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Tuesday, April 30, 2019

Need for the military community to stay away from disruptive and litigious tendencies based on hearsay

I am all for enforcement of legal rights and fully believe that one of the most precious privileges of a citizen in our democracy is the ability to challenge the might of the State. However a recent phenomenon of fanning litigious tendency in the military, that too, based upon hearsay or perceived injustice, is quite alarming.

A false picture is embedded in many minds that litigation or creating an uproar coupled with notional and emotional calls is the answer to everything, forgetting in the bargain that Courts cannot intervene unless there is infringement of a legal right or policy or rule or when there is a patently perverse and arbitrary action. Every time a matter comes to note, many within the military community take recourse to commenting upon it, without even checking its background and veracity, displaying a tendency that goes beyond even trade unionism. Some even start floating calculation sheets based upon intended litigation, again on tittle-tattle, thus raising expectations without reason which might ultimately result in dejection and frustration.

While it is true that the system of redressal of grievances in the defence services leaves much to be desired, and I have written on it earlier, this disruptive tendency might succeed in drawing eyeballs on social media but only a graceful approach, that too limited to real and solid issues, can help in resolution- institutionally or legally. Many members of the military community also start deriding senior military leadership on social media by creating a hullabaloo but take no steps to institutionally resolve a matter by even putting it in writing to the concerned quarters or finally taking it to its logical legal conclusion. Again there might be instances wherein senior leadership would have taken actions that were not well-rounded but that may not always be the case. And where there is actual injustice, again the way to address is to take legal recourse in a refined manner, with malice towards the anomaly, not against the personalities involved.

Not just seniors, even civil servants continue to bear the brunt of the military community on social media. Most of this anger emanates from the real and perceived acts of bureaucracy in the Ministry of Defence. But one must not forget that the actions of elements in the Defence Ministry are not reflective of the entire civil services and neither should one’s vision be so restricted that the impression of the entire civilian staff of the Republic of India is tagged with what happens in some corner of a table of a junior staffer of one ministry in Delhi. The projection that goes out on social media is that the military is being persecuted, which we all know is not the case and one can imagine the negative impact this has on the morale of the rank and file, almost bordering on disaffection. This fastest finger first syndrome is also spilling into other domains. Certain messages with communal undertones are also spread on military groups, some injected by the adversary, and these are further embellished with utterly immature comments not expected from someone who has worn the uniform.

We fail to realise that this subtle injection of hate is meant to divide our society and this subtle injection of disaffection is meant to neutralize the strength of our military and create schisms.

Be aware. Be careful. Be wise.



Thursday, March 7, 2019

Medical facilities to non-pensioners of the military: Historic day for Short Service Commissioned Officers, Emergency Commissioned Officers, World War II veterans and pre-mature retirees

The Cabinet has today extended the Ex-Servicemen Contributory Health Scheme (ECHS) to the above categories of non-pensioners of the military.

Non-pensioner ‘ex-servicemen’ were initially granted medical facilities in Military Hospitals in 1970 but the same were discretionary. Later, ‘pension’ was made mandatory to avail such facilities. Again in 1997, the term ‘ex-pensioners’ was replaced by ‘ex-servicemen’ thereby restoring the facilities to non-pensioners having ‘ex-servicemen’ status such as Short Service Commissioned Officers and Emergency Commissioned Officers (SSCOs and ECOs) who were made entitled to Outpatient (OPD) facilities. However, in the late 2000s, the facilities were withdrawn by the office of the Director General Armed Forces Medical Services (DGAFMS) despite stiff resistance by the Army HQ.

The matter went into litigation wherein the Chandigarh Bench of the Armed Forces Tribunal (AFT) ultimately directed the Government to restore the facilities to the affected ex-servicemen. The Government though filed an appeal in the Supreme Court against the verdict of the AFT.

The matter was referred to a Committee of Experts, of which I too was a Member, which, after deliberating the subject, recommended the following:

(a) Existing limited outpatient medical facilities in MHs to non-pensioners holding the status of Ex-servicemen to continue as per already approved instructions and Services HQ to continue issuing and honouring Medical Entitlement Cards for such facilities as was the case till late 2000s. The entitled non-pensioners also continue to be eligible for medical reimbursement from Kendriya Sainik Board. It may be pointed out here that the said facilities are anyway not entitled to be granted to re-employed ex-servicemen or those who are members of any medical scheme.
(b) The unethical appeal filed against grant of such facilities to own personnel to which actually they were legally entitled to, be immediately withdrawn and such ego-fuelled actions be avoided in the future. We wish such persistence and exertion in pursuing such misdirected litigation is rather used for constructive activities.
(c) ECHS facilities for SSCOs as mentioned, as already approved in-principle by the then Raksha Mantri and mentioned in the Parliament on the floor of the House, be implemented forthwith by overcoming all objections. The same be made applicable to all SSCOs and ECOs and all other personnel released without the benefit of pension but on completion of terms with a gratuity, present and former, with certain amendments as deemed appropriate such as that the scheme can only be extended to the officer and spouse alone and that it would not apply to those who are re-employed with a cover of an organizational medical scheme. The issue of financial implication may not be relevant since firstly the scheme is contributory in nature, and secondly, the then Raksha Mantri has already made a statement to the effect on the floor of the house. Besides bringing succour to our veterans, it would act as a major morale booster to the rank and file and also help attract talent to the Short Service Commission Scheme.
(d) It is recommended that the Government must go all out to bolster the resources of the military medical establishment since they are rendering impeccable services in trying circumstances to our men and women in uniform. There should never be an occasion wherein doctors perform duties under pressure. An environment free of all encumbrances, external constraints and stress must be ensured for the medical establishment to function in an efficient manner
The recommendations were accepted by the then Raksha Mantri Mr Manohar Parrikar but were not given effect to for a long period. The Supreme Court had taken a grim view of the delay and had asked the Government to resolve the matter by April 2019.

The Cabinet has today approved the extension of ECHS to various categories of non-pensioners of the military and it is understood that on the appreciable insistence of the current Raksha Mantri Ms Nirmala Sitharaman, even other categories such as pre-mature retirees, which were not covered in the recommendations of the Committee of Experts or by judicial dicta, have also been brought in the ambit of the scheme. 

Broadly speaking, eligible beneficiaries and their spouses would be entitled to absolutely free Outpatient (OPD) facilities at ECHS polyclinics, however treatment and In-patient (IPD) facilities at ECHS empanelled hospitals would be on payment basis. Further, 50% of such expenditure would be reimbursable for personnel with 10 years service or less and 75% would be reimbursable for those with more than 10 years of service. 

This marks a closure to long drawn travails of affected officers and personnel. My congratulations to them.



Friday, February 22, 2019

Minimum qualifying service requirement of 10 years for INVALID PENSION stands abrogated for uniformed forces

This would probably be one of the most important moves in recent times for disabled personnel of the uniformed forces.

On judicial intervention of the Kerala High Court and further prodding by the Supreme Court, the Government has finally abrogated the minimum qualifying service condition for the grant of Invalid Pension, which till now stood at 10 years, for all those government organisations where services of employees are not protected on sustaining disability.

Concept of Invalid Pension:
Invalid pension is applicable to those government servants whose disability is not related to government service in any manner, even remotely, and for which 10 years qualifying service was prescribed. It is different than disability pension which is granted for disabilities which are related to or deemed to be connected with government service in any manner, such as any disease incurred while a person is in government service. In case of disability pension, there is no minimum service condition prescribed and it consists of two elements- service element and disability element.

The predicament faced by uniformed services:
The service of government servants who incur any kind of disability in service is protected by Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (now replaced by the new Act of 2016 wherein Section 20 provides the same protection). The said Act protects the employment of disabled government servants and provides that the government shall not dispense with the services of a disabled government employee. The provision also further provides that even in case a disabled government employee cannot be adjusted on any suitable post, he or she may be kept on supernumerary strength till the age of superannuation (60 years in case of Central Government) and resultantly be paid full pay and allowances, and pension thereafter, even if the affected employee is unable to attend to any official duty. The problem however was that the defence services and other uniformed services including the Central Armed Police Forces (CAPFs) were exempted from the operation of the above progressive provision by way of a notification. Resultantly, many members of uniformed services were denied any kind of pension (if their service was below 10 years) when released from service with disabilities without any connection or deemed connection with government service. Hence on one hand, their services were not protected in case of sustaining disability like other government employees, and on the other hand, they were denied pension also which was like double jeopardy for the members of uniformed forces. This issue had been commented upon by me in detail in the year 2012 which can be accessed here for an even better perspective and a comparative chart showing the acute discrimination. The Seventh Pay Commission did not agree with the request of the defence services for abrogation of the minimum service requirement.

The new orders:
On account of judicial intervention by the Kerala High Court and further prodding by a Three Judge Bench of the Supreme Court, the Government has now abrogated the minimum 10 years requirement for grant of Invalid Pension for all those organisations where the service is not statutorily protected on sustaining any kind of disability. This mostly affects the uniformed services. This has been done by way of amendment of Rules 38 & 49 of the Central Civil Services (Pension) Rules, 1972 [CCS(Pension) Rules, 1972]. Changes in military pension rules should also be expected as a corollary, mutatis mutandis, as is the prevalent practice.

The net effect:
The net effect is that any member of a government service who is invalided out or seeks invalidation (seeking retirement on account of disability) shall now be entitled to Invalid Pension irrespective of his or her length of service. Of course, those with disabilities declared service-connected or deemed to be service-connected/attributable or aggravated by service, shall continue to remain eligible for disability pension for which no requirement of any minimum qualifying service is applicable. This directly and positively affects all disabled personnel who cannot continue in service due to medical reasons even when their disability is not related to government service in any manner. Though disabilities and diseases incurred while in service are deemed to be service-connected as per the liberal provisions of the Extraordinary Pension Rules, 1939 on the civil side and Entitlement Rules, 1982 on the military side, thereby entitling such personnel to disability pension without any linkage with length of service, as also time and again reiterated by Constitutional Courts, the maximum benefit of the change would accrue to such personnel who are released from service (or cannot continue in service) due to disabilities suddenly incurred soon after joining training or where there is an element of negligence in sustaining the disability or a purely genetic or congenital disability discovered after joining service etc. This change is valuable to such personnel and protects their livelihood and dignity since they would not have been discharged from service on account of any disability had they joined a non-uniformed service. The discrimination hence stands addressed to a large extent.

The effective date:
The new provision takes consequence from 4th January 2019. However the effect on past retirees is a little ambiguous as of now but it is hoped and expected that past retirees also would be granted the benefit from the above date. This seems most logical since the provisions of CCS (Pension) Rules (which now stand amended from 4th January 2019) in any case do not apply to post-2004 appointees on the civil side who are now governed by the contributory New Pension Scheme (NPS). Therefore by this change, the persons directly affected are those who were governed by the 1972 Rules, that is, only those who were appointed prior to 2004. A minimum guaranteed pension under the NPS is however already under consideration which makes it probable that in view of the ibid change in the 1972 Rules, even post-2004 appointees under NPS would not be left high and dry if released with a non service-connected disability with less than 10 years of service. On the military side, there is bound to be no complication as such since there is no system of a contributory pension prevalent and the new provision should logically, when implemented, apply across the board but with financial effect from 4th January 2019.

Tuesday, February 19, 2019

Withdrawal of litigation against disabled soldiers

It gives me immense satisfaction in stating that I have been given to understand that the Raksha Mantri Ms Nirmala Sitharaman has directed the withdrawal of appeals filed in the Supreme Court against disabled soldiers by the Ministry of Defence since the past many years. As is well known, multiple appeals till the highest Court of the land were filed against disability benefits granted to disabled veterans on judicial intervention by various Courts and Tribunals despite the issue attaining finality with a series of decisions rendered by the Supreme Court in favour of disabled soldiers. In fact, progressively going a step further, it seems that directions have also been passed by the Minister to concede appeals filed by disabled soldiers in the Supreme Court on a case to case basis in all matters which are found to be covered by judicial dicta.

Though this matter and many other issues related to litigation and redressal of other grievances were considered by a Committee of Experts in 2015 constituted by the then Minister Mr Manohar Parrikar, of which I was a Member, the implementation of the accepted recommendations was moving at a slow pace but we were assured by Ms Sitharaman about concrete action earlier this year.

This provides closure to a very emotive issue wherein though the financial implications were minimal still the grim reality of a nation fighting its own disabled veterans was heartbreaking since it is well known and universally recognized how stress and strain of military service, a regimented lifestyle away from the family and inability to effectively cater to domestic commitments result in aggravation of existing physical and mental conditions of the women & men in uniform.

I express my thanks to Mr Parrikar and Ms Sitharaman in dealing with the subject sensitively and in a totally apolitical manner devoid of any political inclination.

I also express my gratitude to Mr Rajeev Chandrasekhar, Member of Parliament, for consistently taking this up with the political executive till resolution, without whose support this issue would not have reached national consciousness, and of course my dear friend, the brave Major DP Singh, who remained at the forefront of the cause.

The recommendations of the Committee of Experts can be accessed here (Paragraph 2.2.1 specifically deals with disability pensions).

The official press release of the Ministry of Defence when the Committee had rendered its recommendations, can be accessed here.

Thank You.

Friday, February 1, 2019

Ministry of Defence enhances the minimum payout to casualty pensionary awards to a basic pension of Rs 18000

The Ministry of Defence (MoD) has issued orders for basing the minimum basic pension @ Rs 18000 for disability pensioners (combined rate of service element/service pension + Disability Element), war injury pensioners, liberalized family pensioners and special family pensioners.

The orders of the MoD dated 29th January 2019 can be accessed by clicking here.

The above orders have been issued in consequence of directions of the Department of Pension & Pensioners’ Welfare (DoPPW) issued for all such pensioners under various ministries, issued on 12th October 2017.

The original orders of the DoPPW can be accessed here.

Note may be taken of the fact that the orders are likely to only affect cases wherein the existing total payout is less than Rs 18,000. For example, in a case where the total of basic service element/service pension plus disability element is currently less than Rs 18,000, the same will be upgraded to the said amount. 

Saturday, January 5, 2019

Joint opinion piece on defence decision making, in 'The Tribune', authored by General VP Malik and Maj Navdeep Singh

General VP Malik and I attempt to address issues related to the decision-making process in the defence establishment, in "The Tribune". The unabridged version is as below:

Defence Decision-Making Process:
Time for Change

General VP Malik
(Former Chief of the Army Staff)

Major Navdeep Singh
(Advocate, Punjab & Haryana High Court)

Decision-making process of the defence establishment with its myriad complexities has always remained a vexed issue. It has been a cause of alienation with people in uniform, court cases, delays in acquisitions and procurements, lack of integration & jointness, and several other aspects of national security.

This opinion piece does not break much new ground but the aim is to emphasise the need for our political leaders to debate and decide on this issue promptly, and to that end, this attempts to work as a catalyst.

Under the Rules for Allocation and Transaction of Business framed in 1961 the defence services have absolutely no role or powers ascribed to them. The Defence Secretary is allocated responsibilities for “Defence of India” and ancillary facets during war with the “Armed Forces of the Union” and the three Services Headquarters subordinately designated as “Attached Offices of the Department of Defence”.

The professional heads of the three services charged with the command of the armed forces, and responsibility of national defence as well as conduct of war, neither have been accorded a status nor granted any powers in the edifice of the Government of India. By default, the Defence Secretary is thus tasked with the “Defence of India”.

The obvious reason is that for many years after independence, there was deep-rooted suspicion, fuelled by happenings in the neighbourhood, as to whether the military in India would continue to remain in barracks under the control of the cabinet or would take to adventurism. Although the defence services have remained staunchly loyal to the Constitution and acquitted themselves admirably in peace and conflict, certain vested interests have not allowed obliteration of that suspicion. As a result, the military has been kept in a box, not allowed to participate in the policy or decision-making loop.

Our political establishment, hence, despite the vastly changed strategic environment, nature of conflicts, and the imperative need to consult defence chiefs directly on such issues, has been deprived of this facilitation. Some Defence Ministers like Jaswant Singh and Pranab Mukherjee, and Prime Ministers like Indira Gandhi and Atal Bihari Vajpayee, met the service chiefs more often than others. But the institutionalised system and the defence decision-making process was never resolved.

Over a period of time, certain changes have been incorporated. Limited financial powers have been delegated to the defence services and the file movement system also minimally altered. But these changes remain cosmetic. The spirit and substance of the integration of the Ministry of Defence including decision-making have not been altered. The nomenclatures may have changed from “Army Headquarters” to “Integrated Headquarters of Ministry of Defence (Army)” but within the Ministry itself, the old terminology and processes continue to be followed. Even today, despite the manifesto of the ruling party calling for “ensuring greater participation of Armed Forces in the decision-making process”, not much seems to have moved towards resolution.

While the inherent suspicion towards the military waned with time, the pretext of ‘checks and balances’ gained momentum for keeping the defence services out of actual decision-making. Needless to state, the requirement of such checks and balances is entirely vital and no single entity, the military included, can be provided a free run without scrutiny or without being counter-questioned on its proposals. But the question remains as to whether a counter-balance as at present, wherein decisions of the Chiefs of Staff Committee (COSC) are allowed to be commented upon in the form of file noting initiated by junior non-specialist civilian employees should continue, or whether a collegiate system be instituted at the apex level wherein collective defence related recommendations or decisions can be taken subject to the approval of the political executive.

The system currently followed, besides causing suspicion and distrust, often results in delays and sometimes imbalanced decisions. While this is not to say that the decisions of the military should be allowed to prevail without question, we only suggest that the conclusions should be based upon collective deliberations with collation of proper views of all stakeholders on an equal footing before they are put up to the political authority for sanction.

It is also a matter of concern that in some spheres where powers have been delegated, the system is being rendered infructuous with too much leeway being displayed by military authorities. To take an easily understandable example, powers to determine disability benefits of officers have been conferred upon military authorities and appellate committees. However, even after processing such proposals in consonance with the rules and after due affirmation by executive, legal and medical authorities, the same are abandoned by the senior military authorities based upon objections by junior finance officers whose duty is only to calculate expected financial outgo and not comment upon the merit of the subject.

One solution that comes to our mind is instituting a format such as the “Defence Board”. Within that, a judicious mix of senior military and civil officers could debate proposals and then reach a consensus which can then be put up for approval of the Minister. The Defence Board is not an alien concept among democracies. The United Kingdom has a Chief of Defence Staff for its strategic and operational needs as a single point military consultant. Additionally, it follows a Board system chaired by the Defence Minister (Secretary of State for Defence) with members from civil and defence services and also non-executive board members.

Closer home, the decision-making for the Railways via the Railway Board is featured in the Rules of Business. The decision-making process of the Board is headed by the Railways Minister and comprises a healthy mix of members from different cadres and technical streams under a Chairman from the Railways.

India has a large strength of defence services involved not only in operational and strategic matters related to external defence but also in its internal security and disaster relief and many other types of aid to civil authorities during peace. Like other democratic nations, our defence forces have their own ethos, culture, human relations issues- discipline, human rights, welfare, morale and other functional requirements. In these days of information technology and rapid socio-political changes, we cannot have a system where the affected parties or the end-users are not consulted adequately, or where decisions are taken, based on faulty inputs by non-experts through one-way file notes. The correct system would require a face-to-face real time collegiate discussion before decisions are made.

“Defence of India” involves not just the military but almost all other institutions of the government; even its citizenry. However, our Constitution requires the military to work under ‘political control’ and not ‘bureaucratic control’ under the rules framed decades ago in a different geo & socio-political milieu.

As in all democratic nations, our military has an important role to play in building and protecting the nation. Being treated as a redundant appendage in governance militates against the basic grain of a democracy and also hampers execution of its modern day role.

It is a fervent hope that the political environment would rise and find a juste milieu ensuring an equal voice for all stakeholders with the ultimate decision-making power vested with the political executive as laid down in our Constitution.