Fairness: hit, bludgeoned, buried!

This is yet another saga of misuse of the process of law, lies, deceit and treachery. And bearing the brunt are the people who need sensitivity the most- our Jawans.

This blogpost relates to the wrongdoing of the Ministry of Defence towards Havildars who are granted the Honorary rank of Naib Subedar after retirement, dangerously playing around with the much cherished judicial system by lower level bureaucrats, and how elements in the military set-up have become tools of such treacherous behaviour, needless to say, without moral courage and without any application of mind.

As most would know, Havildars granted the Honorary rank of Naib Subedar after retirement, were, till 2006, paid only an additional Rs 100/- along with the pension for the rank of Havildar.

The 6^th Central Pay Commission changed this and recommended that Honorary Naib Subedars may also be paid a pension of a regular Naib Subedar.

So far so good. The recommendation was accepted and a Govt letter was issued in 2009 authorising the pension of a regular Naib Subedar to Honorary Naib Subedars. The letter did NOT contain any cut-off stipulation of non-applicability of the new dispensation only to post-2006 retirees but simply stated that the same would be applicable with effect from 01 Jan 2006, meaning thereby that the new pension rates shall be released to all retirees from this date.

While releasing the pensions however, the Govt (egged on by the office of the CGDA) interpreted the letter to mean that it would only apply to post-2006 retirees and not to those who retired prior to that date.

This was challenged before the Armed Forces Tribunal (Virender Singh Vs Union of India) and the Tribunal ruled that the letter contained no such prohibitory stipulation and that such an interpretation would result in total discrimination wherein pre-2006 retirees would be paid pension of a Havildar while post-2006 retirees of the same rank would be paid the pension of a Naib Subedar. Even otherwise, whenever the recommendations of a fresh pay commission are implemented, the pensions are readjusted based on the fresh pay-scales introduced for ranks after the implementation on the principle of modified parity. The sadistic and illegal interpretation was hence set-aside by the AFT leading to much succour to affected pensioners.

The Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence, however, was not willing to see justice prevail and promptly filed a Civil Appeal before the Supreme Court harping that there was a cut-off date in the letter and it was a valid form of classification. The Supreme Court was however pleased to dismiss the appeal filed by the MoD (Union of India Vs Virender Singh) in December 2010 thereby endorsing the decision of the AFT and settling the issue once and for all.

But as we all know, even endorsement by the Supreme Court is never enough since MoD’s policies are supposedly sacred beyond even the highest Court of the land. The MoD continued to challenge similar orders by the AFT before the SC on the same issue, not giving up on its tirade against poor veterans.

In one of such cases (Union of India Vs Sohan Lal Bawa), the Department of Ex-Servicemen welfare 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 of Naib Subedar before retirement and may not be used as a precedent for other ranks. What was probably meant by the Solicitor General was that cases of other Honorary ranks (such as Subedars granted the Honorary rank of Subedar Major) should not be dealt with by using the instant case as a judicial precedent and that they may be adjudicated separately on their own merits. Great Show! but the catch is that unlike some other Honorary ranks (such as Honorary Lieutenants and Honorary Captains) the Honorary rank of Naib Subedar is ALWAYS granted after retirement and not before retirement. As has been divulged earlier on this blog, the Army HQ protested in writing about this misleading statement time and again requesting for rectification, and so did some ex-servicemen organisations.  However, no action was taken by the lower staff of DESW. When questioned under the RTI Act 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 Under Secretary of the DESW, falsely replied 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.

The wrong statement did not make much of a difference legally or judicially speaking since in the same order the Supreme Court had also mentioned and reiterated its earlier decision in the case of Union of India Vs Virender Singh which was in fact the main case on the subject and which endorsed the setting aside of the discrimination between pre and post 2006 retirees of the rank of Honorary Naib Subedar.

In any case, even though it did not make a material difference, the Army HQ insisted with the MoD that the Supreme Court be informed of the mistake and requested the MoD to move an application for correction/modification of the error in the wrong statement made by the Solicitor General so as to eliminate confusion.

Meanwhile, the Chandigarh Bench of the AFT too clarified the issue again by passing a detailed order (Raghubir Singh Vs UOI) in which it was thoroughly explained that the rank of Honorary Naib Subedar is only granted after retirement and that the scripting error in the Supreme Court’s judgement did not make any legal or judicial difference and did not lay down any ratio to that effect.

The original file however kept oscillating between various agencies and ultimately rather than moving an application for correction/modification of the error, the MoD moved a Review Petition again opening up the same issue of pre and post-2006 retirees on merits while faintly and vaguely mentioning the error also. Rather than seeking correction of the error, in effect, the Review Application was moved to undo what the Supreme Court and the AFT had granted to pre-2006 retirees stating again that the discrimination was a valid form of classification. However, the said Review Petition moved by the MoD was dismissed and the judgement in Virender Singh’s case was reiterated by the Supreme Court while dismissing the same, and of course, Virender Singh’s decision provided that pre and post-2006 retirees could not be treated with discrimination.

In any fair system, the above should have resulted in closure of multiple rounds of litigation in the interest of justice and equity.

But then, we do not live in a fair world. Yes we don’t. Rather than accepting defeat, the MoD now wrote to the Army HQ that since the Supreme Court had dismissed the Review Application, further reviews needed to be filed in all other (thousands of) cases and that pre-2006 retired Honorary Naib Subedars should not be paid the said benefit and that the benefit should only be paid to those Honorary Naib Subedars who have been granted the Honorary rank prior to retirement (there is none since there is no such rule of granting the rank before retirement). The greatest tragedy of the entire story is that the MoD was now trying to take benefit of the dismissal of its own Review Petition in which it had prayed that pre-2006 retirees were not to be paid the said pension. In other words, it was the application of the MoD that had been dismissed and now the MoD itself was trying to take benefit of a decision that had, on the contrary, gone against the MoD!!!

But there is an even greater tragedy than the above. The Army HQ without even perusing what had been filed by the MoD in the form of a Review Petition informed the Record Offices to file review applications in all similar cases and the Records Offices have further started writing to affected retirees whose cases have been allowed by various benches of AFT that the Army HQ has informed them that the Supreme Court has ruled in the Review Petition that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar.

Now now now. What is the Army HQ doing? Circulating instructions that are not only false, faulty and incorrect but also contemptuous!

The above statement by the Records Offices based on inputs by the Army HQ which has further been guided by the MoD is downright disdainful because of the following reasons:

A.  The SC has nowhere held or stated that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar. It has in fact held the opposite.

B.   The SC has reiterated the earlier decision rendered in Virender Singh’s case in the Review Petition which on the contrary provides that pre-2006 Honorary Naib Subedars are to be provided the pensionary benefits of Niab Subedars.

C.  The Review Petition was filed by the MoD on the pretext that pre-2006 Honorary Naib Subedars should not be entitled the benefits as made available to post-2006 Honorary Naib Sudedars and the said Review Petition stands dismissed, so how on earth can the MoD take benefit of the same?

D.  The AFT, in a detailed decision on the subject has already clarified that entire legal position including the scripting error in the earlier SC decision based on wrong factual inputs and the dismissal of the Review Petition reiterates the said legal position which does not change in any manner.

E.   How can Records Offices or the Army HQ write to affected retirees that they would not implement the judgements of the AFT and by quoting SC orders which do not even exist? Are we living in a democracy or a banana republic wherein executive authorities simply state that they would not implement judicial orders that too without obtaining a stay over the said orders or without getting them overturned by a higher judicial forum?

F.  Even otherwise, apart from the judgement, it is commonly known that whenever recommendations of a pay commission are implemented, the pensions of pre-pay commission retirees are calculated based on the new scales introduced after the fresh pay commission, and this is already provided by pre-existing govt orders (modified parity). In other words, once Honorary Naib Subedars had been granted the pay-scale of a regular Naib Subedar after the 6th CPC, the pensions of pre-6th CPC Honorary Naib Subedars were automatically to be based on the scale now introduced for Honorary Naib Subedars, that is, the scale of a regular Naib Subedar but the MoD wants pensions of pre-2006 Honorary Naib Subedars to be based on the scale of a Havildar while those of post-2006 retirees of the same rank based on the scale of a regular Naib Subedar. Can we have retirees of the same rank drawing pensions based on a lower rank just on the basis of the retirement date? When it does not happen for any other rank/grade in any govt service, how can it be allowed to continue for Honorary Naib Subedars?

The above is a small example of how the system treats the lower strata of the defence services. No, in fact the treatment is non-discriminatory in the sense that all ranks, high or low, are treated alike- like dirt. While our men and women in uniform go about protecting both the insides and outsides of our borders and rendering stellar service in natural calamities, this is what they get in return.

Is there anyone applying mind over what's happening? Are people sitting in Headquarters to parrot what some clerk in the MoD wants them to believe? Is there anyone doing work passionately? Is there someone reading up? Is there someone opening the files? 

Who would cry for the soldier?