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 Legal advice/litigation related issues would strictly NOT be published or discussed or entertained.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.

Saturday, June 29, 2013

Fairness: hit, bludgeoned, buried!

This is yet another saga of misuse of the process of law, lies, deceit and treachery. And bearing the brunt are the people who need sensitivity the most- our Jawans.

This blogpost relates to the wrongdoing of the Ministry of Defence towards Havildars who are granted the Honorary rank of Naib Subedar after retirement, dangerously playing around with the much cherished judicial system by lower level bureaucrats, and how elements in the military set-up have become tools of such treacherous behaviour, needless to say, without moral courage and without any application of mind.

As most would know, Havildars granted the Honorary rank of Naib Subedar after retirement, were, till 2006, paid only an additional Rs 100/- along with the pension for the rank of Havildar.

The 6th Central Pay Commission changed this and recommended that Honorary Naib Subedars may also be paid a pension of a regular Naib Subedar.

So far so good. The recommendation was accepted and a Govt letter was issued in 2009 authorising the pension of a regular Naib Subedar to Honorary Naib Subedars. The letter did NOT contain any cut-off stipulation of non-applicability of the new dispensation only to post-2006 retirees but simply stated that the same would be applicable with effect from 01 Jan 2006, meaning thereby that the new pension rates shall be released to all retirees from this date.

While releasing the pensions however, the Govt (egged on by the office of the CGDA) interpreted the letter to mean that it would only apply to post-2006 retirees and not to those who retired prior to that date.

This was challenged before the Armed Forces Tribunal (Virender Singh Vs Union of India) and the Tribunal ruled that the letter contained no such prohibitory stipulation and that such an interpretation would result in total discrimination wherein pre-2006 retirees would be paid pension of a Havildar while post-2006 retirees of the same rank would be paid the pension of a Naib Subedar. Even otherwise, whenever the recommendations of a fresh pay commission are implemented, the pensions are readjusted based on the fresh pay-scales introduced for ranks after the implementation on the principle of modified parity. The sadistic and illegal interpretation was hence set-aside by the AFT leading to much succour to affected pensioners.

The Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence, however, was not willing to see justice prevail and promptly filed a Civil Appeal before the Supreme Court harping that there was a cut-off date in the letter and it was a valid form of classification. The Supreme Court was however pleased to dismiss the appeal filed by the MoD (Union of India Vs Virender Singh) in December 2010 thereby endorsing the decision of the AFT and settling the issue once and for all.

But as we all know, even endorsement by the Supreme Court is never enough since MoD’s policies are supposedly sacred beyond even the highest Court of the land. The MoD continued to challenge similar orders by the AFT before the SC on the same issue, not giving up on its tirade against poor veterans.

In one of such cases (Union of India Vs Sohan Lal Bawa), the Department of Ex-Servicemen welfare made the then Solicitor General record a misleading statement before the Court that the said benefit was only extended to those Havildars who were granted the Honorary rank of Naib Subedar before retirement and may not be used as a precedent for other ranks. What was probably meant by the Solicitor General was that cases of other Honorary ranks (such as Subedars granted the Honorary rank of Subedar Major) should not be dealt with by using the instant case as a judicial precedent and that they may be adjudicated separately on their own merits. Great Show! but the catch is that unlike some other Honorary ranks (such as Honorary Lieutenants and Honorary Captains) the Honorary rank of Naib Subedar is ALWAYS granted after retirement and not before retirement. As has been divulged earlier on this blog, the Army HQ protested in writing about this misleading statement time and again requesting for rectification, and so did some ex-servicemen organisations.  However, no action was taken by the lower staff of DESW. When questioned under the RTI Act as to who had briefed the Solicitor General into making the said incorrect statement and whether the Army HQ or any other organisation had taken up the case for rectification, one Under Secretary of the DESW, falsely replied that the department had not briefed the Solicitor General into making the statement before the SC and that the Army HQ or any other organisation had not taken up the issue with the DESW regarding the incorrect statement made before SC for correction.

The wrong statement did not make much of a difference legally or judicially speaking since in the same order the Supreme Court had also mentioned and reiterated its earlier decision in the case of Union of India Vs Virender Singh which was in fact the main case on the subject and which endorsed the setting aside of the discrimination between pre and post 2006 retirees of the rank of Honorary Naib Subedar.

In any case, even though it did not make a material difference, the Army HQ insisted with the MoD that the Supreme Court be informed of the mistake and requested the MoD to move an application for correction/modification of the error in the wrong statement made by the Solicitor General so as to eliminate confusion.

Meanwhile, the Chandigarh Bench of the AFT too clarified the issue again by passing a detailed order (Raghubir Singh Vs UOI) in which it was thoroughly explained that the rank of Honorary Naib Subedar is only granted after retirement and that the scripting error in the Supreme Court’s judgement did not make any legal or judicial difference and did not lay down any ratio to that effect.

The original file however kept oscillating between various agencies and ultimately rather than moving an application for correction/modification of the error, the MoD moved a Review Petition again opening up the same issue of pre and post-2006 retirees on merits while faintly and vaguely mentioning the error also. Rather than seeking correction of the error, in effect, the Review Application was moved to undo what the Supreme Court and the AFT had granted to pre-2006 retirees stating again that the discrimination was a valid form of classification. However, the said Review Petition moved by the MoD was dismissed and the judgement in Virender Singh’s case was reiterated by the Supreme Court while dismissing the same, and of course, Virender Singh’s decision provided that pre and post-2006 retirees could not be treated with discrimination.

In any fair system, the above should have resulted in closure of multiple rounds of litigation in the interest of justice and equity.

But then, we do not live in a fair world. Yes we don’t. Rather than accepting defeat, the MoD now wrote to the Army HQ that since the Supreme Court had dismissed the Review Application, further reviews needed to be filed in all other (thousands of) cases and that pre-2006 retired Honorary Naib Subedars should not be paid the said benefit and that the benefit should only be paid to those Honorary Naib Subedars who have been granted the Honorary rank prior to retirement (there is none since there is no such rule of granting the rank before retirement). The greatest tragedy of the entire story is that the MoD was now trying to take benefit of the dismissal of its own Review Petition in which it had prayed that pre-2006 retirees were not to be paid the said pension. In other words, it was the application of the MoD that had been dismissed and now the MoD itself was trying to take benefit of a decision that had, on the contrary, gone against the MoD!!!

But there is an even greater tragedy than the above. The Army HQ without even perusing what had been filed by the MoD in the form of a Review Petition informed the Record Offices to file review applications in all similar cases and the Records Offices have further started writing to affected retirees whose cases have been allowed by various benches of AFT that the Army HQ has informed them that the Supreme Court has ruled in the Review Petition that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar.

Now now now. What is the Army HQ doing? Circulating instructions that are not only false, faulty and incorrect but also contemptuous!

The above statement by the Records Offices based on inputs by the Army HQ which has further been guided by the MoD is downright disdainful because of the following reasons:

A.  The SC has nowhere held or stated that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar. It has in fact held the opposite.

B.   The SC has reiterated the earlier decision rendered in Virender Singh’s case in the Review Petition which on the contrary provides that pre-2006 Honorary Naib Subedars are to be provided the pensionary benefits of Niab Subedars.

C.  The Review Petition was filed by the MoD on the pretext that pre-2006 Honorary Naib Subedars should not be entitled the benefits as made available to post-2006 Honorary Naib Sudedars and the said Review Petition stands dismissed, so how on earth can the MoD take benefit of the same?

D.  The AFT, in a detailed decision on the subject has already clarified that entire legal position including the scripting error in the earlier SC decision based on wrong factual inputs and the dismissal of the Review Petition reiterates the said legal position which does not change in any manner.

E.   How can Records Offices or the Army HQ write to affected retirees that they would not implement the judgements of the AFT and by quoting SC orders which do not even exist? Are we living in a democracy or a banana republic wherein executive authorities simply state that they would not implement judicial orders that too without obtaining a stay over the said orders or without getting them overturned by a higher judicial forum?

F.  Even otherwise, apart from the judgement, it is commonly known that whenever recommendations of a pay commission are implemented, the pensions of pre-pay commission retirees are calculated based on the new scales introduced after the fresh pay commission, and this is already provided by pre-existing govt orders (modified parity). In other words, once Honorary Naib Subedars had been granted the pay-scale of a regular Naib Subedar after the 6th CPC, the pensions of pre-6th CPC Honorary Naib Subedars were automatically to be based on the scale now introduced for Honorary Naib Subedars, that is, the scale of a regular Naib Subedar but the MoD wants pensions of pre-2006 Honorary Naib Subedars to be based on the scale of a Havildar while those of post-2006 retirees of the same rank based on the scale of a regular Naib Subedar. Can we have retirees of the same rank drawing pensions based on a lower rank just on the basis of the retirement date? When it does not happen for any other rank/grade in any govt service, how can it be allowed to continue for Honorary Naib Subedars?

The above is a small example of how the system treats the lower strata of the defence services. No, in fact the treatment is non-discriminatory in the sense that all ranks, high or low, are treated alike- like dirt. While our men and women in uniform go about protecting both the insides and outsides of our borders and rendering stellar service in natural calamities, this is what they get in return.


Is there anyone applying mind over what's happening? Are people sitting in Headquarters to parrot what some clerk in the MoD wants them to believe? Is there anyone doing work passionately? Is there someone reading up? Is there someone opening the files? 

Who would cry for the soldier?

23 comments:

Anonymous said...

Seeing the attitude of the bureaucrats and the apathy of the ministry, it may be the time to consider invoking the Article 19 of the constitution for the Armed forces.

Anonymous said...

what a state of affairs.. and to say the least it seems that some high profilers sitting in the decision making chair in HQ seem to be a party to all this ...?

Anonymous said...

The points put forth by Navdeep sir are logically correct but why it would have been much better if Navdeep sir would have highlighted the dismissed review petition of MOD, what were the contents and how it has been dismissed. How MOD have issued such direction to service HQs and what the service HQs are banking upon this.

As far as Record Offices are concerned they have to follow the direction issued by Army HQ.

This issue should not be taken as personal by any agency rather is should be debated

Anonymous said...

WHO WOULD CRY FOR THE SOLDIER??

WELL !!

WHO MUST CRY FOR THE SOLDIER?
WHO SHOULD CRY FOR THE SOLDIER?
WHO COULD CRY FOR THE SOLDIER?

ANY ANSWERS?

IS IT AN A or Q or G matter !!

I guess what we need is not a WHAMP (WINNING HEARTS AND MINDS OF PEOPLE) operation but WHAMES (WINNING HEARTS AND MINDS of Exservicemen).

GOD BLESS YOU, MAJ NAVDEEP for penning down such an agonising article, I hope it opens the minds and the heart bleeds.

Anonymous said...

Navdeep Sir, why can't we file a
contempt of court petition against
MOD.

A Sunder Rajan said...

Indeed very alarming, that , no one has applied his mind in Army HQ,just passed on the WRONG ORDERS OF MOD.Shows Welfare of Jawans is just a lip service.Everone starting from the babus of CGDA, MOD and our own Army HQ, Should be given a Solid KICK.Thanks Navdeep for bringing the wrong doing and mischief of MOD to Notice.
Regards,
Col A Sunder Rajan
sunderasr@gmail.com

A Sunder Rajan said...

Indeed very alarming, that , no one has applied his mind in Army HQ,just passed on the WRONG ORDERS OF MOD.Shows Welfare of Jawans is just a lip service.Everone starting from the babus of CGDA, MOD and our own Army HQ, Should be given a Solid KICK.Thanks Navdeep for bringing the wrong doing and mischief of MOD to Notice.
Regards,
Col A Sunder Rajan

Commander said...

Dear Maj Navdeep

Indeed a sorry state of affairs and worst we are our own enemy.

Can anyone file a Contempt case against MOD?

Worst i feel is that Hon Sub and Hon Sub Maj who are sailing in the same boat have not even be taken up.

Cdr R W Pathak

Yogi said...

The Honourable Supreme Court has, in past, turned press reports into PIL, why not when its decisions on pension for Hon Nb Sub and rank pay are not implemented?

Beniwal said...

its time all civilian Dy Sec/ Dir in services HQs be replaced with service officers and DESW must have service officers. until then such arrogant injustice will continue in this or that matter. simply because civilians are not punished for deliberately causing injury to faujis.

ramesh sharma said...

It indeed is shocking.Disregards of the orders giving legetimate entitlements to veterns is unpardoable.Thanks for the points highlighted to Maj NAVDEEP.Please also suggest further actions so that our troops do not suffer monetary loss.

Anonymous said...

Shudder to think that I may also face these kind of situation once I retire. After all, everyone one of has to retire someday.

Anonymous said...

Mr Beniwal - what is guaranty that Army Officer will do better. Please think the other way, AO may act as yes man. How many AO in the units have knowledge of pension/pay and allowances matter of JCOs/OR.

Everyone is conscious of his career hence do not expect much by putting AO in place of US/Dir rather try to change the attitude of politician and top brass for betterment of Armed Forces.

ashish said...

why can't the bureaucrats responsible for all this bought to business by name?.. that will bring fear on them not to play around with words and statements ..

ramanan said...

Thank u Sir, to bring the issue into light. Alas, JCOs of the forces.

nigam ranjan said...

Nigam

We need strong political leader, who can thing about national security. It's like slow poison.Earlier it's removed better for the country.

marshal said...

There is a need for our AHQ staff/especially officers to do the home work properly on any such subjects with positive spirit , which is found to be waning these days. Casual approach should be avoided.we should not be lavish but justified for the righteousness. I have seen a Police SI had constructed a house for 27 Lacs with in his 18 years of service where as a sub. maj retired cannot aspire to do the same ( this had happened in the year 2002)even after 39 years of his RAGADA in the Army. Our Indian system is full of such misgivings. But our JAWANS are ready to perform 24x7; thats to be considered. they are actually on a 24x7 duty while in the camp. and his annual leave consists of 52 sundays together (in a year) + extra 8 days from the govt side. thus it is made to 60 days. Has anyone thought about it? Till recently officers were getting Form-D for alternate years of annual leave + rly fare for 900 KM or something . this 900 km was from ened to end in ENGLAND where as in Indian conditions the distance from Kanyakumari to kashmir is enormous and an officer then had to spend lots of money for his travel once in 2 years. where as those of offrs from with in 900 km distance from their home town could avail every year travel warrant . I think this anomaly is rectified now. It was so till 2004 . Please generals of all services kindly see the interest of the MEN under you after the priority of the COUNTRYs interest and security.I am a veteran of 1961 entry into the armed forces and served till 1992 oct.

Beniwal said...

mr. anonymous, sorry i can not give guaranty but be assured Army Act is there to tackle Army officer where as no one can do any thing to the babus. there are many defence officers who can handle pay pension matters better than civilian babus. the babus have not come from sky.

Anonymous said...

Navdeep Sir, could you please clarify regarding the orders issued on 17 Jan 13, giving out pension scales for the rank of Hony Nb/sub as well as Nb/sub. The difference between both the scales is not much.

Dinesh Nautiyal said...

It appears that writing false letters and misleading judiciary to harass veterans is the only goal. It is not understood why crores of Rupees are being spent to feed a pack of wolves, whereas I can do it more efficiently for Rs 5000 a month because I am idiot enough to write anything but sensible and I am fond of signing on stinking garbage.

Anonymous said...

igaironAgree with what you have written.

My personal request would be if you could divide your paragraphs into smaller ones to make them easier to read.

Col K Bhatia

kmpods said...

Dear Navdeep
You are a blessing to soldiers in the Indian Army, nay, the Services.
That recorded, I hope some of the ESM organisations take up the matter.
Thank tou for the thoroughness in the post. Very educative. Gives us a direction in analysing such issues.
Considering that you are a practising lawyer and in very demanding profession, kudos to you for sparing the time and effort for such issues. May God Bless You.
Regards

Anonymous said...

The AFT in a recent judgement castigated the PCDA for refusing to give benefits to a soldier who died after suffering injuries from a fall while on his way to the loo in August 2009. PCDA said that death was not on military duty. Despite numerous court decisions on the matter, PCDA continues to play truant when it comes to providing authorised benefits to military personnel. Individual officials should be held responsible for denial of legitimate benefits and suitably penalised.