Oped for Times of India | No need to vilify OROP or disability pensions: Problem of burgeoning military pension bill has practical solution

 My oped for the Times of India:

Burgeoning Military Pension Bill- the need for practical solutions

There is a need for ingenious solutions rather than vilification of concepts like OROP or Disability Pension

Major Navdeep Singh

Defence spending is again in news, and with it the common censure of the allocation being consumed mostly by pay and pensions. While we may choose to weigh in with emotional calls of soldierly pride and sacrifice et al, dispassionately seen the hazard the pay and pension bill poses is not easy to ignore. But then the solution does not lie in a maladroit approach of demonising concepts such as ‘One Rank One Pension’ (OROP) or disability benefits.

The heavy bill and its ascension with every pay commission is indeed a cause of worry. Though the defence services have been trying to shed some of their manpower, it is unlikely that this modest curtailment would result in significant savings.

So what is the solution?

The straight response would be to drastically expand the concept of Short Service Commission (SSC), making it more attractive and less exploitative, and also introduce a Short Service Engagement scheme at jawan level with contributory pension, while concomitantly reducing the permanent staff under the existing defined pension (OROP) system. This arrangement can result in maintenance of military strength at the current levels but greatly reduce the pension bill.

Currently, officers are being offered SSC of 10 to 14 years after which they are compulsorily released without any pension, except those who opt (and are selected) for permanent commission. Previously, officers were allowed to exit after 5 years. Needless to state, the current structure leaves them at crossroads without pension or guaranteed employment almost in middle age with peak family commitments. The way out of the quagmire is simple. Such SSC officers must be made members of a contributory pension scheme under the National Pension System (NPS) as is now applicable to civilian employees. Officers under the Short Service Appointment scheme of Indian Coast Guard are already members of NPS, denying the same to their military counterparts is anyway incongruous. There is also a requirement to protect their status or seniority if they opt for civil government employment after release. Similarly, there is a need to introduce a Short Service Engagement scheme for recruitment at lower ranks- individuals who will serve for 10 years and then released with NPS benefits and “ex-serviceman status”. Obviously, these Short Service schemes would be voluntary and concurrent to regular entries which shall continue to be on OROP dispensation. However, gradually the number of the former may be amplified and the latter reduced.

The establishment would have to find ingenious, albeit practical and non-exploitative ways, to reduce the bill, and demonising OROP or disability pensions is not one of them. OROP is mandated by the Cabinet and was promised by successive governments to cater to the massively curtailed tenure of defence personnel who start retiring in their 30s. There is no going back on it. The way out is to reduce future OROP beneficiaries by rationalising permanent staff.

Similarly, the recent furore over disability pensions was unpleasant. Frequent transfers, regimented lifestyle, curtailment of freedoms and inability to cater to domestic commitments result in aggravation of common medical conditions in soldiers, a reality all militaries face globally. Finding ways to reduce disability benefits is a cloddish approach which will not curtail the incidence of disability. Rather, the attempt should be to introduce policies to reduce stress & strain, provide comfort and succour to soldiers to reduce the prevalence of disability and consequently disability benefits. It would be imprudent and indeed irrationally unique for us as a nation to attempt to vilify military disabilities to save pennies rather than making lives of soldiers better.

Lateral induction of soldiers to other organisations such as Central Armed Police Forces (CAPFs) has also been propagated by successive pay commissions but opposed by the Ministry of Home Affairs (MHA). Perhaps the reason might be valid to an extent. CAPFs would not want military veterans parachuting into their ranks and blocking their career progression. But then there could be a solution by simply raising a separate organisation of military veterans under the MHA and employ them for duties configuring with their past expertise or utilize them for national reconstruction roles or executing government schemes.

The military pension bill is not an unruly monster, however what is required to tame it is a balanced but determined and humane political executive, and it seems the current Raksha Mantri might just fit that description.

The author is a high court lawyer and writes on law, military and public policy.

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Opinion piece in ‘The Print’: “Problem isn’t taxing disability pension of Armed forces, but demonising disability”

Ms Ratna Viswanathan and I have co-authored an opinion piece for ‘The Print’ titled “Problem isn’t taxing disability pension of Armed forces, but demonising disability”, which covers the raging controversy on the issue of disability pension, the vilification and demonising of military disabilities and the issues of concern that relate to low medical category soldiers in the military.

The same can be accessed by clicking here.

Explainer on the concept of Disability Pension, Invalidation, and the recent controversy over tax exemption thereupon, viewed historically

EXPLAINER ON THE CONCEPT OF DISABILITY PENSION, INVALIDATION AND THE RECENT CONTROVERSY OVER THE TAX EXEMPTION THEREUPON, VIEWED HISTORICALLY

Though I would be soon writing a detailed opinion piece again on military disabilities and our faulty approach on the same, it becomes important to put out some data and a few historical facts on the recent controversy.

The CBDT Circular: The CBDT has recently issued a circular stating that Income Tax Exemption on disability pension would only be allowed to those disabled personnel who are invalided from military service and not to those who are released on completion of tenure or superannuation. It seems that the term ‘invalided’ has been taken by the CBDT to mean those who are medically boarded out prematurely from military service before their actual retirement, discharge or superannuation. The controversy over this term is however not new. However, it becomes important to clarify this issue in its historical perspective since some of this information would not be available with the Finance Ministry, the CBDT, the Ministry of Defence and even the Defence Services.

History of Disability Pension: Wound, Injury and Disability Pension has remained applicable to military personnel (combatant as well as non-combatants and even ‘private servants’ of officers during old times), in one form or the other since the days of the Crown. As the terminology suggests, it was granted for disabilities suffered during the course of service or illnesses incurred while in service.

The term ‘Invalid’: The term invalid or invalided in military parlance simply referred to a person who became an Invalid (disabled) while in military service. It had no connection with “invaliding ‘out’ prematurely from military service”. A person who was disabled while in military service was termed as an Invalid and when such a person was discharged, whether prematurely or on completion of his terms, he was discharged through a medical board and termed “invalided from” service (and not invalided ‘out’ of service).

Exemption of Income Tax, 1922: Income Tax was exempted in the year 1922 for invalid soldiers and the same terminology as above was used in the applicable military instructions as well as the exemption granted by the Finance Department.

Governor General’s Orders of 1926: Disability Pension attained exalted status in the year 1926, when GM Young, the then Secretary to the Government of India, Army Department, issued a notification in the name of the ‘Governor General in Council” stating therein that no public claim or public debt shall be recovered from the Wound, Injury or Disability Pension of an officer or soldier. It may be noted that this was applicable to disability pension across the board and the term ‘invalided’ was not even pressed into service.

Confusion caused by 1940 Regulations: The confusion on the term ‘invalided’ however raised its ugly head when Pension Regulations, 1940, were published. Here, the term ‘invalided’ was used in provisions related to disability pension giving an impression that the term applied only to those who were prematurely boarded out of the military. Although, the same regulations in the same breath also stated that a person retiring on completion of service limits would be granted benefits ‘as if he had been invalided’, again multiplying the confusion.

Corrective action by Government of India to clear the confusion: The problem created by the original (correct) definition of ‘invalided’ as also signified  by the notification issued by the Secretary, Army Department, and the one that came to be incorrectly understood by military accountants due to the publication of Pension Regulations 1940, however was resolved by the Government of India once and for all in the year 1950 when the Entitlement Rules, 1950, were promulgated and it was specifically underlined and provided that the term ‘invalidation’  for the purposes of disability pension shall mean all military personnel who at the time of release from service are in a medical category lower than the one in which they were recruited. Meaning thereby, all Low Medical Category personnel who were fit at the time of entry into service were conclusively declared to be falling under the category of ‘invalidation’ thereby bringing the definition back to its origins. These Rules of 1950 were officially appended with the existing Pension Regulations by the order of the Central Government. This was further provided in Ministry of Defence Letter No A/22255/AG/PS4 (d)/2725/Pen-C dated 05 November 1969. The same was reiterated later in the form of Rule 4 of Entitlement Rules, 1982. Needless to state, this action was very important and required since there can be multiple categories of disabled personnel within the Army and to perpetuate discrimination amongst them based upon the type of exit from service would amount to hair-splitting. Some such categories are- those who are prematurely boarded out since they are unable to cope up with life in the military after getting disabled, those who opt to continue and serve despite the disability and then retire on regular completion of terms/service limits, those who are discharged since no ‘sheltered appointment’ is available, those who opt out of service because of lack of promotion due to disability, those who are not promoted and hence retired early at the age prescribed for lower ranks etc

Litigation: The discrimination between disability benefits between those who are prematurely medically boarded out and those who opt to continue to serve the nation despite the disability also became a subject of many a litigation. Some such examples are Civil Writ 2967/1989 Mahavir Singh Narwal Vs Union of India as affirmed by the Supreme Court in SLP 24171/2004 disposed on 04 Jan 2008 wherein the Delhi High Court explained and interpretation the term ‘invalidation’ and the decision of the Supreme Court in Civil Appeal 418/2012 in Union of India Vs Ram Avtar and of course in Civil Appeal 5591/2006 KJS Buttar Vs Union of India.

Going back to the confusion of 1940: The term “invalidation” is hence adequately defined by the Rules of the Government and interpreted by Constitutional Courts. The CBDT, it seems, has however restrictively interpreted the term as per its confused definition as it existed between 1940 (When Pension Regulations, 1940 were promulgated) and 1950 (When Entitlement Rules, 1950 were put into force to clarify the term ‘invalidation’).

Demonisation of military disabilities: What we also see today is unnecessary demonisation of military disabilities. The incidence of aggravation of disabilities in military personnel is much higher than civilian employees simply due to the reason of frequent movements and unsettled life (which ironically continues even in peace family stations due to an extreme shortage of family accommodation), regimented lifestyle and barrack life away from family, inability to cater to domestic commitments, inability to fulfil sexual desires, curtailment of freedoms, applicability of a disciplinary code 24X7, exposure to stressful situations including operational areas etc. Disability hence is not a sign of weakness and even the bravest of the brave battle-hardened soldier can fall prey to it. As far as the rumour of Generals cornering disability claims is concerned, the incidence of a disability incurred in-service is bound to be higher in senior ranks simply because they retire in their late 50s (upto the age of 60) while soldiers start retiring in their 30s. The allegation of ‘fake’ or ‘feigned’ disabilities (though not the reason for the CBDT Circular) is also laughable since the incidence of disability is first endorsed by an Initial Medical Board, then by re-categorization medical boards and then finally by the Release Medical Board at the time of retirement. There are hence multiple doctors, all different and at different locations in the country, who endorse the existence of a medical condition and its percentage. So far as the thought as to why aggravated disabilities such as heart disease, hypertension, depression, neurosis, psychosis etc are eligible for disability benefits is concerned, the same is not some kind of a favour to our soldiers since it is provided in pensionary rules for military as well as other uniformed personnel that such disabilities are affected by stress and strain of service and eligible for disability benefits.

Rules for disability benefits in India

Disabilities in other democracies, their incidence and tax status: In this context, it would be instructive to examine military disabilities in other nations. An apt example would be the US which also has an operationally committed military and the pension rules are pretty much similar to ours and numerically the active duty personnel are roughly the same. As per the official data maintained by the Government, the incidence of disability in the military has gone up in the US by 117% from 1990 to 2018. Also, a total of 4.75 million veterans in the US are in receipt of disability benefits (See official data here). In our country, the number of disability pensioners is estimated to be less than 0.2 million.  The disability pension and compensation in the US is exempted from Tax as provided by Publication 525 of the Internal Revenue Service. Should we be concerned about the rise of incidence of disability in our soldiers and their deteriorating health profile and provide them with comfort, care and succour, or should we denigrate those who are suffering from illnesses and rather count pennies? More than others, I ask this from the serving military fraternity.

Veterans with Disability Benefits in the US

Tax Exemption to disabled veterans in the US

The above is meant to clarify the technical and factual details on the subject since most of the debate on the matter was following an emotional track. Emotions and high sounding words like ‘sacrifice’ etc etc aside, the matter has to be dealt under the right technical perspective and I am personally sanguine that the political executive would be able to address this issue if provided the correct inputs and data.  

Thanks

Navdeep.

The Budgam Helicopter Crash: Fog of War and Culpability

I write for The Quint on the unfortunate helicopter crash which is being speculated to have been caused by friendly fire and wherein it was hinted in the media that the concerned officers may be tried for culpable homicide.

The Budgam Helicopter Crash: Fog of War and Culpability

Major Navdeep Singh

The Budgam helicopter crash incident of 27^th February in which we lost precious lives of air force personnel, is again in the news.

There were reports in the media that the chopper came down on account of friendly fire and that the Air Force was contemplating trying the officers responsible for the incident for culpable homicide. I even saw reports and comments on social media that the pensionary and other benefits of the families of the fallen would be determined as per the conclusions reached in the investigation.

I personally find the above quite odd for a variety of reasons.

Firstly, while the hint of the friendly fire aspect might be true, I do not feel that a conclusion of all attendant circumstances qua the fixing of the blame can be reached until the statutory Court of Inquiry convened by the Air Force under the Air Force Rules renders its report.

Secondly, in case someone connected with the procedure has casually stated that the officers would be tried for culpable homicide, the statement seems irresponsible simply due to the fact that till now the Court of Inquiry has not reached a conclusion or ascribed blame and hence it would be absolutely reckless and immature for any person officially associated with the proceedings to make such a statement.

Thirdly, the decision to take action against the guilty, if any, is of the concerned competent authorities under law and not that of the Court of Inquiry, which is simply a fact finding body and recommendatory in nature.

Fourthly, even before the conclusion of the Court of Inquiry, and establishment of culpability, it would totally be inappropriate to prejudge the matter and far-fetched to comment upon the sections of law under which a person would be tried. In fact, this is one aspect that the defence services, de hors the instant case, need to be quite alive about, since statements such as “the concerned official(s) shall be given exemplary punishment” start flying left, right and centre even from senior officers on any unfortunate happening or alleged crime, which clearly gives rise to the fear of institutional bias and prejudgement.

Fifthly, the incident, though extremely unfortunate, can plainly be ascribed to fog of war and battle ambiguities, albeit highly undesirable in a limited conflict situation, and would at the most be a case of negligence leading to death (Section 304-A Indian Penal Code), and cannot, by any stretch of imagination, be termed as culpable homicide (Section 299 Indian Penal Code), which requires an element of “intention” or “knowledge”. In any case, there are specific provisions related to such incidents available under the Air Force Act, such as Section 62 (Offences in relation to aircraft and flying) which again grade the wrongdoing into higher and lower category based upon the fact whether the action was wilful or otherwise.

Sixthly, it would be inane to tag the issue with release of benefits to the families of those who unfortunately passed away in this incident. The grant of benefits to the families would have no connexion whatsoever with the culpability of the concerned employees. The families of the fallen are casualties in an operational area and are eligible to full and liberalized pensionary benefits and ex-gratia as is available to deaths in operations. The locale of the incident is a notified operational region.

While the incident was extremely unfortunate, it is hoped and expected that the Court of Inquiry reveals the nuts and bolts of the happenings of that fateful day, not only to establish the truth, but also to ensure that such mishap never happens in the future.

I am confident of the fact that not only would the Air Force go into the very minute details of the matter without prejudging any guilt of any personality involved, but would also display the moral courage expected of it in unravelling the truth.

Irrespective of the regrettable circumstances surrounding this incident, the nation and the defence services firmly stand behind the families of those whom we lost that day in February.

Need for the military community to stay away from disruptive and litigious tendencies based on hearsay

I am all for enforcement of legal rights and fully believe that one of the most precious privileges of a citizen in our democracy is the ability to challenge the might of the State. However a recent phenomenon of fanning litigious tendency in the military, that too, based upon hearsay or perceived injustice, is quite alarming.

A false picture is embedded in many minds that litigation or creating an uproar coupled with notional and emotional calls is the answer to everything, forgetting in the bargain that Courts cannot intervene unless there is infringement of a legal right or policy or rule or when there is a patently perverse and arbitrary action. Every time a matter comes to note, many within the military community take recourse to commenting upon it, without even checking its background and veracity, displaying a tendency that goes beyond even trade unionism. Some even start floating calculation sheets based upon intended litigation, again on tittle-tattle, thus raising expectations without reason which might ultimately result in dejection and frustration.

While it is true that the system of redressal of grievances in the defence services leaves much to be desired, and I have written on it earlier, this disruptive tendency might succeed in drawing eyeballs on social media but only a graceful approach, that too limited to real and solid issues, can help in resolution- institutionally or legally. Many members of the military community also start deriding senior military leadership on social media by creating a hullabaloo but take no steps to institutionally resolve a matter by even putting it in writing to the concerned quarters or finally taking it to its logical legal conclusion. Again there might be instances wherein senior leadership would have taken actions that were not well-rounded but that may not always be the case. And where there is actual injustice, again the way to address is to take legal recourse in a refined manner, with malice towards the anomaly, not against the personalities involved.

Not just seniors, even civil servants continue to bear the brunt of the military community on social media. Most of this anger emanates from the real and perceived acts of bureaucracy in the Ministry of Defence. But one must not forget that the actions of elements in the Defence Ministry are not reflective of the entire civil services and neither should one’s vision be so restricted that the impression of the entire civilian staff of the Republic of India is tagged with what happens in some corner of a table of a junior staffer of one ministry in Delhi. The projection that goes out on social media is that the military is being persecuted, which we all know is not the case and one can imagine the negative impact this has on the morale of the rank and file, almost bordering on disaffection. This fastest finger first syndrome is also spilling into other domains. Certain messages with communal undertones are also spread on military groups, some injected by the adversary, and these are further embellished with utterly immature comments not expected from someone who has worn the uniform.

We fail to realise that this subtle injection of hate is meant to divide our society and this subtle injection of disaffection is meant to neutralize the strength of our military and create schisms.

Be aware. Be careful. Be wise.

Thanks,

Navdeep.

Medical facilities to non-pensioners of the military: Historic day for Short Service Commissioned Officers, Emergency Commissioned Officers, World War II veterans and pre-mature retirees

The Cabinet has today extended the Ex-Servicemen Contributory Health Scheme (ECHS) to the above categories of non-pensioners of the military.

Non-pensioner ‘ex-servicemen’ were initially granted medical facilities in Military Hospitals in 1970 but the same were discretionary. Later, ‘pension’ was made mandatory to avail such facilities. Again in 1997, the term ‘ex-pensioners’ was replaced by ‘ex-servicemen’ thereby restoring the facilities to non-pensioners having ‘ex-servicemen’ status such as Short Service Commissioned Officers and Emergency Commissioned Officers (SSCOs and ECOs) who were made entitled to Outpatient (OPD) facilities. However, in the late 2000s, the facilities were withdrawn by the office of the Director General Armed Forces Medical Services (DGAFMS) despite stiff resistance by the Army HQ.

The matter went into litigation wherein the Chandigarh Bench of the Armed Forces Tribunal (AFT) ultimately directed the Government to restore the facilities to the affected ex-servicemen. The Government though filed an appeal in the Supreme Court against the verdict of the AFT.

The matter was referred to a Committee of Experts, of which I too was a Member, which, after deliberating the subject, recommended the following:

(a) Existing limited outpatient medical facilities in MHs to non-pensioners holding the status of Ex-servicemen to continue as per already approved instructions and Services HQ to continue issuing and honouring Medical Entitlement Cards for such facilities as was the case till late 2000s. The entitled non-pensioners also continue to be eligible for medical reimbursement from Kendriya Sainik Board. It may be pointed out here that the said facilities are anyway not entitled to be granted to re-employed ex-servicemen or those who are members of any medical scheme.

(b) The unethical appeal filed against grant of such facilities to own personnel to which actually they were legally entitled to, be immediately withdrawn and such ego-fuelled actions be avoided in the future. We wish such persistence and exertion in pursuing such misdirected litigation is rather used for constructive activities.

(c) ECHS facilities for SSCOs as mentioned, as already approved in-principle by the then Raksha Mantri and mentioned in the Parliament on the floor of the House, be implemented forthwith by overcoming all objections. The same be made applicable to all SSCOs and ECOs and all other personnel released without the benefit of pension but on completion of terms with a gratuity, present and former, with certain amendments as deemed appropriate such as that the scheme can only be extended to the officer and spouse alone and that it would not apply to those who are re-employed with a cover of an organizational medical scheme. The issue of financial implication may not be relevant since firstly the scheme is contributory in nature, and secondly, the then Raksha Mantri has already made a statement to the effect on the floor of the house. Besides bringing succour to our veterans, it would act as a major morale booster to the rank and file and also help attract talent to the Short Service Commission Scheme.

(d) It is recommended that the Government must go all out to bolster the resources of the military medical establishment since they are rendering impeccable services in trying circumstances to our men and women in uniform. There should never be an occasion wherein doctors perform duties under pressure. An environment free of all encumbrances, external constraints and stress must be ensured for the medical establishment to function in an efficient manner

The recommendations were accepted by the then Raksha Mantri Mr Manohar Parrikar but were not given effect to for a long period. The Supreme Court had taken a grim view of the delay and had asked the Government to resolve the matter by April 2019.

The Cabinet has today approved the extension of ECHS to various categories of non-pensioners of the military and it is understood that on the appreciable insistence of the current Raksha Mantri Ms Nirmala Sitharaman, even other categories such as pre-mature retirees, which were not covered in the recommendations of the Committee of Experts or by judicial dicta, have also been brought in the ambit of the scheme. 

Broadly speaking, eligible beneficiaries and their spouses would be entitled to absolutely free Outpatient (OPD) facilities at ECHS polyclinics, however treatment and In-patient (IPD) facilities at ECHS empanelled hospitals would be on payment basis. Further, 50% of such expenditure would be reimbursable for personnel with 10 years service or less and 75% would be reimbursable for those with more than 10 years of service. 

This marks a closure to long drawn travails of affected officers and personnel. My congratulations to them.

Thanks

Navdeep

Minimum qualifying service requirement of 10 years for INVALID PENSION stands abrogated for uniformed forces

This would probably be one of the most important moves in recent times for disabled personnel of the uniformed forces.

On judicial intervention of the Kerala High Court and further prodding by the Supreme Court, the Government has finally abrogated the minimum qualifying service condition for the grant of Invalid Pension, which till now stood at 10 years, for all those government organisations where services of employees are not protected on sustaining disability.

Concept of Invalid Pension:

Invalid pension is applicable to those government servants whose disability is not related to government service in any manner, even remotely, and for which 10 years qualifying service was prescribed. It is different than disability pension which is granted for disabilities which are related to or deemed to be connected with government service in any manner, such as any disease incurred while a person is in government service. In case of disability pension, there is no minimum service condition prescribed and it consists of two elements- service element and disability element.

The predicament faced by uniformed services:

The service of government servants who incur any kind of disability in service is protected by Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (now replaced by the new Act of 2016 wherein Section 20 provides the same protection). The said Act protects the employment of disabled government servants and provides that the government shall not dispense with the services of a disabled government employee. The provision also further provides that even in case a disabled government employee cannot be adjusted on any suitable post, he or she may be kept on supernumerary strength till the age of superannuation (60 years in case of Central Government) and resultantly be paid full pay and allowances, and pension thereafter, even if the affected employee is unable to attend to any official duty. The problem however was that the defence services and other uniformed services including the Central Armed Police Forces (CAPFs) were exempted from the operation of the above progressive provision by way of a notification. Resultantly, many members of uniformed services were denied any kind of pension (if their service was below 10 years) when released from service with disabilities without any connection or deemed connection with government service. Hence on one hand, their services were not protected in case of sustaining disability like other government employees, and on the other hand, they were denied pension also which was like double jeopardy for the members of uniformed forces. This issue had been commented upon by me in detail in the year 2012 which can be accessed here for an even better perspective and a comparative chart showing the acute discrimination. The Seventh Pay Commission did not agree with the request of the defence services for abrogation of the minimum service requirement.

The new orders:

On account of judicial intervention by the Kerala High Court and further prodding by a Three Judge Bench of the Supreme Court, the Government has now abrogated the minimum 10 years requirement for grant of Invalid Pension for all those organisations where the service is not statutorily protected on sustaining any kind of disability. This mostly affects the uniformed services. This has been done by way of amendment of Rules 38 & 49 of the Central Civil Services (Pension) Rules, 1972 [CCS(Pension) Rules, 1972]. Changes in military pension rules should also be expected as a corollary, mutatis mutandis, as is the prevalent practice.

The net effect:

The net effect is that any member of a government service who is invalided out or seeks invalidation (seeking retirement on account of disability) shall now be entitled to Invalid Pension irrespective of his or her length of service. Of course, those with disabilities declared service-connected or deemed to be service-connected/attributable or aggravated by service, shall continue to remain eligible for disability pension for which no requirement of any minimum qualifying service is applicable. This directly and positively affects all disabled personnel who cannot continue in service due to medical reasons even when their disability is not related to government service in any manner. Though disabilities and diseases incurred while in service are deemed to be service-connected as per the liberal provisions of the Extraordinary Pension Rules, 1939 on the civil side and Entitlement Rules, 1982 on the military side, thereby entitling such personnel to disability pension without any linkage with length of service, as also time and again reiterated by Constitutional Courts, the maximum benefit of the change would accrue to such personnel who are released from service (or cannot continue in service) due to disabilities suddenly incurred soon after joining training or where there is an element of negligence in sustaining the disability or a purely genetic or congenital disability discovered after joining service etc. This change is valuable to such personnel and protects their livelihood and dignity since they would not have been discharged from service on account of any disability had they joined a non-uniformed service. The discrimination hence stands addressed to a large extent.

The effective date:

The new provision takes consequence from 4^th January 2019. However the effect on past retirees is a little ambiguous as of now but it is hoped and expected that past retirees also would be granted the benefit from the above date. This seems most logical since the provisions of CCS (Pension) Rules (which now stand amended from 4^th January 2019) in any case do not apply to post-2004 appointees on the civil side who are now governed by the contributory New Pension Scheme (NPS). Therefore by this change, the persons directly affected are those who were governed by the 1972 Rules, that is, only those who were appointed prior to 2004. A minimum guaranteed pension under the NPS is however already under consideration which makes it probable that in view of the ibid change in the 1972 Rules, even post-2004 appointees under NPS would not be left high and dry if released with a non service-connected disability with less than 10 years of service. On the military side, there is bound to be no complication as such since there is no system of a contributory pension prevalent and the new provision should logically, when implemented, apply across the board but with financial effect from 4^th January 2019.

Withdrawal of litigation against disabled soldiers

It gives me immense satisfaction in stating that I have been given to understand that the Raksha Mantri Ms Nirmala Sitharaman has directed the withdrawal of appeals filed in the Supreme Court against disabled soldiers by the Ministry of Defence since the past many years. As is well known, multiple appeals till the highest Court of the land were filed against disability benefits granted to disabled veterans on judicial intervention by various Courts and Tribunals despite the issue attaining finality with a series of decisions rendered by the Supreme Court in favour of disabled soldiers. In fact, progressively going a step further, it seems that directions have also been passed by the Minister to concede appeals filed by disabled soldiers in the Supreme Court on a case to case basis in all matters which are found to be covered by judicial dicta.

Though this matter and many other issues related to litigation and redressal of other grievances were considered by a Committee of Experts in 2015 constituted by the then Minister Mr Manohar Parrikar, of which I was a Member, the implementation of the accepted recommendations was moving at a slow pace but we were assured by Ms Sitharaman about concrete action earlier this year.

This provides closure to a very emotive issue wherein though the financial implications were minimal still the grim reality of a nation fighting its own disabled veterans was heartbreaking since it is well known and universally recognized how stress and strain of military service, a regimented lifestyle away from the family and inability to effectively cater to domestic commitments result in aggravation of existing physical and mental conditions of the women & men in uniform.

I express my thanks to Mr Parrikar and Ms Sitharaman in dealing with the subject sensitively and in a totally apolitical manner devoid of any political inclination.

I also express my gratitude to Mr Rajeev Chandrasekhar, Member of Parliament, for consistently taking this up with the political executive till resolution, without whose support this issue would not have reached national consciousness, and of course my dear friend, the brave Major DP Singh, who remained at the forefront of the cause.

The recommendations of the Committee of Experts can be accessed here (Paragraph 2.2.1 specifically deals with disability pensions).

The official press release of the Ministry of Defence when the Committee had rendered its recommendations, can be accessed here.

Thank You.

Ministry of Defence enhances the minimum payout to casualty pensionary awards to a basic pension of Rs 18000

The Ministry of Defence (MoD) has issued orders for basing the minimum basic pension @ Rs 18000 for disability pensioners (combined rate of service element/service pension + Disability Element), war injury pensioners, liberalized family pensioners and special family pensioners.

The orders of the MoD dated 29^th January 2019 can be accessed by clicking here.

The above orders have been issued in consequence of directions of the Department of Pension & Pensioners’ Welfare (DoPPW) issued for all such pensioners under various ministries, issued on 12^th October 2017.

The original orders of the DoPPW can be accessed here.

Note may be taken of the fact that the orders are likely to only affect cases wherein the existing total payout is less than Rs 18,000. For example, in a case where the total of basic service element/service pension plus disability element is currently less than Rs 18,000, the same will be upgraded to the said amount. 

Joint opinion piece on defence decision making, in 'The Tribune', authored by General VP Malik and Maj Navdeep Singh

General VP Malik and I attempt to address issues related to the decision-making process in the defence establishment, in "The Tribune". The unabridged version is as below:

Defence Decision-Making Process:
Time for Change

General VP Malik

(Former Chief of the Army Staff)

Major Navdeep Singh

(Advocate, Punjab & Haryana High Court)

Decision-making process of the defence establishment with its myriad complexities has always remained a vexed issue. It has been a cause of alienation with people in uniform, court cases, delays in acquisitions and procurements, lack of integration & jointness, and several other aspects of national security.

This opinion piece does not break much new ground but the aim is to emphasise the need for our political leaders to debate and decide on this issue promptly, and to that end, this attempts to work as a catalyst.

Under the Rules for Allocation and Transaction of Business framed in 1961 the defence services have absolutely no role or powers ascribed to them. The Defence Secretary is allocated responsibilities for “Defence of India” and ancillary facets during war with the “Armed Forces of the Union” and the three Services Headquarters subordinately designated as “Attached Offices of the Department of Defence”.

The professional heads of the three services charged with the command of the armed forces, and responsibility of national defence as well as conduct of war, neither have been accorded a status nor granted any powers in the edifice of the Government of India. By default, the Defence Secretary is thus tasked with the “Defence of India”.

The obvious reason is that for many years after independence, there was deep-rooted suspicion, fuelled by happenings in the neighbourhood, as to whether the military in India would continue to remain in barracks under the control of the cabinet or would take to adventurism. Although the defence services have remained staunchly loyal to the Constitution and acquitted themselves admirably in peace and conflict, certain vested interests have not allowed obliteration of that suspicion. As a result, the military has been kept in a box, not allowed to participate in the policy or decision-making loop.

Our political establishment, hence, despite the vastly changed strategic environment, nature of conflicts, and the imperative need to consult defence chiefs directly on such issues, has been deprived of this facilitation. Some Defence Ministers like Jaswant Singh and Pranab Mukherjee, and Prime Ministers like Indira Gandhi and Atal Bihari Vajpayee, met the service chiefs more often than others. But the institutionalised system and the defence decision-making process was never resolved.

Over a period of time, certain changes have been incorporated. Limited financial powers have been delegated to the defence services and the file movement system also minimally altered. But these changes remain cosmetic. The spirit and substance of the integration of the Ministry of Defence including decision-making have not been altered. The nomenclatures may have changed from “Army Headquarters” to “Integrated Headquarters of Ministry of Defence (Army)” but within the Ministry itself, the old terminology and processes continue to be followed. Even today, despite the manifesto of the ruling party calling for “ensuring greater participation of Armed Forces in the decision-making process”, not much seems to have moved towards resolution.

While the inherent suspicion towards the military waned with time, the pretext of ‘checks and balances’ gained momentum for keeping the defence services out of actual decision-making. Needless to state, the requirement of such checks and balances is entirely vital and no single entity, the military included, can be provided a free run without scrutiny or without being counter-questioned on its proposals. But the question remains as to whether a counter-balance as at present, wherein decisions of the Chiefs of Staff Committee (COSC) are allowed to be commented upon in the form of file noting initiated by junior non-specialist civilian employees should continue, or whether a collegiate system be instituted at the apex level wherein collective defence related recommendations or decisions can be taken subject to the approval of the political executive.

The system currently followed, besides causing suspicion and distrust, often results in delays and sometimes imbalanced decisions. While this is not to say that the decisions of the military should be allowed to prevail without question, we only suggest that the conclusions should be based upon collective deliberations with collation of proper views of all stakeholders on an equal footing before they are put up to the political authority for sanction.

It is also a matter of concern that in some spheres where powers have been delegated, the system is being rendered infructuous with too much leeway being displayed by military authorities. To take an easily understandable example, powers to determine disability benefits of officers have been conferred upon military authorities and appellate committees. However, even after processing such proposals in consonance with the rules and after due affirmation by executive, legal and medical authorities, the same are abandoned by the senior military authorities based upon objections by junior finance officers whose duty is only to calculate expected financial outgo and not comment upon the merit of the subject.

One solution that comes to our mind is instituting a format such as the “Defence Board”. Within that, a judicious mix of senior military and civil officers could debate proposals and then reach a consensus which can then be put up for approval of the Minister. The Defence Board is not an alien concept among democracies. The United Kingdom has a Chief of Defence Staff for its strategic and operational needs as a single point military consultant. Additionally, it follows a Board system chaired by the Defence Minister (Secretary of State for Defence) with members from civil and defence services and also non-executive board members.

Closer home, the decision-making for the Railways via the Railway Board is featured in the Rules of Business. The decision-making process of the Board is headed by the Railways Minister and comprises a healthy mix of members from different cadres and technical streams under a Chairman from the Railways.

India has a large strength of defence services involved not only in operational and strategic matters related to external defence but also in its internal security and disaster relief and many other types of aid to civil authorities during peace. Like other democratic nations, our defence forces have their own ethos, culture, human relations issues- discipline, human rights, welfare, morale and other functional requirements. In these days of information technology and rapid socio-political changes, we cannot have a system where the affected parties or the end-users are not consulted adequately, or where decisions are taken, based on faulty inputs by non-experts through one-way file notes. The correct system would require a face-to-face real time collegiate discussion before decisions are made.

“Defence of India” involves not just the military but almost all other institutions of the government; even its citizenry. However, our Constitution requires the military to work under ‘political control’ and not ‘bureaucratic control’ under the rules framed decades ago in a different geo & socio-political milieu.

As in all democratic nations, our military has an important role to play in building and protecting the nation. Being treated as a redundant appendage in governance militates against the basic grain of a democracy and also hampers execution of its modern day role.

It is a fervent hope that the political environment would rise and find a juste milieu ensuring an equal voice for all stakeholders with the ultimate decision-making power vested with the political executive as laid down in our Constitution.

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