The gameplan of legal pundits : The govt sleeps while sadists take the system for a ride

You may have read this on the blog before.

All is fair in love and war they say, and the same seems to be the battle-cry of the Central Government against its retired employees.

So what is it that the people in officialdom have against disabled veterans and pensioners ?

The last months have seen the Union of India filing appeals and SLPs in almost every decision of the Hon’ble Courts allowing disability pension to disabled veterans. The same is the story with other pensionary matters. I feel ashamed in saying this but while the lawyers make hay, former soldiers and their families suffer in silence.

It is turning out to be sickening now. And this is to say the least.

Law has now been well settled by the Courts including the Hon’ble Supreme Court on certain issues, but the legal advisors of the government are in no mood to relent. Even when High Courts (and now benches of the AFT) are deciding matters with well-rounded decisions based on settled law and principles of equity, the central govt continues to mindlessly file appeals before the Supreme Court. The govt also continues to refuse benefits to veterans in settled issues till the time individual cases are filed separately by pensioners. One such glaring example discussed before is disability pension to voluntary retirees. Despite the fact that the Supreme Court has upheld the right of voluntary retirees to receive disability pension, the Union of India continues to file appeals against decisions of High Courts granting such benefits to affected disabled personnel. Another very recent and shocking example is SLP No 688 of 2010 filed by the Central Govt before the Supreme Court which was listed for hearing on 25th of January, 2010. The case involved the improved pensionary benefits granted to PBOR wef 10-10-1997 after removing the anomalies of the 5th CPC. The Hon’ble Punjab & Haryana High Court had earlier in the year 2008 held that such benefits had to be granted to affected personnel with effect from 01-01-1996 (and not 10-10-1997) since the anomaly had to be rectified from the date of its inception and not from some other prospective artificial date. The High Court had hence held personnel who retired between 01-01-1996 to 10-10-1997 also entitled to the enhanced benefits. The Union of India, as expected, challenged the verdict before the Hon’ble Supreme Court through an SLP but the same was dismissed on merits on 21-11-2008. So far, so good, but what is shameful is that fully knowing that the law was now settled by the Apex Court and that the Central Govt had itself rectified this anomaly through the anomalies committee, another SLP (the above mentioned 688 of 2010) was filed by them this new year against another such decision by the same High Court and the same has again been dismissed by the Apex Court on 25-01-2010. I bet the Hon’ble Supreme Court would not have been informed in the fresh SLP of the earlier dismissal of an exactly similar case in the year 2008.

It is high time that the Defence Minister, the military top brass and the Defence Secretary take a call on this mindless one sided ego based litigation which, besides leading to burdening judicial fora, is also leading to burden on the State and demoralisation of rank and file. Nobody stands to gain except probably the battery of lawyers appearing for the Union of India. It also seems that power has been concentrated in the hands of a few officers dealing with pensionary and legal matters who have spent quite a few years in the corridors of the Services Headquarters & the Ministry and decisions of filing appeals are thrust upon the top brass without due judiciousness or sensitivity concerning the issues at hand. This must change. A letter recently marked to the Defence Minster by a an ex-services welfare organisation aptly describes the rot :

“Lower staff at the Pension wing of the Defence Ministry is also known to prepare misleading and deceptive noting sheets which are put up to senior officers and even the Raksha Mantri, who in good faith affix their initials leaving the gallery open to such officers who then flaunt the said approvals by stating that the same have the sanction of the Defence Minister. It is also learnt that the officers in the Defence Ministry have asked Govt lawyers in writing to change their legal opinion when such lawyers had advised against filing of appeals.”

What is the game behind this, one may ask. Well, the govt is well aware that disabled veterans and poor pensioners do not have adequate financial back-up to defend their cases in the Supreme Court, so for the govt it is well worth taking a chance. I can only say that in the interest of equity and fair-play, we all must wake up before some officers take the entire defence services and the legal system for a royal ride. It is also time for senior staff of the Ministry and our uniformed officers to apply proper mind before they permit their subordinates to resort to unethical litigation against poor people who have served the nation to the best of their abilities. The hint of my call is particularly directed towards the upper echelons of Department of Ex-Servicemen Welfare in the MoD and the Personnel Services Directorate in the Army Headquarters. The tendency to view poor litigants as ‘Enemies of the State’ must also change.

Improvement of Disability Pension for pre-06 retirees : Orders partly issued

The Govt of India has issued certain orders regarding disability pension in pursuance to the recommendations of the Committee of Secretaries headed by the Cabinet Secretary.

The benefit of rounding-off / broad-banding of disability percentage has now been extended to pre-1-1-1996 invalided personnel also. The provisions of the earlier Govt of India letter dated 31 Jan 2001 which provided a cut-off date of 1-1-96 for the said benefit, stand amended accordingly.

The cap on War Injury Pension restricting the same to the maximum of ‘last drawn emoluments’ for personnel invalided out in Category ‘E’ of the above mentioned letter dated 31 Jan 2001 also stands removed.

The orders on calculating disability element on a percentage basis have not been issued as yet.

The benefit of rounding-off/broad-banding, like before, has only been extended to persons who were ‘invalided out’ and not to those who were retired / discharged on completion of terms of engagement or on superannuation. The Hon’ble Punjab & Haryana High Court in Paramjit Singh Vs UOI, while differing with the Hon’ble Supreme Court in Lt Col PK Kapoor Vs UOI, has already held this action to be arbitrary. Surprisingly, neither the Petitioner nor the Govt had brought to the notice of the Hon’ble Supreme Court in Col Kapoor’s case that Regulations now themselves provide that persons in Low Medical Category at the time of retirement are also ‘deemed’ to be invalided out for the purposes of disability pension. The different treatment between invalided and superannuating personnel also seems strange in view of the fact that broad-banding / rounding-off was introduced to curb medical subjectivity since it was felt that different medical boards were providing different percentages of disability for similar ailments. To counter such assessment mistakes, the concept of broad-banding of disability percentage was introduced. Keeping this in view, it hardly makes any sense to deny broad-banding to superannuating personnel while granting it to invalided personnel since that would amount to saying that medical subjectivity was only existing in medical boards examining invalided personnel and not those which were examining superannuating personnel. This fact of the reason behind broad-banding was hidden from the Hon’ble Supreme Court in Kapoor’s case and hence the judgement has no binding effect on courts inferior being a judgement sub-silentio. In fact, the judgement was rendered on the incorrect statement of the Union of India that broad-banding was granted as a compensation to invalided personnel, a fact that was sadly not countered by the Petitioner who was appearing in person.

The fresh letter issued by the Govt can be downloaded and accessed by clicking here.

Pre-06 Lt Gens shall now draw Rs 36,500 as basic pension

The much awaited orders for revision of pension of Lieutenant Generals (Non-Army Commanders) have been issued.

Basic Pension of Lt Gens (pre 1-1-06 retirees) would now be :

From 01 Jan 2006 to 31 Aug 2008 : Rs 33,500/- basic per month.

From 01 Sep 2008 onwards : Rs 33,500/- + MSP fitment of Rs 3000/-, that is, a total of Rs 36,500/- basic per month.

Other pending issues shall also be cleared very soon.

Sainik Rest Houses

Most of our Rajya Sainik Boards maintain Sainik Rest Houses (known by variable nomenclature in different States) for the use of veterans and their families.

These are reasonably good guest houses where all ranks can stay and avail of other facilities. At some places, hiring of lawns for family functions etc is also permissible.

A list of such rest houses on district basis can be accessed and downloaded by clicking here.

Stories of our Brave

Call of courage: These Army heroes inspire many
The Tribune

Vijay Mohan
Chandigarh, January 20

Naik Anil Kumar of 1 Para was among the bravehearts, who had stormed and liberated Nariman House during the terrorist attack in Mumbai in 2008. With victory at his feet, a few months later, the commando etched another story of gallantry. This time, however, with his blood, as he fell fighting a similar enemy but in a different location.

On a counter-terrorist operation in the rough jungles of Kupwara in March 2009, a far cry from the earlier cosmopolitan battleground, Anil spotted terrorists and opened fire. Retaliatory fire came in from three directions and in the melee, he rushed forward to rescue a buddy. Anil received gunshot wounds, but returned fire, killing two militants. He, however, succumbed to his injuries, and was decorated with the Sena Medal. Three Army commandos associated with the Mumbai operations were among 23 personnel awarded the Sena Medal at the Western Command investiture ceremony in Pathankot today. Four of them, however, were posthumous. Other tales of heroism that flowed forth at the ceremony included that of Lt Satbir Singh from the Army Education Corps (AEC), who too laid down his life combating terrorists in the North-East. Detecting terrorist movements while leading a team of commandos and police, he opened fire and killed one of them. After rescuing a wounded soldier, he again engaged the terrorists, killing another.

Naik Kishori Lal of 8 Grenadiers and Pankaj Gurung of 4/8 Gorkha Rifles also attained martyrdom, while displaying the same legacy of courage and leadership. Pankaj was leading a scout party near Manipur when on observing suspicious movements, he forewarned other security teams. In the ensuing action, he received injuries on his chest and arms, but held on to his position and engaged the enemy. His timely warning and subsequent action averted a major incident.

Kishori was leading a small team to cut off an escape route of terrorists in Kupwara, when the troops came under intense fire. He was hit in the leg, but he outmaneuvered the terrorists and came face to face with them from the flanks. In the ensuing gunfight, Kishori was fatally injured. Major Sanjay Kandwal of Kumaon Regiment and Naik Sate Singh of the Parachute Regiment were decorated for their leadership, courage and acumen during the Mumbai carnage. After evacuating scores of foreign and Indian hostages from the Taj Hotel, they charged into a bar where terrorists were holed up and neutralised them.

Of the 23 gallantry awards, 19 went to the Infantry, including the Parachute and Special Forces. The other recipients were one each from the Armoured Regiment, Army Ordnance Corps, Electronics and Mechanical Engineers and the AEC. Three officers, Maj-Gen (now Lt- Gen) GM Nair (Infantry), Maj-Gen Surendra Nath (Armoured) and Brig SB Negi (Infantry) were awarded the Vashisht Seva Medal for meritorious services

The medals were presented by the General Officer Commanding, Western Command, Lt Gen Shankar Ranjan Ghosh. A large number of senior officers and their wives were also present on the occasion.

Administrative difficulty is not the problem of RTI Applicants : Madras HC

In a landmark judgement on RTI, the Hon’ble Madras High Court has ruled that a public authority cannot hide behind the excuse of administrative difficulties to refuse information to RTI Applicants.

In the instant case, the Archives department of Govt of Tamil Nadu had refused to part with information on two grounds. One, that a State Govt Order prohibited the dissemination of information to the general public and that it provided that such dissemination will be open only to “to bonafide Research Scholars, subject to such exceptions and restrictions as may be found necessary by the Departments concerned in consultation with the Commissioner of Tamil Nadu Archives and Historical Research”. The second objection was that the department was a very small establishment and was handling about 65 lac records and hence could not be asked to act as a public authority under the RTI Act.

The Hon’ble High Court has ruled that the RTI Act by virtue of Section 22 overrides all other laws in force in this regard including the Official Secrets Act and that information would have to be provided as ordained under the RTI Act. Though this has been held before, the observation of the Court on the second point may come as relief to many information seekers :

“The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens' right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner (Department of Archives) cannot be countenanced by this court.”

The complete judgement can be accessed by clicking here.

Detailed and Comprehensive circular on Income Tax for FY 2009-10 issued

The CBDT functioning under the Ministry of Finance, Govt of India has released a comprehensive circular on tax deduction from salaries for the Financial Year 2009-2010.

The detailed circular which provides many important modalities can be downloaded and accessed by clicking here.

The circular is extremely important for salaried government employees as well as CAs and Tax Consultants.

Guptaji makes up, ....a bit

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Guptaji has finally warmed up this Army Day. Maybe it is the weather.



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Q & A (8)

Readers may send in their Questions through email for a Q & A session with ‘Q&A’ as the subject. For rules, please read this post.

When are the new OROP scales expected ? (Ex-Hav S S Sudan)

There is nothing called the ‘OROP scales’ in the offing. The letter regarding the new improved pensionary benefits for defence personnel (does not include Officers) is expected to be issued any time now. Also the letters concerning improvement of pension of Lt Gens, broad-banding of disability percentages for pre-96 disability pensioners as well as grant of percentage system of disability element for pre-2006 disability pensioners, are also expected to be issued.

I had been granted 40% disability by the medial board but have been granted a disability pension by treating my disability as 20% only. On my query I have been informed that though the release medical board had granted me 40% disability, the govt accepted it as 20% only. Is this right on the part of the competent authority ? (ABC)

The Hon’ble Courts have held time and again that administrative or accounts authorities cannot override the percentage granted by a medical board. Such an action is patently against the law laid down by the Hon’ble Courts including the Hon’ble Supreme Court.

I am a serving officer but was refused entertainment tax exemption by a cinema in Panchkula, Haryana. The cinema manager said that I had to be in military uniform to claim such exemption. Where do I file a complaint ? (A serving Captain)

On intervention of the Hon’ble Punjab & Haryana High Court, the requirement of wearing uniform in Haryana Cinemas / Theatres / Multiplexes has been abrogated. You may learn more about it by clicking here. The manager may not be aware of the same and you may complain to the Excise and Taxation Commissioner of Haryana about the said incident.

A relative of mine (PBOR) had died on duty. His mother (who is a widow) was totally dependent upon him. The special family pension is however being paid only to the widow of the deceased and not to his mother. The DPDO says that special family pension can only be paid to a widow. Is this correct ? (Lt Col P K Sharma)

No, the DPDO is wrong. Special Family Pension (SFP) is not meant only for the widow but for the entire family in accordance with Regulation 215 of the Pension Regulations. The said SFP can be divided between the widow and her mother-in-law (and other heirs too) in case the widow refuses to look after the mother of her late husband. Take note however that Ordinary Family Pension (OFP) cannot be divided under the same circumstances.

All India Service Officers posted in North-East can use MH facilities

Officers of the All India Services (Indian Administrative, Police and Forest Services) and their families can now avail facilities in Military Hospitals while posted in the North-East. The said facility shall be provided on payment basis subject to the applicable Hospital Stoppage Rates (HSR) approved for military medical facilities by the Ministry of Defence. HSR figures were last revised in August 2005 by the MoD and shall remain in force till August 2010.

The letter issued for AIS officers alongwith the applicable rates can be downloaded and accessed by clicking here.

While the goodwill gesture to other services may be a welcome move for officers of these services posted in the NER, but what our own old war veterans, especially Emergency Commissioned Officers, are facing on the same turf is nothing to be proud of. Limited outdoor medical facilities granted to non-pensioner veterans by the MoD as well as the Army Headquarters are still being refused to be honoured by the M-Block.

Wearing of military uniforms by unauthorised persons : A step further

Readers must be aware of the following provision of the IPC :

Section 171. Wearing garb or carrying token used by public servant with fraudulent intent

Whoever, not belonging, to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both.

A good provision. The problem however is that for invoking this, it needs to be proved that the person wearing such uniform is doing so with the intention of making others believe that he belongs to that particular class of public servants. Merely wearing a uniform without such intention or knowledge is not an offence under the section.

However, I’m sure that many readers may not be aware of a more proactive provision brought into force by our law makers particularly for Security agencies. I’m referring to Section 21 of ‘The Private Security Agencies (Regulation) Act, 2005’. It reads as follows :

Section 21. Penalty for unauthorised use of certain uniforms

If any private security guard or supervisor wears the uniform of the Army, Air Force, Navy or any other armed forces of the Union or Police or any dress having the appearance or bearing any of the distinctive marks of that uniform, he and the proprietor of the private security agency shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both.

As can be seen from above, there is no need to prove an intention under this section and any person wearing uniform similar to that of any uniformed service (along with the proprietor of the said private security agency) can be imprisoned for a term upto one year or with a fine of Rs 5000 or both. The scale of imprisonment is higher than Section 171 of the IPC which provides for an incarceration upto three months or fine upto Rs 200 or both. The provision is applicable only to private security agencies and staff, but practically speaking it is only these private security agencies which are flouting the dignity of military uniforms with impunity. I would hence request all, especially serving officers dealing with the subject, to quote the ibid Section of the Act of 2005 alongwith the provisions of the IPC when pursuing the said matter.

True but sorry not true.

“Knowledge and timber shouldn't be much used till they are seasoned.” : Oliver Wendell Holmes (1809 – 1894)

I keep getting angry mails on the degradation of status of the military.

The spirit of this trepidation may be correct to an extent but there are some downright incorrect myths doing the rounds which need to be set right, not just because these make us sound unknowledgeable but also since these unnecessarily result in lowering the self esteem of the uniformed community.

Myth 1 : Jawans of the forces are now lower than Group-D staff of the Central Govt

Totally untrue. Group-C appointments of the Central Govt begin at the level of Pay Band-1 / Grade Pay 1800. Our Sepoy is at Grade Pay 2000, that is two steps higher than the lowest Group-C employee of the Central Govt. What needs to be ensured is the same level of employment after the early release from service.

Myth 2 : Subedar Majors have been placed below Group-B officers in Pay

Wrong again. Subedar Majors are at par with the apex level of Group-B officers with GP 4800. The closest equivalent is the post of an Assistant Commissioner of Police (Group-B) of the Delhi and Andaman Nicobar Police Service, the recruitment of which is done by the UPSC alongwith other Civil Services.

Myth 3 : Havildars were earlier drawing a pay higher than Head Constables of the CPOs but have now been clubbed with Head Constables

Totally untrue. This is the new equation after the 6th CPC : Sepoy = Constable (Both PB-1 / GP 2000), Naik = Head Constable (Both PB-1 / GP 2400), Havildar = Assistant Sub Inspector (Both PB-1 / GP 2800), Naib Subedar = Sub Inspector (Both PB-2 / GP 4200), Subedar = Inspector (Both PB-2 / GP 4600).

Anomalies can only be countered once these are identified and once the level of knowledge is up to the mark to tackle them. There are incongruities which need to be taken care of, but all is not wrong. Rest assured.

Retired Majors required by Ministry of Minority Affairs to be employed as National Level Monitors (NLMs) on contract

The Union Minority Affairs Ministry has launched a national monitoring scheme to keep a tab on the Govt’s minority welfare related projects. For this, there is a requirement of 150 National Level Monitors on contract basis who shall work in tandem with the National Productivity Council which is an autonomous organisation under the Commerce Ministry.

The eligibility of the said appointment is that the person should be a retired / released Major of the Army / Navy / Air Force. Civil Service officers of the rank of Under Secretary to Govt of India / Deputy Secretary or higher are also eligible for the said contractual appointment.

The application form and the broad details can be accessed and downloaded by clicking here.

NLMs would be assigned a State other than their respective States of residence.

Last date is 20 Jan 2009 and more details can be obtained from tele nos 011-24690331 / 24607376 and 24607316.

Applications can also submitted by email to npc.moma@gmail.com

Gen Grover pronounces another important path-breaking decision on the RTI Act

Regular readers may have read about Lt Gen P K Grover on this blog earlier.

Besides the Public Cause Research Foundation (PCRF) which had listed the General as one of the best Information Commissioners in the country, the Hindustan Times had also declared him as a Hero of 2009 on 30 December 2009.

Gen Grover has pronounced a path-breaking order which shall go a long way in settling the law in this regard. Gen Grover and Mr R I Singh, Punjab’s retired Chief Secretary, as members of a division bench of the Punjab State Information Commission, have ruled that when there is a way other than the RTI Act to access information, it is the prerogative of the citizen which road to choose and that Public Authorities have no right to dictate to an information seeker as to which method he or she should select.

The ruling comes as a great relief to those information seekers who have faced this problem when asked by Public Information Officers to apply for documents or information under separate procedures prescribed by a particular office, organisation or establishment with a separate fee structure. The Commission has again reiterated that the RTI Act would override other laws governing this aspect.

The complete decision can be downloaded and accessed by clicking here.

A New Year Gift, but please handle with care !

As an experiment, I am introducing a registration based chat-box on the blog as a new year gift for all those consistent requests.

Please be sensitive to the fact that generalised direct or indirect slants against any organisation, individual or service would not be tolerated and shall be promptly expunged. Anyone indulging in abusive or slanderous behaviour would also be banned without notice. Please maintain the dignity of the military community. The Chat-box can only be used for discussing military benefits and providing links on the subject.

To remind the readers of this blog, this is the reason why the chat-box was suspended. I would not hesitate in closing the box again if the need arises and consider this a beta version in that sense.

Please go through the rules of chatting before hitting that keyboard :-)

Thanks, and a Happy New Year. Here’s to world peace !!!