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Friday, March 27, 2015

Gullible military community: celebrating the trampling of its rights

There is something very unique about the military community, and that is, axing their own rights and then celebrating it, realizing quite late as to what hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal. The Supreme Court had held that High Courts should not entertain writ petitions against orders passed by the Armed Forces Tribunal and that litigants should file appeals in the Supreme Court instead. 

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant, unaffordable and inaccessible for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, elements of the Army Headquarters) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the establishment therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military? A dangerous proposition reflecting the worst kind of self-goal.

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers and their families, and it does seem that many of us have not realized it yet.

Yes, gullible. And sad.

Live with it. Celebrate your defeat. 

Tuesday, March 17, 2015

Pay arrears of pension to all Pre-2006 retiree Central Govt pensioners from 01 January 2006 rather than 24 September 2012 : Supreme Court

As most readers would know, there were anomalies in the fixation of pension of pre-2006 central govt retirees with effect from 01 Jan 2006 and the question was whether pension was to be calculated based on the minimum of each grade/rank within the newly introduced pay-bands or on the minimum of the pay-band itself. The said anomaly was resolved by way of judgements of the Central Administrative Tribunal (CAT) as well as Armed Forces Tribunal (AFT) which inter alia ruled that pension would be calculated on the basis of minima of each rank/grade within the pay-band. The judgement of the CAT was challenged by the Govt before the Delhi High Court. In the meantime however, the Govt itself removed the anomaly but granted the benefits from 24 Sept 2012 rather than 01 Jan 2006 which was the date of the inception of the anomaly.

Hence the exact controversy now stood narrowed down to whether the benefits of the correct pension were to flow from 01 Jan 2006 which was the date from which the 6th Central Pay Commission recommendations were implemented or from 24 Sept 2012 which was when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission.

The controversy was finally resolved by the Delhi High Court which directed that after removal of the anomaly, the pension arrears were to flow from 01 Jan 2006 and not from the future artificial date of 24 Sep 2012. Never to respect well-rounded judicial verdicts, the Govt challenged the decision of the High Court before the Supreme Court, however the Supreme Court was pleased to dismiss the SLP filed by the Govt in July 2013. The Govt then filed a review petition followed by a curative petition alleging ‘gross miscarriage of justice’ but a 5 Judge Bench dismissed the curative petition too.

The Govt however did not implement the decision across the board and kept filing SLPs and Civil Appeals across the board against decisions of judicial fora in favour of pensioners.

Ultimately, all these cases were clubbed together and were finally heard today by the Supreme Court.

The Supreme Court has today dismissed all appeals filed by the Union of India and upheld the decision of grant of arrears with effect from 01 January 2006 rather than 24 September 2012.

Another closure to another agony. 

The amount of basic pension which was made admissible from 24 September 2012 for each rank can be discerned from this Circular issued by the Principal Controller of Defence Accounts (Pensions). The said amount plus applicable DA/DR would now be admissible from 01 January 2006. 

Wednesday, March 11, 2015

By way of a decision of the Supreme Court rendered today, the right to effective Justice curtailed for defence personnel, veterans and families

It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.

The Supreme Court has rendered a decision today which effectively ensures that the Armed Forces Tribunal (AFT) becomes the first and the last forum for litigants, thereby placing them at a much lower pedestal than other citizens of the country.

By way of the ibid decision, it has been held that orders of the AFT cannot be challenged by affected parties before the High Courts, as was being done till today, and the only remedy to challenge the same is before the Supreme Court by way of an appeal as provided in Sections 30 and 31 of the Armed Forces Tribunal Act, 2007. What however is bound to hit litigants as a rock is the fact that there is no vested right of appeal to the Supreme Court conferred by the above sections and an appeal can only be filed by the leave of the Tribunal in case a “point of law of general public importance” is involved or if it appears to the Supreme Court that the point is such that it needs to be considered by the highest Court of the land. The fact that there is no vested right of appeal has already been solidified by the Supreme Court in yet another decision (Brig PS Gill’s case) and the fact that issues such as pension are not matters involving ‘point of law of general pubic importance’ has also been judicially determined in a recent case (ML George’s case). Of course, most of the issues before the AFT are not of general public importance but matters personal to litigants, which means, that such matters are barred by the statute itself to be taken to the Supreme Court in appeal and hence the AFT becomes the only Court for military litigants effectively closing the right of judicial review. It is yet another story that Sections 30 and 31 of the Act have been plagiarized from the appellate provisions provided for the House of Lords (Now the Supreme Court of the United Kingdom) and have no parallel in Indian jurisprudence as we know it.

The Supreme Court, in its decision today, has also stated that High Courts shall not entertain matters when an effective alternative remedy is available within the statute [Para 34 (iv)], but then, as the above would demonstrate, and also tacitly held by the Supreme Court earlier, that there is no effective remedy available at all since the same is fettered by discretion and also subject to the leave of the Tribunal.

The Supreme Court has cited judgements such as Cicily’s case dealing with other statutes like the Consumer Protection Act. This issue however already stands discussed in PS Gill’s case wherein the Supreme Court had held that while the Consumer Protection Act provided for a vested right of appeal, the Armed Forces Tribunal Act did not. Moreover, in law such as consumer or tax, the litigant has a multi-layered remedy of reviews and appeals. To take an example, in consumer cases, the consumer can first approach the District Forum, then the State Commission followed by the National Commission and then the Supreme Court, as a matter of right. However, in case of the AFT, the litigant starts and finishes with the AFT unless there is a question of general public importance involved. Also, while consumer law deals with consumer disputes mostly between private parties, in case of the AFT the disputes are between an individual and the Government and are determined by a quasi-judicial tribunal functioning under the aegis of the opposite party (The Ministry of Defence) and involve valuable fundamental rights. Even the Members of the AFT are selected by a selection committee which has two career bureaucrats on it, including the Defence Secretary, who is the first opposite party in all litigation before the AFT. To be fair, it wouldn’t be in the fitness of things to opine that the functioning of the AFT has not been up to mark. The AFT has duly brought succour to the defence community by some of its decisions, but then, the performance has not been uniform or even, and as in every democracy, a multi-layered system of appeals and/or judicial review is a legitimate expectation of every citizen when he or she is not satisfied with the verdict rendered by a forum. The situation would have been different had there been an Appellate Tribunal and then a vested right of appeal to the Supreme Court, but that is not the case. Layers cannot and should not be eliminated on the pretext of early dispensation of justice but at the cost of valuable rights and remedies of citizens.

The Supreme Court, in its decision, has also relied upon Article 227(4) of the Constitution, which prohibits the superintendence of High Courts over Courts or tribunals constituted by or under any law related to the Armed Forces. However the words ‘courts and tribunals’ occurring in Article 227(4), which is a part of the Constitution, refer and relate only to courts-martial as becomes clear from Chapter 10 of the Constituent Assembly debates and not to any tribunal such as the AFT which itself was born by way of a Parliamentary Act in the year 2007 many decades after the inception of Article 227(4). Moreover, judicial review under Article 226 still remains unaffected even if hypothetically the bar of Article 227(4) is taken into consideration. Even Section 14 of the Armed Forces Tribunal Act, 2007, itself preserves Articles 226 and 227 of the Constitution of India. The writ jurisdiction under Article 226 is not a remedy of interference but ensures that authorities, including Tribunals, remain within their bounds. The system of judicial review by the High Courts also reduces the scope of recklessness by quasi-judicial bodies since they remain alive to the fact that they are amenable to the writ jurisdiction of the High Courts. 

The Supreme Court has also referred to restriction of fundamental rights of members of the Armed Forces under Article 33 of the Constitution. But the question arises whether the basic human right to judicial remedy can be curtailed? Also, the restriction only applies to members of the Armed Forces and not to retired personnel or to their families, who form the bulk of military litigants. The same restriction in the same Article also applies to paramilitary and the police, have they also been burdened with curtailment of judicial remedy? Obviously not!

The net result of the decision rendered by the Supreme Court today, is the following:

A. That the AFT becomes the first and the last court for defence personnel, retired personnel and their families, unless there is a point of law of general public importance involved. The Supreme Court has already made it clear in other cases that there is no vested right of appeal and matters such as pension do not fall within the realm of ‘point of law of general public importance’. The AFT would also now continue deciding issues involving “points of law” which had recently been prohibited for tribunals by a Constitutional Bench decision of the Supreme Court in the Madras Bar Association case pertaining to the National Tax Tribunal.

B. That there shall now be no efficacious remedy against AFT orders which shall also lead to practical problems. For example if a widow or a disabled soldier sitting in Kerala or Bengal or Assam or Gujarat is dissatisfied with an order of the AFT, he or she would first have to apply for a leave to appeal to the AFT, then engage a lawyer in Delhi for his/her case before the Supreme Court.

C. The litigation that was till now being adjudicated by independent Constitutional Courts would now be determined by a quasi-judicial departmental Tribunal which is not even vested with the powers of Civil Contempt and which has the Ministry of Defence as its parent administrative Ministry, without any vested right of further appeal.

D. The Government with its battery of lawyers in the Supreme Court would continue filing en masse appeals against orders that are favourable to litigants while litigants would not be able to afford litigation at the Apex Court at all.

E. The Supreme Court, which was meant to adjudicate matters of great importance and Constitutional issues, would now open its floodgates for innocuous litigation arising out of quasi-judicial Tribunals, for which even practically it does not have time and space, as opposed to the High Courts which are still able to provide hearings at length.

F.  Defence personnel, veterans and their families become even lesser citizens than what they already were. Justice would neither remain affordable, nor accessible. 

G.   Years and years after independence, the system succeeded in eliminating the eye of our fiercely independent High Courts upon the establishment’s opaque functioning by legislating the fractured Armed Forces Tribunal Act, 2007. The inception of AFT hence did not ultimately prove to be a boon, but a restrain on judicial rights. 

The effects of the decision are deleterious and far-reaching and it is only hoped that other similar pending matters are referred to a larger Bench of the Supreme Court and the situation corrected.

Thursday, February 26, 2015


(A). Suffixing “(TS)” for Time Scale Ranks: A really strange practice of suffixing “(TS)” with Time Scale Ranks had been prevalent for quite some time. For example, one could see the proliferation of terms such as “Colonel (TS)” even in official correspondence. Of course this was totally incorrect since there is only one rank of “Colonel” that exists officially and legally, and there is nothing called “Colonel (TS)” in the universally and internationally accepted system of military ranks. Such distinction had only been introduced for auditing purposes for practical reasons and not for day to day usage. To elaborate, officers promoted to the rank of Lt Col by Time Scale used to be placed in the pay scale of a Lt Col but with the rank pay of Major, and hence, for the purposes of audit, pay and pension, it was practically required to clarify the same in order to release the correct entitlements. Now, commendably, the Army HQ has clarified it to all concerned that “(TS)” would not be used in any communication for officers promoted by Time Scale. A welcome step indeed!

(B). Defence Travel System: In the railway budget announced today, it has been stated that paper warrants shall be eliminated and a new ‘Defence Travel System’ would be introduced. Again a welcome step.

(C). SC again clarifies law on disability benefits: The apex Court has yet again dismissed an appeal filed by the Ministry of Defence and the Air HQ against a disabled Air Warrior. The SC has ruled by way of a detailed decision that disability pension has to flow in terms of the rules which are to be liberally interpreted and not as per the whims of the medical board. A report on the same can be accessed by clicking here.

Saturday, February 21, 2015

Inclusion of Non-Practicing Allowance in the pension of Doctors- after duly issuing instructions w.e.f 1996, Govt grants benefits w.e.f 2006 also, in compliance of the SC decision (while Military Doctors await parallel orders)

A detailed post was placed on this blog on 30 Nov 2013 explaining the dubious stand of the officialdom in the case involving counting of the element of Non-Practicing Allowance (NPA) in the pension of Central Govt Doctors, factum of which became clear on perusing the decision of the Supreme Court in KC Bajaj’s case.

After the decision in the above case, the Department of Pension & Pensioners’ Welfare (DoPPW) duly complied with the decision and issued instructions with regards to inclusion of NPA in the pension of Doctors with effect from 01 Jan 1996 (5th Central Pay Commission) which was a subject matter of the said litigation. When informed that the same logic also applied to fixation of pension after the 6th Central Pay Commission, the DoPPW, upholding its image of a progressive department, rose to the occasion and has now resolved the anomaly in toto by extending the benefit to pension fixed with effect from 01 Jan 2006.

Of course, similar orders for 5th CPC as well as the 6th CPC have not been issued till date for Military Doctors.

Wednesday, February 18, 2015

"One Rank One Pension" and other military veteran issues: Myth Buster


Navdeep Singh

The very recent assurance on “One Rank One Pension”, or OROP as it is colloquially known, by the Defence Minister of the country should calm some nerves. The Minister, by now known for his sensitive and humane approach, reassured military veterans that he staunchly stood behind the promise made by the Government on the subject time and again, including by the Prime Minister. A case is hence definitely made out not to read too much into the negativity floating around in the environment on the subject.

Why OROP for soldiers some may ask! Common sense is all that is required to fathom that the current cost of living equally applies to a military veteran who retired say fifteen years back vis-a-vis the one who retires today in the same rank. When both go out to the grocer, they pay the same price for atta that they buy, they pay the same for the vegetables which feed their families, they are also expected to maintain a similar level of daily life, so why the sharp difference in their pensions?

Precisely this is the reason why the concept OROP, came into inception. At a rudimentary level, it simply means similar pension for similar rank for an equal length of service. It is not only desirable, but highly logical. Agreeable is the suggestion that ideally it must be applied to all services under the government, military or otherwise, but then we do not live in an ideal world and till that final objective is achieved for all other classes of employees, military veterans do have a case for favourable consideration as explained in the succeeding lines.

As would be expected in any democracy, departments concerned or dealing with the Armed Forces of most nations strongly stand behind their men and women in uniform and plead for the best of benefits from their respective governments. But in our country, the Ministry of Defence (MoD), till recently, was legendary in always taking an adversarial stand against the profession of arms. And not straying from this dubious legacy, it were elements of the same Ministry that always opposed the grant of OROP to military veterans repeatedly citing financial, administrative and legal impediments for resisting the concept, and in the bargain, attempting not only to mislead and misguide the highest of political executive, but even Parliamentary Committees. While financial constraints are well understood and appreciated, there is never too high a price to pay for those who protect us at the peril of their lives. Under the garb of administrative constraints, it was pointed out by the Department of Ex-Servicemen Welfare (DESW) of the MoD to a Parliamentary Committee in 2011 (Koshyari Committee) that OROP was not feasible to implement since documents of military personnel are weeded out after 25 years- an incorrect averment, to say the least. In reality, it is the documents of non-pensioners that are weeded out in 25 years as per Regulation 595 of the Regulations for the Army. Moreover, the Pension Payment Orders (PPOs) of pensioners which contain all relevant details such as the rank last held and the length of service are retained during the lifetime of each pensioner and then during the lifetime of the family pensioner  in case of demise of the former, and  these details, which are the only two basic requirements for OROP, are also available in a document called “Long Roll” which is maintained in perpetuity in terms of Regulation 592 of the Regulations for the Army. Of course, a complaint to the then Raksha Mantri related to false statements by representatives of the MoD to the Parliamentary Committee and also to Constitutional Courts did not elicit any action whatsoever, as expected. Even the legal constraints pointed out by the DESW repeatedly hold no ground since the decision of the Supreme Court in the case of Maj Gen SPS Vains, being the latest on the subject, fully endorses the concept of OROP.

Another strange bogey historically put across by the establishment has been the imaginary fear that “other employees” would also start demanding OROP. This argument too is faulty at multiple levels. Firstly, it is a fact that no civilian pensioners’ body has ever opposed additional pensionary benefits to military veterans and mostly civilian peers have supported the cause, tacitly and even overtly. Secondly, unique service conditions such as living away from the family in a strictly regimented, at times hazardous and highly stressful environment, maintaining two households on being posted away from family, being under a disciplinary code 24 hours a day, 365 days a year et al make an additional dispensation such as OROP all the more justified. Thirdly, depending upon rank, soldiers start retiring at the age of 34 which is not the case in any other service including comrades of the Central Armed Police Forces who also no doubt face tough service conditions. Fourthly, civil employees are blessed with a much higher lifetime earning as compared to military employees and they also are fortunate to see multiple salary revisions through subsequent pay commissions. Fifthly, a much higher system of calculating pensions remained applicable to the defence services till the third pay commission when it was abruptly discontinued and military pensioners were suddenly (broadly) equated with civilian pensioners in many aspects. Sixthly, the fear of ‘similar demands’ also now does not hold much water since other employees (post-2004) are on a New (Contributory) Pension Scheme which is much different than the traditional pension system of the Government. Seventhly, contrary to popular perception, and interestingly, the average life expectancy of military personnel and veterans is much lower than other civilian employees, especially at the lower ranks.

With a proactive Prime Minister, a sensitive Defence Minister and other former soldiers on Ministerial berths, the new Government has definitely given hope to defence pensioners in the well known demands of the military community in issues such as OROP as well as other insidious matters such as the way disabled soldiers and military widows are treated by the system. The new government, which now seems to be getting a grip of things, however must ensure that the political will in this regard is imposed and enforced with an iron fist from the top downwards towards the bottom and not the other way round. The last few years have been witness to a deleterious culture whereby junior Section Officer and Under Secretary level officers were ruling the roost by initiating misleading noting sheets which were approved till the very top without question. The one-way imposition of appalling, illegal, illogical and negative policies hence emanated from below with the top brass merely affixing initials. The attitude must shift from ‘how a thing cannot be done’ to finding ways to move towards a constructive and positive foundation. The Defence Accounts Department must also not be allowed to influence policy or present exaggerated figures by juggling with numbers as was seen in the last few years. The office of the Controller General of Defence Accounts is only responsible for accounts and auditing and must not be seen as the policy-maker as has been the case in the last few years wherein the MoD has been asking the former to draft policies and government letters related to pay, allowances and pensions of defence services.

Per chance, co-extensive with the proactive top brass in the government, the higher echelons of the military have also seen some changes including the newly appointed Adjutant General of the Army who is expected to make a change with his sensitive and pragmatic approach. It is a perfect opportunity for the defence services to work in tandem with the government to ameliorate the problems being faced by the veteran community. The fillip to the Veterans’ Cell in the Army HQ, which is rendering excellent service, is a step in the right direction. It would in fact augur well for the system, if just like the DESW, the military too cleans up its act especially in its Personnel Services directorate and Record Offices, some elements of which are also ensconced in cobwebs of negativity and rigidity and who do not let the seniors in the chain of command look at issues with an optimistic vision. File notings are framed in such a manner so as to ensure the elicitation of a negative decision. This attitude must change, so must the structure of initiating multiple litigation by the establishment against old veterans, disabled soldiers and military widows.  Military veteran organisations too must not take extreme positions or bicker amongst themselves. In fact, the veteran community expects veteran organisations to play a beneficial role and facilitate a well oiled overall veteran welfare machinery, bereft of politics.

The time is right, the leadership is optimal; however it needs to be instilled and drilled into the authorities dealing with the welfare of soldiers that an environment of positivity needs to be inculcated towards our men and women in uniform. All stakeholders must shun rigidity, sit together and work towards smooth and early implementation by efficiently ironing out the creases without any delay. Friction and antagonism is not in national interest.

It is our obligation that we must rise to the occasion, aid and assist the current leadership in ensuring a better deal to our protectors. Issues concerning our veterans and also our serving soldiers have to be dealt with a caring, sympathetic, compassionate and sensitive approach and not in the environ of pessimism or  with the spirit of hyper-technicality and hyper-legalese. It is time for all of us to salute our men and women in uniform who protect our freedom in this proud democracy, not with lip-service but with steps that facilitate them in day to day life.

Sunday, February 15, 2015

Supreme Court again upholds the dignity of disabled soldiers

Again coming to the rescue of disabled soldiers denied disability pension, the Supreme Court has yesterday rendered a detailed landmark decision holding that any disability that arises during service is to be deemed to have been caused by military service unless reasons are recorded as to how the disability was such which could not have been detected at the time of entering into service.

Before I proceed with more details, I must put it on record that the present times are the best for military veterans. The political leadership, that is, the current Defence Minister, is inclined to resolve all such issues, especially related to disabled veterans, and the military brass dealing with the subject seems to have a pragmatic leader in the new Adjutant General. They need to now implement their vision and enforce the law of the land without being bothered about the personal opinion of their staff. I have, in the past, discussed in detail the issue how the establishment (more specifically the medical set-up) is being unfair to our disabled soldiers by its hyper-technical and mathematical approach.

The decision, while dismissing 26 appeals filed by Ministry of Defence against disability pension granted by High Courts and Armed Forces Tribunal to physically and psychiatrically disabled soldiers, again reiterates what had been held by the Supreme Court in 2013 in Dharamvir’s case, in 2014 in Sukhwinder’s case and also by the Punjab & Haryana High Court in its landmark judgement in Umed Singh’s case again in 2014. The following is notable from the dicta of the Supreme Court:

A. The opinion of the medical board stating that a disability is “neither attributable to, nor aggravated by military service” is not sufficient to deny disability pension to disabled soldiers.

B. As per rules, a presumption of fitness operates when a person joins service and it is also presumed under the rules that any deterioration that has taken place in the health of a soldier is due to military service.

C. Claimant is not to be called upon to prove entitlement and he/she shall receive the benefit of doubt.

D. If the medical board holds that the disability could not have been detected on medical examination at the time of acceptance in service, reasons for the same shall be stated.

E. Provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces

F. The burden to establish non-connection of disability with service would lie heavily upon the employer since the rules raise a presumption that deterioration in the health of soldiers is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same.

Thanks to the Supreme Court and the Delhi and Punjab & Haryana High Courts for ensuring a life of dignity to our disabled soldiers.  

Sunday, February 8, 2015

The 7th Central Pay Commission: The Services should ensure a better deal for the Short Service Commission Scheme

Now that the issues tagged with the 7th Central Pay Commission are gaining momentum, it is very important to again bring to light the matters related to the scheme of Short Service Commission, which arguably is being thought of as the backbone of the officer cadre of the defence services for the future.

A few years ago, the Short Service Commission Scheme of the Army was regressively tweaked from the earlier 5+5+4 system to the 10+4 system making service of 10 years compulsory in the Army for such officers. This was ostensibly done to make the scheme more ‘attractive’, but ironically, this is the greatest disservice that could ever be rendered and has had just the opposite effect. The reasons why I say so can be fathomed from this old post of mine:

A. There is no seniority protection in the civil services for former SS officers anymore, which means that an ex-SSCO starts his/her civil career alongwith civil direct recruits 10 years younger to him/her and atleast two ranks junior to his/her former status in the Army.

B. If joining the corporate world, the ex-SS officer again starts at a point of the ladder where he/she competes with youngsters who already have had a head-start which the former SS officer missed out due to his/her joining the Army.

C. Ex-Servicemen benefits are entitled only on completion of terms of engagement which means that the said benefits which were earlier available after 5 years, are now available after serving for 10.

D. 10% of appointments at Assistant Commandant (Lieutenant equivalent) level in the CAPFs are reserved for SSCOs. There is no protection of seniority. Hence, ex-SSCOs of Major and Lt Col level are expected to join at Lieut level (GP 5400) in the CAPFs which makes the entire reservation redundant.

E. After completing 10 years of service, an SSCO is in his/her 30s and to expect him/her to then look around for a fruitful career, in my opinion, is otiose.

It may be important to point out that in the civil services, in accordance with Rule 49 (2) (b) of the Central Civil Services (Pension) Rules, 1972, civil employees become eligible for pension after serving the govt for 10 years, whereas our SSCOs are released without a pension and are only granted a gratuity even after serving 14 years. After the 6th CPC, civil employees are now entitled to full pension after serving 10 years under the ibid rule (it was 33 years for full pension prior to 6th CPC). Of course the 10 year rule on the civil side only applies to those who are released or retired after completing 10 years and not to voluntary retirees. The above applies to pre-2004 recruited employees and the ones who joined service after the said date are eligible for benefits under the New Pension Scheme. 

On learning that the defence services had made no recommendation of a proper pension scheme for SSCOs to the 7th CPC, I had duly pointed out its very pertinent requirement if we were to ensure retention of talent in this very important cadre of the military.

In short, the top brass of the Ministry of Defence and also the defence services, without being unduly guided by personal opinions of their staff, must take a holistic view and address the following issues to retain talent in the Short Service Commission and to maintain the izzat and sheen of the military rank in the civil society in general:

(1) Reverting back to the system of 5+5+4 years terms of engagement rather than the 10+4 years which leaves our officers neither here nor there.

(2) Introduction of pension after 10 years for those who opt to continue beyond 5 years on the lines of Rule 49 (2)(b) on the civil side, or a suitable contributory pension scheme.

(3) Ensuring retention and protection of seniority and status in the civil services for SSCOs.

(4) Restoration of outpatient medical facilities to released SSCOs and ECOs which were illegally withdrawn by the Director General of Armed Forces Medical Services.

Though the above steps are not exhaustive, it is only now that putting our brains together could make any positive dent, otherwise, the matter would further be postponed for another 10 years to the next pay commission. The Services HQ should stand up and take a call!

Friday, January 30, 2015

Update on the issue of illegal withdrawal of Toll Tax Exemption from serving defence personnel

Just to update all of you, in continuance of my detailed letter to Mr Nitin Gadkari, I have received a communication from the Ministry of Road Transport & Highways inter alia conveying therein that they are open to re-examining the issue of the (illegal) withdrawal of toll tax exemption to serving defence personnel and that they have sought comments of the Ministry of Defence/Army HQ on the same. Further action shall follow once the comments are received.

I have already requested the Services HQ to fast-track the matter and ensure that the impugned illegal letter is withdrawn at the earliest.

I hope and wish that due seriousness is shown on the subject by the Services. I have already expressed my sentiments on the duty of the Services HQ of standing behind their men and women in uniform on such issues.

Will keep readers updated on the subject.

Wednesday, January 21, 2015

A few developments and then some....

I just thought of updating readers on a few issues.

The current Raksha Mantri has admirably made a statement of ‘not pursuing’ approximately four to five thousand appeals filed by the Ministry of Defence against disabled soldiers. Though the Ministry had no other choice in wake of the decision of the Supreme Court dismissing more than 800 such appeals on 10 December 2014, the move is still welcome and reflects a change for the better in the way political leadership perceives such issues. It remains to be seen however as to how the ensconced mandarins in the Department of Ex-Servicemen Welfare (DESW) of the Ministry and the Personnel Services Directorate (PS Directorate) of the Army HQ would be tamed. With a sensitive political leadership and a proactive Adjutant General currently in chair, things appear positive.

Mr Derek O’Brien and Ms Smriti Z Irani were two MPs who had shown concern in the Parliament about disabled soldiers and the litigation unleashed on them by the Ministry of Defence and also about the injustice to them even by military medical boards. Mr O’Brien has penned a short opinion on the subject in which he has graciously mentioned Ms Irani too- readers may like to peruse it by clicking here.

Lot of noise has been made with many veterans writing letters to the current Raksha Mantri condemning his move and thought-process of basing OROP on the number of years spent in the retiring rank. This assumption and perception is incorrect and imaginary. As far as I know, there is NO MOVE of calculating OROP based on the length of service in the last rank. What the Minister, and later Col Rathore, were trying to convey was that personnel retiring with similar service in the same rank were today superannuating at varied stages of pay (and hence pension) and efforts were on to harmonize the situation and arrive at a figure of OROP for each rank. Yes, there are elements in the bureaucracy who would not like to see the actual definition of OROP through, but I am sure they are not having such a free run in the current dispensation. The proof of the pudding however, of course, is in the eating.