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Thursday, January 18, 2018

My op-ed in Indian Express: The military women and the fight to be equal

The following op-ed authored by me appeared in The Indian Express:

The military women and the fight to be equal

Navdeep Singh

Paradoxically, more than the military establishment and policy makers, the concept of nari shakti in the defence services has been powered by Constitutional Courts. The Delhi High Court ruling that women cannot be denied entry into the Territorial Army, a unique organisation of volunteers who are otherwise engaged in civil occupations and who wear the uniform for a few days in year so that they can be called out during national emergencies, is the latest in the same vein.

Though I tend to concur that induction of women in the military has to come about in a phased manner with due thought and not merely as a sentiment of political correctness, I also feel that a little more flexibility by the establishment should be at display while opening its doors. The recent decision of the Government and the Army Chief regarding induction of women in ranks other than Commissioned officers, seems to be an apt step.

Initially inducted in the defence services only as Short Service Commissioned Officers with 5 years initial terms, extendable to a maximum of 14 years, it was the Delhi High Court in 2010 which directed the Government to consider them for permanent commission. The Government of the time chose to challenge the verdict in the Supreme Court where it still remains pending, but since a stay was not granted by the Apex Court, women officers continue to serve on the strength of the High Court decision. The stand of the official establishment wherein women were thought fit to serve for 14 years but not 20 years or more which would have entitled them to pension, and without any post-retirement occupational guarantee thereby leaving them at crossroads in the middle of life when requirement of subsistence is at peak, was, to put it softly, not a well-rounded stand. Things have changed since then with the military embracing more progressive policies, but rough edges still remain and the case remains pending in the Supreme Court.

The above apart, women have had to litigate at multiple stages for their rights. There was yet another case wherein the Delhi High Court in 2015 had ordered the Navy to consider its Short Service Women officers for Permanent Commission but again the verdict was challenged in the Supreme Court. The Punjab & Haryana High Court, in a landmark verdict on pregnancy rights in the military, had held that it was not proper for the Army Medical Corps to reject the candidature of a woman (where married women can join till the age of 45 and there is no training in a military academy) after her selection and asking her to undertake the entire procedure again, only because she happened to disclose that she was pregnant when she reported for duty. The Court opined that forcing a person to choose between a child and her employment had “no place in modern India.” Thankfully, the judgment was implemented without appeal.

What this shows is that there’s no easy road for women. While some grounds articulated by the establishment, such as induction for frontline combat, may well be quite valid and open to argument and then actions should not always be based upon political correctness or popular flavour, the situation needs redemption when resisting change becomes a default reaction and unfounded fears are injected in the minds of senior military brass or political executive to stall progress. For example, the oft repeated phrase ‘what would happen if a woman soldier is captured?’. Well, a soldier is a soldier and the fear of a war crime equally applies to male soldiers. Then the issue of women garnering postings in ‘peace’ areas while leaving tough or ‘field’ postings for men is raised. If true, then the answer to it is not resisting the induction of women but ensuring balanced personnel management policies, making it clear that equality is a two-way street and then strictly ensuring the same without fear or favour.

These issues are not simplistic, and the key, therefore, cannot be black & white, however a workable solution could be to decide these in a participative manner by study groups involving the defence establishment and also former and current women members of the military with the political executive then finally deciding upon policy. There are a few pointers that could be kept in picture. Firstly, whenever there is judicial intervention in matters of such policy, the default reaction should not be an appeal out of administrative egotism but introspection and ways to rationalize and harmonize the policy itself to the best extent possible. Secondly, decisions on women personnel must always be taken after due discussion with stakeholders by involving the military establishment and women members. Thirdly, regressive policies such as the Coast Guard seeking a certificate from women appointees that they shall not conceive more than twice during service, should be immediately reviewed. Fourthly, a cue should be taken from the experience of the Police and the Central Armed Police Forces where women have acquitted themselves well and have served in exacting circumstances in all ranks without any major hiccup.

These are times of exhaustive churning. Every military of every democracy has encountered vexed questions in this regard, but then like all other similar matters, the system self-adjusts. What seemed odd in the days of yore is pretty much a part of regular life today.

With the Chiefs of the Defence Services showing maturity in being open about accepting more women in the forces, the Prime Minister also calling for it, and the apex defence political appointment being held by a woman, there could not be a better time to initiate change and to review matters currently sub judice by identifying a meeting point. 

Saturday, January 6, 2018

Controversial order concerning military status withdrawn

The controversial order downgrading the status of military ranks vis-a-vis appointments held by officers of the Armed Forces Headquarters Civil Service (AFHQCS) issued on 18 October 2016, has been withdrawn on the directions of the Defence Minister.

The entire issue, with special reference to the abovementioned letter under question, was discussed earlier on this blog on 06 November 2017.

Many have asked about the correction of status equation of ranks other than commissioned officers. To put you at ease, the said letter did not affect the status equation at lower ranks and the said ranks continue to enjoy their status vis-a-vis other services as before. A post on the said subject was published earlier on 12 November 2008.

Wednesday, December 27, 2017

Confusion between Modified Assured Career Progression Scheme (MACP) and Military Service Pay (MSP) and the need to ignore unnecessary rumours and false hopes

There are certain messages floating on social and other media that the Supreme Court of India has passed directions to pay ‘Military Service Pay’ with effect from January 2006 rather than from 2008 as was granted by the Government.

This is incorrect and there are no such directions. People are probably confusing the recent judgment on Modified Assured Career Progression Scheme (MACP) with the concept of Military Service Pay (MSP). Even otherwise, de hors the absence of any such decision, no parallel can be drawn between the two issues.

As explained in the post of 12 December 2017, the Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation, for the defence services.

The Special Army Instructions (SAI) on the subject had also been issued with effect from 01 January 2006 and which contained therein the stipulation of MACP. However later, despite the existence of the said SAI, another fresh letter was issued by the Government stating that MACP will be prospectively implemented from 01 September 2008.

Hence ultimately, unlike other pay related modalities which were implemented with effect from 01 January 2006, MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates. The Chandigarh Bench of the Armed Forces Tribunal (AFT) however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission. The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2008.

The aspect to be noted however in the above is that in case of MSP, the pay commission had itself noted that it shall be applied prospectively without any arrears (Para 2.3.12 of the 6th Central Pay Commission Report). Further when the SAI 1/S/2008 was issued, while it applied benefits of all modalities from 2006 (including MACP), it had specifically stated in Paragraph 5(d) that arrears of MSP shall only be paid with effect from 01 September 2008. There was no such negative stipulation for MACP. Further MACP was a replacement for the earlier ACP while MSP was completely a new element.

Hence, as the above would show, while the MACP was applied from 2006 but later tacitly retrospectively withdrawn and made applicable from 2008- an action was at the heart of the debate in Courts, there was no such controversy with regard to MSP which was always meant to be paid prospectively from September 2008.

Though at the surface both issues might appear to be similar to the untrained eye, there is actually absolutely no parallel between the concepts of MACP and MSP, and hence it is in the interest of sanity to ignore messages being circulated that MSP arrears will be paid to all personnel with effect from 01 January 2006. One should avoid forwarding such messages since it may promote unnecessary litigation and propel false hopes.

The above is not in the form of legal advice but merely my humble opinion since a litigious society is not in anybody’s interest.


Tuesday, December 12, 2017

Important decision for ranks other than Commissioned Officers who retired between 01-01-2006 and 30-08-2008

The Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation.

Unlike other pay related modalities which were implemented with effect from 01 January 2006, the MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates.

The Armed Forces Tribunal (AFT) had however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence the MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission.


The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court has dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2009. This will affect the pay and pensionary benefits of those personnel who retired during the said period. 

Overburdening the Supreme Court and blocking access to Justice: My oped for the DNA

My oped published in the DNA:

OVERBURDENING THE SUPREME COURT AND BLOCKING ACCESS TO JUSTICE

High Courts must not be regarded as stepping stones to onward appeals to SC

Navdeep Singh

It was heartening to note the statement of the President of India on occasion of the National Law Day stressing upon affordability and access to justice and expressing concern on judicial delays. Important issues indeed which bother all stakeholders, but unfortunately these aspects are like an unruly horse unwilling to be tamed for a variety of stated and unstated reasons. The leading reason being that the hierarchy of courts is now merely being used as a stepping stone to reach the Supreme Court as a routine rather than looking for quietus or culmination of litigation at much lower levels thereby leaving time and space for the SC for cases of general public importance or major constitutional issues.

In a federal structure, though it may come as a surprise to many, as far as certain powers are concerned, the High Courts and the Supreme Court are equal, with the HC in fact wielding a wider writ jurisdiction under Article 226 than the SC under Article 32. The SC does not even exercise superintendence over High Courts as HCs do over lower Courts. The superiority of jurisdiction of SC over HCs is primarily appellate when orders of the HC are challenged. The high majesty of High Courts however today is under threat since litigants opt to test every small error till the SC with the latter ending up exercising correctional jurisdiction than being granted the legroom to adjudicate major issues requiring its attention. Coupled with this there is the inexplicable system of providing direct appeals from certain tribunals to the SC in contravention of a Seven Judge Constitution Bench decision in L Chandrakumar’s case (1997). All this not only leads to delay, costs and overburdening of the highest Court of the land with innocuous and minor matters, but also results, at times, in seemingly conflicting decisions by different benches leading to lack of judicial certainty and judicial confusion for lower fora resulting in multiple little Supreme Courts within the SC, besides making justice extremely unaffordable and inaccessible for the citizenry, though, ironically, access to justice is a recognized fundamental right.

A Constitution Bench had this to observe in Bihar Legal Support Society vs CJI (1986):

“It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the magistrates....This extraordinary jurisdiction could be availed by the apex court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature...We must realise that in the vast majority of cases the High Courts must become final even if they are wrong...We must, therefore, reconcile ourselves to the idea that like the apex court which may be wrong on occasions, the High Courts may also be wrong and it is not every error of the High Court which the apex court can possibly correct...this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.”

Indeed, a hierarchy of Courts is also required in every democracy. A multi-layered appellate or judicial review process is much desirable since judicial errors in appreciation or application of law cannot be ruled out. But the question only is whether all routes should ultimately lead to the SC?

Rather than embarking upon the concept of a Court of Appeal between the HC and the SC, as suggested by some, and which may require constitutional amendment, I would like to think that restoring the majesty of the HC back to what the Constitution envisaged, along with certain minor doable adjustments within the existing set-up, could help. The following ideas hence come to mind:

1. Introducing Intra-Court/Letter Patents Appeal from Single Bench decisions to Division Benches within the same HC for multiple and more jurisdictions rather than the very narrow scope as is prevalent.

2. Abrogating direct appeals from tribunals to the SC and instead Division Benches of HC exercising time-bound judicial review over all tribunals as also recommended recently by the Law Commission in its 272nd Report.

3. Supreme Court sitting in larger benches, if not en bloc, to prevent conflicting decisions and judicial uncertainty and exercising jurisdiction only in rarest of rare cases of grave miscarriage of justice, questions of law of general public importance, issues involving two or more States and matters of Constitutional interpretation and the scope thereof also defined as objectively as possible.

4. Restoring the Constitutional majesty of the HC as practically the highest court and preventing it from being used merely as a stepping stone for onward appeal to the SC.


While it would take some effort to return our Constitutional Courts to their true roles, to implement what the President expressed the greatest responsibility to reduce judicial burden as also needless litigation falls upon instrumentalities of the government which file appeals to the next judicial level without batting an eye at taxpayers’ expense not out of judicial necessity but due to egotism and a faux sense of prestige of certain personalities that is hurt on losing a case. The buck also stops at our community- the lawyers and bar associations, to ensure a well-balanced and well-oiled machinery where dispensation of justice is quick, affordable & accessible and a quietus is reached at the optimum level without prolonging the agony. I need not say more. 

Monday, November 6, 2017

Opinion piece for The Quint: Civil-Military Rank Equation- Need for a Calmer Approach

 My opinion piece for The Quint today:


Civil-Military Rank Equation: 
Need for a Calmer Approach

Navdeep Singh


A point to point equation of military ranks and civil grades has always been a subject of controversy. But then things have taken an unpleasant turn in the recent past. While it is true that a sense of entitlement of both military and civil staff must not be allowed to prevail, it is equally valid that undue advantage of proximity to the decision making process must not become the order of the day. The political executive thus, must, reach a fair solution without any favour to any side.

While many military veterans have adopted the route of heavy emotional rhetoric in articulating their views on this subject, I sincerely feel, with all due respect to the said thought process, that a solution, if any, would only be possible in an environment of mutual trust, discussion and logic, irrespective of who is in power, and not by sharp statements against other services or professions or expressing a persecution complex. It is true that the military has been put to a disadvantage in the past in various aspects, but it is equally correct that many anomalies have been resolved, some fully, some partially, and most such positive movement took place by means of dialogue and processes of law and by personalities who mostly remained behind the curtains, and sometimes unsung.

The Historical Perspective

Traditionally there always was a broad parity of pay progression between Class-I Civil Services (Now known as Group A) and the Commissioned Cadre of the Defence Services.  There was also a broad parity between the career progression of the Indian Police Service and the Defence Services, except at higher ranks. Moreover, there was established relativity between Lieutenant Colonels, Conservators of Forests and Superintending Engineers. Till the 3rd Central Pay Commission (CPC), there was not much of a problem in equivalence and it was broadly accepted that the Junior Time Scale (the starting grade of directly appointed Class I Officers) was equal to a Lieutenant, the Senior Time Scale (Under Secretary to Govt  of India) was equal to a Captain, the Junior Administrative Grade (Deputy Secretary to Govt of India/Joint Director) was at par with a Major, the Selection Grade (now Director to Govt of India) was equivalent to a Lieutenant Colonel. The 4th CPC introduced a separate form of pay system for the Defence Services than the Civil Services with a running pay scale with separate component of ‘rank pay’ being introduced for defence officers but civil officers maintaining distinct pay scales for each rank as per the earlier system. This was the start point of the controversy with no “scale to scale” rough comparison now available for each analogous rank.

Skewed equation by 6th CPC

The 6th CPC, for the first time, brought the problem sharply out in the open. On Page 73 of the 6th CPC Report, the commission reproduced a chart of analogous military and civil grades wherein it pegged the Group A Junior Time Scale with a Lieutenant as well as a Capt, the Senior Time Scale with a Major, the Junior Administrative Grade with a Lt Col, the Selection Grade with a Colonel and a DIG with a Brig. There were however many infirmities in the chart. For example, while only one of the Civil Selection Grade scales (Director) was reproduced and shown against a Colonel, the other civil Selection Grade scales (For example the IPS Selection Grade of Rs 1650-1800) were not reproduced at all and also not reflected with the closest military counterpart of Lt Col (Rs 1750-1950). The rank of Capt was shown equivalent to Senior Time Scale (Under Secretary to Govt of India) in the 3rd CPC table but suddenly shown reduced below STS in the 4th CPC table and clubbed with a Lieutenant and Junior Time Scale. Needless to say, there was no government order downgrading a Captain from the earlier level. There were other infirmities too, for example, the scale of a DIG wrongly shown analogous to a Brigadier in the 3rd CPC chart was actually that of the then existing grade of Additional IG which was later merged with IG, and so on. The data, hence, was cherry picked and projected as such to throw the entire equation into disarray. 

Formation of a Group of Ministers

Due to the downgradation of military ranks by the 6th CPC, the Government decided to form a Group of Ministers (GoM) to look into the issue. The GoM ultimately recorded that the pay of a Lt Col should be hiked to denote his/her position above a Deputy Secretary to Govt of India/Joint Director but below a Director and a Colonel. The recommendations were accepted by the Cabinet. The controversy was hence settled to an extent, though not to the complete satisfaction of the defence services who had wanted the restoration of status of Lt Col to Director Level Officers since both had similar attributes of pay and length of service. The GoM also endorsed the formation of a High Level Committee to further resolve the issue. To be honest, even the demands of the military before the GoM were not justified at a few levels. For example, the defence services had demanded the pre-4th CPC restoration of the rank of Capt to Senior Time Scale and that of Major to Junior Administrative Grade, forgetting in the bargain, that by this time due to difference in promotion timelines on account of change in rules, while a defence officer was promoted to the rank of Capt in 2 years, a Group A civil officer took 4 years to reach Senior Time Scale, ditto for Major at 6 years and Junior Administrative Grade at 9 years and such an equation would have led to an undue advantage to the defence services.

The current controversy

The current controversy was triggered in October 2016 when the Chief Administrative Officer of the MoD, the controlling officer for the cadre of the Armed Forces Headquarters Civil Service (AFHQCS), issued a one-sided memo, downgrading the status of military ranks even below the already depressed levels articulated by the 6th CPC. The memo equated a Colonel with a Joint Director of the AFHQCS (a Joint Director was otherwise equated with a Lt Col by the 6th CPC and later a Joint Director was placed in-between a Major and a Lt Col by the GoM). Further the memo equated a Director with a Brigadier though a Director had clearly been equated with a Colonel both by the 6th CPC as well as the GoM and approved as such by the Cabinet.

The Major General and Joint Secretary to Government of India equivalence misnomer

Over the years, if not by design, the sheen of the military rank has suffered by default. Major General (today with 32 years of service) has traditionally been pegged at par with Joint Secretary to Govt of India (currently 19 years of service) but it is unfortunate how this has come about. The genesis of this incorrect equation emanates from the fact that pre-independence, the Secretarial hierarchy was in the order of Assistant Secretary to Govt of India (Stage 1), Under Secretary (Stage 2), Additional Deputy Secretary (Stage 3), Deputy Secretary (Stage 4), Joint Secretary (Stage 5), Additional Secretary (Stage 6) and Secretary (Stage 7). A Major General was equated with Joint Secretary which was a Stage 5 position in the hierarchy and even the length of service was similar. However, over the years, the nomenclatures in the Central Secretariat setup/Central Staffing Scheme were altered and appointments re-designated as Under Secretary (Stage 1), Deputy Secretary (Stage 2), Director (Stage 3), Joint Secretary (Stage 4), Additional Secretary (Stage 5), Secretary (Stage 6) and Cabinet Secretary (Stage 7). Hence, while the “Maj Gen = Joint Secretary” equation was cleverly maintained on paper as before, it was not realized that the erstwhile Stage 5 of the secretarial hierarchy was now Additional Secretary and hence Maj Gen should have retained his 5th  position, that is, Additional Secretary of date. Also, the equation of Joint Secretaries to Govt of India and Major General was not with regard to all officers in the pay of Joint Secretary, but only with those officers who were currently holding the appointment of Joint Secretary to the Govt of India on being empanelled as such in the Centre. Similar has been the case if compared with other services. For example, the highest Police Rank in a State, the IG, was equated with a Brigadier/Major General, today, there are four pay grades in the Police above a Brigadier and three above a Maj Gen. This is not to say that other cadres should stagnate, but is simply to put across that when such upward mobility occurs, there should be a parallel mobility or merger of scales on the military side too.

Slide over the times on cadre revisions

While a Lt Col, Conservator of Forests and Superintending Engineer of the Central Engineering Services (SE) were historically at par, today, after the 7th Central Pay Commission, a Lt Col in Pay Level 12A is a step below an SE in pay (Pay Level 13), and two steps below a Conservator (Pay Level 13A). The slide has been inexplicable over the times with status being gently nibbled over the years. Moreover, as explained above, whenever there has been any cadre improvement, while civil posts have moved up and merged with higher grades due to better cadre mobility and upgradations, military ranks have stagnated and have been clubbed and bunched with lower grades. Many examples come to fore. The erstwhile police rank of Additional IG which was roughly equal to a Brig now stands merged with an IG and enjoys the pay of a Maj Gen and that of Additional DIG in the Central Armed Police Forces which was equal (in fact slightly lower) in pay to a Col now stands clubbed with a DIG, today drawing the pay of a Brig. In the Military Engineering Services, the rank of Additional Chief Engineer on the civil side was equated with a Colonel and held interchangeable appointments. Later, in the 2000s, the said rank was merged in the grade of Chief Engineer and is today enjoying Pay Level 14 which is the pay granted to a Maj Gen. The Senor Administrative Grade-II roughly equated with a Brigadier was merged with Senior Administrative Grade-I and today both are known as ‘Senior Administrative Grade’ (SAG) simpliciter and are in the pay of a Maj Gen. While logically, both Brigadiers and Major Generals should have hence been equated with SAG, but today the rank of Brig stands relegated below SAG.

The Military also needs to readjust

While the slide of the sheen of the military rank is more than evident, it is not that the military has not contributed to it. Over the years, the military establishment has believed in placing senior officers on junior appointments and used military staff in a manner not befitting the rank held, thereby itself projecting a wrong equation to the world at large. It also needs to be empathetically iterated that civilians who have worked shoulder to shoulder with the military in mixed organisations have also at times not been given due respect and regard to their experience, age, seniority and maturity. Such mistrust and friction militates against organisational fabric and national ethos. If the officers of the defence services expect respect and sensitivity towards their standing in society, similar should be their own attitude towards civilian peers in mixed organisations and indeed towards other civil officers who are also serving the same nation and the same flag with utmost sincerity. Any sense of entitlement or superiority on part of the military in this regard, is therefore highly incongruous and misplaced.

The role of the Political Executive

While no entity, including the military, should be allowed to steal a march over other counterparts, the political executive and higher bureaucracy must insulate itself from any advantage sought to be achieved by key appointments due to functional proximity with power centres. Ironically, and contrary to popular belief, most of such problems have not arisen between the military vis-a-vis the IAS or other Group A services but with support cadres which were meant to assist the military in their secretarial requirements to enable the defence services in focussing upon their core areas. Crudely put, it is a case of the grass eating the hedge.

Though I am not very sure if and when this vexed issue would be resolved to the complete satisfaction of all, but yet I am sanguine that with political maturity and deftness, the abrasion between various cadres can be brought down to minimal levels and though a point to point comparison may never be possible, the solution perhaps lies in evolving an approach with an approximate pay and status progression keeping in view the historical parities and length of service between the Commissioned Cadre and other Group A services of the Government of India. And here is where I differ with some of my esteemed veteran friends, for I strongly believe that the key to this is the creation of an environment of mutual trust and convincing the political executive that while the final decision is that of the elected leadership, all that needs to be ensured is a say of all stake holders in the decision-making process leading to justice and equity to all sides, and the same can only be achieved by logical presentation and not by shouting down or ascribing motives or antagonizing every entity who might have a difference of opinion or a divergent view on a recommended solution, and in the bargain losing all friends by burning bridges with emotional rhetoric to a point of no return without any semblance of balance.

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Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court and the founder President of the Armed Forces Tribunal Bar Association, at Chandigarh. 

Sunday, October 15, 2017

Op-ed/Analysis for DNA: Raksha Mantri kindles hope


 My op-ed/analysis for the DNA:

Beyond the ‘machine’- Hope from the new 
Raksha Mantri

Navdeep Singh

The appointment of Nirmala Sitharaman as the Raksha Mantri was welcomed by all. Though a lot has been said about the procurement of the machine, not much thought is spared for the men and women behind that machine.

Beyond issues such as acquisition that appear glamorous for the world to write upon, it is also the human capital, personnel policies and mechanisms of redressal of grievances under the Ministry of Defence and the military which require focus, and these, softly put, need a refit. The last full time Raksha Mantri, Mr Manohar Parrikar, made genuine efforts in taming this unruly horse and there is no doubt Ms Sitharaman, known to be a hardworking, upright and sensitised personality, would now carry the work forward. Sensing opportunity at the non-availability of the political executive at the helm after Parrikar’s departure, the system had reverted back to its much cherished status quoist attitude. Mr Parrikar had constituted independent Committees of Experts comprising apolitical specialists rendering pro bono inputs, of one this author too was a part, to look into long pending issues plaguing the Ministry and the military, but despite the acceptance of many important and path-breaking recommendations, the Ministry is yet to issue implementation instructions.

Let us enumerate a few issues requiring attention.

Litigation
At one time, not so much in the past, more than ninety percent of appeals pending in the Supreme Court filed by the Ministry of Defence pertained to challenges to disability benefits granted by Courts and Tribunals to disabled soldiers. Most of the other litigation also comprises pensionary issues pertaining to old soldiers and military widows. Strange are the ways of the Ministry which challenges orders of Courts at times amounting to a few hundred rupees of benefits to disabled soldiers till the highest court of the land despite the law being well settled by Constitutional Courts. In fact, stress and strain of military service is universally known to aggravate even regular medical conditions such as hypertension and heart disease thereby adversely affecting the health profile and longevity of soldiers and the same is also recognized by the applicable rules. But accountants and financial authorities of the Ministry feel that soldiers should not be compensated for their health conditions since many such disabilities occur in civil life too. What they however forget in the bargain is that living away from the family for most part of the year, inability to attend to domestic commitments, a highly regimented lifestyle with curbs on freedoms that other citizens take for granted, are aspects unique to the military, and which, even by the admission of successive Raksha Mantris, lead to additional stress and strain. This Ministry must be the only one where consecutive Supreme Court decisions on the subject, rules, directions of Ministers, opinions of apex military medical bodies, recommendations of High Level Committees et al have had no effect and the show is run by a motley crew of accountants, financial wizards and mischief by certain file-noting initiators.

Personnel Policies
Along with pensionary policies, the personnel stratagems of the military also need a revisit. Though over past few years the rigidity of thought in the military has shown a decline and it has become less inward looking, a humungous task lies ahead to improve satisfaction level in this very important department. Affected parties need to be consulted in policy-making after a holistic and scientific analysis and these cannot be imposed in a ham-handed manner based on the whims or opinions of a select few. Such an approach has led to massive litigation, discontentment and administrative chaos in the past which then reflects upon the working relationship of the various cogs in the wheel. Similarly, the military needs to look within and acquire a more open, pragmatic, fair and progressive approach in grievance redressal. It’s an open secret that most of the serious representations (statutory and non-statutory complaints) are not decided within the prescribed period of 6 months unless strings are pulled. In a primitive system, the decision makers seek comments on such representations from those very authorities who are complained against. The recommendations of the Committee of Experts for faster redressal and an opportunity of hearing or personal interaction of the aggrieved party with the competent authority before taking the decision and also for making the process objective by decentralizing certain power centres, were accepted in principle by the Raksha Mantri in August 2016 with directions to issue implementation instructions in 45 days, but the files have been put in such an orbit that the execution till date remains elusive.

Decision Making
With an incisive mind now occupying the chair, one would also expect a more balanced decision-making process. Having dealt with it closely, this author would suggest that the higher bureaucracy and political executive must not blindly rely on any developing coterie or one-way file notings since the same are drafted in a manner so as to extract a particular kind of response- the kind of response that the file initiator in the lower bureaucracy wants. Hence, the decision making process needs to be collegiate wherein inputs and views of all are taken in a real-time manner and wherein those who have commented upon a particular issue on file can be confronted by stakeholders. Also, it is very much necessary to interact with the affected parties in important administrative, personnel, welfare and pension related subjects to have a well-rounded view.

The Raksha Mantri has given hope to many. Interestingly, the situation today is that while the Minister at the helm of this large Ministry remains accessible and replies to emails and tweets, just the opposite attitude is at display at the lower but cutting edge public-dealing level. The biggest positive change that many like us would perceive and hope for in the near future is that the system would now run as per the will of the political executive and not the short-sighted personal opinion of someone wielding a damaging pen, sitting in a non descript corner in the South Block. 


Major Navdeep Singh is a lawyer at the Punjab & Haryana High Court and was the founding President of the Armed Forces Tribunal Bar Association. He writes on issues related to law, military and public policy. 

Tuesday, September 5, 2017

Another important letter issued today for pension and disability benefits of Pre 2016 retirees

Close on the heels of the two letters issued yesterday, another letter has been issued by the Ministry of Defence for Pre-2016 retirees with regard to their pensionary and disability benefits.

The salient features of the same:

(a) Notional fixation as per the first formula recommended by the 7th Central Pay Commission has been implemented as was done for civilian retirees in May 2017. For a few rare cases, this notional fixation may result in pension being upwardly revised even higher the figures arrived at existing levels, that is, higher than OROP Pension X 2.57. The pensioner however shall be entitled to receive the higher of the two. Detailed modalities would only be discernible once the full fledged concordance tables are issued. To refresh, the revision under this formula shall be undertaken by notionally fixing the pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which such pensioners had retired (for pension) or died (for family pension). This will be done by notional pay fixation under each intervening Pay Commission based on the formula for revision of pay.

(b) The controversy of non-counting of X Group Pay for pensionary purposes has been resolved. In fact the resolution of the same was also evident in the letters issued yesterday.

(c) Pension calculation for disability benefits restored at percentage basis at par with civilians.

(d) Broadbanding/Rounding-off of disability/war-injury element for all disabled soldiers, irrespective of manner of exit, granted but only for 7th CPC regime w.e.f 01-01-2016. The period from 01-01-1996 till 31-12-2015 under the 5th and 6th CPCs shall hence continue to be governed by decisions of Courts as before while the period from 01-01-2016 shall be governed by the 7th CPC letter. There is hence still status quo on the legal position for the period governed by 5th and 6th CPCs. We shall hence again request the Government for grant of the broadbanding benefits of 5th and 6th CPC to all affected personnel as decided by the Supreme Court in KJS Buttar and Davinder Singh cases.

(e) The anomaly of non grant of old age pension to disability and war injury pensioners of the Pre 2016 category stands resolved.

(f)   Notional fixation of old retirees has been explained in Paragraphs 6 to 8 of the letter.


The above letter issued today, that is, 05 Sept 2017, can be accessed and downloaded by clicking here. 

Thank You. 

Monday, September 4, 2017

Fresh Disability, War Injury and other Casualty Awards letters issued for Pre and Post 2016 retirees

The much awaited orders on casualty (disability) awards have been issued after resolution by the Anomalies Committee.

Salient features-

For Pre-2016 pensioners:

(a)  Disability and War Injury awards have been restored to the formula as applicable to civilians. The rate shall now be revised to Old Award as admissible on 31-12-2015 (under enhanced OROP rates based on the percentage formula applicable at that time) X 2.57 with effect from 01-01-2016.

(b)  Orders for notional percentage based calculations with fresh 7th Central Pay Commission scales as the backdrop, not yet issued.

For Post-2016 pensioners:

(a)  Broadbanding/rounding-off made applicable to all cases of disability/war injury pension with effect from 01-01-2016 but only to post-2016 retirees (hence as of now, status quo continues with respect to the legal position for Pre-2016 retirees).

(b)  The percentage based rules for calculation of disability/war injury/other casualty awards shall remain the same (percentage based) as were applicable prior to 2016.

(c)  Additional old age pension on attaining the age of 80 or above restored for disability and war injury pensioners (however, the same has not yet been restored for Pre-2016 retirees). Readers may recall, this confusion and anomaly emanated due to a slip up by the military pay cells.

Both letters can be downloaded and accessed here:



Sunday, August 27, 2017

Supreme Court takes cognizance of a Petition challenging the new rules for Tribunals and also excessive tribunalisation at the cost of the regular judiciary

The Supreme Court has issued notice to the Central Government on a Writ Petition filed by me challenging the new rules promulgated for all tribunals by the Government and also seeking reform of the various tribunals in the country and a roadmap to check excessive tribunalisation.

A report by Bar & Bench is appended below:

The Supreme Court today issued notice to the central government in a writ petition filed by (Punjab & Haryana High Court) Advocate and founder President of the Armed Forces Tribunal (AFT) Bar Association Navdeep Singh, seeking striking down of the recently promulgated rules for Tribunals.
The matter came up for hearing today before a Bench of Chief Justice JS Khehar and Justices Dipak Misra and DY Chandrachud.
The petition, citing the example of the AFT, states that the tribunal has been placed under the complete hold of the Ministry of Defence, which is the first opposite party in every litigation before the AFT. It further adds that the Defence Secretary has been made a part of the selection and reappointment committee for appointing members of the tribunal, thereby making the primary litigant select its own adjudicators.
It also states that the Centre has notified the Rules despite orders of the Punjab & Haryana High Court to the contrary, on which there was no stay by the Supreme Court. The petition further challenges the clause decreasing the tenure of members and lowering their status and a new provision allowing them to take up government employment after retirement from the tribunal, which was prohibited till now.
More importantly, the petition states that while promulgating the Rules, the officers concerned have acted diametrically opposite to the views of the political executive since even the Prime Minister and the Law Minister had made statements favouring reform and independence of tribunals. The petition states that the real reason behind tribunalisation was “not to reduce pendency, but to create post-retirement havens and tacitly and slowly encroach upon the traditional jurisdiction of real Courts, including issues of personal, individual and civil rights”.
Calling out the myth of reduction of pendency, the petition points out an example of defence related cases, which have increased from 9000 to 16000 after creation of the AFT.
Moreover, work in tribunals comes to a complete halt due to non-appointment of members. The petition states that the stress upon ‘expertise’ in tribunals is overemphasized since “judicial opinion is through assistance from both sides of the dispute through counsel or through expert opinions, and for the same, the expert need not sit as an adjudicator which can result in subjectivity and over-familiarity rather than a dispassionate and detached approach”.
It has also sought a roadmap for reforming tribunals and returning certain jurisdictions back to the regular courts. The petition has also questioned why the regular judiciary was not being strengthened rather than excessive tribunalisation. The Petition has averred that in case a lack of expertise is perceived, then specialized courts such as Commercial Courts should be incepted within the regular judiciary. Alternatively, a system of more stable rosters must be effectuated in Courts, in line with the expertise and aptitude of judges.
The Petition has also sought judicial review over tribunal decisions in Division Benches of High Courts as held by a Constitution Bench in L Chandrakumar’s case, rather than the inaccessible and unaffordable appeals provided from some tribunals directly to the Supreme Court.