A detailed article in “Outlook Magazine” on the Military Justice aspect of the Report of the Committee of Experts

The Outlook Magazine, 28 Dec 2015, carries a detailed article on the Military Justice Reform part of the Report of the Committee of Experts submitted to the Raksha Mantri last month.

The complete article can be accessed by clicking here.

Judicial Committee on One Rank One Pension (OROP) notified

The Judicial Committee on OROP has been notified today by the Ministry of Defence.

The One-person Committee shall comprise Justice L Narasimha Reddy, former Chief Justice of the Patna High Court.

The Terms of Reference shall be:

Measures for removal of anomalies, if any, that may arise out of implementation of OROP

Measures for removal of anomalies that may arise out of inter-service issues while implementing OROP

Implication on Service matters

Any other matter referred by Central Government on OROP or related issues.

The notification can be downloaded here.

An important decision by the Delhi High Court on rank-based priority in ECHS

The Delhi High Court has rendered an important decision on the subject of Ex-servicemen Contributory Health Scheme (ECHS) on a Public Interest Litigation seeking an egalitarian approach for all ranks based on the averment that “as per policy in vogue, persons who are in possession of White Card (War Disabled/disabled) and Senior Citizens (male 75 years and above, female 70 years and above) are entitled for treatment in ECHS Polyclinics on priority” and that priority is not based upon the rank held in the military on retirement. 

Without stating anything for or against, on merits or demerits of the issue, it would be interesting to hear from the readers on this very complex subject in a military backdrop.

The questions that come to my mind are:

(i) Though it is fully understandable that some differentiation would always prevail in a military milieu, how far should it continue after retirement and in which spheres?

(ii) Is it time to gradually move towards a rank-neutral system in some aspects after retirement?

(iii) Does the CGHS follow a system of priority based on rank/grade held prior to retirement?

The excerpts from the decision are as follows:

“6. We can however well imagine the scenario prevalent in the ECHS Polyclinics, Military Hospitals / Empanelled Hospitals. The same is not typical of ECHS Polyclinics / Military Hospitals / Empanelled Hospitals only but of all institutions. We, as a country, ruled first by the kings and chieftains and later by the British, have it ingrained in us, to respect and give priority in all walks of life to rank, office and wealth. Rank, office and wealth opens doors to holders thereof without even there being any provision therefore in law, Rules and Regulations. Though our Constitution set the course right by ingraining therein the equality clause (Article 14) and by abolishing titles (Article 18) but the same has not been achieved in practice in the last more than 65 years.

7. We are in this matter, faced with a practice which is as ancient as mountains in this country. The said situation in our view cannot be changed merely with directions of the Court. Such practices, highlighting which and seeking redressal where against this petition is filed, are found not only in ECHS Polyclinics but at nearly all places providing services/amenities of public utility. In our view, the cure thereof is not in Courts. We have for this reason only not deemed it appropriate to issue notice of this petition and to give an opportunity to the respondents to show, whether despite being not in the scheme, elsewhere in the rules and regulations governing Armed Forces, there is such a distinction as maintained amongst officers and personnel of other ranks, because even if that be so, in our view, the same cannot continue post retirement, when both fall in the same category i.e. of ex-servicemen and when the Scheme does not provide there for. Once the Scheme does not classify its members according to their rank and does not provide for priority, in the matter of benefits under the Scheme or in the working of the Scheme, to be given as per rank, there can be no basis for such sub-classification or micro-classification or further classification among the class of ex-servicemen in treatment under the Scheme. The guarantee contained in Article 14 of equal protection extends, besides to substantive law, to procedure as well. There does not appear to be any basis for such sub-classification amongst ex-servicemen in relation to the object of the Scheme. We may however mention that "Regulation for Medical Services of Armed Forces-1983" also not providing for any such classification on the basis of rank and to be rather under the heading "Medical Ethics" providing that while dealing with a patient, the medical officers primary duty is always the patients welfare.

8. We are also of the view that even if we were to issue a direction for all members of the ECHS to be treated equally and even if the offending display boards were to be removed, the same may not eliminate the problem inasmuch as, the Doctors/Physicians and other Paramedics are likely to continue to give priority to the officer ex-servicemen. It cannot be lost sight of that the Defence Forces, more than any other, are steeped in hierarchy and the Doctors, Physician or Paramedics of a lower rank are likely to, out of habit and deference, give priority to those superior in rank, even if ex- serviceman.

9. We have wondered the solution for the problem.

10. The only solution according to us can be by building consensus and awareness not only amongst those who are imparting / rendering services at such Polyclinics / Military Hospitals / Service Hospitals / Empanelled Hospitals but also amongst the members of the Scheme. Not only have the doctors, paramedics and other staff of such Polyclinics / Military Hospitals / Service Hospitals / Empanelled Hospitals have to be taught to see patients strictly as per appointment if permissible or on first come first served basis but the members of the Scheme also have to be taught to respect the Scheme and to not seek any priority / favour in the matter of being attended to at the said Polyclinics / Hospitals. It is only when the ex-servicemen, of whatsoever rank, if not entitled under the Scheme to preferential treatment, starts respecting the que and not expect to be attended to first that the requisite correction in the society can take shape. The same in our opinion can be achieved by sending circulars, putting up boards / placards at the Hospitals / Polyclinics and by organizing group discussions, talks etc. on the subject, to build consensus amongst the providers and beneficiaries of the Scheme.

11. Yet another thought which comes to our mind is of equitably dividing the time and / or by introducing a system of consulting by appointment for certain hours of the day so that at that particular time only those with appointment are attended to and at other times the beneficiaries of the Scheme are attended to strictly on first come first served basis.

12. The above, but are our meandering of a solution to the issue and is by no means exhaustive. We are sure that the providers under the Scheme, being specialist, are better equipped and would be able to come up with a suitable solution to the problem so as to avoid heartburn amongst a certain category of ex-servicemen, of being denied equality under the Scheme and which is the cause of action for this petition.

13. We have faith in the good sense and well meaning intention of the ECHS organization which as per Chapter-5 of the Scheme is headed by a Managing Director (Major General) of the Indian Army.

14. We therefore dispose of this petition by directing the Managing Director of the ECHS to look into the issue raised in this petition and to address the same in the best possible manner, after considering the suggestions made by us hereinabove.”

The Press on the Raksha Mantri’s Committee of Experts

The press has been generous to the Raksha Mantri’s Committee of Experts that submitted its Report on 24 November 2015.

Some of such coverage is as follows:

A detailed oped in ‘The Tribune’

A report on the social media aspect in ‘The Indian Express’

A report on the civil-military relations aspect in ‘Business Standard’

A report concerning the aspect of reduction of litigation in ‘The Economic Times’

The official PIB release by the Government 

Do not get disheartened on 7th CPC, not yet!

It is not just the military community, but all Central Government employees who have expressed concern over recommendations of the 7^th Central Pay Commission.

The concern is even more marked in the military because there was hope of restoration of parity with civilian counterparts, which of course did not materialize and rather recommendations have been rendered in a manner which can be called regressive to say the least. Then there are statements recorded in the Report which are factually incorrect as also reflected in my earlier post of 21 Nov 2015 on disabled soldiers. It also seems that the Pay Commission has heavily relied upon data provided by an officer of the Defence Accounts Department attached with it without due verification or even rebuttal from the Defence Services or even veteran organizations. What is more surprising is that there are statements in the Report which are in the teeth of decisions of the Supreme Court.

The disenchantment with the Pay Commission recommendations is understandable, but not all is lost.

As we all know, these are ‘recommendations’ and not the final word, and it is unlikely that the Government would accept the abolition of certain allowances or privileges postulated by it. Pay Commissions are known for liberalization of benefits and not the opposite, and the Services HQ and even to an extent, the MoD, would not let this pass so easily. Also the Raksha Mantri would be appropriately apprised.

All I would say is, stay calm, stay easy, experts are on the job and all stakeholders would put joint efforts on all issues emanating from the 7^th CPC. If still there remain some pitfalls, rest assured that there are people who would stand up for your rights!

Important Announcement on my facebook page

There is an importance announcement on my facebook page concerning defence personnel, veterans, their families as well as defence civilians.

May like to peruse it by clicking here.

Thank You for all your support.

Navdeep. 

My total disagreement with Times of India’s report (and the 7th CPC) on our disabled soldiers (Updated)

I usually do not react sharply to press reports. Neither do I agree with many veterans when they say boycott “this paper”, boycott “that paper”, and so on and so forth. Many of you would not agree with me but I find such demands pretty immature, and nor does it make any difference if a few persons stop subscribing to a particular paper- hardly even a drop in the large ocean.

While I do support Freedom of Expression and reporting so very cherished in our democracy and also the Right to disagree and hold no grudge against any newspaper per se, I strongly oppose wrong reportage which may lead to rumour-mongering or spreading disinformation, especially in a cause that has remained very close to my heart.

I place today’s report of Times of India on disabled soldiers in the above category. Mind you, I am not talking of Times of India as a whole, but the above linked report only. 

I found it odd to see a mainstream paper indulge in a tirade against a category of veterans in need of the greatest sensitivity- our disabled soldiers.

There are many reasons for my dissent:

• That the headline which states “Armymen took Govt for a ride for disability pension“ is not in conformity with the actual extract of the 7^th Central Pay Commission (7^th CPC) Report which states no such thing directly, which of course is not to absolve the CPC.
• That disability pension cannot be claimed by taking the system ‘for a ride’. It is admissible to disabled soldiers as per Rules which provide for disability pension to most disabilities incurred while in service as interpreted even by the Supreme Court. The 7^th CPC itself has called for a liberal approach by observing that there is a presumption of service-connection in all disabilities that arise during service. 
• That just on the basis of a few bad sheep in senior ranks who may have indulged in wrong practices, the entire spectrum of disability pensioners cannot be commented upon in such a derogatory manner. The only category of disability pensioners, if any, that can be condemned is the one which may have feigned disability when there was none, but can benefits be denied to 99 entitled personnel only because 1 disentitled person claimed it in the perception of some? In any case, can a person feign disability or disease in today's time and age? If yes, then catch the person rather than making broad statements.  
• That the data of the 7^th CPC is based on one-way inputs of the Defence Accounts Department and the findings (though not in the essence as reported by the ToI) have been rendered at the back of the Defence Services. The data has been projected with a twist. If at all there has been an increase in the number of disabled soldiers, then the rising disabilities and stress levels and the need to improve health should have been a cause of concern rather than the fact that more personnel are receiving benefits. The data provided to the 7th CPC by the CGDA also could be incorrect in the sense that they may have included in it past cases earlier illegally denied disability benefits but later granted the same on Court orders or on change in policy. 
• That it is a recorded fact that life expectancy of soldiers is lower than that of the general population, which itself shows the relationship of military service with the health profile of the men and women in uniform. All democracies are liberal in granting disability benefits to their disabled soldiers, both in injury as well as disease cases. The ToI report puts out a false projection which may harm the image of disabled soldiers.
• That the hint of reversion to the slab system of fixed disability element for all ranks rather than the one based on percentage of pay due to the perceived misuse of the provision is condemnable because no such change has been recommended for civilians who continue to be on the percentage system. The Recommendation of the 7^th CPC in this regard is hence not only discriminatory but reflects pure non-application of mind. The imputation of the 7th CPC that disability pension was substantially hiked by the last pay commission leading to a spurt in disability cases in senior officers is also incorrect since the last pay commission had merely brought disability rates for defence personnel at par with civilians who were already on 'percentage of pay' system for calculating disability pension. 
• That rules for disability pension are the same for officers and other ranks and to suggest that the number of officers claiming disability pension has gone up is detestable. In fact, in the times of yore, officers used to hide their disabilities because it was thought of being “unmilitary” to be a disabled soldier, not anymore! And if the rules permit the grant of disability benefits in such circumstances and people have become more aware of their rights, then the 7^th CPC or ToI had no business of adversely commenting on it.

In effect, the following table would show the incongruity of the recommendations of the 7^th CPC in this regard:

(100% Disability) Rank	Current rates as on date under the 6th CPC	Rates now proposed by the 7th CPC
Lt Gen	Rs 52,560	Rs 27,000
Head of Central Armed Police Force	Rs 52,560	Rs 67,500

The above is the reason why I keep reminding some veterans again and again, that while you only remain focussed on eye-catching issues such as OROP and continue issuing diktats and questioning the integrity of all those who disagree with you, we are ignoring the most pertinent subjects that affect us insidiously. And this includes the plight of disabled soldiers and the loss of the fundamental right of the military community to approach the High Court that is available to all other citizens.

I would suggest that focus be brought back on other important issues too, apart from OROP, and not by way of agitation or by infighting or by questioning the integrity of those who disagree, but by way of education and engagement with the system by convincing them, and if not, then by way of exercising remedies permissible under law.

Update No 1: After the morning's skewed report, the Times of India has done another story on the subject, this time much balanced and mature, which can be accessed here.

Update No 2: Please also note that there are text messages doing the rounds in my name on the Pay Commission Report. Please be warned that all such messages are fake and figment of imagination of some fertile mind(s). I do not write alarmist messages as a principle and all my thoughts and views are officially made available here on this blog or on my facebook page or on twitter. 

7th Central Pay Commission Report (Updated)

A new Chapter in the life of every Government employee and pensioner.

The 7^th Central Pay Commission Report can be downloaded by clicking here.

Will update the blog on the highlights soon.

Thank You.

* * *

Update as promised:

You would have received multiple emails on the highlights of the Pay Commission. It is hence not necessary to touch upon its salient and well known features.

On the whole, the 7^th Central Pay Commission has been a mixed bag. There have been some progressive proposals but then there are some basic mistakes of appreciation. Of course, these are just recommendations and subject to approval of the Government. Some of these recommendations may just be junked and some may be upwardly revised too.

However, it does become important to list out some observations affecting both civil and military pensioners which may have been glossed over by many.

Some of these are:

·         There is no big-ticket change in the system of calculation of family pensions. The system of percentage remains the same. For example, ordinary family pension remains pegged at 30% of basic, Special Family Pension (Called Category B & C Extraordinary Family Pension in case of civilian employees) remains at 60%, and so on.

·         Minimum Pension and Family Pension upgraded from Rs 3500 to Rs 9000. In the last pay commission, it had been enhanced from Rs 1275 (Rs 1903 after merger of DA) to Rs 3500.

·         The system for calculation of regular pension has been progressively moulded and it has been provided that increments must be taken into account notionally for fixing pensions. This is similar to what had been ruled by the Patna High Court earlier this year.

·         The system of Disability benefits for the Defence Services has been recommended to be reverted to the pre-2006 system of fixed amounts (slabs) rather than percentage of pay-scales as granted to civilians. This is a truly regressive move and it seems that basic application of mind was lacking while recommending the same. To take an example, with what has been recommended by the Pay Commission, if a Lt Gen of the Army gets 100% disabled while in service, he/she would be entitled for a disability element of Rs 27,000 but if his/her counterpart from the Central Armed Police Forces is disabled, he/she shall be entitled to a disability element of Rs 67,500. We will however ensure that this illogical recommendation is rejected by the Government.

·         While the Commission has taken note of many Supreme Court decisions in favour of and against pensioners, it has omitted to cite or take note of the latest case law on the subject of cut-off dates favouring pensioners, including Civil Appeal 1123/2015 State of Rajasthan Vs Mahendra Nath Sharma decided on 01-07-2015.

·         The Commission wrongly notes that the principle of broadbanding has been extended by the Ministry of Defence to all eligible disabled personnel w.e.f 01 Jan 2015. Firstly, it has not been extended to all but only to litigants, which continues to be the present situation, and secondly, the correct date of implementation is 01 Jan 1996 or date of release or grant of disability/war injury pension, whichever is later, as per Supreme Court decision.

·         The Commission wrongly observes that a Committee of Secretaries did not accept the merger of Rank Pay with Basic Pay and states that the Supreme Court has also upheld this view. This is incorrect. The Supreme Court has, on the contrary, upheld that Rank Pay forms a part of Basic Pay. It may be recalled that the Rank Pay had been carved out of Basic itself.

·         The Commission wrongly notes that only post-2006 retired Honorary Naib Subedars had been granted the pension of regular Naib Subedars by the 6^th CPC. In fact, there was no such cut-off date prescribed by the 6^th CPC and the said cut-off date was introduced only while implementing the 6^th CPC recommendations and later this cut-off date was set-aside by way of judicial directions affirmed by the Supreme Court.

·         The rates of lumpsum ex-gratia for deaths connected with service have been upwardly revised more than double, unlike the last time when these were merely doubled.

·         Chairperson of 7^th CPC has recommended Non Functional Upgradation (NFU) for Defence Services while other Members have dissented and recommended the scrapping even for civilians.

·         Exit recommended to Short Service Commissioned Officers after 7 years of service (between 7 and 10 years) with additional benefits.

·         Additional old age pension as is available to regular pension not recommended for disability benefits. This is again ridiculous and also infructuous since the said additional benefit is already available to disability benefits and clarified as such by the Government of India. It was also illogical for the three services to have asked for this in their Joint Services Memorandum since this stood granted and notified by Government.

·         Lumpsum ex-gratia award of Rs 9 lakhs applicable to invalided personnel increased to Rs 20 lakhs. The amount is for 100% disability, to be proportionately reduced for lesser percentage.

·         Director General of Coast Guard to be placed in the Apex Grade.

·         More senior level posts for CAPF officers in the top hierarchy of their organizations.

·         New Rates of MSP: Commissioned Officers 15,500, JCOs/Other Ranks 5200.

·         Additional Post Allowance for all personnel looking after additional duties.

·         Extra Work Allowance for personnel with extra responsibilities.

·         Risk Related Allowances placed on a Risk and Hardship Matrix (RH Matrix).

Forwarded as Received-II: Misplaced angst

This is related to my post published on 26 September 2015 titled “Forwarded as Received”.

We are living in a free society, thankfully, and a democracy where freedom of expression is respected and also expected.

There may be differences of opinion on how things are taking shape in the military community, but then one must understand that various views can co-exist and differences of opinion should not be so shrill so as to override the right of a person to disagree or to have a different point of view. The email wars present a different picture though.

But what must be avoided is rumour-mongering to score points or even to prove a point.

An electronic message is now doing the rounds that Generals of the Army have been granted Non-Functional Upgradation (NFU) through a recent Government order, which has been refused to others. The message is supported by a copy of a communication which lists out 9 Lieutenant Generals of the Army who have been granted a higher grade based on the same.

This is totally incorrect and presents a skewed picture of the situation. While arguably there may have been instances in the past wherein the interests of juniors were not appreciated in proper light by the seniors, this is not one of them.

The 6^th Central Pay Commission had recommended that Corps Commanders who were eligible but unable to pick up the Army Commander’s appointment (C-in-C) due to fortuitous lack of residual service of 2 years, should be granted the grade of the Army Commander on a non-functional basis. This was accepted by the Government and the orders were issued and notified vide Para 4 (a) (ii) of SAI 2/S/2008 way back on 11 Oct 2008.

The grant of non-functional grade/scale has hence been in force since the 6^th Central Pay Commission vide orders issued in October 2008 and has no relationship with NFU granted to civilians and is not something that has been initiated by ‘Generals’. Obviously, it is applicable to the Air Force and Navy too.

It would be in the fitness of things if the focus remains on the right issues rather than getting into unwieldy subjects which are not based on the foundation of truth.

Let us be more responsible, and on a related subject, let us also learn to live with difference of opinion rather than casting aspersions on those who have a different viewpoint on the scheme of things during these churning times. Anyone who has a varied take today is declared as having joined the 'other side'. Is this the correct approach? 

Official Government Letter on One Rank One Pension (OROP)

This is in reference to the last post dated 07 November 2015.

The Ministry of Defence Letter granting One Rank One Pension (OROP) has been issued. The same can be downloaded and accessed by clicking here.

The moderation of comments would remain slow till the end of this month.

Thank you for your patience.

One Rank One Pension (OROP) notified

Salient features of OROP notified today:

Pensions based on live data of 2013 calculated at average of minimum and maximum pensions of individuals who were discharged in the said year. Pensions shall be equalized after every 5 years. 

If any person is in receipt of pension higher than the above amount, that shall stay protected. Pensioners with lower amount shall be upgraded.

Arrears with effect from 01 July 2014, to be paid in four installments but recipients of family pension shall be released arrears in one installment. Gallantry awardees also to be paid in one single installment.

Voluntary retirement clause removed for all past retirees but the negative stipulation shall be imposed on future retirees who opt for premature retirement or discharge at own request from today onwards. This shall apply to those who opt for release under Rule 13(3)1(i)(b),13(3)1(iv) or 16B of the Army Rules 1954 and pari materia rules of the other two services.

Judicial Commission will be constituted to iron out the anomalies which shall submit its report in 6 months.

OROP tables based on 2013 data shall be made available very soon.

Tables after inclusion of Non-Practicing Allowance (NPA) in the pension of Army Medical Corps, Army Dental Corps and Remount & Veterinary Corps retirees

As informed vide this post of 04 Aug 2015, the Ministry of Defence had issued the sanction letter for inclusion of NPA in the pension of AMC, ADC and RVC retirees who had retired prior to 1996, in pursuance to a decision of the Supreme Court.

The orders for the recovery of the element of NPA from the pensions of affected officers issued earlier also stand superseded with the issuance of the above letter.

The office of PCDA (Pensions) has also issued detailed instructions and tables for release of pension in terms of the above but it seems that many officers are not aware of the same and are still contemplating litigation in this regard.

The detailed Circular of the PCDA (Pensions) can be downloaded and accessed here which may be disseminated to affected officers with an advice not to indulge in litigation in this matter since universal orders already stand issued. While it is perfectly fine to file petitions in those matters where universal directions have not been issued despite settled legal position, but filing cases in matters that stand resolved by issuance of instructions such as the above or on grant of arrears w.e.f 01 Jan 2006 results in unnecessary burdening of pockets of litigants and dockets of Courts. 

Important decision on territorial jurisdiction by the Full Bench of the Armed Forces Tribunal convened at the Principal Bench

In an otherwise inconsequential period in military justice, a Full Bench of the Armed Forces Tribunal, headed by the Chairperson, has rendered an important decision on territorial jurisdiction.

The irony of it all is that ideally the decision was not at all required since the lynchpin rule itself is quite clear on the subject, but the Bench was forced into the question due to apparent obduracy of the Central Government in objecting to the subject time and again, and also some stray decisions rendered by different benches on the same topic taking a different view, notwithstanding the fact that the matter had been settled by Constitutional Courts.

Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008, provides, inter alia, that a person can file his petition (Application) at a Bench where he is posted or was last posted or where the cause of action or part of cause of action had arisen.

Of course, there are very many cases wherein the Petitioner is residing at some other place while the part of cause of action or the whole cause of action lies somewhere else, and as per a plain reading of the rule, it is the Petitioner’s choice to opt for a bench. The same is also an established proposition of law since a Petitioner is dominus liits in a litigation initiated by him.

However, more often than not, there used to be opposition by the Central Government when defence personnel filed cases at benches under whose jurisdiction they were not residing but where the cause of action had arisen. For example, a Petitioner may be posted under the jurisdiction of the Chandigarh Bench but the rejection of his claim had occurred at the Ministry of Defence at Delhi, in such a situation, it is the choice of the Petitioner to either file his case at the Principal Bench, Delhi or Chandigarh Bench since he is the dominus litis and it is his option where to invoke the jurisdiction. Some Benches of the AFT however, agreeing with the objection of the Union of India, dismissed such petitions for the reason of lack of jurisdiction though the Rule was absolutely clearly on the subject and gave an option to the Petitioner. The disturbing aspect of the issue was also that in certain cases, the dismissal orders by certain benches had been overturned by the High Court but still the benches continued to defy the law laid down by the High Court by attempting artificial distinction of the same.

Faced with such contradictory judgements, the Chairperson of the AFT constituted a Full Bench which rendered its decision last month in an order running into 63 pages.

The Full Bench has correctly laid down the law and held that according to Rule 6, it is the Petitioner who would decide where he wants to file the case if the cause of action or part of cause of action is arising before a bench different than the one where he is residing. To put is sharply, it is the Petitioner’s choice and not the choice of the bench to dictate where he should be filing the case.

The Full Bench has also shattered the averment of the Government that Petitioners would indulge in “bench-hunting” by this kind of an option. The Full Bench has very rightly stated that if that be so, then the Union of India can also be condemned for “bench avoiding”. The Full Bench has also observed that once the view of a coordinate bench rejecting a petition on the aspect of jurisdiction was overruled by the High Court, the said bench should have refrained from taking the same view again.

The decision, besides rightly laying down the law on jurisdiction and clarifying it for future litigants, also throws light on another dangerous trend, and that is, of certain benches of the Tribunal taking views which are contrary to law laid down by Constitutional Courts, that is, by the High Courts and the Supreme Court. Once the view of a Tribunal is overruled by a High Court or the Supreme Court, then judicial propriety and also the principle of judicial certainty demand that such benches should bow down to the majesty of Constitutional Courts and refrain from letting their prestige dictate their judgements rather than law laid down by Constitutional Courts. Otherwise, not only are litigants burdened with expensive litigation to higher courts (the Supreme Court at present, which is practically inaccessible) but also result in chaos in the system wherein the law remains unsettled for litigants approaching different benches of the Tribunal though the law in reality may be well settled by Constitutional Courts. When a decision is overturned by a higher judicial forum, judges of the lower forum should abide by it and not take it as an affront by indulging in unethical rounds of artificial distinction to reiterate their own old view which stands overruled. This tendency needs to be nipped in the bud.

The Full Bench of the Tribunal however deserves utmost respect for taking the bull by the horns and settling this issue once and for all which was otherwise leading to uncertainty in the minds of litigants. 

Universal orders issued on retirement age of Captain (Time Scale), Indian Navy (Updated)

Regular readers would be aware of the case of the retirement age of Group Captains (Time Scale) of the Indian Air Force wherein the Supreme Court had declared that the difference in the age of superannuation between Time Scale and Selection Grade Group Captains was discriminatory.

On similar analogy, the Armed Forces Tribunal had also passed orders related to Captains of the Indian Navy wherein the discrimination between the age of superannuation of Time Scale and Selection Grade rank of Captain (IN) was held to be bad in law.

As a corollary to the above, the Ministry of Defence has now issued universal orders that all Time Scale Captains would now retire at the age of 56 years. The age of superannuation for the said rank in the Education Branch would be 57 years.

This order is applicable to all affected officers, and not just litigants.

Must place on record that the current Defence Minister is proactively pursuing harmonization of policies which have caused heartburn amongst the rank and file and the same vision is also the benchmark being pursued by the Raksha Mantri’s short term Committee of Experts which is looking into many similar issues, and beyond.

Update: This clarification is for those who are enquiring about the removal of a ‘similar’ anomaly in the Army. This is to place on record that the Army is not afflicted with this anomaly since Time Scale and Selection Grade Colonels of the Army retire at the same age. In the Air Force and the Navy however, there was a difference in the age of retirement between Time Scale and Selection Grade ranks which was ultimately resolved by the Supreme Court. Various Branches/Arms/Services of all three services inherently mandate different ages of superannuation even for similar ranks and the Supreme Court decision has no link whatsoever regarding equalizing the same. 

Oped in “Business Standard” on the lack of judicial review over orders of the Armed Forces Tribunal

I am glad that despite the very shallow understanding of this cataclysm by many serving and retired members of the military community and the harm it has caused to the fundamental rights of the generations to come, this issue has gained the attention that it deserves.

Below reproduced is Col Ajai Shukla’s detailed analysis in Business Standard on the subject of lack of judicial review of the orders of the Armed Forces Tribunal:

Dead IAF pilot's father writes to PM

Gurbax Singh Dhindsa has underlined the fact that military personnel have little recourse to justice in higher courts

Ajai Shukla, September 29, 2015

In arguing how difficult are the terms and conditions of military service, leaders of the "one rank, one pay" (OROP) agitation have highlighted curtailment of fundamental rights of military personnel (under Article 33 of the Constitution); their subjection to harsh disciplinary codes (Army, Navy, Air Force Acts); prolonged separation from families; and the vastly higher risk of death or injury whilst on duty.

Now Gurbax Singh Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact that military personnel have little recourse to justice in higher courts.

Mr Dhindsa makes this point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter crashed while taking off from Srinagar on an operational mission on August 18, 1999. Mr Dhindsa's letter recounts the difficulties he faced in collecting the benefits due to him as the pilot's next of kin. Like many ex-servicemen who confront such delays, he took the government to court for what should have been paid to him routinely, and with gratitude and honour. Last month, the Armed Forces Tribunal (AFT) - the military's departmental tribunal - ordered the Defence Accounts Department to pay Mr Dhindsa his dead son's ex-gratia payment, pension and other dues that had been held back illegally for 16 years. Inexplicably, the AFT failed to order payment of interest.

When Mr Dhindsa decided to move the high court for grant of interest, he learned that he could not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments cannot be challenged in the high court. Nor can serving defence personnel or veterans or their families petition the Supreme Court unless the case involves a "point of law of general public importance". Earlier this year, on March 11, ruling on a plea filed by the previous United Progressive Alliance (UPA) government, the Supreme Court endorsed this retrograde provision.

The Supreme Court, in a separate case, is now reconsidering this judgment, which has effectively left defence personnel, veterans and families without remedy after an AFT decision. Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus Union of India, had deemed "unconstitutional" a ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse beyond the AFT.

Mr Dhindsa writes: "Of course, civilian employees or their families have no such bar. In case I had been the father of a civilian employee denied pension, I could have simply approached the Central Administrative Tribunal (CAT) and if dissatisfied, the high court and if still dissatisfied the Supreme Court. But since I am the father of a military martyr I cannot approach the high court or even the Supreme Court unless I have a case of public importance."

He goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"

This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money.

Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter."

Even so, unless and until the apex court reconsiders its earlier judgment, Mr Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?"

"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?"

"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"

The National Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to end the practice of automatic appeals that wear down litigants, regardless of the merits of their cases. However, the defence ministry's department of ex-servicemen's welfare (ESW) scuttles all such attempts, and resentment is rising amongst ex-servicemen.

The AFT was born in August 2009, as a departmental judicial body for providing quick and affordable justice to soldiers, airmen and sailors governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act), which envisions a military-oriented substitute for the high courts, with appeals addressed only to the Supreme Court, on matters of "general public importance". In 2011, the Delhi High Court ruled that litigants could not be deprived of judicial review in a high court, which the Constitution provided for. However, the Supreme Court struck down that order earlier this year.

There are also serious questions of conflict of interest, with the AFT operating under the defence ministry, which is the respondent in almost every case the AFT hears. The defence ministry argues the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the central government, while the Allocation of Business Rules makes the Ministry of Law and Justice (MOLJ) responsible for the "administration of justice".

There is a battle raging over control of the AFT. The Punjab & Haryana High Court has acknowledged this conflict of interest, directing in a judgment on November 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." This judgment cites the aforementioned seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India and R Gandhi versus Union of India, which direct departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the MoLJ, which must "try to ensure that the independence of the members of all such Tribunals is maintained."

In its Eighteenth Report, tabled in parliament on March 20, 2013, the Standing Committee on Defence has backed the setting up of a Central Tribunal Division under the MoLJ, which would exercise administrative control over the AFT, rather than the MoD. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way," says the report.

Reform of the AFT is essential for justice to be visibly served. It is to be hoped that Mr Dhindsa's letter draws the government's attention to this long overdue measure.

“Forwarded as Received”

Though my last post was also on chain mails, I have realized that irresponsibility on social media and cyberspace is now assuming dangerous proportions with rumour-mongering at its peak which is not only resulting in frustration amongst the military community but also unethical and unmilitary name-calling which can have far reaching consequences on reputations of people and morale of serving personnel and veterans.

While most of us have been forwarding mails and messages in good faith, still it is our bounden responsibility not to put into orbit material which is unverified or which causes unnecessary heartburn, especially amongst serving personnel, or results in slander of personalities. The term “Forwarded as Received” does not suffice and ends up damaging and harming the entire scheme of things as we perceive.

Some very recent examples of immaturity on the net, with mass circulation, can be recalled here:

Forwarding of a message that a senior officer at the Army HQ was responsible for inserting the prohibitory “Pre-Mature Retirement” (VRS) clause in the draft letter for OROP. What could be further from truth? Why on earth would someone do that? Have we ever wondered before forwarding such silly stuff on private and social media!!!

Circulation of a patently false message that a young Major who lost his life in an unfortunate incident during battle inoculation was not evacuated on time because senior officers precluded his evacuation.

Spreading canards about a Colonel whose wife is serving in the Indian Defence Accounts Service (IDAS). The officer’s reputation has been unnecessarily sullied without even an iota of truth. Even if on hypothetical assumption, the officer’s wife, in her official dealings, may have had an opinion or perception about the concept of OROP which may not have been configured with the actuality, how could the officer be blamed for the same and how could canards be spread about his service life, career and posting profile?

Spreading disaffection about senior officers and how they accepted the ‘Apex Grade’ after the 6^th Central Pay Commission (CPC) resulting in “OROP” for them and how they should refuse to accept the ‘Apex Grade’. Before spreading such half-truths, people should have realized that officers from the Apex Grade are in receipt of OROP by default, not by design. The pension of past retirees is calculated on the minimum of the new pay grade and since the pay grade of such retirees is fixed, the 50% of the minimum in their case results in a fixed pension for past as well as current retirees by default. Moreover, this fixed pay concept is not new and has been in place since times immemorial. For example, during the 4^thCPC, it was Rs 8000 fixed, during the 5^th CPC, it became 26000 and during the 6^th CPC it was upgraded to Rs 80000. This concept was not introduced by the 6^th CPC. Rumour-mongers have also not realized that such officers also suffer in a way since on reaching the ‘Apex’ level, they do not get any enhancement of pay in service and their pay remains fixed without any further increment.

Spreading my old oped of the year 2012 by forging the date as 2015 and stating to the world that the Services HQ are still opposing Non Functional Upgradation (NFU) for the military officer cadre. My old oped had merely stated the restrictive view existing at one point of time in the Services HQ. After a series of deliberations, all three Services HQ were firmly of a view in favour of NFU, and still are, and have fully stood behind the concept. Please ignore emails castigating the Services HQ for not supporting NFU since there is no truth in them. My opeds may be sharp but those are meant to move the system into motion by stirring them out of inertia, and not to pinprick. My opinion, which is meant for positive movement ahead, should not be used as a tool to shame.

Spreading mails regarding false and imaginary calculation tables which are either lesser than what is admissible thereby resulting in disappointment or which are much higher than entitlement thereby resulting in raising false expectations.

Chain mails asking people to file individual cases even in those specific matters wherein judicial intervention has already succeeded and universal orders stand issued by the Govt for all similarly placed individuals or where judicial intervention has already failed resulting in a closure of the issue. (Clarification: Here I am only referring to futility of litigation in those cases where the Govt HAS suo moto already issued universal orders after a particular decision. I am not referring to those issues where despite a favourable judicial decision, the Govt has not issued universal orders)

Also, it is painful to receive messages pertaining to my last post wherein I had attempted to clear the air about pensions of ranks other than Commissioned Officers. It seems that in the melee, affected pensioners have overlooked a very important fact that the new Circulars issued by the PCDA (547 and 548) emanate from a Supreme Court decision stating that pension should not be based on the “minimum of pay band” itself but on “minimum of pay within the pay band” for each rank w.e.f 01-01-2006. It cannot apply to ranks other than commissioned ranks for the simple reason that their pension is based on notional maximum w.e.f 01-07-2009 and hence if the judgement is applied to them w.e.f 01-01-2006, it would result in loss to all ranks since then the pensions would then fall to ‘minimum’ like in the case of Commissioned ranks and all civilians and that is the reason why pensions have been protected for them from 01-07-2009 onwards. They stand to gain only from 01-01-2006 till 30-06-2009 by the Supreme Court decision during which time their pensions were based on the minimum and these new tables would only replace the old tables that were in force from 01-01-2006 till 30-06-2009. If at all there was an anomaly, it was not linked to this Supreme Court decision or these new Circulars and it was on some other issue- it should have been emphasized and taken up that if till 5^th CPC (till 31-12-2005) their pensions were based on top of the scales, the same concept should have been extended w.e.f 01-01-2006 rather than from 01-07-2009.

It is bewildering that people are neither understanding the issue nor going into depth of the same and rather sending negative messages to those who are portraying the true picture to them. Rest assured that I am always willing to stand up for our men and women of all ranks unconditionally and that is the reason why this blog has never been officer-specific and neither have been my battles for justice. But I firmly believe in standing up only for causes which are legally sound and also do not believe in circulating sugarcoated mails with trumped-up figures which later cause disillusionment.  

Be careful. Be wise. Let us keep our eyes open.