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 Legal advice/litigation related issues would strictly NOT be published or discussed or entertained.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

Friday, April 30, 2010

Applicability of RTI Act in J & K

Many-a-times, a ground is taken by certain organisations of the central govt located in Jammu & Kashmir, that the RTI Act, 2005 does not extend to them. They also cite a case pending in the Hon’ble Delhi High Court namely UOI Vs Veena Kohli in which supposedly a stay had been granted on the orders of the Central Information Commission directing the release of information held by a military unit in J & K.

The contention is wrong. A close examination of the pendency of the ibid case in the Delhi High Court would show that the stay granted in the case was not extended beyond the first hearing and as on date there is no interim order or stay prohibiting the operation of the CIC directions in the said matter. Moreover, the CIC has already ruled in other similar cases that the Act would definitely extend to central organisations based in J & K.

The stand in question of certain officers of the central govt is also in contravention of national policy. The Govt has already appointed Public Information Officers under the RTI Act in all its consulates outside India, and here we are taking a stand that the Act does not extend to J&K !!!. Moreover all Central Ministries and Departments have designated their CPIOs and Appellate Authorities under the RTI Act in their establishments in J & K. The Constitution of India does not extend to J & K, but does that mean that people of J & K are not Indian citizens ? The Administrative Tribunals Act does not territorially extend to J & K, but does it imply that central govt servants belonging to J & K or based in J & K cannot approach the CAT for relief ?

One fails to understand when our public authorities would start realising that flow of information needs to be encouraged to show the populace at large that there is nothing to hide. Dissemination should be the rule, and non-dissemination an exception. Till the time this realisation dawns, the implementation of the Act shall remain on paper, notwithstanding the attempts of the present govt to give it a fillip.

Monday, April 26, 2010

Q & A (10)

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.

My sister who is in receipt of ordinary family pension is only getting Rs 1275 basic pension from the bank, is it the correct figure ? (Ex-JWO Harwant Singh)

No, not at all. The minimum pension in all central govt services has been raised to Rs 3500 per month. You may complain about the same to the PCDA(P) with a copy to the bank.

The medical board had granted me a disability of 40% but my PPO has been issued for a disability pension at the rate of 30%. Can the authorities reduce my disability percentage as was provided by the release medical board (Col ABC)

No. Hon’ble Courts have time and again held that administrative bodies cannot decrease the percentage of disability awarded by a medical board. You may take up the matter accordingly.

I was given 20% disability for a fracture and 30% for hypertension but the release medical board has granted me 40% composite disability for both disabilities combined. I am told that granting of composite disabilities is allowed, what is the correct position, can I file a case against this if this has been done illegally ? (Sqn Ldr T singh)

Grant of reduced composite disability percentage is authorised when there is a link between the two disabilities which overlap as far as the functional capability is concerned. As far as my limited understanding goes, there is no link between a fracture and hypertension and hence the medical board should have ideally granted you 50% disability. As far as filing of a case is concerned, one should never jump the gun and unnecessarily burden the dockets of Courts and Tribunals. You may like to take it up with the appellate authority or point it out to the Personnel Branch of your service and in all probability the issue would be sorted out departmentally. Approaching Courts should always be the last resort.

I have been told that toll tax exemption to retired gallantry awardees on National Highways has been withdrawn, is it true ? (Brig Kedar Nath)

All new notifications being issued by the Ministry of Road Transport and Highways contain a stipulation that gallantry awardees shall remain exempted from payment of toll on Highways under the NHAI, hence no need to worry on that account.

Out of curiosity, I wanted some information about my grandfather’s service in World War II but the Record Office has replied that all documents related to my grandfather have been destroyed on completion of retention period according to rules, what is the way out now ? (Ashok Kumar)

You can still obtain information which is available on the ‘Long Roll’ maintained with the Records Office. You may write to them for a photocopy of the long roll and you are surely to get some basic interesting information including date of enrolment, date of discharge, reason of discharge etc.

Thursday, April 22, 2010

When Law Ministry made it clear to others.

It was expected that these comments by the Hon’ble Supreme Court would haunt us. ‘Don’t treat soldiers like beggars’, the Apex Court had remarked. But did the disparaging remarks have any effect ? The test of the same would be the number of explanations called by senior Defence Ministry functionaries on the issue. But were any questions asked, any corrective measures initiated, any papers floated ? I don’t know. Probably zilch, probably some, time shall tell.

The auto-pilot mode of some departments and ministries in filing frivolous appeals has irked the Law Ministry no end. Besides some recent directions, the Law Ministry had shot a missive to all departments and ministries last year in September too. It can be viewed by clicking here. Hopefully the civilian staff of the MoD would realise that sometimes it does not pay to take a purely legalistic view of human issues. After all, we are dealing with humans here, not machines or corporates. Or is it the subsidised liquor or free rations which trouble them ?

Monday, April 19, 2010

Justice and Equity : Railways Style !!!

Regular readers would remember this blog-post from the last spring.

Indian Railways provide complimentary passes with unlimited usage to gallantry awardees (and one companion) from Article 2 on the Awards’ Order of Precedence (Param Vir Chakra) to Article 24 (Police Medal for Gallantry). But surprisingly, the awards of Sena Medal / Nao Sena Medal / Vayu Sena Medal (Gallantry) are missing from this list of the railways despite the fact that these awards are higher in precedence than the Police Medal for Gallantry and are featured two steps ahead on Article 22.

I took up the issue with the Railways Minister who in all probability was also duly informed about the matter at hand, but as expected, my detailed letter on the subject which was supposed to reach her desk, was hijacked somewhere midway and rejected again by lower level staff on the pretext of ‘financial constraints’. Ms Banerjee, is still not in the picture.

But what I wanted to convey was not the above. The appalling aspect of the story is that while the legitimate dues of SM / NM / VM (G) awardees have not been addressed by the Rail Bhawan on the grounds of financial constraints, the Railways have gone ahead and now provided 50% concession (60% for ladies) to recipients of the Police Medal for Distinguished Service and Police Medal for Meritorious Service who are above the age of 60 years. Surprisingly, the issue of financial constraints is nowhere to be heard in the corridors of Rail Bhawan in this case. Selective constraints ?

Friday, April 16, 2010

A legal blast from the past !

Some undercurrents between military and civil staff, especially at the officer level, in mixed organisations, are actually not a new phenomenon as universally perceived. Last few years have seen officers litigating on status and control issues in areas where both civilian and military officers man key positions. But this, as stated above, is not new. Sample the below pearls from a Supreme Court judgement of the year 1979 (1980 AIR 452) rendered by Justice Krishna Iyer in his inimitable style. The dispute was between direct entry Class-I officers of the Survey of India who resented the seniority granted to Commissioned officers of the Corps of Engineers over them :-

“These two sister appeals have gained access to this Court by certificate under Article 133 and project a 'service dispute' between the Army and civilian wings (both engineers) of the Survey of India. The constitutional missiles used, with success, in the encounter in the High Court by the 'civilians' to shoot down the ‘military men’s' preferential claims under the relevant service rules, are Articles 14 and 16. And here, in this Court, the Army Wing is fighting back to repulse the civilian wing by defusing the war-head of these two fundamental rights. Military imagery vivifies the litigative havoc when sectors of our public services go to battle against each other, though there is so much else to wage war against in the service of the people.”

And the question of law was answered in the following manner :

"Now we come to the bitter bone of contention between the parties. Why should the 50% of military recruits be given a special weightage ? Should not all entrants into the DSS (Deputy Superintending Surveyor) be treated alike without being afforded a handicap in the race? We see no difficulty in upholding this weightage, once we accept the reality that the military portion of the Survey is a compelling factor for national defence. We hold, on a study of the materials already adverted to, that sans they army engineers the Survey of India will become a functional failure in discharging its paramount duties in times of war and in spells of peace, defence spreads beyond hot war or cold war and sustains the sense of security by a state of ever readiness. There is enough literature to establish that the work done by the army wing of the Survey is far too important to be played with and such work is best done by that wing. The military recruits, as has been already observed, are commissioned officers with 3 to 6 years of service. They have a certain salary scale and period of service when they are baptised into the Survey of India. Giving due weight to these factors, Rule 5 lays down the criteria for seniority as between the military sector of recruits and the civilian counter-parts. What needs to be appreciated is that for the very efficiency of the Survey of India, a substantial army element is structurally essential. Army engineers are invited into this Service not because this department historically belonged to the Defence Forces but because it cannot minister to one of the major objectives of its creation if it does not have engineers with military training, aptitude, courage, discipline and dare-devilry in hours of crisis. The necessity of the Survey, not opportunity to the armymen, has determined the need to attract and, therefore, to allot a quota in the upper echelons, viz., Class I, for military engineers. This, in turn, has desiderated the offer of reasonable terms and conditions for army men to join the Survey of India. The military engineers belong to the Corps of Engineers. They are commissioned officers with service of 3 to 6 years before coming into the Survey which needs, not raw engineers, but men with some experience. They have prospects and scales of pay in the Defence Department. Why should they look at the Survey if on entry they are to lose their commissioned service and begin the rat race with civilian freshers ? Why should they suffer pay cut by walking into the Survey of India? It is, therefore, fairly intelligible and basically equitable to allow military engineers credit for commissioned service and protection of already earned higher salaries. The reasoning is simple. The functional compulsions of the Survey of India require army engineers to be inducted, say half its Class I strength. These engineering officers have to possess some years of experience. How, then, can they be attracted into the Survey except by assuring them what they were enjoying in their existing service, viz., credit for the years under commission in reckoning seniority and fitment of their salary at a point in the scale of Class I officers so that, by way of personal pay or otherwise, a cut may be obviated. This is not discrimination or favoured treatment but justice to those whom, of necessity, you want and must, therefore, pay what they were being paid in the Army and give service credit for the years on commission because you need men with specified years of commissioned service. To equate them with unequal civilian freshers is precisely the Procrustean exercise which is unconstitutional equality anathematised by Article 14."

Tuesday, April 13, 2010

Changes in pay fixation rules on re-employment

The DoPT has notified some changes in the rules of pay-fixation for government employees who opt for re-employment under the central govt after their retirement / release.

These changes are even more pertinent for those officers (including military) who opt for re-employment on appointments (and pay-bands) lower than the ones from which they retired.

The Central Civil Services (Fixation of pay of re-employed pensioners) Orders, 1986, stand amended to the extent mentioned in the ibid letter.

The new provisions can be accessed by clicking here.

Saturday, April 10, 2010

More, Contd....

The blog-post on Fourth of April on mindless appeals being filed to counter the rightful claims of disabled veterans and the misleading nature of pleadings articulated by the govt before Courts evoked some strong (positive) reactions on the blog and elsewhere, and rightly so.

This makes me want to write something more on another disturbing trend in the legal arena.

There is an inherent trust between the Bench and the Bar in legal systems all over the world. Written and oral pleadings and statements by lawyers are usually taken on face value by the Courts and mostly such pleadings are in the correct spirit and rendered to assist the Court in arriving at justice. The overall force being that we as lawyers are not standing at the bar to ‘win’ or ‘lose’ a case, but as stated above, to assist the Court in arriving at justice. The problem however happens when the govt misleads its own counsel and does not even disclose the complete facts, policy and law even to the lawyer representing its (the Govt’s) case before a Court. And this is invariably done to have an upper hand, by hook or crook. I have given two glaring examples in my earlier blog, of cases wherein the Union of India before the Supreme Court clearly stated an incorrect position of fact and law which remained unrebutted from the other side ultimately leading to decisions which could have been different had the govt played it fair. Now comes another example where probably the Central Govt Counsel was made to state a patently untrue statement before the Tribunal by his client, the Union of India, in Karan Singh Vs Union of India decided on 28 March 2010 by the Jaipur Bench of the AFT, and thankfully it has yet again been fully recorded in the decision :

“…Learned counsel for the non-applicants (Respondents) pleaded that Army is a different set up and an individual is employed therein as a combatant, who is required to deal with the arms, weapons etc. and fight with the enemies as and when necessary or the occasion arises. He has submitted that Army is the only Department or Institution of the Govt of India where disability pension is provided to the Armed Personnel, if the disability suffered by him/them is attributable to military service. No other Department or the Institution of the Govt of India provides for grant of disability pension and so, it cannot be said that the Armed Personnel are thrown out of job, if they suffered disability.”

What a blatantly incorrect statement !. All provisions of disability pension are applicable to all civilian central govt employees under the Central Civil Services (Extra-ordinary Pension) Rules, popularly known as CCS (EOP) Rules in short. The provisions of disability pension contained in the ibid rules are para-materia to the provisions of the Pension Regulations of the defence services which deal with disability pension. Even State Govt services have a concept of disability pension which is sometimes called ‘wound pension’. In fact, the rules were so much skewed in favour of civil servants till recently that prior to 2006, the Cabinet Secretary if injured by tripping in his office was entitled to a maximum disability element of Rs 9,000 while his military counterpart, the Chief of the Army Staff, was entitled to a disability element of only Rs 2600 if he suffered the same amount of disability on account of a properly attributable disability in operational service conditions. A pre-2006 retired Cabinet Secretary is today entitled to a maximum disability element of Rs 27,000 while his military counterpart is entitled to a maximum of Rs 5,880. And here we have a statement that ‘the Army is the only organisation that pays disability pension to its employees’. In fact, civilians are paid full pay and allowances till the age of superannuation even in cases of ‘non-attributable and non-aggravated’ disabilities while the payment of a paltry disability pension is made out to be such a big deal by the govt by twisting facts and figures before Hon’ble Courts.

False statements are made by the Union of India by misleading their own counsel and then unethical appeals are filed if the case still goes against the Govt. The observations of the Hon’ble Supreme Court in Urban Improvement Trust Bikaner Vs Mohan Lal on 30 October 2009 were apt :

“It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice”

Even way back in 1973, the Hon’ble Supreme Court had this to say in Dilbagh Jarry Vs UOI while quoting the Kerala High Court :

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

That was 1973, this is 2010, but sadly, the story remains the same. Mr Moily, are you there ???

Wednesday, April 7, 2010

MNS Officers entitled to service privileges of regular officers : AFT

In a well reasoned decision, the Hon’ble Principal Bench of the AFT has held that MNS officers are also commissioned officers and are authorised to the privileges of their respective ranks.

The decision comes in the backdrop of the refusal of authorities to allow a Major General of the MNS from sporting stars and flying a flag on her official car.

The order has settled the controversy once and for all, but the issue makes one wonder as to why were stars and flags refused to such officers in the first place ? When an officer is holding a particular military rank, then it makes no sense to deny the ceremonial ancillaries of the same. It is the rank that is entitled to such privileges and not the service or the person who is wearing that uniform. When there is no bar on sporting the ‘stars’ on the collars, then in my humble opinion there should be no reason as to why a bar should exist on sporting the same very stars on the car !.

Sunday, April 4, 2010

Supreme Court rings the bell but would we ever wake up ?

“Why are you after disabled military personnel ?” was the query of a Division Bench of the Hon’ble Punjab & Haryana High Court recently while dismissing a Letter Patents Appeal (LPA) filed by the Union of India against a Single Bench decision awarding disability pension to an old veteran. In reply, the Central Govt Counsel very fairly informed the Hon’ble Court that though legal advice was tendered against filing of an appeal and the issue involved was a covered matter, the authorities still insisted on challenging the decision.

The very topical remarks of the Hon’ble Supreme Court hence did not come as a surprise to me at all. I have discussed it here on this blog before. It is time to tame these legal pundits in Delhi who are acting like raging bulls and filing mindless appeals against verdicts rendered in pensionary matters in favour of disabled veterans. These scheming legal minds work in a simple and rudimentary fashion – file appeals in almost all cases, take the cases to the Hon’ble Supreme Court - take a chance and in case of even one single verdict in favour of the govt, the same would be flaunted all over to introduce impediments in the system of grant of benefits to released and retired service-members. These old hands in the legal advisory system clearly know that poor veterans would not be able to (afford and) represent themselves properly before the Apex Court which in turn gives them a free hand to twist legal issues while articulating them before the Supreme Court which sometimes results in decisions that can hardly be labelled well-rounded. Two examples that come to mind are Lt Col P K Kapur’s case where the govt faultily, incorrectly and misleadingly informed the Apex Court that rounding-off / broad-banding of disability percentage for calculating disability element was introduced as a benefit to cater for decreased service tenure of invalided personnel and hence was not applicable to personnel who retire on completion of terms of engagement or superannuation. The retired officer concerned, who was arguing in person without proper legal assistance, could not rebut the contention leading to a verdict against him. Needless to say, broad-banding / rounding-off was actually introduced to counter medical subjectivity and mistakes & disagreements of medical boards and not to cater for shortened tenures on invalidation. In yet another case, the govt appealed to the Supreme Court against grant of disability pension for an injury sustained while on leave and contended that the verdict of the High Court was untenable since the person did not have the requisite length of service to earn a disability pension, again there was no proper assistance rendered to the Court and the decision of the High Court was reversed. But the decision of the High Court was reversed on the basis of a false statement again by the Union of India, since in reality, there is no minimum service requirement for earning a disability pension and disability pension in fact is even admissible to recruits under Regulation 181 of the Pension Regulations. Fortunately this false statement of the Union of India which was not rebutted by the poor veteran’s counsel (if there was any) is recorded in the order of the Apex Court and shall ultimately prove to be an albatross around the Union’s legal neck, mark my words.

In cases involving disability pension, the central govt has been getting away by informing the Hon’ble Apex Court that ‘medical opinion regarding attributability / aggravation is supreme’ and that High Courts cannot brush aside medical opinion. There have been decisions by the Apex Court endorsing this view, but Hon’ble High Courts and the Benches of the Armed Forces Tribunal have subtly distinguished such Apex Court decisions by ruling that in order to have primacy, the medical opinion must be within the four corners of the rules, and that perverse opinion in contravention of rules and regulations would have no value in the eyes of law. For the uninitiated, for a person to be entitled for disability pension, a disability needs to be declared as either attributable to, or aggravated by service. The Hon’ble Apex Court has never been informed by the Union of India that ‘attributability / aggravation’ is legally not to be determined by the Medical Board but by the Entitlement Rules (1982) and the same is clearly codified in Regulations 48 & 173 of the Pension Regulations which provide that attributability / aggravation shall be determined under the ‘Entitlement Rules’ which form a part of the Pension Regulations under Appendix II. The medical board has to work within the rules and is not a body above law. Rule 5(b) of the said rules clearly provides that there would be a presumption of attributability in case the disease occurs in service and Rule 9 further provides that service-members shall receive the benefit of doubt and would not be called upon to prove entitlement. Rule 15 read with Annexure III of the rules lists out diseases which are usually affected by stress and strain of service, but still, military medical boards routinely declare even such scheduled diseases as ‘constitutional’ or ‘idiopathic’ and ‘not connected with service’. Now having said that, Rule 18 further points out that even if there is a constitutional disposition, still the disease can be attributable to service. Rule 19 clearly says that if any disease is at a worsened stage at the time of discharge, aggravation is to be accepted which in fact covers almost every single member of the military who is discharged as an LMC. Rule 20 (a) also points out that if nothing is known of a disease then attributability is to be conceded unless it is rebutted by evidence. The medical boards of the defence services are functioning without an iota of proper application of mind on the entitlement rules. Relation with service of disabilities is not purely a medical game but also involves interpretation and application of the Entitlement Rules. While military boards have been time and again rejecting diseases such as schizophrenia, psychosis and neurosis being ‘constitutional’ in nature, the same diseases are routinely being correctly held as ‘aggravated by service conditions’ by medical boards of the para-military forces. Moreover, military medical boards and adjudicating authorities have been rejecting claims of psychiatric diseases or even heart diseases by stating that the ‘onset was in peace area’ hence the disease is ‘not connected with service’. Even a child could tell that such diseases manifest over a long period of time and merely since these are discovered in a ‘peace area’ would mean nothing. There are official letters written by the office of DGAFMS which, in utter contravention of rules, direct medical boards not to grant ‘aggravation’ if the onset of disability is in peace areas, whereas the rules do not pose any such prohibition. Even otherwise, there may be instances wherein the stress and strain in a peace area may be much higher than in a particular field area, can there by a mathematical formula to determine attributability / aggravation as the office of DGAFMS would want us to believe ? Research shows that post-traumatic stress disorders can arise even after a period of 5 five years or more (‘delayed onset’) of the stressor / triggering event. Again, there is no such problem being faced by paramilitary personnel in medical boards convened by CPOs. Same diseases, similar service conditions but different opinion on attributability / aggravation ? Does the medical science differ for the Central Police Organisations ? One would rarely find an appeal before the Hon’ble Supreme Court filed by the Ministry of Home Affairs against decisions of High Courts granting disability pension to paramilitary personnel, but the Ministry of Defence alongwith the PS Directorate of the Army Headquarters have both made it their bread and butter of filing appeals with impunity. The Hon’ble Courts in the US have also since settled the law and held that medical opinion cannot be granted primacy if it is against legal principles or settled law. In Wagner Vs Principi (2004), the US Court of Appeal for the Federal Circuit clearly opined the following :

“…When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service…”

The natural parallel of the above with the Entitlement Rules as applicable to the Indian defence services seems strangely surreal. It has been hence held both by Indian and American Courts that to rebut the presumption of attributability / aggravation, the medical board has to present proper evidence and reasons backed with credible medical and pathological basis concerning the aetiology of the disease. Merely stating that the disease is ‘constitutional’ or ‘not connected with service’ is not enough. In yet another landmark decision rendered last week (Jones Vs Secretary allowed on 25-03-2010), the US Court of Veterans’ Appeals has re-iterated that while dealing with service related disabilities ‘medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus’ and that ‘the absence of actual evidence is not substantive negative evidence’. These decisions of the US Courts are in fact reflective of what the Hon’ble Delhi High Court had held in cases such as SS Gautam Vs UOI and Naveen Chandra Vs UOI rendered by a Division Bench which had as its senior member Justice Swatantar Kumar, now a Judge of the Supreme Court. The decisions also seem to have found a sounding board in the order rendered by the Principal Bench of the AFT in Nakhat Bharti Vs UOI and the decisions of Chandigarh Bench of the AFT in a series of recent judgements. The Courts have time and again distinguished decisions of the Supreme Court in Damodaran and Balachandran Nair cases based on the doctrine of sub-silentio since it has been authoritatively held, as explained in the preceding paragraphs, that medical opinion shall only be binding if rendered as per rules. A decision of the Supreme Court on any issue is anyway not binding on other Courts if a particular argument has not been discussed or deliberated in the said judgement [Raipur Ruda Meha Vs State of Gujarat (AIR 1980 SC 1707)].

While dealing with disabilities of military personnel, the much argued comparison with an ordinary person on the street by medical authorities is also incomprehensible. There are times when it is remarked that such a disease may also have arisen had the particular person not been in the Army and that the Army is one of the most stress-free organisations in the country. The question arises that here is a man who is 24 hours / 365 days on call, sometimes under the shadow of gun, mostly away from his family, in a strictly regimented routine, can he be simplistically compared with say a civilian employee who goes to office at 9 in the morning returns at 5, only five days a week, lives with his family, in his hometown, enjoys his gazetted holidays, retires at 60 ? !. It won’t take an expert to reply in the negative. Wouldn’t common ailments such as hypertension or IHD or minor psychiatric illnesses or psycho-somatic disorders get aggravated by even seemingly insignificant incidents at the home front such as non-performance of children in school, property disputes, sarkari red-tapism in other spheres, family problems etc ? The answer would be in the positive. To top this, the provisions of Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ are not applicable to the armed forces – the direct implication of this is that if a civilian employee gets disabled whether on duty or off duty, whether due to service or otherwise, whether due to his own negligence or not, in whichever circumstance, his or her service is protected under the ibid Act and if the said employee is not able to work, still he or she is to be kept on supernumerary strength and paid all pay and allowances till the age of 60. While on the other hand, if similarly placed service-members get disabled, then what to talk of full pay and allowances or even pension, it is ensured by the system that most are discharged on medical grounds without even a disability pension. The very non-applicability of Section 47 of the Act should have ideally resulted in liberalising the rules or liberalising the approach in determining attributability and aggravation but with the current mindset of internal and external bureaucracy, the same seems unlikely and the Hon’ble judicial fora seem to be the only saving grace in this myriad imagery of officially-sponsored (paper) violence. The rules are being interpreted ‘literally’ and not ‘liberally’, the letter is being followed by dumping the spirit. The concerned authorities defend their decisions of jumping on to the ‘appeal’ bandwagon saying that the ‘rule-position’ does not allow them to disburse such benefits, but instead of appealing, why don’t we change these damn restrictive and otiose rules themselves ? Rather than putting up a noting sheet recommending appeal by saying how a particular High Court or Tribunal has erred in interpreting law, why can’t a noting sheet be moved to amend the particular rule which has given rise to a plethora of litigation ? There are no winners in this vicious circle of obstinacies.

As this letter written by an ex-servicemen organisation and its enclosure would show, even legal advice rendered by the office of Solicitor General asking the MoD not to file appeals has been brushed under the carpet by lower level officers of the Ministry. The Army Headquarter has in fact pointed out in certain specific instances that the govt is defending cases in Hon’ble Courts despite fully being aware of the settled position of law in favour of disabled soldiers. In such actions, it is not just perversity but also sadism at play because anyone who opts to go in for his or her constitutional remedies by approaching Hon’ble Courts is viewed as an ‘enemy of the system’ as rightly pointed out in the ibid letter.

The buck stops there, at Delhi, at the offices of the Legal Advisor (Defence), the Director (Pensions) and to an extent the Director PS-4 (Legal). Mr Antony should instill a sense of judiciousness in these authorities. By filing frivolous and mindless appeals and by tacitly misleading Hon’ble Courts, they are not showing any loyalty to the Indian State or the Auditors but on the contrary are displaying a sense of insensitivity and disregard to this great nation and its even greater protectors. The disparaging remark of the Hon’ble Supreme Court is landmark in the sense that it signifies that from now on frivolities may not be accepted. There is a requirement of a shriller alarm bell, I see it coming round the corner, but would we still wake up ? Beggary is illegal, ban it here too !.

Thursday, April 1, 2010

So did we inherit this from the British ?

“Our first class army, ordered to travel second class by a third-rate government”

The above was a comment on this article in a mainstream British newspaper.

While you are at it, please do not forget to read all comments on the said news-report.

Déjà vu, eh ???