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Friday, October 30, 2015

Tables after inclusion of Non-Practicing Allowance (NPA) in the pension of Army Medical Corps, Army Dental Corps and Remount & Veterinary Corps retirees

As informed vide this post of 04 Aug 2015, the Ministry of Defence had issued the sanction letter for inclusion of NPA in the pension of AMC, ADC and RVC retirees who had retired prior to 1996, in pursuance to a decision of the Supreme Court.

The orders for the recovery of the element of NPA from the pensions of affected officers issued earlier also stand superseded with the issuance of the above letter.

The office of PCDA (Pensions) has also issued detailed instructions and tables for release of pension in terms of the above but it seems that many officers are not aware of the same and are still contemplating litigation in this regard.

The detailed Circular of the PCDA (Pensions) can be downloaded and accessed here which may be disseminated to affected officers with an advice not to indulge in litigation in this matter since universal orders already stand issued. While it is perfectly fine to file petitions in those matters where universal directions have not been issued despite settled legal position, but filing cases in matters that stand resolved by issuance of instructions such as the above or on grant of arrears w.e.f 01 Jan 2006 results in unnecessary burdening of pockets of litigants and dockets of Courts. 

Friday, October 23, 2015

Important decision on territorial jurisdiction by the Full Bench of the Armed Forces Tribunal convened at the Principal Bench

In an otherwise inconsequential period in military justice, a Full Bench of the Armed Forces Tribunal, headed by the Chairperson, has rendered an important decision on territorial jurisdiction.

The irony of it all is that ideally the decision was not at all required since the lynchpin rule itself is quite clear on the subject, but the Bench was forced into the question due to apparent obduracy of the Central Government in objecting to the subject time and again, and also some stray decisions rendered by different benches on the same topic taking a different view, notwithstanding the fact that the matter had been settled by Constitutional Courts.

Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, provides, inter alia, that a person can file his petition (Application) at a Bench where he is posted or was last posted or where the cause of action or part of cause of action had arisen.

Of course, there are very many cases wherein the Petitioner is residing at some other place while the part of cause of action or the whole cause of action lies somewhere else, and as per a plain reading of the rule, it is the Petitioner’s choice to opt for a bench. The same is also an established proposition of law since a Petitioner is dominus liits in a litigation initiated by him.

However, more often than not, there used to be opposition by the Central Government when defence personnel filed cases at benches under whose jurisdiction they were not residing but where the cause of action had arisen. For example, a Petitioner may be posted under the jurisdiction of the Chandigarh Bench but the rejection of his claim had occurred at the Ministry of Defence at Delhi, in such a situation, it is the choice of the Petitioner to either file his case at the Principal Bench, Delhi or Chandigarh Bench since he is the dominus litis and it is his option where to invoke the jurisdiction. Some Benches of the AFT however, agreeing with the objection of the Union of India, dismissed such petitions for the reason of lack of jurisdiction though the Rule was absolutely clearly on the subject and gave an option to the Petitioner. The disturbing aspect of the issue was also that in certain cases, the dismissal orders by certain benches had been overturned by the High Court but still the benches continued to defy the law laid down by the High Court by attempting artificial distinction of the same.

Faced with such contradictory judgements, the Chairperson of the AFT constituted a Full Bench which rendered its decision last month in an order running into 63 pages.

The Full Bench has correctly laid down the law and held that according to Rule 6, it is the Petitioner who would decide where he wants to file the case if the cause of action or part of cause of action is arising before a bench different than the one where he is residing. To put is sharply, it is the Petitioner’s choice and not the choice of the bench to dictate where he should be filing the case.

The Full Bench has also shattered the averment of the Government that Petitioners would indulge in “bench-hunting” by this kind of an option. The Full Bench has very rightly stated that if that be so, then the Union of India can also be condemned for “bench avoiding”. The Full Bench has also observed that once the view of a coordinate bench rejecting a petition on the aspect of jurisdiction was overruled by the High Court, the said bench should have refrained from taking the same view again.

The decision, besides rightly laying down the law on jurisdiction and clarifying it for future litigants, also throws light on another dangerous trend, and that is, of certain benches of the Tribunal taking views which are contrary to law laid down by Constitutional Courts, that is, by the High Courts and the Supreme Court. Once the view of a Tribunal is overruled by a High Court or the Supreme Court, then judicial propriety and also the principle of judicial certainty demand that such benches should bow down to the majesty of Constitutional Courts and refrain from letting their prestige dictate their judgements rather than law laid down by Constitutional Courts. Otherwise, not only are litigants burdened with expensive litigation to higher courts (the Supreme Court at present, which is practically inaccessible) but also result in chaos in the system wherein the law remains unsettled for litigants approaching different benches of the Tribunal though the law in reality may be well settled by Constitutional Courts. When a decision is overturned by a higher judicial forum, judges of the lower forum should abide by it and not take it as an affront by indulging in unethical rounds of artificial distinction to reiterate their own old view which stands overruled. This tendency needs to be nipped in the bud.

The Full Bench of the Tribunal however deserves utmost respect for taking the bull by the horns and settling this issue once and for all which was otherwise leading to uncertainty in the minds of litigants. 

Monday, October 12, 2015

Universal orders issued on retirement age of Captain (Time Scale), Indian Navy (Updated)

Regular readers would be aware of the case of the retirement age of Group Captains (Time Scale) of the Indian Air Force wherein the Supreme Court had declared that the difference in the age of superannuation between Time Scale and Selection Grade Group Captains was discriminatory.

On similar analogy, the Armed Forces Tribunal had also passed orders related to Captains of the Indian Navy wherein the discrimination between the age of superannuation of Time Scale and Selection Grade rank of Captain (IN) was held to be bad in law.

As a corollary to the above, the Ministry of Defence has now issued universal orders that all Time Scale Captains would now retire at the age of 56 years. The age of superannuation for the said rank in the Education Branch would be 57 years.

This order is applicable to all affected officers, and not just litigants.

Must place on record that the current Defence Minister is proactively pursuing harmonization of policies which have caused heartburn amongst the rank and file and the same vision is also the benchmark being pursued by the Raksha Mantri’s short term Committee of Experts which is looking into many similar issues, and beyond.

Update: This clarification is for those who are enquiring about the removal of a ‘similar’ anomaly in the Army. This is to place on record that the Army is not afflicted with this anomaly since Time Scale and Selection Grade Colonels of the Army retire at the same age. In the Air Force and the Navy however, there was a difference in the age of retirement between Time Scale and Selection Grade ranks which was ultimately resolved by the Supreme Court. Various Branches/Arms/Services of all three services inherently mandate different ages of superannuation even for similar ranks and the Supreme Court decision has no link whatsoever regarding equalizing the same.