(Updated) Final Govt orders implementing SC’s rank pay judgement issued by Defence Ministry. SACRILEGE.

As everyone would know, the Hon’ble Supreme Court on 08 March 2010 had decided the rank pay case in favour of commissioned officers of the three services and had ruled that rank pay was not to be deducted from the pay scales of defence officers. The application filed by the Defence Ministry for recalling the order was also not accepted by the Court and the final judgement was rendered by the SC in September 2012.

Clearly knowing that the crude bluff played out on the pay and status of military officers ever since the 4^th Central Pay Commission (CPC) no longer remained sustainable in view of the judgement of the Apex Court, the Union of India quickly constituted a committee to look into the financial implications of the judgement, and then in an unprecedented move, approached the Court again with a prayer for recalling the order and hearing the matter afresh.

The above was submitted to the Hon’ble SC through a detailed affidavit filed by the Ministry of Defence which inter alia stated that the implementation of the judgement would involve rehashing of not only the 4^th CPC scales but would affect the 5^th and the 6^th CPCs. It was also pointed out that it would alter payment of all consequential and resultant benefits of officers and their families wherever applicable. Further in a recently filed affidavit seeking extension of time for implementation of the judgement, the Defence Ministry stated that the implementation of the judgement relates to three successive pay commissions, that is, 4^th, 5^th and 6^th CPCs and also affected the benefits of officers who had retired prior to 1986. All this is on record. Notwithstanding the above mentioned affidavits, even logically speaking, naturally the pay-scales needed to be upgraded through the three pay commissions leading to enhancement of the pay and status of defence officers since the deduction of rank pay from the pay scales had been declared illegal.

As is known to all, the contentions of the Defence Ministry were not accepted and the Court stuck to its earlier order of March 2010 with the only modification that the interest component on the arrears would be granted from 01 Jan 2006 instead of 01 Jan 1986.

However brushing all of the above aside and in contravention of the spirit of the judgement and also in utter breach of their own affidavits and statements before the SC, the Ministry of Defence has issued the final letter of implementation today, which basically, in effect, only grants the below mentioned :-

“….and to re-fix the initial pay of the concerned officers of the Army, Navy and Air Force in the revised scale (integrated scale) as on 01-01-1986 as per Para 6 of those instructions without deduction of rank pay appropriate to the rank held by the officer on 01^st January 1986….”

The above stipulation of implementation also has an innocuous looking variation than what was decided by the Court and which becomes clear from Para 2 of this letter itself. While the Court had ordered re-fixation of pay 'with effect from 01-01-1986', Para 6 of the implementation order of the MoD grants it to officers 'as on 01-01-1986'. Subtle variation which makes world of a difference. The judgement which was to have cascading effect on fixation of pay and pay-scales after 01-01-1986, that is with effect from the 4th CPC, continuing till date, has been effectively rendered applicable only for those persons who were in receipt of rank pay as on 01-01-1986.

The MoD letter also states that no changes would be made in the instructions issued after 5^th and 6^th CPCs except to the extent of re-fixation necessitated due to fixation as on 01 Jan 1986. This simply means that there would be no upgradation of scales or change in the implementation instructions except that for those affected officers as on 01 Jan 1986 who remained in service as on 01 Jan 1996 or 01 Jan 2006, their re-fixation within the existing tables based on the fitment formula would be affected while switching over from 4th CPC to 5th CPC and then  from 5th CPC to 6th CPC tables, but within the same scales. This of course is a natural consequence of the stipulation of fixation as on 01 Jan 1986 and nothing additional. 

The final implementation order issued by the Govt of India issued today can be accessed by clicking here.

So there you have it. The Defence Ministry totally ignoring the character of the judgement as well as its own commitment before the Court, and perhaps also the draft instructions that may have been submitted by the three defence services to the Ministry for implementing the judgement in letter and spirit. No change in pay scale, status or even the scales after the 5^th and 6^th CPCs has been notified.

The victory has been rendered redundant.

Are the defence services not a part of this nation, or do they need to continually hanker after their own government for what is rightfully theirs, time and again, while in service and then after retirement and then even after death?

Now over to how the Services HQ react to this sacrilege.

And Yes, while WE sleep......

 With many aspects of personnel policies, pensionary provisions and administrative issues delegated by the Govt to the military establishment, one had hoped things would improve, with more sensitivity being brought into the system, especially since peers would be dealing with cases of their brethren thereby ensuring a humane and meticulous approach in dealing with the problems of military veterans and their families, especially disabled soldiers and widows.

But I don’t think we are getting the message.

Things are bad.

Where is the problem? The problem lies in the lack of basic understanding of administrative issues and even a miniscule application of mind. To top that, there’s this egotistic lakeer ke fakeer attitude and lack of moral courage to admit any wrongdoing.

I would not be exaggerating in saying that about 25% of our veterans and military widows, as on date, are not in receipt of their correct entitlements. The problem is not single layered and is a resultant of a labyrinth of negativity let loose by the Record Offices, account bodies and Pension Disbursing Authorities. Even the system of provisioning information under the RTI Act is collapsing, and Public Information Officers and also the Appellate Authorities are not even aware of basic provisions of law. What pains me more is not the impediments created by external bodies, but by our own, the kind reflected in my OPed on the subject earlier this year.

While some Record Offices such as those of the Sikh Regiment, the Armoured Corps, the Mechanized Infantry and the Sappers go out of their way to help out their soldiers and families, others such as the Punjab Regiment and Artillery Records leave much to be desired in their approach and a major gap between what can be legitimately expected and what is practically done on ground.

In vein of some posts of this kind, I would like to share some examples of what I say above so that it is not just labelled hearsay:

1. The case of Pawittar Singh: This Gunner was released from service on the grounds of conviction in a civil case. He sought details under the RTI Act on the policy dealing with the reinstatement or notional reinstatement of individuals who are discharged or dismissed on the basis of conviction but are later honourably acquitted by the Court of law, and other factual details regarding his own case. At first, the Artillery Records Office asked him to get his signatures on the RTI Application attested from the Sarpanch of his village, of course a procedure unknown and alien to law. Still, in order to avoid delay, he submitted his application again alongwith attestation from his Sarpanch, but this time his application was rejected on the pretext that the information sought by him is not related to public interest. Imagine, seeking a copy of a Govt policy and details of his own case not being related to public interest. Where does the man go? Record Offices do not reply to regular letters written to them, information under the RTI Act is stonewalled with banal excuses. What would be the outcome of this, the veteran would be forced into litigation, first making rounds of the Information Commission since the information has been denied, and then when he gets the information, he would be forced to approach the competent judicial forum to seek relief. Who gains by this?

2. The case of Ex-Hav Harbans Singh: Again of the Artillery Records. The soldier had sought a copy of his Release Medical Board under the RTI Act but the copy that was provided was blank where the attributability/aggravation of disability is mentioned and also where the percentage of disability is recorded. When he pointed this out in detail again to the Records office, another reply has been received in which the concerned Records Officer without even caring to properly read the letter has mechanically replied that the RMB has already been provided. Where does this man go? To the Central Information Commission at Delhi, thereby waiting for another one year? And why? Because one clerk sitting at the Records Office failed to read simple English and the concerned Records Officer simply affixed his signatures on a reply prepared by a clerk?

3. The case of Territorial Army personnel of Punjab Regiment invalided out of service: TA personnel who are invalided out of service with attributable/aggravated disabilities are entitled to disability benefits including rounding-off of disability element of pension which is explicitly mentioned in the Govt of India letter dated 31-01-2001 itself, the said letter also clearly makes it applicable to TA personnel. However, the clerical staff of Punjab Regimental Records is not processing the claims of disability benefits of such personnel on the pretext that TA personnel are not entitled to such benefits. The biggest tragedy is that even the office of the PCDA(P) has reportedly telephonically asked the concerned Records Office to properly process the claims of disabled TA personnel but to no avail. A personal letter written by me to the Commandant/OIC Records has also elicited no reply and it seems that nobody wants to apply mind and redress the grievance. It is yet another story that other Record Offices are properly processing similar claims and the PCDA(P) is resultantly issuing the requisite Pension Payment Orders (PPOs) without any problem whatsoever. Where does this lead the affected disabled personnel? Rounds of Courts? Isn’t this unwanted litigation? In yet another case of another disabled invalided Sepoy of the Regular Army from the Punjab Regiment named Harjinder Singh, the soldier has been asked to submit a form for claiming rounding-off benefits whereas the soldier is a post-96 retiree and the format is only applicable to pre-96 retirees since the system of rounding-off was initially implemented only for post-96 retirees with effect from 01-01-1996 and was then extended to pre-96 retirees in 2010. The paper chase with the Records Office of one of the oldest regiments continues for this soldier too.

4. The case of Sep Surender Singh of the JAT Regiment: This Sepoy was invalided out but not granted disability pension. Thereafter, the AFT directed the grant of disability pension to him which was then implemented by the Govt after which a PPO was duly issued with a copy endorsed to the Records Office. However the PPO contained an incorrect date of implementation and grant of arrears. The PPO and the Govt sanction had also directed for a Re-Survey Medical Board (RSMB) before 16 July 2012 for continuance of disability pension. The individual therefore sought information regarding this mistake in the PPO from the Records Office which resulted in denial of pension for 10 years’ period. However strangely the Records Office replied that they did not have the record of any such PPO issued in the individual’s name. Needless to say, the Govt sanction was itself processed by the Records Office and it became clear from the copy of the PPO that it was very much forwarded to the Records Office. When the office of the PCDA(P) was further contacted as to why disability element had not been continued beyond July 2012, they replied that they had not continued the disability pension beyond the date since the Records Office had not forwarded the papers or any claim for disability pension to them. The soldier as on date remains without disability element of pension despite a Court order and acceptance by way of a Govt sanction and the Records Office even denies the existence of his PPO or medical board in his file. Where does he go? More litigation?

5. Personnel of ecological battalions of Territorial Army affiliated with Garhwal Rifles: TA personnel are entitled to pension after rendering 15 years of embodied (colour/physical service) without exception. However, personnel of ecological TA battalions were being denied this pension by the Records office of the Garhwal Rifles even on completing 15 years of embodied service on the pretext of an Army HQ letter of the year 2003 which stated that since ecological units were sponsored by Ministry of Environment and Forests, personnel serving on the strength of Eco TA units were not entitled to pension from the defence ministry. Needless to state, the Govt had never issued any such prohibition for such personnel. This controversy later got resolved when the Army HQ in 2007 clarified the issue by withdrawing the earlier communication and by stating that pension is admissible to such personnel also and there was no such prohibition imposed by the Govt. A similar clarification was issued by the CGDA too. Despite the fact that the Army HQ letter issued later has been pointed out to the Records Office of Garhwal Rifles, the Records Office continues to reject claims based on the outdated letter issued in 2003. Who gains by this? Isn’t it incumbent upon the Records Office to simply apply mind and read what is provided in letters issued by competent authority?

6. RTI Appellate Mechanism at the Army HQ: Usually, the PIO of the Army at the Army HQ is very prompt and efficient in providing information. However, the problem is that the PIO is dependent upon other directorates for information and at times the correct information is not received for further dissemination. Most of the times when proper information is not received and the appellate authority (Provost Marshall) is approached under Section 19 of the RTI Act, a similar sounding non-speaking mechanical  order is received by most inter alia stating the following:-

“And now therefore after having perused all records and after hearing views of nodal offices, I find that adequate available information has already been provisioned by the CPIO vide letter…..”

Of course, as per actual law, the Appellate Authority is supposed to deal with the grounds raised by the appellant, discuss the points of disagreement and pass a detailed order providing reasons for his decision and not just mechanically agree with what has been done. A recent live case is one in which on 20-07-2012 information was sought similar to Para (1) above wherein the policy on reinstatement/notional pension to those personnel who are dismissed on the basis of conviction and later acquitted was sought from the Army HQ under the RTI Act. Rather than providing this policy, the PIO at the Army HQ on 26-09-2012 provided a completely different policy dealing with suspension of pension of military pensioners. This was appealed against by the Appellant on 05-10-2012 but the Appellate Authority on 19-11-2012 without even applying mind on what had been asked for and what had been given or considering what had been stated in the appeal before him, has mechanically decided the case stating that “adequate information” had been provided by the CPIO. The Appellate Authority also directed the Discipline and Vigilance Directorate to provide a copy of a note submitted by the said Directorate to the Appellate Authority with annexures to the appellant. But readers would be surprised with what that note was. That note was a copy of a letter dealing with delegation of administrative powers to the Services HQ with no link whatsoever with the subject of the information sought. So what was sought, what was provided by the PIO and what was then provided by the DV Directorate were three different things and the Appellate Authority seems oblivious of what he has been made to sign! What is the ultimate net result? Moving the information commission for a two-paged policy which simply could have been provided had the concerned officers cared to just read the RTI Application or could be simply made available to the public at large on the official website of the organization. Alas even the Appellate Authority is functioning in a perfunctory manner unaware of what is coming before him and what he’s signing and is not being provided the adequate administrative or legal assistance as is most required in such situations.

The aim of highlighting some of above instances is not to pinprick but to make the environment realize how their lack of knowledge, interest and basic application of mind is hitting us hard. An earlier case of Surjit Kaur whose husband serving with the pre-independence Punjab Regiment was declared as a soldier of the Burmese Army adequately rounds up how sensitive issues are dealt with.

These were just a few examples of recent times which I had the unfortunate privilege of perusing, there are thousands more, crying out for barest of sensitivity, but the shrieks go unheeded.

Do something.

Wake up. 

While the Saint sleeps…..

On numerous occasions I’ve pointed out on this blog and OPeds as to how lower level functionaries in the Defence Ministry are making a mockery of the system and ensuring that benefits and welfare related schemes for defence personnel, disabled veterans and military widows are surgically scuttled before they reach the tables of decision makers. The minds of the competent authorities are confused and breached by these mischief mongers in a way difficult to describe.

Earlier this year, I had pointed out to Sh AK Antony how the system was being taken for a ride by some of the officers in the MoD, but despite the fact that the Services HQ officially and in writing agreed with what I had stated, the officers in question were not confronted or taken to task, of course which is in line with the best traditions of the Ministry of Defence.

I am left with no option but to describe in detail to the readers of the blog the contents of my letter and demonstrate how certain quarters of the Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence have not only misguided the Defence Minister of this country but also the judiciary and Parliamentary bodies. When the top political executive and constitutional bodies can be hoodwinked, the fate of the foot soldier or his family can well be imagined.

Please spare a few moments and go through my below reproduced letter minutely. It may be noted that my letter was not just based on hearsay but substantiated with evidence on each and every point by way of certified annexures and appendices. And this my friends is only the proverbial tip of the iceberg.

-------

To:

A. The Raksha Mantri                                                 

B. The Chief of the Army Staff                                   

C. The Defence Secretary

D. The Secretary, Ex-Servicemen Welfare (ESW)

                                                                                                               04 Jan 2012

SUBSTANTIATED NOTE WITH EVIDENCE ON HOW LOWER-LEVEL STAFF OF THE DEPARTMENT OF EX-SERVICEMEN WELFARE (DESW) AT THE MINISTRY OF DEFENCE (MOD) IS SCUTTLING ALL WELFARE AND PENSION RELATED MOVES, INCLUDING THOSE EMANATING FROM THE HIGHER ECHELONS, BY MISLEADING AND MISGUIDING THE ENTIRE SET-UP WITH FALSE FILE NOTINGS

1.    Being involved in, and as a keen observer of pensionary and welfare-related policies for defence veterans, I am perturbed by certain events at the Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence (MoD) which, crudely put, are resulting in the entire department being held ransom by its staff at the lower rungs.

2.      It is no secret that despite the well-meaning intentions of the Raksha Mantri and the higher echelons of the Ministry of Defence in general, and the Department of Ex-Servicemen Welfare in particular, defence veterans remain unhappy with the functioning of the system with regard to their welfare and pensionary benefits. The reason is not far to seek – the entire set-up and the purpose for which it had been conceptualised has been hijacked by lower level functionaries of DESW who not only scuttle every single positive move, including those emanating from the top, but also derive sadistic pleasure out of doing so. And in the process, this has not just harmed the interests of the veteran community but has also resulted in deception of the political executive, the Services HQ, top brass of the MOD, judicial bodies and even the Parliament.

3.     What I have said above is not merely hearsay but the reality. If you could kindly carefully peruse the points enumerated below with specific incidents and the documents annexed herewith which would substantiate what I say, it would be crystal clear that efforts originating from all stake-holders have effectively been sabotaged by a couple of officers who are involved in making false and incorrect noting-sheets for perusal of the competent authorities and who seem to be running the show, with all others, you and me included, ultimately becoming puppets in this gloriously deleterious spectacle.

4.      I would like to particularly point out issue-wise the following to you, with evidence:-

(a)  The issue of grant of pension of regular Naib Subedars to those Havildars who were granted the Honorary Rank of Naib Subedar, misleading statements made before the Supreme Court and back-tracking thereon :

·         As you may be aware, the 6^th Pay Commission recommended and the Govt implemented the grant of pension of Naib Subedar to Havildars granted the honorary rank of Naib Subedar, but the same was only done for post-2006 retirees. The Armed Forces Tribunal (AFT) at Chandigarh however held that the same needed to be notionally extended to pre-2006 retirees also. The judgement of the AFT was affirmed by the Supreme Court and thus attained finality. Against legal opinion, the DESW however still insisted on filing more appeals before the SC on the same subject and in one of the cases, the Department 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 prior to retirement (See Appendix A) and hence should be restricted to only such cases.

·         The truth however is that the said Honorary Rank of Naib Subedar is ALWAYS granted AFTER retirement and never prior to retirement. The Army HQ protested in writing about this misleading statement (Appendix B) time and again requesting for rectification, and so did some ex-servicemen organisations (Appendix C).  However, no action was taken by the lower staff of DESW. When questioned under the RTI Act (Appendix D) 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 Sh XXXXX, Under Secretary of the DESW, falsely replied (also Appendix D) 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.

·         This reply of Sh XXXXX, the appendices obtained under the RTI Act from the Services HQ would show, is utterly incorrect since the case was repeatedly taken up by various authorities for rectification with even the then Secretary approving it, and the sad part of the entire issue which becomes clear from Appendix B is that the above named XXXXX was fully in picture and was one of the signatories on the oscillating minute sheets on the subject. The question then also arises whether the Solicitor General could have acted in vacuum on his own in making an incorrect statement without any briefing by the DESW?, which naturally is not possible. It is clear from the above that the Army HQ and also other organisations had promptly taken up the issue but still Sh XXXXX not only provided false information under the RTI Act but also kept the entire system, the Solicitor General and also the Supreme Court in the dark about the reality even on being pointed out. What did he gain by cheating poor ex-servicemen?

(b)  Statement before the Parliamentary Standing Committee of the 15^th Lok Sabha tabled on 03-08-2011 related to the pendency of cases :-

·         A report appeared in the media that a statement was made before the Parliamentary Standing Committee that only 303 judgements passed by Courts / Tribunals had not been implemented by the MoD and the blame for lack of promptness of implementation was tacitly put on the Army HQ. Firstly, the number of 303 is totally incorrect. The actual figure must be more than 2500. (It would be in the fitness of things if you could call for the figures from all Services HQ). Secondly, when the MoD was confronted under the RTI Act with this news-report, a reply was initially given that no such statement had actually been made and that a reply was merely in the drafting stage. The Lok Sabha Secretariat however provided a full copy of the statement which is annexed as Appendix E in which the Army has been blamed for non-promptness in implementation of judgements. Thirdly, it is common knowledge that it is not the Army / Services HQ who delay matters but the DESW, which, due to over-reliance on opinion of lower level staff does not take decisions on cases projected by Services HQ for policy resolution after judgements on particular subjects by judicial bodies. RTI replies have shown that multiple issues referred by the Services HQ are pending for resolution at the DESW even after in-principle approval by the Secretary ESW. It is also learnt that the Defence Secretary had been informed, just before Mr Chaterjee took over as Secretary DESW, that all judgements have been implemented and no contempt petition was pending. This is also far from the truth and it is a fact that 90% of judgments are not implemented unless a contempt or execution petition is filed thereby leading to multiplicity of unnecessary litigation.

(c)   Spreading canards amongst veterans that it is the Army HQ which files appeals in verdicts favourable to ex-servicemen and not the MoD :-

·         It is again common knowledge, as also explained in the preceding paragraph, that the Services HQ have time and again projected many cases to the DESW involving amendment to policies adversely commented upon by Courts and the stake holders. The Services HQ have also many-a-times recommended and directed that appeals should not be filed in certain pensionary matters but still the DESW has remained adamant opining that its policies are sacrosanct and that judicial pronouncements are not correct. Not only that, ex-servicemen organisations are being informed that the MoD has always remained in favour of implementing judgments and not filing appeals and it is the Army HQ which files appeals. Moreover, as explained in the earlier paragraph, various important policy decisions are pending with the DESW which are not being resolved despite requests by the Services and affected veterans. It is being officially incorrectly portrayed that appeals are filed only on recommendations of the Services HQ in consultation with Ministry of Law. This stand has not only been mentioned in meetings but also expressed in writing; one of the examples is attached as Appendix F.

(d)   Evidence of wrong file-notings leading to skewed decisions by competent authorities, with special reference to the ‘broad-banding’ case :-

·         The lower staff of the DESW prepares false and incorrect file notings which lead to clouded decision-making at the top. It is well appreciated that senior officers do not have the time to go into minute details of all issues but the least that can be done is that stake-holders could be consulted as is being effectuated by the Department of Pension and Pensioners’ Welfare (DoPPW) on the civil side leading to a democratic decision making process, and the amount of application of mind could be intensified. One such glaring example is the subject of ‘broad-banding’ of disability element of pension which was introduced to curtail medical subjectivity and which was only extended by the MoD to invalided out personnel and not to superannuated personnel or those who were released on completion of terms of engagement.

·         This was done despite the fact that unlike the civil services, defence pensionary rules ordain that all personnel who are released in low medical category are to be deemed as invalided out from service for disability pension purposes. Moreover while issuing the policy; it was probably not appreciated that medical subjectivity and rigidity in calculating disability percentage equally afflicts invalided out as well as other personnel who are released with a disability pension. It is important to point out that till the 5^th CPC, invalided out and other released / retired / discharged personnel of the defence services were receiving an absolutely equal amount of disability element, but this long standing parity was disturbed by introduction of broad-banding only for one section, that is, invalided out personnel.

·         What is disturbing in this issue is the fact that again the above mentioned official XXXXX, Under Secretary in DESW, prepared a noting sheet in one of the cases (obtained under the RTI Act and attached as Appendix G) in which he falsely and wrongly stated that disabled personnel who are released / superannuated / retired / discharged are not even entitled to normal disability element of pension but are entitled to only to a lumpsum compensation. This false observation went upto the top and was not questioned and was ultimately accepted.

·         The truth however is that all personnel retiring with a disability connected with service are entitled to disability element and the controversy was only restricted to broad-banding which had been granted after 1996 only to those who are invalided out. Disabled personnel however do  have an option of lumpsum compensation but that is in lieu of disability element and if at all such an option is exercised, then disability element is not admissible (See Paras 8 & 9 of MoD Letter dated 31^st Jan 2001- extracted as Appendix H). Hence lumpsum compensation is not mandatory but optional. Nobody in the chain ever questioned this officer as to how he made such a false statement.

·         It is also learnt that despite the fact that two judgements have been rendered in favour of veterans on the subject of broad-banding by the Supreme Court (Civil Appeal 5591/06 KJS Buttar Vs UOI allowed on 31-03-2011 and Special Leave to Civil (Appeal) CC 5450-5451 UOI Vs Paramjit Singh decided on 04-04-2011) and the fact that the Army HQ has refused to file appeals in cases of similarly affected personnel, still again based on incorrect noting sheets the staff of DESW is trying its best to mislead the system by convincing to file appeals in the SC which is not only morally, but also ethically incorrect. While vide Appendix F it was publically stated that it is only on the asking of the Army HQ that appeals are filed, here is a perfect example where the DESW is going out of the way against disabled veterans despite refusal of the Army HQ in this regard and despite authoritative latest SC rulings. I would also like to point out to you that the predecessor of the current Secretary ESW, Ms Neelam Nath, at one time had approved in principle an amendment in policy in this regard but again her approval was scuttled by misleading notings on file portraying that personnel who retire with a disability are not entitled to disability pension at all and hence broad-banding is not applicable to them.

(e)  Exaggerated and misleading public projection and wrong inputs to the Defence Minister :-

·         It would not be an understatement to suggest that most of the notings sent upwards play havoc with the understanding of the senior staff. Even the Raksha Mantri is not spared by spin-doctors in the DESW. To take a recent example, in speeches prepared by the DESW, the Raksha Mantri, on more than one occasion (Appendix I) stated in public that ‘keeping in view the valour and sacrifices of defence personnel’, the Ministry had decided to provide them with Rs 3000/- per month as Constant Attendance Allowance (CAA) and disability / war-injury pension. What is objectionable is the fact, that firstly, CAA, war-injury pension and disability pension have been admissible from times immemorial and there is nothing new in these concepts. Secondly, CAA is also now admissible to civil central govt employees and has no connection with ‘valour and sacrifices of defence personnel’. Thirdly, CAA is not granted to all disabled personnel as projected but only to those who are 100% disabled. Fourthly, it is not the DESW that had enhanced the CAA to Rs 3000/- but the same was done on recommendations of the 6^th CPC and it was equally done by the DoPPW for civilian pensioners also. Fifthly, even the concept of disability pension is not unique for the defence services and has been in vogue since the 1930s for civil pensioners too under the Central Civil Services (Extraordinary Pension) Rules.

·         Hence when the senior most political executive in the Ministry can be made to believe and project wrong facts, God save the others !!!. It has been the constant endeavour of certain elements to make the public believe that the DESW is going out of the way for the welfare of veterans while the truth is, especially as explained above, that most of these benefits are already available to civilian employees also, and on the contrary, a majority of welfare related moves reach a road-block at the lower level of the DESW. It is the will of the bottom of the chain that ultimately prevails.

(f)  False statement before the Parliamentary Committee on Petitions of the Rajya Sabha (142^nd Report) submitted on 19-12-2011:- 

·         While dealing with the subject of enhanced pensions for defence personnel, the DESW pointed out (See Para 6.1, enclosed as Appendix J)  that they were faced with an administrative difficulty in processing the case for One Rank One Pension (OROP) since documents of defence pensioners are destroyed after 25 years. This statement is incorrect, false and misleading. Documents are destroyed after 25 years ONLY in respect of NON-PENSIONERS as per Regulation 595 of the Regulations for the Army. Moreover the Pension Payment Orders (PPOs) are retained during the entire life-time of a pensioner and then the family pensioner. Was the DESW attempting to project that pensions for defence personnel are stopped after 25 years since the documents are destroyed?. The aim behind such a banal statement cannot be understood. If a particular pensioner is being paid pension on the basis of a PPO, naturally his/her rank and length of service would be available in the records. The officer responsible for preparing this excuse of 25 years which is not applicable at all to pensioners should be taken to task for attempting to mislead a Parliamentary Committee.

(g)  Non-adherence to National Litigation Policy and misleading statements before the Courts apparently because of incorrect briefing of govt counsel by the DESW : -

·         The National Litigation Policy promulgated by the Law Ministry provides that the Govt shall be a reluctant litigant in pensionary matters, but the same has not had any effect on the DESW. Moreover, the DESW staff has a history of wrongly briefing Govt counsel on matters of pensionary benefits in Courts thereby leading to decisions which are based on incorrect or incomplete facts. The most recent example has been enumerated in point (a) above and a list of such decisions is enclosed as Appendix K.

·         Some examples are as follows – In Secy MoD Vs Ajit Singh, it was stated before the SC that the person involved was not entitled to disability pension since he had less than 10 years of service. The reality is that there is no requirement of minimum service for disability pension. In UOI vs Jhujar Singh where the SC was examining the grant of disability pension on account of an injury sustained on leave, the Court was not informed about similar SC decisions in the past.  In UOI vs Ajay Wahi, the SC was not informed that the impugned rule that was being examined already stood amended, and so on.

(h)  Finding Excuses to put in limbo all welfare related proposals projected by the Services HQ and Ex-Servicemen Organisations :-

·         The lower staff of the DESW looks for excuses to either reject or to procrastinate on the proposals related to welfare of veterans. This is clear from the fact that more than 20 pension related proposals, some supported by authoritative verdicts of Courts, remain pending for issuance of policy decisions by DESW. One of the oft used delaying tactic is that opinions are sought from the office of the Controller General of Defence Accounts (CGDA) or the Principal Controller of Defence Accounts (Pensions) which are merely auditing and accounting agencies and have no role to play in policy formulation or decision making. In fact, most of these agencies view such issues from a narrow and restricted point of view and are reluctant to have a positive outlook.

·         On the civil side, is it ever expected that the DoPPW would seek opinion from the Central Pension Accounting Office (CPAO) for taking such decisions? This, of course, is never the case. The openness and democratic system of functioning reflected by the DoPPW runs counter to the attitude of the DESW. While the former runs on Result Framework Documents (RFD) in which the time-period of decision making is completely defined, the latter runs on the ‘delay and deny’ spirit at the lower level. While the former places all important meetings, policy decisions and govt letters on the internet on the very day of issuance, the DESW does not even ensure their physical circulation to stake-holders or agencies. Again, the will is not lacking at the higher levels, but the system is being held at ransom by lower level officials and their ability to record false and incorrect notes.

5.      The idea behind informing you about the above is that it may kindly be ensured that all of us do not become pawns in the hands of a couple of officers who are bent upon taking the entire system for a ride. Governance should not become a joke and our thought-processes may not be mortgaged to mischief-mongering of a handful.  Most of such officers are resentful of the fact that the govt bestows upon defence personnel certain additional benefits which are not available to civilian personnel. Petty issues such as availability of subsidised liquor and groceries from Canteens become pin-pricks and encourage sadism. Moreover, since the Department has not, as a matter of practice, made any of the stake-holders a party to the decision making process, the voices of end-users remain unheard and this has a disastrous effect because the ones making noting-sheets are not affected by any of the policies under examination and thus take no interest in positively dealing with the same. The situation is reverse in the DoPPW on the civil side where the ones processing and taking policy decisions are themselves affected by the policies they are dealing with.

6.     It would be in the fitness of things if you could kindly take personal interest and go into details of this subject, inquire into the matter and take action against officers who have deceived the Parliament, the Courts, the MoD, the defence services, defence veterans and the public at large. That would be the greatest service to the nation and actual ‘welfare’ to ex-servicemen which in theory has been envisaged by the so-called well-intentioned but poorly executed Department of Ex-Servicemen Welfare.

                                                            Thanking You,

  

                                                                                                          Sd/-

                                                                                                (Navdeep Singh)

Copy for independent action to :

1. Chief of Air Staff

2. Chief of Naval Staff

3. Rajya Raksha Mantri

4. Adjutant General

5. Director, PS-4 (Legal)

6. Secretary (Personnel)

7. Secretary-in-Charge, DoPPW

Enclosures :

Appendices A to K, as above

A tale of two departments

Look at how two departments function, both dealing with pension.

Let’s take the reference of disabled civilian and defence pensioners.

Disability benefits on voluntary retirement were available to civil pensioners but not to defence pensioners prior to the 6^th Central Pay Commission. On the other hand, Constant Attendant Allowance (CAA) was available only to defence pensioners with 100% disability but not to civilian pensioners.

The 6^th CPC resolved both anomalies and directed that with effect from 01 Jan 2006, disability benefits shall be made available to disabled defence personnel even on voluntary retirement and also extended the benefit of CAA to civilian pensioners.

But look how the Department of Pension & Pensioners’ Welfare (DoPPW) dealt with the issue. After issuance of the orders for post-2006 retirees, DoPPW immediately issued a clarification that the new stipulation would also apply to pre-2006 retirees with effect from 01 Jan 2006, thereby bringing succour to similarly placed employees irrespective of the date of retirement but with financial benefit from 01 Jan 2006.

On the other hand, the pension wing of the Ministry of Defence issued orders allowing disability pension to voluntary retirees with effect from 01 Jan 2006 but ONLY restricted to post-2006 retirees. Hundreds of Court judgements and thousands of pages filled with file notings from all concerned later, the MoD refuses to budge from its banal stand and continues to challenge all such decisions by Courts and Tribunals in the Supreme Court, refusing to see reason. The Army HQ has tried its best to convince them but a couple of officers in the pension department in DESW rule the roost and continue to misguide the top echelons. This has not only resulted in heartburn but has also unnecessarily clogged the dockets of Courts with totally unwarranted litigation.

Therein lies the difference, while the DoPPW is known to sensitively deal with pensionary benefits of central govt employees, the pension wing of the MoD views defence personnel as a greedy adversarial lot.

We’ve discussed this issue before but that’s how it is. No change. None expected too. 

The International Court of Justice (ICJ) quandary in Saurabh Kalia’s case

Many issues arise from the unfortunate series of events in the last few days related to a father’s fight for justice.

Mr Kalia has spent the better part of the past 13 years seeking justice for the perpetrators of the barbarism unleashed on our soldiers in the Kargil War, including his son, Late Captain Saurabh Kalia.

It seems that the Govt has done little to apply balm in this very unfortunate event which can send chills down the spine of any living soul. As reported widely by the media, Mr Kalia has now decided to approach the Supreme Court praying for directions to the Union of India that it should approach the International Court of Justice (ICJ) in this regard.

Elements in the Govt have rendered their voices of support to Mr Kalia’s request to the official establishment for approaching the ICJ. However such voices of support are hollow to the say the least. I say this because similar directions to the Govt of India for approaching the ICJ were passed in December 2011 by the Gujarat High Court in a long pending case filed by the late General Aurora, the details of which were reported earlier on this blog. However the Central Govt approached the Supreme Court challenging the directions of the High Court as far as they related to approaching the ICJ (Para 27(a) of the HC judgement). The Central Govt had also sought a stay on the operation of the directions of the HC which was granted by the Hon’ble Supreme Court.

If true, it thus seems silly when as reported it is stated by the Govt that the file on the Saurabh Kalia issue related to the matter of approaching the ICJ is still alive, pending and shuttling between the Ministries of Defence and External Affairs. I say it is silly since the Govt has already made it clear on oath in Gen Aurora’s case that it is not in favour of approaching the ICJ, and has in fact obtained a stay on the HC directions thereafter. Double speak or lack of coordination, I cannot say with certainty till the time a clear-cut statement is issued by the MoD or MEA.

There is yet another angle to the matter. Vide Article 36 of the applicable statute, the ICJ can only be approached by States and that too with the consent of the parties involved, that is, India and Pakistan in this case. In order to approach the ICJ without consent, the jurisdiction of ICJ needs to be explicitly mentioned as conferred by the treaty under question. The list of treaties that confer jurisdiction on the ICJ does not include the one infringed in this case and hence in that sense, even the hands of the Govt are tied. It needs to be seen and examined whether the SC would be able to resolve this subject and provide guidance to the Govt by way of judicial intervention or interpretation of an international statute resulting in providing leverage of approaching the ICJ.

That said, even in case of a direct legal impediment, it was incumbent upon the Govt to at least try resolving the issue or ironing out the creases or finding a way of assuaging a father’s quest. After all, our MEA is fully competent to find a via-media in such intricate issues. The Govt could have also tried to seek consent of the Pakistan Govt for approaching ICJ but I doubt if such steps were taken. It is unfortunate that a father is being made to seek judicial intervention in a matter which should have been sensitively handled by the Govt’s own experts on the subject operating in this domain. And as stated above, how far the SC would be able to intervene also remains to be seen in view of the inherent impediment in the statute governing jurisdiction of the ICJ.

The ball is, and also logically should firmly be, in the Govt’s court and it would be nothing but plain legitimate expectation for us to hope that the Govt takes it up in the right earnest or makes a statement in the SC when the case comes up for hearing that it shall take up the issue before the right forum forcefully and try its best to take it to its logical conclusion thus providing the much required balm to the family which has suffered for the last 13 years.

The barbarism is not to be forgotten and could have also been compounded by the fact that the players involved were that of the Northern Light Infantry, then an irregular paramilitary force, in composition almost a militia comprising tribals, and not troops of the Regular Pak Army.

That aside, the respect that is due towards soldiers of even the other side, and the human element after death in war, can be gauged in this rare video which shows the respect and salutations awarded to the enemy after death while handing over bodies to representatives of the other Army.

Let us all hope that no parent is made to suffer this ignominy ever again in any Army

Agree with AK or not, system in shambles!

I do not personally agree with the manner adopted by Kejriwal in parading a former commando in front of TV cameras with his woes. I may not agree, but others may, and that is just my own humble opinion.

However, if the allegation of delay in release of pension for 14 months after invalidation is true, then it is unforgivable. If the delay was actually there then it should have been admitted by the system rather than putting out a morbid PIB press release which confuses the issue for the public at large to consume. It is yet another matter that though the official press release talks a lot about the enormous benefits released, it does not state as to whether there was a delay in the grant of pension or not or the date of release of the person from service and the date when the pension was released.

It has been oft repeated that delay in release of pension, especially for disability pensioners, is due to the internal procedures involved and regularly happens in many cases. But is this correct? Or are there guidelines governing the issue?.

What the PIB press release and the official establishment do not want to come to light is the provisions of Paragraph 19 of Appendix C of Integrated HQ of Ministry of Defence (Army) Letter No B/40122/MA(P)/AG/PS-5 dated 20 July 2006 which clearly provides that the Release/Invaliding Medical Board (RMB/IMB) is supposed to be conducted 8 months prior to release and the approval is to be granted within 1 month of the RMB/IMB and then adjudication is to take place within 3 months of RMB/IMB and sent to the office of Principal Controller of Defence Accounts (Pensions) who is then supposed to issue a Pension Payment Order (PPO) within 1 month of the receipt of the claim. Hence in normal circumstances, the PPO for disability / war injury pension is to be issued 3 months prior to discharge/invalidation. The delay, if any, can only happen in cases involving rejection of claims of attributability resulting in a fresh medical board and in that case too, in accordance with the period prescribed, the PPO is to be issued about 15 days prior to release from service.

Keeping in view the above mentioned procedure already codified as an SOP, any delay is unacceptable, especially in the case of the NSG commando, and neither it should be defended nor condoned. The correct way out for the Govt or the Army was to fix responsibility as to who were the persons involved in the delay. People sitting in bureaucratic chairs do not realize and cannot fathom that being out of service how these disability pensioners would survive or feed their families till the time pension is released, how would they receive medical care since many would not know that ECHS Medical Cards are not issued to disability pensioners till the time the disability pension PPO is issued.

The delay is nothing new. Thousands of claims are languishing with the Personnel Services Directorate and the Pension wing of the MoD for resolution and adjudication. Appeals are also delayed inordinately resulting in perpetuation of sufferings of the disabled. A live case handled by me just a few days ago was of an invalided Captain who was released in the year 2000 but has received his Pension Payment Order (PPO) for his complete service benefits now, in November 2012. And that too, not with the help of the system, but through the help of a mere RTI Application. It is yet another matter that the Supreme Court has laid down that pension should be released forthwith on the date of retirement and that any delay in release of pension should be penalized with interest at market rates.

We’ve been saying this on this blog since long and all of us have been playing our small little roles but there is much to do.

To put it succinctly, the Govt should not just unnecessarily rebut what is now coming out in public light, it should resolve these issues rather than retorting with mindless egoistic press releases.  

Forces Law Gazette : Issue No 3 (December 2012) now available on www.lawgazette.net

The third issue of the FORCES LAW GAZETTE has been published and is now available for free download on www.lawgazette.net

The download link is on a verified host and is virus-free.

Due to paucity of time, the frequency of the gazette has been changed from quarterly to half-yearly.

The FLG is a non-commercial newsletter and covers law and allied issues related to uniformed forces of India and other democracies. The December issue covers legal and other allied subjects till date.

Contributions in the forms of articles and write-ups are welcome and can be emailed to me.

The latest issue can also be downloaded directly by clicking here without visiting the FLG website.

Guest Post: BeeCee’s views on post retirement occupation, legal redressal and status+protocol issues

Our regular guest writer, BeeCee is back, and would like to share his views on post retirement jobs, veterans & serving personnel approaching judicial fora for relief and status issues. His earlier posts, and references to those posts, can be accessed by clicking here.

The views are his own. I would particularly invite the attention of readers, specially serving personnel, to his observations made in this post on status incongruities. 

Enjoy.

XXX

Navdeep's recent posts on Status issues and Rank pay, as well as some other mails on the net regarding post-retirement employment must give us pause to see the inter-connectedness of many of these issues. Also at play is the proposal to further restrict employment of ex-servicemen.

Post-retirement Jobs

As correctly brought out in a mail among some veterans, further restrictions on post-retirement occupation is another self-goal in the making by the Services HQ. 

To be fair, we are not alone in this. A former British General was describing to me the other day an  expose/sting op done by a UK Paper on senior retired military officers and their links to the defence procurement process in the UK. But the problem may actually be in the rules than in the personnel. The points I want to raise are threefold:

1. Does the GOI actually have the right to decide what work you'll do or not do when you retire? In particular, to proscribe you from doing the job you are most competent to do? One veteran had also raised this issue more directly sometime back and suggested that the GOI must compensate the affected parties adequately if they apply such restrictions on employment.

2. Is there any other sector where the only people with domain knowledge are banned from working in the particular sector? Say, like 'if you have banking experience, you cannot work in the financial services industry' or if you have IT experience, you cannot work in the computer industry etc. What amazes me is that those who suggest these measures seem to be completely oblivious to the inherent self-contradiction in such blanket bans. The Service HQ must actually be actively involved in encouraging veterans to join the defence industry so that their knowledge and experience can be beneficial to both the vendor and the customer, and of course the country in general.

(Post Note on Points 1 & 2 : Yes, service rules prescribe prohibition on commercial employment for civilian as well as defence employees according to rank, however the said stipulations are peppered with many ifs and buts, and, as they stand now, are not blanket or draconian in nature –   Navdeep.)

3. Isn't it also surprising that the same people who advocate greater removal of controls and regulation for better efficiency in the marketplace advocate the opposite for Defence industry. It does not stand to reason that openness and transparency that is beneficial everywhere else would be counterproductive only in the defense sector.

My own view is that discouraging Service personnel from embracing this is a deliberate ploy by those already in it or their cohorts, to minimise competition and scrutiny by others with product knowledge. Corruption is a red herring. Of course there may be corruption, as in any human activity and must be dealt with ruthlessly. But the solution to a headache is not to cut off the head. I haven't heard anyone say that people who understand telecom or coal must be banned from those sectors because of corruption there.

The surprise is that Service HQ (and many veterans) don't see through this. Or is it a case of turning the Nelson's eye? You can then have shadowy operators (veteran or otherwise) coming out of the woodwork without scrutiny. It is also a way of creating continued dependency of veterans on govt handouts whether it be in the form of public/political appointments, Track II sojourns etc instead of letting personnel strike out on their own and make a living based on their personal competence.

Instead of parroting such views, Services HQ/Veterans need to look at the constitutional validity of such instructions. I suspect what may be required is merely a full disclosure from the veteran regarding his military background. In case of any conflict of interest, his competitor (likely another veteran) is sure to bring it out easing out the job of the procurement agency and delivering better service.

General VK Singh in the spotlight

Fortunately, a fair amount of sensible comment is coming in the media, especially if the last rank in service was relatively junior. Let me add some points to ponder.

Maj Dhanapalan's going to court to claim what was legitimately due to him has been hailed by all of us because the court upheld his claim, and especially because the RDOA effectively made it into a class action with many benefitting. 

When Gen VKS went to court to claim what was legitimately his due (at least I feel that way), many frowned and even became shrill when the court also took evasive action. Technically or legally, I think the General's claim was as valid as Maj Dhanapalan's.

But the point that needs to be made is that irrespective of personal opinions, both cases were caused by action/inaction at Service HQ, all three HQ in the former, and Army HQ in the latter. Has anyone been called to account for this? This, I think remains a fundamental failing.

When you compare DPA/NHQ's(reported) brief with that of RDOA on the Rank Pay case, one realises that nothing much has changed and Service HQ still haven't got their head out of the sand. The scales indicated in the letters in circulation are actually a bit lower than what would have been automatically available if we had just accepted civil norms to begin with. 

Status issues

Which brings me to the third issue highlighted by Navdeep on his blog and various comments thereon regarding status.

Again, here the primary culprit is Services HQ in the past because status is related to pay. This is what happens if you have a bunch of decision makers who feel that 'Service officers have/had an edge over others in pay', then further create an ambiguity in basic pay through integrated scale/Rank Pay and then add to it some officers who want to hang around in Delhi in whatever position is available.

NHQ had caught on to this sham in the mid 90s when the Cabinet Secretariat had asked for "Commanders (psc) on deputation to work as Under Secys in ......”. Navy wrote back to Cabinet Secretariat to make up their mind on whether they wanted Commanders or Under Secys to Govt of India. If it was the former, then they would have to be designated as Directors and if it was the latter, Navy will send Lieutenants. After some back and forth and a meeting between COP and the Secy, a meeting was convened to iron out an agreement between NHQ and Cabinet Secretariat. 

The interesting aspect is that none of the civilians on the other side of the table had a problem with a pay based equation (which was finally agreed to) as suggested by the Navy and is the norm elsewhere. Vociferous objection was from the senior military officer in the Cabinet Secretariat, a Maj Gen. The substance of his argument was that rank for rank military officers were paid higher and that it is only NHQ that had a problem while Army and Air HQ were willing to send even Cols/Gp Capts to Under Secy level posts. NHQ did win the argument there at the time but the latter part of his stand was also true. This and the exchange of words between the Maj Gen and a relatively junior naval rep provided much amusement to the civilians present during discussions.

Unfortunately, he was not alone in that line of thinking. At Delhi, it was common to see Majors and Dy Secys Govt of India/Directors staying in the same block of DII accommodation. This was because they had similar levels of pay and service and you didn't have to be a genius to realise that these grades were at par. However most Service officers of the rank of Major  had convinced themselves that they were junior, but were paid higher with better accommodation entitlements. A classic case Groupthink, at variance from reality.

On the comments of some bloggers that individual officers must refuse to take up lower level deputation posts, my view is that it could be done, but it will only have marginal impact. Addressing systemic faults is the responsibility of Services HQ and they need to ensure that no individual is put in a position to make such difficult choices. 

  

For whatever it's worth

BeeCee

Welcome step by the Army: Official website finally put to use for welfare of veterans (OFFICIAL NOTICE- Rank Pay Judgement)

Leaving bland sarkari attitude behind, the official establishment has finally made use of the potency of internet.

In order to ensure smooth implementation of the rank pay judgement rendered by the Supreme Court, the official Indian Army Website has placed online the names of all affected officers so as to enable them to check their particulars.

The notice placed on the official Army website with the said list, can be accessed by clicking here.

The link also contains the procedure for correction in case the particulars are found to be incorrect, or not found at all.

Officers who are not tech savvy or unable to handle MS Excel may kindly contact Maj Gen K Khorana at kkrishen [at] hotmail.com. The General has most kindly agreed to provide assistance to those requiring it. 

The use of social media and the power of internet was discussed on this blog earlier in February 2012 and that post can be accessed here.