‘Global Seminar on Military Justice Reform’ held at Yale University : Full Report

The report on the ‘Global Seminar on Military Justice Reform’ held in the US at the Yale University in Oct 2013, has been made available.

The seminar was attended by judges, jurists, academia and lawyers dealing with military law from around the world of which I was one of the invitees.

The full report can be accessed by clicking here and would be of special significance to those dealing with related subjects.

The report is succinctly drafted and is 19 pages only and hence should not impinge much on the time of the readers.

The last pages of the report comprise the ‘reading room’ of the seminar with clickable links of resources that can be directly accessed online.

Thanks.

Guest Post: ARE WOMEN CLOSER TO FRONT-LINE COMBAT? - Maj Gen Raj Mehta

The below reproduced article on women officers, authored by Maj Gen Raj Mehta, was published in Geopolitics.

ARE WOMEN CLOSER TO FRONT-LINE COMBAT?

Raj Mehta

In a dramatic policy shift on 24 January 2013, outgoing US Defence Secretary Leon Panetta lifted the 1994 military ban on women serving in combat. This landmark initiative will allow uniformed women to be closer to front-line combat roles from mid 2013 onwards - unless there is strong opposition in the US Congress. India, which faces crippling shortages of over 13,000 officers in its armed forces, can learn lessons from this American initiative. It can make a virtue out of necessity by enrolling more women officers to make up its deficiencies. Raj Mehta examines the complex dynamics involved.

***

The recent American announcement allowing uniformed women to enter the hitherto ‘male only’ preserve - the combat zone - has aroused strong emotions worldwide. The male-dominated military world is not excited and a flood of articles have questioned the validity of the policy change. Understandably, women’s rights activists and equal-opportunity enthusiasts the world over are delighted because another male bastion has fallen by the way side. A dispassionate analysis however reveals that the forward movement to “officially” allow uniformed women to enter combat is in actuality a small, breakaway step from the otherwise glacial evolution of allowing American women to enter hardcore combat. It has, however, stopped short of officially allowing women to serve in combat. The fine-print of the policy change allows women to be permanently assigned to a combat battalion as radio operators, medical officers/orderlies, tank mechanics and other critical jobs; assignments barred by the now-rescinded 1994 combat exclusion policy which prohibited women from being assigned to ground combat units.

A Reality Check - Are Women Closer to Combat Now?

That combat exclusion, was, in real terms, never strictly applied by the US armed forces and was informally “bypassed” - and therein lies a tale. America has a uniformed strength of 1.4 million personnel of which a significant 14 percent are women both in enlisted and officer ranks. It has deployed over 2, 80,000 women in Iraq and Afghanistan since 1990; suffering 144 women killed in service and over 865 wounded. Under severe manpower availability pressures, the US military got around the exclusion rules by "attaching" women for some jobs to battalions. This meant they were working in combat situations without getting any official credit for the same. Army women veterans wryly say that the new policy has merely legitimized existing arrangements. "We're already doing this stuff," says a former Marine captain, now the Executive Director of the Service Women's Action Network.  She added: “We’re not talking about opening up the Infantry to every woman, but the women who do want to try these jobs should be allowed.” A US Quinnipiac Poll held in February 2012 found that 75% Americans believed women should be allowed on the front-line.

The consuming desire to allow women in combat roles in-so-far as women activists, uniformed women and the female gender in general, is widespread. The men, world-wide are, however, nowhere near as enthusiastic or as supportive of the landmark US policy change, and for a number of “reasons” which they cite as hard evidence. Let us examine their validity.

THE CASE AGAINST WOMEN IN COMBAT

Opinions justifying exclusion of women from combat have coalesced around deep-rooted concerns explained in the succeeding text.

Physical Concerns

Female soldiers are in general, smaller and lighter than male peers, have almost half their upper body strength and 25-30% less aerobic capacity; making their endurance ability far lesser than men. The female skeletal system is less dense and more prone to breakages; in particular to stress fractures. There are concerns too, that women pilots do not cope with g-forces as well as male pilots do. Naval opinion undermines women as submariners because of their need for more space; separate toilets; problems of “hot bunking” (sharing bunks with male peers on shift basis; the word “hot” meaning that the bunk retains the warmth of the last occupant). Estimates pitch the additional cost of catering as a costly $300,000 per women submariner.

Psychological and Physiological Concerns

The perceived negative impact of a combat unit's esprit de corps if a woman peer is wounded or taken prisoner/molested is cited as a key reason for women to be excluded from front-line combat. The Israeli Defence Forces report soldiers going berserk and exhibiting “uncontrollable, protective, instinctual aggression” on such occasions. There is also the fear of women ruining male bonding by bringing in romance and its stressful/competitive fall-outs. Increased pregnancy risks; attendant social disruption and women using their bodily functions and pregnancy to escape combat situations are serious add-on issues.  The issue of a woman’s instinctive underpinnings to nurture and preserve life rather than take it makes men feel women will always be squeamish about killing and bloodshed; an unavoidable fallout of combat.

CONTRARIAN VIEWS FROM VENUS

Uniformed Women are wired to do well

Opinions about women’s ability to cope with combat are not just driven by rhetoric but, equally, by research. A 2008 study by Jennifer Silva of female students enrolled in the US Reserve Officers' Training Corps program found that female cadets saw military training as an "opportunity to be strong, assertive and skillful" and "as an escape from the negative aspects of traditional femininity". The study reported that female cadets "were hyper-vigilant about their status as women performing tasks traditionally seen as men's work”. It is already well known, of course, that women as a gender are far more conscientious than men; are more honest and have far better communication skills; reinforcing IQ with Emotional Intelligence (EI); an asset that women use routinely and men sparingly, and whose possession  could be a valuable life skill.

Women don’t always have to involve in Close Combat

While the Army assertion about women performing physical tasks with noticeably lesser competence than men is indisputably correct, it seems obtuse and archaic to demand that both sexes should be tested by the same yardsticks and female physiology remain the overriding factor in determining women’s combat worth. In an Indian tank regiment of around 650, for instance, only about 200 soldiers actually enter combat as tank crews; with another approximately 200 involved in supporting tasks where the risk of close combat is lesser though still real. That leaves about 250 soldiers who, though in the combat zone, will rarely be involved with warfighting. The implication is clear; women pitched into a combat zone do not have to be “like the boys”. They can still earn professional respect in the roles that US policy has now specified, sparing males for high endurance jobs.

Air Force and Naval Issues

So far as the Air Force is concerned, there is indisputable medical evidence that male pilots are less able to handle g-forces than female counterparts since women are less likely to suffer black-outs due to shorter blood vessel routes in the neck. This does not make men lesser relevant but it certainly makes women pilots more relevant. No wonder then, that western air forces and even the Pakistani Air Force now allow women to fly fighter aircraft. Even conservative India has, as of January 2013, allowed women pilots to fly combat helicopters. The Naval issue has also been needlessly hyped up as some countries realised, after the Norwegian Navy first successfully inducted women commencing in 1985. Women now hold senior positions in both submarines/ surface ships in some Navies.

Can Women Warriors Cope with Combat?

The question of women being brutalized if captured is, of course, real. That said, the brave attitude of Major Rhonda Cornum, now a Brigadier General is worth noting. She was taken prisoner by the Iraqi’s during the Gulf War in 1991. Asked not to mention that she had been molested,  Cornum subsequently disclosed the attack, but said "A lot of people make a big deal about getting molested," adding: "But, in the hierarchy of things that were going wrong, that was pretty low on my list". In 2007, author Kirsten Holmstedt released Band of Sisters: American Women at War in Iraq. The book presents twelve stories of American women on the frontline including America's first female pilot to be shot down and survive, and a 21-year-old turret gunner. The bottom line? Most women can and do cope with combat, though wisdom may lie in their avoidance.

The history of warfighting also supports the contention that women can become skillful in combat. In World War 2, the Red Army of Russia had about 4,00,000 women serving as tank crew, infantry, snipers, military police, medics and nurses. Roza Shanina, a Soviet sniper during World War 2, was credited with 54 confirmed ‘kills’.  Between 1942 and 1945, 12% of Russian fighter pilots were female. Britain’s Special Operations Cell trained 418 female agents as spies of which 119 were shot, including Noor Inayat Khan; an Indian and a direct descendent of Tipu Sultan.

The Indian Situation – No Combat for Women

Indian readers are aware that warrior women have been an important part of India’s religiosity, folklore and history. Durga, a warrior goddess, Kālī, Chamunda ("the killer of demon Chanda and Munda") are widely worshipped. Vishpala is the 8000 BCE Rig-Veda warrior queen who suffered amputation in battle; then fought with iron prosthesis. Razia Sultana, Rani Rudramma Devi, Chand Bibi, Abbakka Rani, Tarabai, Bibi Daler Kaur, Mai Bhago, Begum Sumru, Kittur Chennamma and Rani Lakshmibai are warrior women who proved their worth in battle. This past does not reflect our grim reality in terms of the current positioning of uniformed women in our military society.

Defence Minister AK Anthony has, in a written Lok Sabha response indicated that, in September 2012, the Army was short of 10,100 officers; the Navy 1,996 and the IAF 962; totaling 13,058 officers. Women officers comprise a mere 3.3 percent of Army officer strength; 3.9 percent in the Navy but a healthy 10 percent in the Air Force. Women officer strength, 21years after their recruitment first began in 1992, is 1,214 in the Army, 302 in the Navy and 1,079 in the IAF. These numbers exclude lady medical and nursing officers. The Army recruits women officers in the Signals, Engineers, Army Aviation, Army Air Defence, Electronics and Mechanical Engineers, Army Service Corps, Army Ordnance Corps, Intelligence Corps, Army Education Corps and Law branches. The Navy recruits them into the Law, Logistics, Observer, Air Traffic Controller, Naval Constructor and Education branches. In the IAF, though, women officers are recruited in all branches and streams, except the fighter stream of the flying branch.

Rejecting the combat-role-for-women demand, the Government has cited the HQ Integrated Defence Staff (IDS) report of 2006 and the Tri-Services Committee report of 2011. Women are currently recruited as SSC officers for five years extendable to 14 years of service. Permanent commission is however available in the Law and Education branches of the Services and a few additional technical branches in the Navy and IAF.  

Indian Women Officers Deserve Better

The author has seen women officers in uniform perform with displayed capability in the war zone in J&K for over a decade. He found them spirited, conscientious, gutsy, principled, honest and reliable; capable of sustained hard work at par with male peers. That they could not be tested under fire is no slur on their capability or potential simply because the current rules forbid entry into combat. That said, our crippling officer shortages have often compelled us to “unofficially” use them in the war zone in certain roles. The author did not come across any woman officer who backed out by quoting rules or regulations.  They have carried out assigned military tasks as well as men have; assisted in rural development, schooling, women care; running orphanages, schools, child care projects in “black areas” where they were vulnerable to combat situations - with as much courage as their male peers. Tested in weapon firing; during Engineer bridging camps; night parades and exercises, they have displayed adequate soldierly capability. In May 2012, seven women officers climbed Mount Everest; all being honoured by the President of India for their world class performance.

While actual combat in the Indian case is a long way off; certainly farther than it is in USA, our women officers need to be encouraged by being granted permanent commission. We also need to focus on creating gender sensitization amongst the rank and file of the armed forces and in its General Officer ranks that greater induction of women will help reduce the crippling officer shortages to manageable proportions. For the near time, posting women to combat support units with the same career guarantees that their male counterparts get is a jugad solution that the Ministry of Defence must flesh out soonest in supreme national interest.  

MAJ GEN RAJ MEHTA, AVSM, VSM (RETD)

Non-Compliance of orders passed by the Armed Forces Tribunal by the Govt and allied issues: Public Interest Litigation

Reports on the Public Interest Litigation on the subject of non-compliance of AFT decisions and other issues related to the functioning of the AFT:

Indian Express

The Times of India

Hindustan Times

The Tribune

Thank You for your continuing support for the independence of our judicial institutions. 

Is this a joke? Or is this the actual worth of a fauji?

Seriously, what is wrong with the Defence Ministry? What according to them is the worth of a fauji in this country?

As most readers would know, earlier there used to be a system of colour-reserve scheme of service wherein a person used to serve for a few years in colours (continuous physical service) and then reserves when he was free to follow any vocation but could be mobilised in times of an emergency.

According to the applicable rules, such personnel became entitled to ‘Reservist Pension’ after 15 years of combined colour and reserve service, irrespective of the length of colour service rendered.

Prior to the year 1968, although reservists were entitled to reservist pension on completion of minimum 15 years of combined colour and reserve service, an option was given to them by the govt to either opt for reservist pension which amounted to a few rupees per month OR for a one-time lumpsum gratuity amounting to a few hundred rupees. Despite being entitled for life-long pension under the rules, many of these reservists were encouraged to opt for lumpsum gratuity after which a certificate was taken from them that they shall forfeit the right to reservist pension.

Since such reservists realised much later in the day that they had in fact been cheated of their life-long pension in accordance with the rules since they had completed the minimum qualifying service for reservist pension, they took up a case with the Govt to undo the wrong. The Army HQ also supported the move strongly, and ultimately, in the year 2000, the Govt agreed to grant such reservists a monthly ex-gratia allowance at the rate of Rs 600 per month for such reservists who had completed their pensionable service but had only been released the one-time lumpsum gratuity but not reservist pension. In fact, before this was done, the Govt had already sanctioned an amount of Rs 605/- per month for the families of such reservists who had opted for the one-time amount and had subsequently passed away.

Since the amount of Rs 600 was initiated during the currency of the 5^th Central Pay Commission when the minimum pension under the Govt was Rs 1275, many organisations again took up the case after the 6^th Central Pay Commission to raise the amount to a logical figure with effect from 01 January 2006 and at least to the rate at which the minimum pension is grated to any govt employee.

Lo and behold, the Defence Ministry has agreed to the representations.

But what should shock your conscience is this:

The Defence Ministry, in the name of the President of India, has now increased the amount of the monthly ex-gratia and monthly family ex-gratia to the following rates with effect from 04 June 2013:

Monthly ex-gratia to reservists : Rs 750/- per month (Raised from Rs 600/- admissible earlier)

Monthly ex-gratia to families of deceased reservists: Rs 645/- per month (Raised from Rs 605/- admissible earlier)

The orders of the Govt can be accessed by clicking here.

In this time and age, do you think an old reservist who had been tacitly cheated of his pension in the 1950s and 1960s, could survive with a basic amount of Rs 750/- per month?

This is the value of a fauji in this country.

And by the way, the minimum amount of even compulsory retirement pension on the civil side is Rs 3500/- per month plus dearness relief.

Even proper Reservist Pension for reservists who did not opt for the one-time ‘lumpsum gratuity’ stands at Rs 3500/- per month plus dearness relief.

What else can one say except….Jai Hind!

It all comes back : Dubious stand of officialdom exposed in SC judgement on Central Govt Doctors’ pension case

Much after military doctors had lost their case in the Hon’ble Supreme Court in Col BJ Akkara and others Vs Union of India in which pre-1996 retiree officers had prayed for counting their Non-Practicing Allowance (NPA) in their pension, the Supreme Court, this month, has rendered a detailed judgement coming to the conclusion that NPA needs to be added for pensionary purposes and also how the correct facts were hidden from the Supreme Court in Col BJ Akkara’s case.

In Col BJ Akkara’s case, military medicos had pointed out to the Supreme Court that a parallel question of law was decided by the Delhi High Court (KC Garg Vs UOI) in favour of civilian central govt doctors leading to the withdrawal of the circular which denied counting of NPA in pension and had hence prayed that the same relief should be extended to military doctors too since the Govt had accepted the positive judgement of the High Court. The Govt however opposed this plea in the Supreme Court stating the following, as recorded in the judgement of the Supreme Court in Col BJ Akkara’s case:

“…It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others, in public interest…”

Ultimately, the case was decided against the petitioners, and the Govt also then took the benefit of Col Akkara’s judgement by the Supreme Court to deny similar benefits to other Central Govt doctors.

After such a chequered history, the issue again came up before the Supreme Court in KC Bajaj & others Vs UOI on which the judgement has been rendered on 27 Nov 2013.

Stating the basis of the controversy, the Hon’ble Supreme Court said this about the case in the opening paragraphs:

“…Whether final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher Courts is one of the questions which would require consideration in these appeals filed against order dated 16.10.2010 of the Division Bench of the Delhi High Court whereby the writ petitions filed by the appellants questioning the correctness of order dated September 12, 2008 passed by the Central Administrative Tribunal, Principal Bench (for short, ‘the Tribunal’) were dismissed. The other question which calls for determination is whether Non Practising Allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other Departments of the Government, who retired from service prior to 1.1.1996 is to be added to their basic pay for calculation of pension payable to them...”

After going into the nuts and bolts of the issue in great detail and examining all files and notings, it was discovered during the course of the case that after the judgement was rendered by the Delhi High Court in favour of doctors in KC Garg’s case, the same was very much challenged before the Supreme Court by the Govt (while the Court was given an impression in Col BJ Akkara’s case that KC Garg’s judgement was not challenged) but later on the opinion of the Attorney General favouring doctors, the said Special Leave Petition (SLP) was withdrawn from the Supreme Court by the Govt and the petitioners were extended the benefit. After withdrawing the appeal, the Govt had itself moved a case for withdrawing the impugned circular based on Delhi HC’s judgement and on the AG’s opinion and consequently the Prime Minister himself approved the withdrawal of the circular which denied the element of NPA in pension of central govt doctors. However in the meantime, the SC had rendered a decision in favour of the Govt (Of course, since the Supreme Court was not informed about the Govt’s own decision of withdrawal) and then the Govt itself stalled the withdrawal of the circular taking strength from Col BJ Akkara’s decision in its favour.

In the ultimate analysis, the approach of the Govt was dichotomous and it did not even care to place the complete facts of the issue before the Apex Court including the fact that no less than the PM had himself directed the withdrawal of the negative circular in question. In short, the pleadings of the Govt before the Supreme Court were diametrically opposed to their own opinion on the subject on file and also the decision of the PM that had already been taken in favour of doctors by the time.

All said and done, in the latest judgement of the Supreme Court, the Hon’ble Court has held central govt doctors very much entitled to count NPA in their pension and has stated the following on the conduct of the Govt in their pleadings in Col BJ Akkara’s judgement:

“However, the fact of the matter is that the Union of India did challenge the order passed by the Delhi High Court in Dr. K. C. Garg’s case and other connected matters by filing special leave petitions, which were converted into Civil Appeal Nos.1972-1974/2003 and during the pendency of the appeals, a conscious decision was taken by the Government of India not to pursue the appeals and implement the order of the High Court….At the cost of repetition, we consider it necessary to observe that during the pendency of the appeals, the matter was referred to the Attorney General for his opinion whether the judgment of the High Court is correct and the same should be implemented. The Attorney General examined the matter keeping in view the relevant rules and the policy decisions taken by the Government of India and opined that the judgment of the High Court was correct and should be accepted in preference to the view taken by the Tribunal. The issue was then considered at the highest level of the Government and the Prime Minister ordered implementation of the High Court’s order. Thereafter, the appeals were withdrawn. It is a different thing that the proposal for withdrawal of O.M. dated 29.10.1999 was shelved in view of the judgment in Col BJ Akkara’s case. In other words, the Government of India had taken a well considered decision not to pursue the appeals filed against the order of the Delhi High Court and implement the same on the premise that the proposition laid down therein was correct.

In view of the above discussion, we hold that the ratio of the Digambar’s case cannot be invoked to justify the pick and choose methodology adopted by the Union of India in resisting the claim of similarly situated doctors that NPA payable to them shall be taken into consideration for calculating the pension. Such an approach by the Union of India is ex-facie arbitrary, unjust and has resulted in violation of Article 14 of the Constitution.

The judgment in Col. B.J. Akkara’s case cannot be applied to the appellants’ case because the circulars, which fell for interpretation in that case and those under consideration in these appeals are different in material aspect…”

The above events would again prove what we have been stating time and again (See this blogpost and this one too), that the Govt, in order to justify litigation, works on the hook and crook principle and is extremely reluctant in bringing out the correct facts, truth and law before Hon’ble Courts.

In a similar case for central Govt doctors filed by one Dr GD Hoonka and quoted in the Supreme Court judgement itself, the Madhya Pradesh High Court put it very succinctly:

“…The decision of the authorities declining the same to the present respondent, the contest put up before the Tribunal and the present writ petition at the instance of the authorities, is beyond our comprehension, speaks of not only unreasonable approach, seems to be arbitrary and verging on administrative tyranny, and burdening the Tribunal and this Court with utmost unwanted matters, and harassing the retired employee in the evening of his life…”

This, I sincerely feel, is the hallmark of today’s administrative arrogance.

The judgement in Col BJ Akkara’s case can be accessed by clicking here.

The latest judgement in KC Bajaj’s case can be accessed by clicking here. 

'Maimed by the System'

Folks,

I have started work on my new book, tentatively titled 'Maimed by the System'. 

It would be a picture book with individual survivor/success stories of military veterans (including disabled veterans) and their families who were forced to wage battles, legal or otherwise, against the system and the officialdom to get what was rightfully theirs. 

Though I am not short on data, please share if you are aware of any such thought provoking or unusual human-interest stories which may be considered to be included by me in the book.

I shall also be grateful for any ideas or suggestions on the subject. 

Warm Regards

Navdeep

Pension from 01 January 2006 rather than 24 September 2012 : Supreme Court dismisses the Review Petition filed by Govt of India

As most would know, the Govt had challenged before the Supreme Court the decision of the Delhi High Court wherein the judgement by the Central Administrative Tribunal granting benefit of rectification of pensionary anomalies from 01 January 2006 rather than 24 September 2012 was questioned. The order in effect and essence affected all central govt pensioners, including defence pensioners.
 

The controversy had emanated from the fact whether the benefits of the correct pension were to flow from 01 Jan 2006 which is the date from which the 6^th Central Pay Commission recommendations were implemented or from 24 Sept 2012 when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission. Of course, it was held by Courts that the removal of the anomalies shall date back to the date of the inception of the said anomalies and not any later artificial date.

The Supreme Court was however pleased to dismiss the SLP filed by the Govt in July this year as was placed on this blog.

Incorrigible as it is, the Govt had gone ahead and filed a Review Petition in the matter urging the Supreme Court to review its order of dismissal of the SLP filed by the Central Govt.

The Supreme Court has yesterday dismissed the Review Petition filed by the Govt in the matter.

What other tricks are in the offing?  

Dispatches from the Supreme Court- recent decisions in military related cases

There was some action in the Hon’ble Supreme Court in October, as far as military related cases are concerned.

A lowdown:

Union of India Vs Col Sanjay Jethi: The Armed Forces Tribunal (AFT) had set aside an additional Court of Inquiry initiated against an Army officer on account of bias and conflict of interest of its members. The AFT had also directed the constitution of another Court of Inquiry with a different Presiding Officer and independent members. The verdict was challenged by the Government before the Supreme Court. The Apex Court has however upheld the judgement of the AFT and has passed a detailed judgement on the subject. Though the Apex Court has sustained the same, it has still made some observations regarding the decision rendered by the AFT. Some parts of the Supreme Court decision are worth reproducing:

“…On a bare perusal of the same one can easily say that the Technical Members have expressed their opinion after analysis of the documents. They have, in detail, scrutinized the documents, drawn their inferences and made their observations.  This document has been marked as Ext XLIX.  By no stretch of imagination it can be said that  it is an arrangement of documents or pagination  of  documents. True it is,  they  are  not  the  authors  of  the  original documents but their analysis and inference  have  been  used against the  respondent  in  the  earlier  COI  and  in  the Additional COI.  It cannot be brushed aside by saying that Technical Members did not sign the final report.  Once they have given an opinion, the possibility to support the same cannot be totally  discarded. That is where the real likelihood of bias comes into play.  As has been stated in number of authorities which we have reproduced hereinbefore if one has something substantial, relevant or material to do with the case he is disqualified.  In the case at hand, we find that the Technical Members had compiled the documents, adopted the methodology, made observations, drawn inferences and expressed the view and, above all, they had prepared the report which has been brought on record as a document.   To say, they had not played any  role  would  tantamount  to blinking  at  reality. In our considered view, their inclusion as the Technical Members   is   not   legally permissible.  It is so as the said respondent is bound to be prejudiced…”

“…We are compelled to repeat  here that once a COI has been constituted to inquire into  the allegations relating to a person's character and military reputation subject to the Act it should not  be  done  by the persons who have expressed  their  views  in  writing behind the back of the person and assume the role of  the recommending authority which is statutory  in  nature  to take disciplinary action.  Law does not countenance the same. In the present case it is irrefragably clear that the recommendation of the COI was the sole basis on which the disciplinary action has been initiated. Nothing else had come on record as observed by the tribunal on earlier occasion as well as by the impugned order and the said finding is unassailable. That being the position,  we find in fitness of things, the Presiding  Officer  should have recused himself to preside over the  COI…”  

“…Before parting  with  the  case,  we  think  and  we  are constrained to think that we should say  something  about the order of the  tribunal.   Section  14  of  the  Armed Forces Tribunal Act, 2007 occurs in Chapter  III  of  the said  Act  and  deals  with  jurisdiction,   powers   and authority of the tribunal in service matters.  Under sub-section (5) of Section 14 the tribunal is required to decide both questions of law and facts that may be raised before it.  The respondent had approached the tribunal under Section 14 of the said Act.  In  the  Statement  of Objects  and  Reasons  it  has   been   spelt   out   for constituting an Armed Forces Tribunal for adjudication of complaints and disputes  regarding  service  matters  and appeals arising out of the verdicts of the court  martial to provide for quicker and less expensive justice to  the members of the said  armed  forces  of  the  Union.   The Preamble of the Act provides for adjudication or trial by the tribunal of justice and compliance in respect of many a matter.  As we find the tribunal has been conferred powers to deal with the cases in promptitude. Promptitude does not ostracize or drive away the apposite exposition of facts and necessary ratiocination. A seemly depiction of factual score,  succinct  analysis of facts and  law,  pertinent  and  cogent  reasoning  in support of the view expressed having due  regard  to  the rational methodology,  in  our  considered  opinion,  are imperative.  We have said so as we find that the tribunal by the impugned order has not adverted to the necessitous facts.  We say so despite sustaining the verdict…”

Union of India Vs Brig TS Sekhon: A senior retired military veteran, Brig Sekhon, had to undergo an emergency procedure while visiting Germany. The cost of emergency treatment even at Indian rates was not reimbursed under the Ex-Contributory Health Scheme (ECHS) on the pretext that the emergency had occurred outside India. The AFT had however directed the Govt to reimburse the veteran according to Indian emergency rates as applicable under the policy. The AFT also took support of clear-cut decisions of the Supreme Court laying down the law in this regard. However rather than accepting the well rounded, balanced and logical verdict of the AFT, the Ministry of Defence filed an appeal before the Supreme Court. The Apex Court has however dismissed the appeal filed by the Ministry.

Union of India Vs Atul Batra: Atul Batra was a sailor who was released from service before completion of his contractual terms in the Navy, on disciplinary grounds. He was not issued a show-cause notice since the rules did not prescribe issuance of the same. The AFT had however reached the conclusion that principles of natural justice had been circumvented and that a show-cause notice was mandatory even if not provided under the relevant regulations. The discharge was set-aside. The Navy had challenged the AFT verdict before the Supreme Court but the appeal has been dismissed by the Apex Court thereby upholding the judgement of the AFT. 

Guest link: The Army- What’s gone wrong? ~ Karan Kharb

Col Karan Kharb reflects on the recent worrying developments in the Army and the issues and predicaments facing men and women in uniform today.

His write-up can be accessed on his blog by clicking here.

The views are of the author. 

Do not disown your own – Part II

As most readers would know, non-pensioner ex-servicemen, including our Short Service Commissioned Officers (SSCOs) and Emergency Commissioned Officers (ECOs) are entitled to limited out-patient medical facilities from Military Hospitals (MHs). Such non-pensioners are also entitled to medical reimbursement through the Kendriya Sainik Board (KSB) in case an MH certifies that the facility is not available in the concerned MH.

There are various letters to the above effect but during the last decade or so there was stiff resistance by the office of Director General Armed Forces Medical Services (DGAFMS) to these policies and they even unilaterally stopped providing such facilities to our non-pensioner ex-servicemen. Even medical reimbursement scheme by KSB was almost rendered redundant since MHs stopped issuing certificates to the effect.

Resultantly, the affected personnel had to approach the Armed Forces Tribunal which in turn directed the Govt to continue providing limited medical facilities to such veterans.

However, as has been brought out earlier also (see this, this and this), the Army, on insistence of DGAMFS itself challenged the verdict before the Supreme Court. Meaning thereby, that the Army itself prayed before the Supreme Court that the Army should be directed to stop providing medical facilities to the affected former members of the Army.

What could be more ironic?

In fact, the terminal benefits brochure issued by the AG’s Branch also clearly mentioned the procedure and medical facilities for non-pensioner veterans such as SSCs but elements in the Army HQ forced the AG’s Branch to eliminate that particular part of the brochure and the said clause is conspicuously absent from the lately issued versions of the brochure.

Why I am bringing this subject again is to bring to light the following factors after which the readers may themselves decide whether the organisation is being fair to its own veterans or not:-

A. Army Postal Service personnel who may have served in the Army only for 6 months (or more) have been made eligible for proper Ex-Servicemen Contributory Health Scheme (ECHS) facilities, while our own ex-servicemen who may have served much longer are not even being allowed to avail their limited medical facilities to which they are entitled to under existing instructions.

B. Nepal domiciled non-citizens of the Indian Army can now avail full and proper ECHS facilities in Nepal.

C. An ‘in-principle’ approval rendered by AK Antony for extending ECHS facilities to SSCOs has not yet been implemented by issuance of instructions to the effect since it has faced major resistance from within the Army.

The idea is not to say that APS personnel or Nepalese citizens should not be granted ECHS facilities. They definitely should be. But the question is that while all and sundry are being included under the actual ECHS, our old non-pensioner veterans covered under the definition of ‘Ex-Serviceman’ such as World War II veterans and War Veterans under the Emergency Commission are being illegally denied even existing limited facilities to which they are entitled to? While the office of the DGAFMS runs around to get the Dynamic Assured Career Progression (DACP) scheme implemented for its officers, what about the minimum assured izzat scheme for our veterans? 

What message are we sending to the world at large?

You decide! 

Show on military veterans and disabled soldiers on CNN IBN – A must watch!

This has got to be one of the most neutral, concise and detailed documentaries on the subject, which captures the very essence of what has gone wrong.

CNN IBN has beautifully touched upon various topics in a succinct manner thereby rendering a bird’s eye view on the very topical debate on an ‘apolitical military’ as well as the travails of military veterans, martyrs and disabled soldiers.

A must watch for everyone.

Video- courtesy CNN IBN

Jai Hind.

Seventh Central Pay Commission (7th CPC) announced

The Seventh Central Pay Commission has been approved.

This time, the pay commission has been constituted three years earlier than due, of course due to obvious reasons.

The pay commission shall have effect from 01 Jan 2016.

Whether a separate pay commission for the defence services would be beneficial or not has been discussed threadbare in this earlier blogpost of 06 April 2013.

Thank You.

Supreme Court dismisses the appeal filed by the Ministry of Defence regarding implementation of Dynamic Assured Career Progression (DACP) scheme for military doctors

Good news for Military Medicos.

It may be recalled that the Cabinet had approved the Dynamic Assured Career Progression (DACP) scheme for all doctors serving under the Central Govt by way of an Office Memorandum issued on 29 Oct 2008.

Though the Ministry of Defence was not against implementing the same for military doctors, the then Principal Personnel Officers Committee (PPOC) and the Chief of Staffs Committee (COSC) of the time opposed it on the pretext that doctors would start getting a higher salary than others and that the implementation should be kept pending till other anomalies of the forces were resolved. The main opposition was from the Army while the Air Force, Navy and the office of the DGAFMS had fully supported the implementation of DACP. The factum as to how this approach of the services was self-defeatist has been discussed threadbare in earlier posts, here and also here.

The Chandigarh Bench of the Armed Forces Tribunal (AFT) however in its strongly worded decision rendered on 18 July 2011 had directed that instructions for implementation of DACP in the military should be issued within a period of 3 months.

But rather than implementing the judgement, the Ministry sought time on multiple occasions and then filed an Appeal in the Supreme Court. One of the grounds taken by the Defence Ministry was that even the Chief of Staffs Committee (COSC) was not in favour of implementing DACP, which in fact was not entirely true since by this point of time, the Services had realized their folly and supported the grant of DACP, though in my opinion the support was not an all-out support as was logically expected.

Anyway. The Civil Appeal filed by the Union of India against the judgement of the AFT was listed today for hearing in the Supreme Court and the Hon’ble Apex Court has dismissed the same thereby upholding the judgement of the AFT.

Besides bringing joy to the military medico community, the lesson that this chapter should bring home is that one should never ever be jealous of the benefits or progress of our peers and neither should such issues be held ransom to the though-processes of those who feel that others should not get their legitimate dues till they get what they perceive to be legitimately theirs.

Jai Hind. 

Rank Pay Case : Opinion rendered by the Attorney General supporting some points in favour of the Defence Services

As was discussed earlier on this blog on 28 Dec 2012 and also amplified in this Oped on Stratpost, the orders issued by the Ministry of Defence, implementing the judgement of the Supreme Court in the Rank Pay case, were hardly in tune with the letter and spirit of the decision.

The points under controversy were duly (and strongly) taken up by the Services Headquarters and also by the Chief of Staff’s Committee (COSC) with the Defence Minister when it was felt that elements of the bureaucracy were not inclined to see reason or to implement the orders in their proper form. Most of the objections were from the Defence Accounts Department.

The Defence Minister had then directed that the views of the Services as well as those of the others be placed before the Attorney General for his opinion.

The Attorney General (AG), it seems, has rendered his opinion, and it is in the following terms:

(a)   As in the above referred blogpost, while the Court had ordered re-fixation of pay 'with effect from 01-01-1986', Para 6 of the implementation order of the Ministry granted it to officers 'as on 01-01-1986'. The AG has reportedly opined that the benefits cannot be confined only to the officers whose pay was fixed as on 01-01-1986 and benefit is to be granted to all those officers whose pay has been fixed after deducting rank pay whether on or after 01-01-1986.

(b)   The AG has reportedly however opined that minima of scales need not be changed and that the ceiling for the rank of Brig/equivalent may also not be changed since it was not a subject matter of the said litigation.

(c)    As again highlighted in the above blogpost and also put forth by the Services, the Ministry’s implementation letter had also stated that no changes would be made in the instructions issued after 5th and 6th CPCs except to the extent of re-fixation necessitated due to fixation as on 01 Jan 1986. The AG has however clearly opined that it is immaterial that the in the Rank Pay case only the 4th CPC was involved, the principle of law would have to apply to 5th and 6th CPCs also and the same action (non deduction of rank pay) would need to be corrected for other CPCs also and that officers cannot be expected to again approach Courts on same lines.

With this, the points of law postulated by this blog and also by the Services Headquarters on many important points involved in the case, stand solidified.

Any fresh letter issued by taking into account the opinion of the Attorney General on the subject would lead to further financial benefit to affected officers.

Now the ball is back in the Raksha Mantri’s Court.

(Note:- Please do not send individual queries through email to me on the rank pay issue. Such mails would not be replied to. You are most welcome to place your comments on the comments section of this post)

Thank You. 

And while you wait, comes this…….

As discussed in this previous blogpost of 25 August 2013, issues related to pay of serving personnel, including Non-Functional Upgradation (NFU) were to be addressed by the Committee of Secretaries constituted on directions of the Prime Minister, which was supposed to submit its report by 08 August 2012, that is, August of last year.

Of course nothing moved.

Then the environment was informed about the positive inclination of the Committee in addressing the issues but the reality was different than what was conveyed, including to the top brass of the three services.

Now comes another reality.

Keeping the services in the dark all these months, it has now been confirmed that the Committee, rather than addressing the issues as directed by the PMO, has in fact recorded in its report that all pay related issues should be referred to the next pay commission for consideration.

Well, if even the PMO’s directions can be taken so lightly, then the future does not seem so bright.

Also, some bright minds have asked me as to what would faujis stand to lose by reference of the issues to the next pay commission.

Nothing much, you only stand to lose about ten years of pay and allowances. 

Warning: Misleading email floating around!

Please be warned that there is a confusing email doing the rounds, purportedly authored by me and referring to the rank pay case.

The same is just a copy and paste job of an old blogpost of last year, dated 04 September 2012, when the said judgement was rendered by the Supreme Court, and which can be accessed by clicking here.

Somebody has knowingly or unknowingly edited the date to read as 04 September 2013 and has just floated it around.

Please ignore it. It is old news of last year.

I also do not understand why and how people fall prey to such pranks. Don’t we all know that the judgment was pronounced by the Court last year?

Thanks.

Simple faujis. They know not what hit them!

The issue of Non Functional Upgradation (NFU) has been one of the major carrots for the officer cadre of the three defence services.

Last year, the Prime Minister had appointed a Committee of Secretaries for looking into various demands raised by the defence services and the said committee was to submit its report by 08 August 2012 after which the announcement was expected to be made by the PM on the eve of Independence Day 2012.

Besides restoration of status, one of the issues was Non-Functional Upgradation as stated above. Explained earlier on the blog,  NFU basically implies that whenever an IAS officer gets empanelled at a particular appointment at the Centre, all other Group-A service officers are also upgraded to the same level after a period of two years from the date of empanelment, on a non-functional basis irrespective of whether they are actually promoted or not. For example, if an officer of the IAS of 1982 batch is empanelled as an Additional Secretary to Govt of India, then all other Organised Group-A civil officers of the 1980 batch shall also be placed in the ‘Addl Secy to Govt of India’ pay grade of Rs 67000-79000 (Higher Administrative Grade/HAG) which is the same as a Lt Gen of the Army. As a result, almost all organised Group-A civil officers are retiring with the pay and pension of a Lt Gen whereas less than 1% of defence officers are retiring in the said grade. Interestingly, in many arenas, civilian officers serving under senior military officers are drawing a much higher pay (and consequently pension) under the system of NFU than their seniors from the defence services.

The report was ultimately submitted by the Committee to the PMO on 17 August 2012 rather than the scheduled day of 08 August 2012, and interestingly, the three Chiefs were given positive signals on the same by all concerned. Even the Services HQ were informally informed by Ministry of Defence staffers that it was only a matter of time before the report was accepted and implemented and all quarters had recorded positive notes on the subject. Of course, this was taken as the truth by the Services and the gullible faujis. Till date, the Services HQ are waiting for the final orders to be issued.

How wrong they were!

The MoD has kept everyone in a twist. The MoD in its inputs to the Committee has NOT recommended the grant of NFU to commissioned officers of the three services and has in fact recorded just the opposite in its comments. The MoD has recorded in its note that service conditions of the defence services are different than civilian officers and ample benefits are already available to them in the form of Military Service Pay (MSP) and other allowances and therefore the contention of the Services is not logical. The financial implications for the grant of NFU have been calculated as Rs 69 crores.

On the issue of restoration of status and parity of the defence services, the MoD has time and again in its inputs referred to the 2008 report of the Group of Ministers led by the then External Affairs Minister Mr Pranab Mukherjee. However, a perusal of the report of the GoM makes it clear that the GoM, ostensibly again due to wrong inputs from the MoD, has faltered on many points, some of which are:

(a)  The GoM states on record that rank pay is not a part of basic pay and recommendations of the 4^th CPC were merely recommendations and the cabinet decision is the final word on the issue. The GoM is totally wrong on this since the Cabinet itself had approved that particular recommendation of the 4^th CPC which ordained that rank pay shall be part of basic pay for all intents and purposes. The same was also mentioned clearly in all Instructions issued by the MoD after the 4^th CPC. Also, the Supreme Court has already decided that rank pay is not to be deducted from basic pay and hence any such statement recorded by the GoM is non est and redundant in the eyes of law. Moreover, rank pay was carved out of basic pay itself and till the 3^rd CPC, without taking into account the rank pay, the Senior Time Scale (Under Secretary Govt of India) was equated with a Captain and Selection Grade (Director Govt of India) was equated with a Lt Col. When did the Govt issue orders after the 4^th CPC degrading these military ranks?

(b)  The GoM states that there are 6 levels in the Civilian Set-up compared to 9 in the defence services which leads to bunching of ranks and grades. Totally factually incorrect. Let us place it out in simple mathematics. The levels of the Civil Services are:  Junior Time Scale, Senior Time Scale, Junior Administrative Grade, Non-Functional Selection Grade/Selection Grade, DIG/Conservator Grade, Senior Administrative Grade, Higher Administrative Grade, Higher Administrative Grade Plus, Apex Grade, Cabinet Secretary Grade, while on the military side, the ranks are Lieut, Capt, Maj, Lt Col, Col, Brig, Maj Gen, Lt Gen (HAG), Lt Gen (HAG+), Lt Gen (Army Commander/Vice Chief/Apex Grade), General (Chief of Army Staff). Now please count them. The Civilian set-up has 10 Grades while the Defence set-up has 11 Grades. From where was this figure of 6 vs 9 levels culled out and placed before the GoM??

(c)  The GoM states that Lt Gens are equivalent to Additional Secretaries to Govt of India. This may appear to be true to the untrained eye because of the one-sided imposed functional equation invented by the MoD within the said Ministry for day to day working, but is incorrect if analysed holistically since Lt Generals outrank all Additional Secretaries to Govt of India in the Warrant of Precedence by one Article. They also outrank DsG of CAPFs who have been placed in the Apex Grade.

Why does this happen?

There are multifarious reasons behind this, some of them are:

A. All decisions are taken at the back of the stakeholders as far as the defence services are concerned. The MoD processes the cases with their own notings, crucial meetings are then held behind the back of the defence services and then a decision is taken based on inputs and file notings of lower level bureaucrats without seeking a response or rebuttal from the stakeholders. The Raksha Mantri should be made conscious of the fact that whatever is put up to him on file is not the gospel truth and he should only take  decisions after making  the stakeholders an equal partner in the decision making process and not at their back. The Railway Board is the closest example of the system where a consultative process is initiated before taking decisions. The Department of Pensions and Pensioners’ Welfare (DoPPW) is another department wherein decisions related to pensionary benefits are taken only after a due consultative process by involving the official side and the staff side.

B. The Defence Services should wake up and record their disagreements fearlessly on file. Even in courts it is seen that even if the stand of the Services HQ is at variance with that of the MoD, they would strangely start parroting the stand of the latter at their own peril and detriment. As independent Respondents in court cases, the Services are expected to present their own views and replies on the subject and not parrot the lines of some Section Officer or Under Secretary, otherwise what is the use of the system of having separate Respondents in litigation? Moreover, at key appointments, we sometimes let go of larger organisational issues for small personal gains, or want not to spoil ‘relations’, or want to impose personal opinion on file even if it negatively affects the future of thousands of others, and which is willingly agreed to by juniors because of obvious reasons. This has to cease, but this is not something that can be drilled-in or inculcated, the voice has to come from within, which of course is a tough call. I do not see it happening in the current culture.

C. There has to be passion at work and strength of conviction. While glamorous issues are taken up in greater detail, issues which lie below the surface are not even touched. Expertise of officers who are positive in their approach should be recognized and they should be posted to key appointments irrespective of their posting profile. While the Air Force and the Navy are adept at this exercise, the same is lacking in the Army. For example, an officer who may be an expert in a particular field is not posted on an appointment requiring his expertise on the strange pretext that he was posted to the same station a few years ago, but another one who has no inkling of a particular job profile would be posted to the said appointment only because he had attended some obscure course somewhere or attended the Staff College or the CDM. Hello comrades, welcome to the real practical world, it extends much beyond PSc!

D. Stop inflicting injuries to yourself. Limited Medical facilities to our old Emergency Commissioned Officers and Short Service Commissioned Officers as were available under existing instructions have been challenged by the Army itself in the Supreme Court. Imagine, the Army challenging its own scheme saying that medical facilities should be refused to its own officers. The concerned officers of the AG’s Branch and the DGAFMS who were instrumental in taking this action must be feeling great about it. Yes, sadism is pleasurable for some but round the world is and it all comes back. We have been so cheap on the said subject that after filing the sadistic appeal, we have deleted the "limited medical facilities to SSCOs" clause from the official brochure on terminal benefits issued by the AG's Branch. Another example, the Dynamic Assured Progression Scheme (DACP) for military doctors was stalled by our own people in uniform even after cabinet approval when the Chief of Staffs Committee (COSC) and the PPOC opined that it should not be implemented since it would result in doctors getting better pay and facilities than officers of other arms and services. Rather than saying that yes, DACP should be implemented for military doctors and then anomalies of others should also be resolved, we insisted on its denial to our own despite the fact that the MoD, DGAFMS, Air HQ and Naval HQ were fully in favour. When the AFT directed that it should be implemented, the MoD has now appealed against the same before the Supreme Court. and one of the major grounds of appeal of the MoD before the Supreme Court is that even the COSC has not recommended the grant of DACP to doctors. So there you have it! While DACP stands extended to all doctors under the central govt since 2008, it is 2013 and the case is mired in litigation for faujis, who is to blame? The problem is that we cannot see others happy, even if they happen to be our own. Period.

Wake up faujis!