Despatches from the Supreme Court

This month saw the Hon’ble Supreme Court deliberating some very important issues concerning veterans and their families. Here are the despatches :

Citation: Union of India Vs Jagdish Singh
The issue : The veteran was suffering from schizophrenia. The release medical board had declared it to be ‘neither attributable to, nor aggravated by service’ and hence the disability pension claim was rejected. A Division Bench of the Hon’ble J & K High Court, after discussing various rules and regulations, however held that the former soldier was entitled to disability pension since as per rules the same was supposed to have been declared attributable / aggravated by the medical board. The Hon’ble Court also held that in accordance with rules, it is the State which has to rebut the presumption of attributability / aggravation and not the claimant. It was also re-iterated that as per rules, the claimant is not supposed to prove his entitlement.
Status : The Union of India had challenged the well reasoned judgement in the Hon’ble Supreme Court through an SLP. The SLP has been dismissed this month.

Citation : Union of India Vs Kashmiro Devi
The issue : The rules existing at the time of the cause of action in the petition provided that ordinary family pension was to be discontinued to a widow even in case she married the deceased soldier’s brother as per custom in some parts of the country, whereas there was no such bar in case of special family pension. The Hon’ble Delhi High Court, in a landmark judgement, however held that this distinction between the two types of pensions was discriminatory and the pension could not be discontinued even in the case of ordinary family pension.
Status : The Union of India challenged the socially sensitive judgement before the Hon’ble Supreme Court through an SLP. The SLP has been dismissed this month

Citation : Union of India Vs Honorary Captain Kirori Lal
The issue : This retired Hony Capt was being paid the disability element of a Havildar and not of an Hony Capt on the pretext that he was a Havildar at the time of sustaining the disability. The Hon’ble Delhi High Court however held that the disability pension had to be calculated on the basis of the rank last held and not on the basis of the rank at the time of initial incurrence of disability.
Status : The Union of India challenged the well reasoned judgement before the Hon’ble Supreme Court. The SLP was dismissed this month. Curiously, another SLP on the same issue was earlier dismissed by the Hon’ble Supreme Court in the past but keeping in view the record of ‘fairness’ of pleadings of the Ministry of Defence before Hon’ble Courts, it can be safely concluded that the Hon’ble Supreme Court may not have been informed about the earlier dismissal on the same grounds.

Q & A (12)

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 is in receipt of special family pension on account of the death of her husband. Now unfortunately her unmarried son has also died but she is being refused special family pension by the Records Office on account of the death of her son on the pretext that Regulation 222 (a) of the Pension Regulations allows only one pension to a person. Is this correct ? (Ex-Havladar Raj Nath)

This is absolutely a wrong interpretation of Regulation 222 by the Records. The said Regulation prohibits two family pensions in respect of the same person. Meaning thereby that if an ex-serviceman had two spells of service and was earning two service pensions, then on his death, his widow shall only be entitled to one family pension as per her choice since only one family pension can be claimed for one person. However, there is no bar on grant of two family pensions to the same claimant in respect of two separate casualties and this has been clarified time and again by the govt also. It is learnt that despite this fact having been clarified, some officials at the PCDA(P) and also some Record Offices are creating confusion on the issue which is not in the right spirit.

The special family pension, till the 5th CPC, was based on 60% of emoluments or 60% of minimum of scale for pre-5th CPC retirees. However no such orders have been issued after the 6th CPC and widows have only been grnated revised pension based on the normal revision / fitment formula of "old special pension X 2.26" subject to a minimum of Rs 7000 per month. Why this discrimination after the 6th CPC ? (Mrs Anu Singh)

The Department of Pensions and Pensioners’ Welfare is already working on a revised pension protection formula for such cases and the same would be endorsed to the MoD for implementation once the master OM is issued by the DoP&PW.

I am a doctor in the central govt and have been placed in PB-4 with GP of Rs 10,000 under the Dynamic Assured Progression Scheme (DACP) but my department is refusing to provide me my entitlements in accordance with GP of Rs 10,000. Is there no change in status under DACP ? (Dr Anil Shrivastava)

All facilities and entitlements of a higher GP are supposed to be extended under the DACP. Your department is wrong in not extending the same to you. In fact there was a controversy in the Railways on the grant of Silver Card to doctors granted a higher GP under DACP and it was ordained that the said card has to be issued on promotion to a higher GP under the DACP. On the other hand, upgradation to a higher GP under the Non-Functional Financial Upgradation (NFFU) scheme, or under Modified ACP (MACP) does not result in higher status, facilities or entitlements.


What is the status of Assistant Engineers (AEs) who are Group-B officers ? They claim that they are placed in between Subedar Majors and Lieutenants. (Ex-Sub Maj Jai Narayan)

AEs are actually equivalent to Subedars. Even in pay, they enjoy the same scale and Grade Pay as Subedars. In the MES however, they (AEs) are posted as AGEs too which is a post which can also be held by a Group-A officer of the rank of Assistant Executive Engineer (AEE). Similarly, even JCOs were, till some years back, posted as AGEs.

A course-mate of mine was killed in a fratricide incident a few years ago in an operational area but his death has been classified as a physical casualty. What is the actual rule position ? (ABC)

It is definitely a Battle Casualty in accordance with Para 1(r) of Appendix A of Army Order 01 of 2003. His family should take up a case with the MP directorate for rectification of the error.

Haryana slashes stamp duty for defence personnel by 1 %

The Haryana Govt has slashed stamp duty for serving and retired defence personnel for registration of residential plots, houses or units.

As on date, the rates of stamp duty in the State are 7% and 5% for urban and rural areas respectively. Rates of 6 % and 4% respectively shall be applicable to defence personnel from now onwards.

The benefit can however be availed only once during a person’s lifetime.

The following was stated by the Haryana CM on the subject :

“We have taken this decision as an appreciation for the armed forces personnel as they have sterling qualities of courage, discipline, loyalty and implicit obedience of orders. They are the guardians of safety and honour of this country.”

The curious case of Surjit Kaur

Strange are our ways.

When Surjit Kaur’s husband, late Sepoy Sital Singh of the Punjab Regiment, died in World War II in Waziristan, nobody could have fathomed the ordeal his widow would have to face 70 years down time.

Sital, a member of the 5th Bn of 8 Punjab Regiment, was stationed in HQ Waziristan of the British Indian Army where he died in the year 1940 in action. His now 90 years old widow, Surjit Kaur, was granted family pension under the Indian Pension Regulations by the Controller of Military Accounts, Lahore (later adopted by PCDA (P) Allahabad). In the 2000s, somebody advised her to check her entitlement since she was in receipt of ordinary family pension rather than any other enhanced pension that is granted to widows of battle casualties. When she took up the case with the District Pension Disbursing Officer, her existing pension was discontinued on the ground that she was not the widow of a soldier of the British Indian Army - that her husband was an employee of the Burmese Army & the Burmese Govt. From that day onwards, the DPDO started releasing her an ‘ex gratia allowance’ that is granted to Burmese Govt Pensioners of Indian origin who shifted to India after Burma gained independence in 1948 (Actually Burmese Govt releases pension to its employees settled in India and the balance between the Burmese pension and the minimum applicable pension in India is paid by the Indian Govt and the total amount is known as ‘Ex- Gratia Allowance’). The reason for reaching such a conclusion was that the old documents that she possessed somewhere said that her late husband was serving in the 5th Bn (Burma) / 8 PUNJAB, now who would tell them that the 5th Bn was colloquially and informally referred to as 5th Bn (Burma) since the 93rd Burmese Infantry had merged into the 5th Bn in 1922, and even the 93rd Burma Infantry was a part of the British Indian Army comprising Indian soldiers. In any case, how could a Battalion of the Punjab Regt be a part of the Burmese Army was anybody’s guess ! And how could the deceased soldier be an employee of the Burmese Govt when he died in 1940, 8 years before Burma became independent ! The Records Office of the Punjab Regt had transferred the records of 5 / 8 PUNJAB to the Rajput Regiment which supported the claim of the widow but her requests for re-commencement of the correct type of family pension still fell on deaf ears since the DPDO and the PCDA now claimed that because her husband died in Waziristan in Burma (Yes, this is what was claimed), she was entitled to ex-gratia allowance as is granted to families of Burmese govt employees.

But what happened thereafter was truly amazing. When the widow approached the Armed Forces Tribunal with her predicament, the same Records Office of the Rajput Regiment which had been supporting her earlier, this time went for a somersault and started parroting the PCDA(P) line that her husband was killed in action in ‘Waziristan’ in Burma (this the Records office said on oath) and hence was a soldier of the Burmese Army. Recently, the AFT finally brushed aside this dim-witted claim and granted her pension of the applicable type due towards her by honourably treating her a widow of a British Indian Army soldier.

Why I am putting this story down is that it pains me when I keep hearing rants about the bureaucracy or babudom when our own are no better. In this case, just to support the dumb claims of some bored accountants, the Records Office of Rajput Regiment was cruel enough to state on affidavit that a KIA soldier of the Punjab Regiment was an employee of the Burmese Govt and that he had died in Waziristan in Burma. Not just that this lie was totally unethical and unwarranted and a slur on her late husband’s sacrifice but it was also against history and geography of the Indian sub-continent. Waziristan is in modern day Pakistan, not in Burma. She was issued a PPO by the PCDA(P) and not by the Burmese Accountant General. Burma attained independence in 1948 while the soldier died in 1940 and hence had no occasion of being employed by the Burmese Govt and probably the officer who signed the affidavit on oath did not realise that even a person with half a brain could say that ‘Punjab’ Regiment could not be a Regiment of post-independence Burmese Army.

Let us control our own untamed bulls before we point fingers at others. The AFT came to the rescue of this 90 year old lady, others may not be so lucky.

Assistance by Pension Disbursing Authorities to old, sick, incapacitated and disabled pensioners

Many a times, it is reported by families of old and infirm pensioners that they are made to suffer unnecessary harassment by banks while drawing pensions.

The problems stem more out of insensitivity of staff rather than availability of detailed instructions on such cases. In this regard, a circular issued by the RBI in October 2009 assumes importance. The said circular provides the procedure to be followed where old or disabled pensioners cannot properly affix their signatures / thumb impressions or when they are unable to visit the bank at all.

In such cases, it is provided that an impression or a mark can be obtained which can be identified by two witnesses. The authority for drawing pension can also be delegated by such pensioners. The RBI has also directed all banks to display these guidelines on their notice boards and also to sensitise the staff on this very important aspect.

Any infringement of the above guidelines should be promptly reported to the head office of the bank concerned and to Department of Govt and Bank Accounts, RBI, Opposite Mumbai Central Railway Station, Mumbai – 400 008.

Ex-Gratia awards to Central Govt employees : Cap removed

There was a stipulation in the Govt of India policy relating to ex-gratia awards for central government employees that when apart from ex-gratia, relief was provided from other sources such as PM’s Relief Funds to families of deceased personnel, then the total compensation paid from all different sources could not exceed Rs 20 lacs. This amount was Rs 10 lacs during the 5th CPC.

Now this prohibitory stipulation has been removed by the Govt of India vide an OM issued yesterday and there would be no cap on the amount of relief with effect from 01 January 2006.

A welcome step indeed in wake of tough current circumstances in which our forces, including CPOs, are functioning.

6th CPC anomalies : Story not yet over

The Govt of India had set up a National Anomaly Committee to look into and iron out various anomalies arising out of the Sixth Central Pay Commission.

Keeping in view the fact that many anomalies have not been settled to the satisfaction of central govt employees and pensioners, the govt has extended the term of the NAC till 31st of March 2011.

The committee would hence continue examining anomalies of the 6th CPC till the said date.

The letter issued by the Govt in this regard can be accessed by clicking here.

OPED in ‘The Tribune’ : Administrative egotism and mischief must cease

Though regular readers are in picture of the issues touched therein, the full text of the OPED in ‘The Tribune’ which appeared on 06 July 2010 is as follows :

Administrative egotism and mischief must cease

Navdeep Singh

The National Litigation Policy recently unveiled by the Law Minister would have special significance for the defence services in general and disabled veterans in particular. The policy ordains that frivolous appeals would not be filed by government departments and that appeals from orders of Tribunals shall be an exception rather than the rule. The policy also directs that false and misleading pleas or technical points shall not be espoused before judicial fora.

Since the last few years, veterans have been at the receiving end of paper violence perpetrated by legal pundits of the government, who, guided by a strange spirit of sadism, exhaust every single game in the book to ensure that disability benefits do not reach the beneficiaries even when directed by higher judiciary. To begin with, medical authorities indulge in ‘literal’ interpretation of rules rather than ‘liberal’ thereby denying disability benefits to disabled soldiers. They forget the ‘spirit’ while clinging to the ‘letter’. When there is a judicial pronouncement granting disability pension, appeals and reviews are filed as a matter of routine even in cases fully covered by earlier decisions of the Hon’ble Supreme Court and High Courts. It is not the higher echelons of governance or the services headquarters which are to blame but the swarm of section officers, under secretaries and deputy secretaries who rule the roost. Yes, the lower level bureaucracy with its caustic file-notings unfortunately runs the government. The idea is simple, even if there is a verdict in favour of a disabled veteran, file an appeal, take a chance, and maybe the verdict would be overruled because it is well known that our jawans cannot afford proper legal aid up till the Hon’ble Apex Court.

That the new policy has specially mentioned ‘false’ and ‘misleading’ pleas goes to show that the Minister is aware of the malaise that has set in. Appeals are filed not out of legal necessity but because of administrative egotism – ‘How could a petty employee win a case against the mighty officialdom ?’. Then comes the ‘hook’ or ‘crook’ stage wherein dubious pleas are presented before Hon’ble Courts with departments even misguiding their own counsel into presenting incorrect pleadings, which if not rebutted by a well acquainted legal brain, end in pronouncements which can hardly be termed well-rounded. The presence of these two words - ‘false’ and ‘misleading’ in the policy reminds me of some specific cases with special reference to disabled soldiers. In Secretary MoD Vs Ajit Singh case (2009), the statement of the defence ministry is on record wherein it has been stated that disability pension was not released to the veteran since he did not have the minimum required service of 10 years to his credit. Needless to say, in reality, there is no minimum service requirement for disability pension and even a recruit is entitled to the same. In the recent case of Karan Singh Vs UOI (2010) before the Jaipur AFT, it was espoused by the central government that it is the Army alone that provides disability pension to its employees. However truth is that civilian employees are also entitled to exactly the same benefits since 1939. In PK Kapur Vs UoI (2007) the government went hammer and tongs proclaiming how it had the right to fix a cut-off date for grant of certain enhanced disability benefits which had been refused to pre-1996 defence retirees. The case went in favour of the government since the Court was never informed that the said benefits through the same master notification had already been extended to similarly placed pre-1996 civilian retirees as back as in 2001. The Petitioner could not rebut the falsehood since he could not afford a lawyer.

It is not that mischievous elements are playing around only with the pious institution of judiciary, the higher strata of governance is also not left untouched. In an official speech last month obviously prepared by a similarly inclined officer, the Defence Minster was made to ‘announce’ with pride that the government had introduced an additional amount of Rs 3000 as constant attendance allowance for disabled soldiers keeping in view the ‘valour and sacrifices of army personnel’. So far so good, but the humble Minister was not in the knowledge that firstly, constant attendance allowance is applicable to civilian employees too and hence has nothing to do with ‘valour and sacrifices’, secondly it is a concept in force since times immemorial and is nothing new and even its enhancement is old news which was announced in March 2008 by the sixth pay commission, thirdly it is not applicable to all disabled personnel but only to 100% disabled retirees. In the past two years there have been other instances where the political executive and the top brass have been misled into announcing beneficial ‘policy decisions’ by hiding from them the fact that the same had actually been necessitated due to Supreme Court verdicts.

When the top block itself is victim of tomfoolery emanating from the bottom, what can the poor soldier expect ?

Soldiers of Misfortune : India Today

Sandeep Unnithan has very comprehensively covered the issue of disability benefits in the defence services through his very detailed write-up in India Today.

The logical reaction should be that of introspection and not of lament. We all must play our little roles to improve the system and make it fair, just and equitable.

The Services Headquarters have been very supportive of the cause and have time and again propounded an improvement in the system, but in the road towards change, one of the major problems is the lack of continuity of officers at key positions which hampers the smooth transition towards perfection. This ultimately leaves the field open for leveraging by lower level officialdom which is manned by people who do not wear uniform and who cannot analyse the ground situation too well.

For starters, most of the problems would be sorted out if all members of medical boards and the civilian staff at the PS Directorate are made to properly read and apply the Entitlement Rules, 1982, while examining disabilities. This simple and elementary action would cut disability litigation into half, mark my words.

Pension of Majors who were granted the pay-scale or pension of Lt Col on retirement

As you may have read on this blog before, officers who were substantive Majors as on 01-01-1996 were to be granted the pay-scale of a Lt Col on completion of 21 years of service as a one time measure in terms of Para 5 (a) (iv) of Special Army Instruction (SAI) 2/S/98. Naturally, such officers were also to be granted the pension of a Lt Col since pension is basically calculated on the basis of pay, that is, 50% of emoluments.

It is now being discovered that in many of the cases, the said provision of upgradation of pay was not implemented. It is also coming to notice that those Majors who were granted the pay and consequently pension of a Lt Col are today again being paid the pension of a Major with effect from 01-01-2006 after the 6th CPC. This is totally anomalous. As per instructions issued and approved by the Cabinet from time to time, pension after implementation of any new pay commission cannot be fixed at a rate lower than 50% of the minimum of the new scale corresponding to the scale from which a person had retired. Hence if a Major had been granted the scale of a Lt Col and had hence retired from the scale of a Lt Col, his or her pension is to be fixed at Rs 25,700 as per the minimum pension admissible to a Lt Col. The said stipulation is universally applicable and is granted to civilian retirees too who were granted a higher scale at the time of their retirement than their actual rank / grade under provisions such as Assured Career Progression (ACP). For example, a civil employee who was actually an officer in the Pay Scale of Rs 8000-13500 (Now PB-3 with GP 5400) but retired from an ACP scale of Rs 12000-16500 (Now PB-3 with GP 7600) on non-functional basis, would now be eligible for a pension based on PB-3 with GP 7600 with effect from 01-01-2006 which is the new scale corresponding to the old one from which he retired.

This is for the information and use of affected officers, mainly for those who are jumping on to the litigation bandwagon without taking up the issue with the authorities. One should keep in mind that litigation should always be the last resort after exhausting all remedies so that dockets of Courts are not burdened.