrastructure and operation but also rule-making powers. Similarly, the Debt Recovery Tribunal (DRT) functions under the Ministry of Finance and even under the patronage of banks. Though the cabinet approval needs to be perused in totality to analyse its finer aspects, the first impression does portray that only the surface has been scratched without ensuring the actual independence of Tribunals.

A superficial step, but a step nevertheless, and perhaps in the right direction!

Long distance ahead, but we shall run and cover it.