Confusion between Modified Assured Career Progression Scheme (MACP) and Military Service Pay (MSP) and the need to ignore unnecessary rumours and false hopes

There are certain messages floating on social and other media that the Supreme Court of India has passed directions to pay ‘Military Service Pay’ with effect from January 2006 rather than from 2008 as was granted by the Government.

This is incorrect and there are no such directions. People are probably confusing the recent judgment on Modified Assured Career Progression Scheme (MACP) with the concept of Military Service Pay (MSP). Even otherwise, de hors the absence of any such decision, no parallel can be drawn between the two issues.

As explained in the post of 12 December 2017, the Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation, for the defence services.

The Special Army Instructions (SAI) on the subject had also been issued with effect from 01 January 2006 and which contained therein the stipulation of MACP. However later, despite the existence of the said SAI, another fresh letter was issued by the Government stating that MACP will be prospectively implemented from 01 September 2008.

Hence ultimately, unlike other pay related modalities which were implemented with effect from 01 January 2006, MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates. The Chandigarh Bench of the Armed Forces Tribunal (AFT) however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission. The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2008.

The aspect to be noted however in the above is that in case of MSP, the pay commission had itself noted that it shall be applied prospectively without any arrears (Para 2.3.12 of the 6^th Central Pay Commission Report). Further when the SAI 1/S/2008 was issued, while it applied benefits of all modalities from 2006 (including MACP), it had specifically stated in Paragraph 5(d) that arrears of MSP shall only be paid with effect from 01 September 2008. There was no such negative stipulation for MACP. Further MACP was a replacement for the earlier ACP while MSP was completely a new element.

Hence, as the above would show, while the MACP was applied from 2006 but later tacitly retrospectively withdrawn and made applicable from 2008- an action was at the heart of the debate in Courts, there was no such controversy with regard to MSP which was always meant to be paid prospectively from September 2008.

Though at the surface both issues might appear to be similar to the untrained eye, there is actually absolutely no parallel between the concepts of MACP and MSP, and hence it is in the interest of sanity to ignore messages being circulated that MSP arrears will be paid to all personnel with effect from 01 January 2006. One should avoid forwarding such messages since it may promote unnecessary litigation and propel false hopes.

The above is not in the form of legal advice but merely my humble opinion since a litigious society is not in anybody’s interest.

Important decision for ranks other than Commissioned Officers who retired between 01-01-2006 and 30-08-2008

The Sixth Central Pay Commission had recommended the implementation of the ‘Modified Assured Career Progression’ Scheme (MACP) providing for the grant of three financial upgradations of pay at the gap of 8, 16 and 24 years of service in case of stagnation.

Unlike other pay related modalities which were implemented with effect from 01 January 2006, the MACP was implemented with effect from 01 September 2008, thereby not including in its scope the personnel who were released from service between the two dates.

The Armed Forces Tribunal (AFT) had however ruled that the pay commission had granted all pay and pension related benefits from January 2006 and the prospective implementation was only effectuated for ‘allowances’ and hence the MACP was also to be implemented from January 2006 since it pertained to upgradation of pay. While ordering so, the AFT had followed the decision of the Punjab & Haryana High Court which had earlier ruled upon the implementation of improved pay-scales of defence personnel from 1996 rather than 1997 in an anomaly emanating out of the Fifth Pay Commission.

The decision of the AFT was challenged by the Government in the Supreme Court but the Apex Court has dismissed the appeal filed by the Union of India thereby upholding the grant of MACP from 01 January 2006 rather than 01 September 2009. This will affect the pay and pensionary benefits of those personnel who retired during the said period. 

Overburdening the Supreme Court and blocking access to Justice: My oped for the DNA

My oped published in the DNA:

OVERBURDENING THE SUPREME COURT AND BLOCKING ACCESS TO JUSTICE

High Courts must not be regarded as stepping stones to onward appeals to SC

Navdeep Singh

It was heartening to note the statement of the President of India on occasion of the National Law Day stressing upon affordability and access to justice and expressing concern on judicial delays. Important issues indeed which bother all stakeholders, but unfortunately these aspects are like an unruly horse unwilling to be tamed for a variety of stated and unstated reasons. The leading reason being that the hierarchy of courts is now merely being used as a stepping stone to reach the Supreme Court as a routine rather than looking for quietus or culmination of litigation at much lower levels thereby leaving time and space for the SC for cases of general public importance or major constitutional issues.

In a federal structure, though it may come as a surprise to many, as far as certain powers are concerned, the High Courts and the Supreme Court are equal, with the HC in fact wielding a wider writ jurisdiction under Article 226 than the SC under Article 32. The SC does not even exercise superintendence over High Courts as HCs do over lower Courts. The superiority of jurisdiction of SC over HCs is primarily appellate when orders of the HC are challenged. The high majesty of High Courts however today is under threat since litigants opt to test every small error till the SC with the latter ending up exercising correctional jurisdiction than being granted the legroom to adjudicate major issues requiring its attention. Coupled with this there is the inexplicable system of providing direct appeals from certain tribunals to the SC in contravention of a Seven Judge Constitution Bench decision in L Chandrakumar’s case (1997). All this not only leads to delay, costs and overburdening of the highest Court of the land with innocuous and minor matters, but also results, at times, in seemingly conflicting decisions by different benches leading to lack of judicial certainty and judicial confusion for lower fora resulting in multiple little Supreme Courts within the SC, besides making justice extremely unaffordable and inaccessible for the citizenry, though, ironically, access to justice is a recognized fundamental right.

A Constitution Bench had this to observe in Bihar Legal Support Society vs CJI (1986):

“It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the magistrates....This extraordinary jurisdiction could be availed by the apex court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature...We must realise that in the vast majority of cases the High Courts must become final even if they are wrong...We must, therefore, reconcile ourselves to the idea that like the apex court which may be wrong on occasions, the High Courts may also be wrong and it is not every error of the High Court which the apex court can possibly correct...this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.”

Indeed, a hierarchy of Courts is also required in every democracy. A multi-layered appellate or judicial review process is much desirable since judicial errors in appreciation or application of law cannot be ruled out. But the question only is whether all routes should ultimately lead to the SC?

Rather than embarking upon the concept of a Court of Appeal between the HC and the SC, as suggested by some, and which may require constitutional amendment, I would like to think that restoring the majesty of the HC back to what the Constitution envisaged, along with certain minor doable adjustments within the existing set-up, could help. The following ideas hence come to mind:

1. Introducing Intra-Court/Letter Patents Appeal from Single Bench decisions to Division Benches within the same HC for multiple and more jurisdictions rather than the very narrow scope as is prevalent.

2. Abrogating direct appeals from tribunals to the SC and instead Division Benches of HC exercising time-bound judicial review over all tribunals as also recommended recently by the Law Commission in its 272^nd Report.

3. Supreme Court sitting in larger benches, if not en bloc, to prevent conflicting decisions and judicial uncertainty and exercising jurisdiction only in rarest of rare cases of grave miscarriage of justice, questions of law of general public importance, issues involving two or more States and matters of Constitutional interpretation and the scope thereof also defined as objectively as possible.

4. Restoring the Constitutional majesty of the HC as practically the highest court and preventing it from being used merely as a stepping stone for onward appeal to the SC.

While it would take some effort to return our Constitutional Courts to their true roles, to implement what the President expressed the greatest responsibility to reduce judicial burden as also needless litigation falls upon instrumentalities of the government which file appeals to the next judicial level without batting an eye at taxpayers’ expense not out of judicial necessity but due to egotism and a faux sense of prestige of certain personalities that is hurt on losing a case. The buck also stops at our community- the lawyers and bar associations, to ensure a well-balanced and well-oiled machinery where dispensation of justice is quick, affordable & accessible and a quietus is reached at the optimum level without prolonging the agony. I need not say more. 

Opinion piece for The Quint: Civil-Military Rank Equation- Need for a Calmer Approach

 My opinion piece for The Quint today:

Civil-Military Rank Equation: 
Need for a Calmer Approach

Navdeep Singh

A point to point equation of military ranks and civil grades has always been a subject of controversy. But then things have taken an unpleasant turn in the recent past. While it is true that a sense of entitlement of both military and civil staff must not be allowed to prevail, it is equally valid that undue advantage of proximity to the decision making process must not become the order of the day. The political executive thus, must, reach a fair solution without any favour to any side.

While many military veterans have adopted the route of heavy emotional rhetoric in articulating their views on this subject, I sincerely feel, with all due respect to the said thought process, that a solution, if any, would only be possible in an environment of mutual trust, discussion and logic, irrespective of who is in power, and not by sharp statements against other services or professions or expressing a persecution complex. It is true that the military has been put to a disadvantage in the past in various aspects, but it is equally correct that many anomalies have been resolved, some fully, some partially, and most such positive movement took place by means of dialogue and processes of law and by personalities who mostly remained behind the curtains, and sometimes unsung.

The Historical Perspective

Traditionally there always was a broad parity of pay progression between Class-I Civil Services (Now known as Group A) and the Commissioned Cadre of the Defence Services.  There was also a broad parity between the career progression of the Indian Police Service and the Defence Services, except at higher ranks. Moreover, there was established relativity between Lieutenant Colonels, Conservators of Forests and Superintending Engineers. Till the 3^rd Central Pay Commission (CPC), there was not much of a problem in equivalence and it was broadly accepted that the Junior Time Scale (the starting grade of directly appointed Class I Officers) was equal to a Lieutenant, the Senior Time Scale (Under Secretary to Govt  of India) was equal to a Captain, the Junior Administrative Grade (Deputy Secretary to Govt of India/Joint Director) was at par with a Major, the Selection Grade (now Director to Govt of India) was equivalent to a Lieutenant Colonel. The 4^th CPC introduced a separate form of pay system for the Defence Services than the Civil Services with a running pay scale with separate component of ‘rank pay’ being introduced for defence officers but civil officers maintaining distinct pay scales for each rank as per the earlier system. This was the start point of the controversy with no “scale to scale” rough comparison now available for each analogous rank.

Skewed equation by 6^th CPC

The 6^th CPC, for the first time, brought the problem sharply out in the open. On Page 73 of the 6^th CPC Report, the commission reproduced a chart of analogous military and civil grades wherein it pegged the Group A Junior Time Scale with a Lieutenant as well as a Capt, the Senior Time Scale with a Major, the Junior Administrative Grade with a Lt Col, the Selection Grade with a Colonel and a DIG with a Brig. There were however many infirmities in the chart. For example, while only one of the Civil Selection Grade scales (Director) was reproduced and shown against a Colonel, the other civil Selection Grade scales (For example the IPS Selection Grade of Rs 1650-1800) were not reproduced at all and also not reflected with the closest military counterpart of Lt Col (Rs 1750-1950). The rank of Capt was shown equivalent to Senior Time Scale (Under Secretary to Govt of India) in the 3^rd CPC table but suddenly shown reduced below STS in the 4^th CPC table and clubbed with a Lieutenant and Junior Time Scale. Needless to say, there was no government order downgrading a Captain from the earlier level. There were other infirmities too, for example, the scale of a DIG wrongly shown analogous to a Brigadier in the 3^rd CPC chart was actually that of the then existing grade of Additional IG which was later merged with IG, and so on. The data, hence, was cherry picked and projected as such to throw the entire equation into disarray. 

Formation of a Group of Ministers

Due to the downgradation of military ranks by the 6^th CPC, the Government decided to form a Group of Ministers (GoM) to look into the issue. The GoM ultimately recorded that the pay of a Lt Col should be hiked to denote his/her position above a Deputy Secretary to Govt of India/Joint Director but below a Director and a Colonel. The recommendations were accepted by the Cabinet. The controversy was hence settled to an extent, though not to the complete satisfaction of the defence services who had wanted the restoration of status of Lt Col to Director Level Officers since both had similar attributes of pay and length of service. The GoM also endorsed the formation of a High Level Committee to further resolve the issue. To be honest, even the demands of the military before the GoM were not justified at a few levels. For example, the defence services had demanded the pre-4^th CPC restoration of the rank of Capt to Senior Time Scale and that of Major to Junior Administrative Grade, forgetting in the bargain, that by this time due to difference in promotion timelines on account of change in rules, while a defence officer was promoted to the rank of Capt in 2 years, a Group A civil officer took 4 years to reach Senior Time Scale, ditto for Major at 6 years and Junior Administrative Grade at 9 years and such an equation would have led to an undue advantage to the defence services.

The current controversy

The current controversy was triggered in October 2016 when the Chief Administrative Officer of the MoD, the controlling officer for the cadre of the Armed Forces Headquarters Civil Service (AFHQCS), issued a one-sided memo, downgrading the status of military ranks even below the already depressed levels articulated by the 6^th CPC. The memo equated a Colonel with a Joint Director of the AFHQCS (a Joint Director was otherwise equated with a Lt Col by the 6^th CPC and later a Joint Director was placed in-between a Major and a Lt Col by the GoM). Further the memo equated a Director with a Brigadier though a Director had clearly been equated with a Colonel both by the 6^th CPC as well as the GoM and approved as such by the Cabinet.

The Major General and Joint Secretary to Government of India equivalence misnomer

Over the years, if not by design, the sheen of the military rank has suffered by default. Major General (today with 32 years of service) has traditionally been pegged at par with Joint Secretary to Govt of India (currently 19 years of service) but it is unfortunate how this has come about. The genesis of this incorrect equation emanates from the fact that pre-independence, the Secretarial hierarchy was in the order of Assistant Secretary to Govt of India (Stage 1), Under Secretary (Stage 2), Additional Deputy Secretary (Stage 3), Deputy Secretary (Stage 4), Joint Secretary (Stage 5), Additional Secretary (Stage 6) and Secretary (Stage 7). A Major General was equated with Joint Secretary which was a Stage 5 position in the hierarchy and even the length of service was similar. However, over the years, the nomenclatures in the Central Secretariat setup/Central Staffing Scheme were altered and appointments re-designated as Under Secretary (Stage 1), Deputy Secretary (Stage 2), Director (Stage 3), Joint Secretary (Stage 4), Additional Secretary (Stage 5), Secretary (Stage 6) and Cabinet Secretary (Stage 7). Hence, while the “Maj Gen = Joint Secretary” equation was cleverly maintained on paper as before, it was not realized that the erstwhile Stage 5 of the secretarial hierarchy was now Additional Secretary and hence Maj Gen should have retained his 5^th  position, that is, Additional Secretary of date. Also, the equation of Joint Secretaries to Govt of India and Major General was not with regard to all officers in the pay of Joint Secretary, but only with those officers who were currently holding the appointment of Joint Secretary to the Govt of India on being empanelled as such in the Centre. Similar has been the case if compared with other services. For example, the highest Police Rank in a State, the IG, was equated with a Brigadier/Major General, today, there are four pay grades in the Police above a Brigadier and three above a Maj Gen. This is not to say that other cadres should stagnate, but is simply to put across that when such upward mobility occurs, there should be a parallel mobility or merger of scales on the military side too.

Slide over the times on cadre revisions

While a Lt Col, Conservator of Forests and Superintending Engineer of the Central Engineering Services (SE) were historically at par, today, after the 7^th Central Pay Commission, a Lt Col in Pay Level 12A is a step below an SE in pay (Pay Level 13), and two steps below a Conservator (Pay Level 13A). The slide has been inexplicable over the times with status being gently nibbled over the years. Moreover, as explained above, whenever there has been any cadre improvement, while civil posts have moved up and merged with higher grades due to better cadre mobility and upgradations, military ranks have stagnated and have been clubbed and bunched with lower grades. Many examples come to fore. The erstwhile police rank of Additional IG which was roughly equal to a Brig now stands merged with an IG and enjoys the pay of a Maj Gen and that of Additional DIG in the Central Armed Police Forces which was equal (in fact slightly lower) in pay to a Col now stands clubbed with a DIG, today drawing the pay of a Brig. In the Military Engineering Services, the rank of Additional Chief Engineer on the civil side was equated with a Colonel and held interchangeable appointments. Later, in the 2000s, the said rank was merged in the grade of Chief Engineer and is today enjoying Pay Level 14 which is the pay granted to a Maj Gen. The Senor Administrative Grade-II roughly equated with a Brigadier was merged with Senior Administrative Grade-I and today both are known as ‘Senior Administrative Grade’ (SAG) simpliciter and are in the pay of a Maj Gen. While logically, both Brigadiers and Major Generals should have hence been equated with SAG, but today the rank of Brig stands relegated below SAG.

The Military also needs to readjust

While the slide of the sheen of the military rank is more than evident, it is not that the military has not contributed to it. Over the years, the military establishment has believed in placing senior officers on junior appointments and used military staff in a manner not befitting the rank held, thereby itself projecting a wrong equation to the world at large. It also needs to be empathetically iterated that civilians who have worked shoulder to shoulder with the military in mixed organisations have also at times not been given due respect and regard to their experience, age, seniority and maturity. Such mistrust and friction militates against organisational fabric and national ethos. If the officers of the defence services expect respect and sensitivity towards their standing in society, similar should be their own attitude towards civilian peers in mixed organisations and indeed towards other civil officers who are also serving the same nation and the same flag with utmost sincerity. Any sense of entitlement or superiority on part of the military in this regard, is therefore highly incongruous and misplaced.

The role of the Political Executive

While no entity, including the military, should be allowed to steal a march over other counterparts, the political executive and higher bureaucracy must insulate itself from any advantage sought to be achieved by key appointments due to functional proximity with power centres. Ironically, and contrary to popular belief, most of such problems have not arisen between the military vis-a-vis the IAS or other Group A services but with support cadres which were meant to assist the military in their secretarial requirements to enable the defence services in focussing upon their core areas. Crudely put, it is a case of the grass eating the hedge.

Though I am not very sure if and when this vexed issue would be resolved to the complete satisfaction of all, but yet I am sanguine that with political maturity and deftness, the abrasion between various cadres can be brought down to minimal levels and though a point to point comparison may never be possible, the solution perhaps lies in evolving an approach with an approximate pay and status progression keeping in view the historical parities and length of service between the Commissioned Cadre and other Group A services of the Government of India. And here is where I differ with some of my esteemed veteran friends, for I strongly believe that the key to this is the creation of an environment of mutual trust and convincing the political executive that while the final decision is that of the elected leadership, all that needs to be ensured is a say of all stake holders in the decision-making process leading to justice and equity to all sides, and the same can only be achieved by logical presentation and not by shouting down or ascribing motives or antagonizing every entity who might have a difference of opinion or a divergent view on a recommended solution, and in the bargain losing all friends by burning bridges with emotional rhetoric to a point of no return without any semblance of balance.

---

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court and the founder President of the Armed Forces Tribunal Bar Association, at Chandigarh. 

Op-ed/Analysis for DNA: Raksha Mantri kindles hope

 My op-ed/analysis for the DNA:

Beyond the ‘machine’- Hope from the new 
Raksha Mantri

Navdeep Singh

The appointment of Nirmala Sitharaman as the Raksha Mantri was welcomed by all. Though a lot has been said about the procurement of the machine, not much thought is spared for the men and women behind that machine.

Beyond issues such as acquisition that appear glamorous for the world to write upon, it is also the human capital, personnel policies and mechanisms of redressal of grievances under the Ministry of Defence and the military which require focus, and these, softly put, need a refit. The last full time Raksha Mantri, Mr Manohar Parrikar, made genuine efforts in taming this unruly horse and there is no doubt Ms Sitharaman, known to be a hardworking, upright and sensitised personality, would now carry the work forward. Sensing opportunity at the non-availability of the political executive at the helm after Parrikar’s departure, the system had reverted back to its much cherished status quoist attitude. Mr Parrikar had constituted independent Committees of Experts comprising apolitical specialists rendering pro bono inputs, of one this author too was a part, to look into long pending issues plaguing the Ministry and the military, but despite the acceptance of many important and path-breaking recommendations, the Ministry is yet to issue implementation instructions.

Let us enumerate a few issues requiring attention.

Litigation

At one time, not so much in the past, more than ninety percent of appeals pending in the Supreme Court filed by the Ministry of Defence pertained to challenges to disability benefits granted by Courts and Tribunals to disabled soldiers. Most of the other litigation also comprises pensionary issues pertaining to old soldiers and military widows. Strange are the ways of the Ministry which challenges orders of Courts at times amounting to a few hundred rupees of benefits to disabled soldiers till the highest court of the land despite the law being well settled by Constitutional Courts. In fact, stress and strain of military service is universally known to aggravate even regular medical conditions such as hypertension and heart disease thereby adversely affecting the health profile and longevity of soldiers and the same is also recognized by the applicable rules. But accountants and financial authorities of the Ministry feel that soldiers should not be compensated for their health conditions since many such disabilities occur in civil life too. What they however forget in the bargain is that living away from the family for most part of the year, inability to attend to domestic commitments, a highly regimented lifestyle with curbs on freedoms that other citizens take for granted, are aspects unique to the military, and which, even by the admission of successive Raksha Mantris, lead to additional stress and strain. This Ministry must be the only one where consecutive Supreme Court decisions on the subject, rules, directions of Ministers, opinions of apex military medical bodies, recommendations of High Level Committees et al have had no effect and the show is run by a motley crew of accountants, financial wizards and mischief by certain file-noting initiators.

Personnel Policies

Along with pensionary policies, the personnel stratagems of the military also need a revisit. Though over past few years the rigidity of thought in the military has shown a decline and it has become less inward looking, a humungous task lies ahead to improve satisfaction level in this very important department. Affected parties need to be consulted in policy-making after a holistic and scientific analysis and these cannot be imposed in a ham-handed manner based on the whims or opinions of a select few. Such an approach has led to massive litigation, discontentment and administrative chaos in the past which then reflects upon the working relationship of the various cogs in the wheel. Similarly, the military needs to look within and acquire a more open, pragmatic, fair and progressive approach in grievance redressal. It’s an open secret that most of the serious representations (statutory and non-statutory complaints) are not decided within the prescribed period of 6 months unless strings are pulled. In a primitive system, the decision makers seek comments on such representations from those very authorities who are complained against. The recommendations of the Committee of Experts for faster redressal and an opportunity of hearing or personal interaction of the aggrieved party with the competent authority before taking the decision and also for making the process objective by decentralizing certain power centres, were accepted in principle by the Raksha Mantri in August 2016 with directions to issue implementation instructions in 45 days, but the files have been put in such an orbit that the execution till date remains elusive.

Decision Making

With an incisive mind now occupying the chair, one would also expect a more balanced decision-making process. Having dealt with it closely, this author would suggest that the higher bureaucracy and political executive must not blindly rely on any developing coterie or one-way file notings since the same are drafted in a manner so as to extract a particular kind of response- the kind of response that the file initiator in the lower bureaucracy wants. Hence, the decision making process needs to be collegiate wherein inputs and views of all are taken in a real-time manner and wherein those who have commented upon a particular issue on file can be confronted by stakeholders. Also, it is very much necessary to interact with the affected parties in important administrative, personnel, welfare and pension related subjects to have a well-rounded view.

The Raksha Mantri has given hope to many. Interestingly, the situation today is that while the Minister at the helm of this large Ministry remains accessible and replies to emails and tweets, just the opposite attitude is at display at the lower but cutting edge public-dealing level. The biggest positive change that many like us would perceive and hope for in the near future is that the system would now run as per the will of the political executive and not the short-sighted personal opinion of someone wielding a damaging pen, sitting in a non descript corner in the South Block. 

Major Navdeep Singh is a lawyer at the Punjab & Haryana High Court and was the founding President of the Armed Forces Tribunal Bar Association. He writes on issues related to law, military and public policy. 

Another important letter issued today for pension and disability benefits of Pre 2016 retirees

Close on the heels of the two letters issued yesterday, another letter has been issued by the Ministry of Defence for Pre-2016 retirees with regard to their pensionary and disability benefits.

The salient features of the same:

(a) Notional fixation as per the first formula recommended by the 7^th Central Pay Commission has been implemented as was done for civilian retirees in May 2017. For a few rare cases, this notional fixation may result in pension being upwardly revised even higher the figures arrived at existing levels, that is, higher than OROP Pension X 2.57. The pensioner however shall be entitled to receive the higher of the two. Detailed modalities would only be discernible once the full fledged concordance tables are issued. To refresh, the revision under this formula shall be undertaken by notionally fixing the pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which such pensioners had retired (for pension) or died (for family pension). This will be done by notional pay fixation under each intervening Pay Commission based on the formula for revision of pay.

(b) The controversy of non-counting of X Group Pay for pensionary purposes has been resolved. In fact the resolution of the same was also evident in the letters issued yesterday.

(c) Pension calculation for disability benefits restored at percentage basis at par with civilians.

(d) Broadbanding/Rounding-off of disability/war-injury element for all disabled soldiers, irrespective of manner of exit, granted but only for 7^th CPC regime w.e.f 01-01-2016. The period from 01-01-1996 till 31-12-2015 under the 5^th and 6^th CPCs shall hence continue to be governed by decisions of Courts as before while the period from 01-01-2016 shall be governed by the 7^th CPC letter. There is hence still status quo on the legal position for the period governed by 5^th and 6^th CPCs. We shall hence again request the Government for grant of the broadbanding benefits of 5^th and 6^th CPC to all affected personnel as decided by the Supreme Court in KJS Buttar and Davinder Singh cases.

(e) The anomaly of non grant of old age pension to disability and war injury pensioners of the Pre 2016 category stands resolved.

(f)   Notional fixation of old retirees has been explained in Paragraphs 6 to 8 of the letter.

The above letter issued today, that is, 05 Sept 2017, can be accessed and downloaded by clicking here. 

Thank You. 

Fresh Disability, War Injury and other Casualty Awards letters issued for Pre and Post 2016 retirees

The much awaited orders on casualty (disability) awards have been issued after resolution by the Anomalies Committee.

Salient features-

For Pre-2016 pensioners:

(a)  Disability and War Injury awards have been restored to the formula as applicable to civilians. The rate shall now be revised to Old Award as admissible on 31-12-2015 (under enhanced OROP rates based on the percentage formula applicable at that time) X 2.57 with effect from 01-01-2016.

(b)  Orders for notional percentage based calculations with fresh 7^th Central Pay Commission scales as the backdrop, not yet issued.

For Post-2016 pensioners:

(a)  Broadbanding/rounding-off made applicable to all cases of disability/war injury pension with effect from 01-01-2016 but only to post-2016 retirees (hence as of now, status quo continues with respect to the legal position for Pre-2016 retirees).

(b)  The percentage based rules for calculation of disability/war injury/other casualty awards shall remain the same (percentage based) as were applicable prior to 2016.

(c)  Additional old age pension on attaining the age of 80 or above restored for disability and war injury pensioners (however, the same has not yet been restored for Pre-2016 retirees). Readers may recall, this confusion and anomaly emanated due to a slip up by the military pay cells.

Both letters can be downloaded and accessed here:

For Pre 2016 retirees

For Post 2016 retirees

Supreme Court takes cognizance of a Petition challenging the new rules for Tribunals and also excessive tribunalisation at the cost of the regular judiciary

The Supreme Court has issued notice to the Central Government on a Writ Petition filed by me challenging the new rules promulgated for all tribunals by the Government and also seeking reform of the various tribunals in the country and a roadmap to check excessive tribunalisation.

A report by Bar & Bench is appended below:

The Supreme Court today issued notice to the central government in a writ petition filed by (Punjab & Haryana High Court) Advocate and founder President of the Armed Forces Tribunal (AFT) Bar Association Navdeep Singh, seeking striking down of the recently promulgated rules for Tribunals.

The matter came up for hearing today before a Bench of Chief Justice JS Khehar and Justices Dipak Misra and DY Chandrachud.

The petition, citing the example of the AFT, states that the tribunal has been placed under the complete hold of the Ministry of Defence, which is the first opposite party in every litigation before the AFT. It further adds that the Defence Secretary has been made a part of the selection and reappointment committee for appointing members of the tribunal, thereby making the primary litigant select its own adjudicators.

It also states that the Centre has notified the Rules despite orders of the Punjab & Haryana High Court to the contrary, on which there was no stay by the Supreme Court. The petition further challenges the clause decreasing the tenure of members and lowering their status and a new provision allowing them to take up government employment after retirement from the tribunal, which was prohibited till now.

More importantly, the petition states that while promulgating the Rules, the officers concerned have acted diametrically opposite to the views of the political executive since even the Prime Minister and the Law Minister had made statements favouring reform and independence of tribunals. The petition states that the real reason behind tribunalisation was “not to reduce pendency, but to create post-retirement havens and tacitly and slowly encroach upon the traditional jurisdiction of real Courts, including issues of personal, individual and civil rights”.

Calling out the myth of reduction of pendency, the petition points out an example of defence related cases, which have increased from 9000 to 16000 after creation of the AFT.

Moreover, work in tribunals comes to a complete halt due to non-appointment of members. The petition states that the stress upon ‘expertise’ in tribunals is overemphasized since “judicial opinion is through assistance from both sides of the dispute through counsel or through expert opinions, and for the same, the expert need not sit as an adjudicator which can result in subjectivity and over-familiarity rather than a dispassionate and detached approach”.

It has also sought a roadmap for reforming tribunals and returning certain jurisdictions back to the regular courts. The petition has also questioned why the regular judiciary was not being strengthened rather than excessive tribunalisation. The Petition has averred that in case a lack of expertise is perceived, then specialized courts such as Commercial Courts should be incepted within the regular judiciary. Alternatively, a system of more stable rosters must be effectuated in Courts, in line with the expertise and aptitude of judges.

The Petition has also sought judicial review over tribunal decisions in Division Benches of High Courts as held by a Constitution Bench in L Chandrakumar’s case, rather than the inaccessible and unaffordable appeals provided from some tribunals directly to the Supreme Court.

Pay Rules issued for Commissioned Officers of the Military Nursing Service

The Pay Rules for Commissioned Officers of the Military Nursing Service (MNS) have been promulgated today and can be downloaded by clicking here. These are in consequence to approval of the scales as per the 7th Central Pay Commission. 

The Rules had to be issued separately since the pay scales of MNS are different than regular Civil and Military employees.

Many legal issues related to the MNS are pending resolution with the Government and the Armed Forces and it is fully hoped that the matter is finally settled with an open mind and full participation and satisfaction of all stakeholders so as to promote a sense of belongingness and cohesion in the military medical setup. 

Concordance tables issued for pre-2016 pensioners of all grades as per the new pension fixation formula

Recently, orders were issued for revision of pension based on the ‘notional fixation’ formula which was different than the 2.57 multiple dispensation. The said orders were discussed here on this blog on 12 May 2017 wherein it was informed that the revision shall be undertaken by notionally fixing the pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which such pensioners had retired (for pension) or died (for family pension). This was to be undertaken by notional pay fixation under each intervening Pay Commission based on the Formula for revision of pay.

The above formula was quite confusing for those who do not have deep knowledge about pay scales of the past Pay Commissions.

The Government has hence issued concordance tables for each rank/grade/scale today to make things easier for pensioners. The same can be downloaded and accessed by clicking here.

Similar tables for defence pensioners shall be issued by the Ministry of Defence separately. The formula which results in the higher payout of pension shall be applicable. 

A reluctant step, but an important and landmark step nevertheless by the Ministry of Defence for Disabled Soldiers probably ending the dark era of en masse appeals against disabled soldiers

As regular readers would be aware, the issue of declaring disabilities of soldiers as “Neither Attributable to, Nor Aggravated By Military Service” (popularly known as NANA cases) has been a vexed one. While the rules on attributability and aggravation are quite liberal, their interpretation has been literal, leading to denial of disability and special family pensionary benefits to disabled soldiers and families of soldiers who die due to some disability while in service.

Despite several judgements by the Supreme Court, High Courts as also followed by various Benches of the Armed Forces Tribunal, benefits were denied to such disabled soldiers, and on the contrary, multiple appeals were filed against favourable verdicts rendered by Courts.

Besides other issues, this issue was also deliberated upon and discussed in detail in Paragraph 2.2.1 of the Report of the Committee of Experts constituted by the then Raksha Mantri on directions of the Prime Minister, for reducing litigation involving the Ministry of Defence and strengthening the mechanisms for redressal of grievances, of which I too was a Member. The following were the recommendations of the Committee to this end:

In view of the foregoing, the Committee notes and recommends the following:

(a) According to rules, as also endorsed by the Supreme Court, a benefit of doubt regarding ‘attributability/aggravation’ or ‘service-connection’ needs to be granted to any disability arising during service [See Paragraph 32 of Dharamvir Vs Union of India (supra), Paragraphs 15 & 16 of Union of India Vs Rajbir (supra)]. The same however can be denied when it is shown that the disability is due to a person’s own gross misconduct or negligence, illegal activity, substance abuse or intoxication. The same is also a universally acceptable norm in all democracies [See Rule 105 of US Code 38 (supra)]. The same benefit is also admissible in ‘death’ cases due to in-service disabilities leading to entitlement of Special Family Pension for families. The said proposition is also agreeable to all stakeholders including the medical side with the apex medical body, the MSAC, also on board.

(b)  There is no linkage with ‘peace’ or ‘field’ service as far as attributability of disabilities is concerned and any such differentiation locally put across by the office of DGAFMS in the past or professed by any other authority is illegal, contrary to Entitlement Rules, contemptuous towards decisions of the Hon’ble Supreme Court and also against Regulations for Medical Services in the Armed Forces (See Para 33 of Dharamvir Singh Vs Union of India and Regulation 423 of RMSAF). So for example, if a soldier develops Heart Disease while in service, the benefit of doubt needs to be extended to ‘service-connection’ and the claim need not be rejected on grounds such as ‘served in peace area’ or ‘cause unknown’. The claim can only be rejected in case of a note of disability at the time of entry into service or reasons such as ‘heavy smoking’ or ‘lack of dietary control leading to obesity and heart disease’ are recorded, if applicable. Otherwise, the presumption operates in favour of soldiers, as per rules and as held by the Supreme Court.

(c)  Broadly blaming domestic reasons for psychiatric disabilities arising during military service is against common knowledge and unethical since domestic reasons are bound to give rise to stress and also to aggravate the same in soldiers because of the very fact that due to military service they remain away from their families most of the year and cannot hence cope up with all familial requirements efficiently by virtue of their being absent from home. Putting the blame on ‘domestic reasons’ not only gives out a message that the organisation is simply washing its hands off the responsibility towards such soldiers but also results in denial of pensionary benefits to such affected soldiers and their families. The issue already stands addressed in K Srinivasa Reddy Vs Union of India (supra) and also explained in detail in the preceding paragraphs by us. The said principles and causative factors of stress also stand endorsed by way of DO letters written to Chief Ministers by successive Raksha Mantris, which of course has also not resulted in desirable results and needs renewed efforts.

(d) All concerned agencies should realize that non-grant of “attributability” or “aggravation” on flimsy grounds results in denial of pensionary benefits and consequently denial of a life of basic dignity to disabled soldiers. While it may be just a casual stroke of a pen for a medical board, it may be a question of survival for a soldier or his family. The exercise needs to be undertaken in a common-sense oriented, practical, liberal and scientific manner. Guidelines, if any, may not operate in derogation of actual rules and need to move with the times as per global norms based on scientific studies. The lack of transparency in past amendments in the “Guide to Medical Officers (Military Pensions)” wherein the said amendments do not even carry the footnote of the study or the basis leading to the change/amendment is highly avoidable and so is the tendency not to honestly reproduce the actual rules in the said guide and eliminating important parts such as the erstwhile Para 47 of the 2002 version which has vanished without trace and without reasoning and the spirit of which needs to be restored. All authorities, including Medical Boards shall decide attributability/aggravation on a case to case basis as per law laid down by the Supreme Court based on the interpretation of actual rules and ground realities of the inherent stress and strain of military life, rather than the mathematical guidelines of the Guide to Medical Officers or locally issued instructions and DO letters written to medical boards.

(e) Cases of feigning of disabilities where none exist should be dealt with strongly and medical boards should also be extra careful in examining cases where individuals have reported with a medical condition just prior to retirement or release.

(f) The current approach shows that despite clear cut law laid down by the Supreme Court and also the spirit of the rules, there is resistance in accepting the settled legal position based on hyper-technical hairsplitting reasons. The concerned authorities must accept gracefully and with all humility the law laid down by the Apex Court and come to terms to the same since an approach of resistance is not only against law but also at odds with global practices for disabilities incurred during military service.

(g) It is further recommended that henceforth in medical boards, all disabilities arising in service may be broadly dealt with on the anvil of the above practical realities, all appeals pending against such disabled soldiers filed in the Supreme Court be withdrawn immediately and pending or future litigation in Courts and Tribunals related to past cases of disabled soldiers may be dealt with by Government lawyers in judicial fora on the basis of Supreme Court decisions as above, except in cases of gross misconduct, negligence, substance abuse or intoxication, on a case to case basis. Needless to state, the same principles also apply to deaths while in service.

Based on the position as above, the Ministry of Defence has finally issued a policy letter for implementation of Court orders granting disability pension to disabled soldiers, which can be downloaded and accessed by clicking here. While the Ministry has fully accepted judicial dicta as emphasized in the above recommendation, what is strange is that in Paragraph 3 of the said policy, though the Defence Services Headquarters have been asked to implement Court orders and also grant absolute sanctions while implementing the same (as against Conditional sanctions pending appeal, as was the case in the past), the Ministry has still not shown a large heart as far as withdrawal of the pending appeals are concerned, and on the contrary, rather than asking the Defence Services to withdraw the said appeals, the Ministry states that ‘absolute sanctions’ be issued on dismissal of the appeals already pending in the Supreme Court. The question arises that when the recommendations of the Committee are unambiguous on the subject and so is the law declared by Constitutional Courts, why should the pending appeals be pursued till ‘dismissed’, and why not simply withdrawn with full humility?

These are questions to which there are no answers. Notwithstanding this, we should stay positive since not only will this ensure a faster implementation of Court orders related to disability pension, it also, in all probability, marks the closure of a dark era of en masse appeals against disabled soldiers, and I am sure the remaining issues shall also be ironed out soon.

Must place on record my gratitude to Mr Manohar Parrikar for initiating these reforms leading us to a better today. 

Cabinet decisions on allowances of Government Employees: To be paid with effect from 01 July 2017 (UPDATED)

Here is a gist of today’s major cabinet decisions for allowances of Central Government employees based on recommendations of the 7th Central Pay Commission, in layperson terms:

1. Total number of allowances decreased from 197 to 128. To be paid with effect from 01 July 2017.

2. An additional Cell for Siachen introduced in the Risk and Hardship Matrix. The amount enhanced to Rs 42,500 for Officers and Rs 30,000 for ranks other than Commissioned Officers. The rates recommended by the 7th CPC were Rs 31,500 and Rs 21,000 respectively.

3. HRA rates decreased to 24%, 16% and 8% for X, Y and Z cities respectively. However the rates to go up to 27%, 18% and 9% and then 30%, 20% and 10% whenever the rates of DA touch 25% and 50% respectively. The HRA would however remain protected at 30%, 20% and 10% for the lowest possible pay under the Government and would not hence be less than Rs 5400, Rs 3600 and Rs 1800 for any employee.

4. Newly proposed Dress Allowance to be paid @Rs 5000, 10,000, 15,000 and 20,000 per year to employees of various categories. This subsumes all other uniform related allowances.

5. Ration Money Allowance (RMA) not abolished but will be paid directly with the salary in lieu of actual rations to officers posted in peace. Will update readers once there is more clarity on this issue.

6. Facility of One additional Railway Warrant extended to CAPFs and Coast Guard.

7. Field Area Allowances to be regulated @Rs 6,000-16,900. Counter Insurgency Allowance also at the same rates.

8. MARCOS and Chariot Allowance to Marine Commandos and also COBRA Allowance to CRPF personnel in Naxal areas to be granted @Rs 17,300-25,000.

9. Flying allowance @Rs17,300 to 25,000, also extended to BSF’s Air Wing.

10. Deputation Duty Allowance ceiling for defence personnel increased from ₹2000 - ₹4500 per month to ₹4500 - ₹9000 per month.

11. Fixed Medical Allowance for pensioners increased to Rs 1000 per month and Constant Attendant Allowance increased to Rs 6,750.

UPDATE:
The Gazette notification for all allowances has been published on 06 July 2017 and is available here.