Continuing debate on pay scales for the armed forces

An interesting write up by Shri TR Ramaswami, there are some who still behold the Defence Forces in right esteem.

*The writer is a former banker who was with the SBI Group and DSP Merrill Lynch Ltd. ***

* We need a permanent solution to this tussle over emoluments so that the armed forces need only confront the enemies of the nation, says T.R.Ramaswami

In the continuing debate on pay scales for the armed forces, there has to be a serious and transparent effort to ensure that the country is not faced with an unnecessary civil-military confrontation. *That effort will have to come from the netas, who are the real and true bosses of the armed forces and not the civil bureaucracy.* A solution may lie in what follows.


This country requires the best armed forces, the best police and the best civil service. In fact that is what the British ensured.. By best one means that a person chooses which service he wants as per his desires/capabilities and not based on the vast differential in prospects in the various services. How much differential is there?

Take Maharashtra, one of the most parsimonious with police ranks thus still retaining some merit - *the 1981 IPS batch have become 3-star generals, the 1987 are 2-star and the 1994 1-star.. In the army the corresponding years are 1972, 1975, 1979. – ie a differential of 10-15 years. *While the differential is more with the IAS, the variance with the IPS is all the more glaring because both are uniformed services and the grades are " visible" on the shoulders.

First some general aspects.

*Only the armed forces are a real profession – ie where you rise to the top only by joining at the bottom.* We have had professors of economics become Finance Secretaries or even Governors of RBI. *We have any number of MBBSs, engineers, MBAs, in the police force though what their qualifications lend to their jobs is a moot point.

* You can join at any level in the civil service, except Cabinet Secretary.

*A civil servant can move from Animal Husbandry to Civil Aviation to Fertilisers to Steel to yes, unfortunately, even to Defence..*

But the army never asks for Brigade Commanders or a Commandant of the Army War College or even Director General Military Intelligence, even from RAW or IB. Army officers can and have moved into organizations like IB and RAW but it is never the other way round. MBBS and Law graduates are only in the Medical or JAG Corps and do nothing beyond their narrow areas.

*Every Army Chief - in any army - has risen from being a commander of a platoon to company to battalion to brigade to division to corps to army. In fact the professionalism is so intense that no non-armoured corps officer ever commands an armoured formation – first and possibly only exception in world military history – General K. Sunderji. Perhaps it is this outstanding
professionalism that irks the civil services.*

Next, one must note the rigidity and steep pyramid of the army's rank
structure. *In the civil services any post is fungible with any grade based on political expediency and the desires of the service. For example I know of one case where one department downgraded one post in another state and up-graded one in Mumbai just to enable someone continue in Mumbai after promotion!* You can't fool around like this in the armed forces. A very good Brigadier cannot be made a Major-General and continue as brigade commander.
There has to be a clear vacancy for a Major General and even then there may be others better than him.

*Further the top five ranks in the army comprise only 10% of the officer strength. Contrast this with the civil services where entire batches become Joint Secretaries. .*

*Even the meaning of the word "merit" is vastly different in the army and the civil services.* Some years back an officer of the Maharashtra cadre claimed that he should be the Chief Secretary as he was first in the merit list. *Which merit list? At the time of entry more than 35 years before!* *The fact is that this is how merit is decided in the IAS and IPS.* Every time a batch gets promoted the inter-se merit is still retained as at the time of entry. *In other words if you are first in a batch at the time of entry, then as long as you get promoted, you continue to remain first!* This is like someone in the army claiming that he should become chief because he got the Sword of Honour at the IMA. *Even a Param Vir Chakra does not count for promotion, assuming that you are still alive.* In the armed forces, merit is a continuous process - each time a batch is promoted the merit list is redrawn according to your performance in all the previous assignments with additional weightage given not only to the last one but also to your suitability for the next one. Thus if you are a Brigade Commander and found fit to become a Major General, you may not get a division because others have been found better to head a division. That effectively puts an end to your promotion to Lt. General.

*The compensation package must therefore address all the above issues.* In each service, anyone must get the same total compensation by the time he reaches the*'mode rank'* of his service. " Mode " is a statistical term –
the value where the maximum number of variables fall. In the IAS normally everyone reaches Director and in the IPS it is DIG. In the army, given the aforementioned rank and grade rigidities and pyramidical structure, the mode rank cannot exceed Colonel. *Thus a Colonel's gross career earnings (not salary scales alone) must be at par with that of a Director.. But remember that a Colonel retires at 54, but every babu from peon to Secretary at 60 regardless of performance.* *Further, it takes 16-18 years to become a Colonel whereas in that time an IAS officer reaches the next higher grade of
Joint Secretary, which is considered equal to a Major General.

* These aspects and others - like postings in non-family stations - must be addressed while fixing the overall pay scales of Colonel and below.

Thereafter a Brigadier will be made equal to a Joint Secretary, a
Major-General to an Additional Secretary and a Lt. General to a Secretary.*The Army Commanders deserve a new rank - Colonel General - and should be above a Secretary but below Cabinet Secretary.* The equalization takes place at the level of Cabinet Secretary and Army Chief. *If this is financially a problem I have another solution. Without increasing the armed forces' scales, reduce
the scales of the IAS and IPS till they too have 20% shortage. Done? Even India 's corruption index will go down.*

If the above is accepted in principle, there is a good case to review the number of posts above Colonel.

* Senior ranks in the armed forces have become devalued with more and more posts being created. But the same pruning exercise is necessary in the IAS and more so in the IPS, where Director General in some states are re-writing police manuals – one is doing Volume I
and another Volume II!* Further the civil services have such facilities as "compulsory wait" – basically a picnic at taxpayers cost. And if you are not promoted or posted where you don't want to go they seem able to take off on leave with much ease. In the army you will be court-martialled. Also find out how many are on study leave. The country cannot afford this.

*Let not someone say that the IAS and IPS exams are tougher and hence the quality of the officers better.*An exam at the age of 24 has to be tougher than one at the age of 16. The taxpaying citizen is not interested in your essay/note writing capabilities or whether you know Cleopatra's grandfather.
* As a citizen I always see the army being called to hold the pants of the civil services and the police and never the other way round.* *That's enough proof as to who is really more capable.*

Also recall the insensitive statements made by the IG Meerut in the Aarushi case and the Home Secretary after the blasts. *Further, when the IAS and IPS hopefuls are sleeping, eating and studying, their school mates, who have joined the army, stand vigil on the borders to make it possible for them to do so. *
**
*Remember that the armed forces can only fight for above-the-table pay. They can never compete with the civil services and definitely not with the police for the under the table variety.*

*Finally, there is one supreme national necessity. The political class – not the bureaucracy - which represents the real civil supremacy better become more savvy on matters relating to the armed forces. Till then they are at the mercy of the civil service, who frequently play their own little war games.* At ministerial level there are some very specialized departments –
Finance, Railways, Security (Home), Foreign and Defence, where split second decisions are necessary. It is always possible to find netas savvy in finance, foreign relations and railways. Security has been addressed in getting a former IPS officer as NSA at the level of a MoS. *Is it time that a professional is also brought into the Defence Ministry as MoS?* *The sooner the better.* *In fact this will be better than a CoDS because the armed forces will have someone not constrained by the Army Act or Article 33 of the Constitution.* *Of course the loudest howls will come from the babus. The netas must realize that a divide and rule policy cannot work where the country's security is concerned. Recall 1962?*

*Our army, already engaged in activities not core to their functions, including rescuing babies from borewells (!), should not have to engage in civil wars over their pay scales.*

*COMMENT:* **
*Mr. T.R. Ramaswami, had earlier penned the "Open letter" **to Mr. Shekhar Gupta, Editor-in-Chief, Indian Express on his **"Chain of Command, demand". Some excerpts from Mr. T.R. Ramaswami's letter ( posted on 08 OCT 2008):*

*" I** write with reference to the article "Chain of command, demand" by Shekhar Gupta (Ind Exp 4th. Oct 2008). Mr. Gupta has not only castigated the chiefs but also predicted dire consequences for them. Not difficult when your courage can bask in the knowledge that the armed forces cannot respond because of the various Acts. Fortunately I also don't have to worry about these laws. Gupta has forgotten important issues and aspects of the whole affair. The present chiefs have less than 18 months to go. In 2010 you will have a brand new trio. If the chiefs were to go by what Gupta has implicitly suggested, three scenarios **emerge. - - -
-."*
**
**
*" - - - . What would "General" Gupta choose? Let us know. With reasons.
Yes, the whole affair has been mishandled. But by whom? By the Defence Minister who was probably acting on the advice of his Defence Secretary. So let Antony start by booting his Defence Secretary out . But he can't . As you have rightly stated a more powerful government and a defence minister who knows the difference between a human butt and that of a rifle may pounce
on the services. But there also has to be an army then. Will we have an army in 5-10 years?" *
**
*" - - - . Why is the armed forces pay always in dispute? Because the establishment mafia which includes netas, land owners, owners of assets and media want the country to be defended as cheaply as possible with the lives of other people's children. How many of these categories have their progeny in the forces? If MPs can decide their emoluments and civil servants theirs, why can't the armed forces do so directly with the political leadership? Why not make the Defence Ministry independent with its own budget like the Railway Ministry. We the people would contribute what it wants and we will pay only the difference to the Consolidated Fund (or is it Fraud) of India. "*
**
**
*" - - - . Gupta's article states that it is of national interest. I fully
agree. I therefore reserve my right to send my response to the three HQs, the media and such other parties who are interested in national affairs. I am also including Mr. Gupta's id in this email. The present chiefs may not be Thimayyas or Maneckshaws, but let us see whether Gupta is a Ramnath Goenka, even when we don't have an emergency. Let's see whether this article is printed, even in a sanitized form. *
**
*Yours faithfully,*
**
*T.R.*

BUREAUCRATIC PERFIDY

Bureaucratic Perfidy

By
AIR MARSHAL
Sharad Y Savur (Retd)
Former AOC-in-C
SOUTHERN AIR COMMAND

Let's start with the Preamble. Many of us have perused the following and most of the Armed Forces (serving, retired, wise, foolish, knowledgeable and ignorant) have got it engraved in their hearts and minds after the Committee of Secretaries (CoS) made a mockery of a Govt constituted 6th Central Pay Commission and a fool of the GoI. The website reads that "Government constituted the Sixth Central Pay Commission vide Resolution No. 5/2/2006-E.III (A) dated October 5, 2006". Its Terms of Reference were:

A. To examine the principles, the date of effect thereof that should govern the structure of pay, allowances and other facilities/benefits whether in cash or in kind to the following categories of employees -- Central Government employees -– industrial and non-industrial; Personnel belonging to the All India Services; Personnel belonging to the Defence Forces; Personnel of the Union Territories; Officers and employees of the Indian Audit and Accounts Department; and Members of the regulatory bodies (excluding the RBI) set up under Acts of Parliament.

B. To transform the Central Government Organisations into modern, professional and citizen-friendly entities that is dedicated to the service of the people.

C. To work out a comprehensive pay package for the categories of Central Government employees mentioned at (A) above that is suitably linked to promoting efficiency, productivity and economy through rationalization of structures, organizations, systems and processes within the Government, with a view to leveraging economy, accountability, responsibility, transparency, assimilation of technology and discipline.

D. To harmonize the functioning of the Central Government Organisations with the demands of the emerging global economic scenario. This would also take in account, among other relevant factors, the totality of benefits available to the employees, need of rationalization and simplification, thereof, the prevailing pay structure and retirement benefits available under the Central Public Sector Undertakings, the economic conditions in the country, the need to observe fiscal prudence in the management of the economy, the resources of the Central Government and the demands thereon on account of economic and social development, defence, national security and the global economic scenario, and the impact upon the finances of the States if the recommendations are adopted by the States.

E. To examine the principles which should govern the structure of pension, death-cum-retirement gratuity, family pension and other terminal or recurring benefits having financial implications to the present and former Central Government employees appointed before January 1, 2004.

F. To make recommendations with respect to the general principles,financial parameters and conditions which should govern payment of bonus and the desirability and feasibility of introducing Productivity Linked Incentive Scheme in place of the existing ad hoc bonus scheme in various Departments and to recommend specific formulae for determining the productivity index and other related parameters.

G. To examine desirability and the need to sanction any interim relief till the time the recommendations of the Commission are made and accepted by the Government.

An Additional Terms of Reference through a subsequent Resolution No.5/2/2006-E.III.(A) dated 8th August, 2007, the terms of reference were to include the officers and employees of the Supreme Court.

Came March 2008 and the SCPC (or 6th CPC) published its recommendations. Two things happened – the 6th CPC wound up and its Secretary became the Secretary in the Min of Finance. Presumably, the Gamble.

It was known that the recommendations of the 6th CPC would be sent to the Cabinet Secretary for processing. Again two things happened – the Cab Secy, a busy man even otherwise, delegated the work to a Committee of Secretaries (CoS) and the Govt got busy ensuring its own longevity by seeking to push through the Indo-US nuclear deal, making political deals of its own. Presumably, the omnipresent Secretary in the avatar of the Secretary, Expenditure sensed her opportunity. The scene - she already knows what is in the 600 odd pages report of the 6th CPC. So, the CoS entrusts the entire work to her.

Presumably, she knew that most Secretaries have enough in their hands (no pun) and on their minds than to peruse those pages. She also must have presumed that as long as P4 ( power, pelf, prestige and position) of the IAS was enhanced, there would be no questions asked and all signatures would be appended on the dotted lines.

Presumably, the gamble is that those slighted/downgraded would either be too busy fighting the insurgents or the terrorists (on behalf of the Central Police Organisations (CPOs) or undoing the negligence of the IAS in that cutely worded expression 'aid to civil power' (please note the terms coined by the IAS).

Presumably but unfortunately, the CoS, even the Secretary Expenditure, forgot something important. It was only in the days of the British Raj that Commissions in the Armed Forces were sold to those who could pay or bestowed on those whom the British favoured. It was not some professional organization – trained, responsible and accountable. CoS also forgot that the soldiers, sailors and airmen today are signifiethercantly better educated than they were 50 years ago. CoS also forgot, presumably in their blinkered pursuit of power at any cost, that the Chiefs of Army, Navy and Air Force always cooperate with each other in times of war. And this was war – of principles, for fairplay, for justice.

The gamble back-fired. Now, the Scramble.

The Govt won its battle in Parliament and the PM needed to blow his trumpet. Someone might have told him that showing the victory sign to TV cameras outside Parliament House was not adequate ("Sir, more than half of India cannot and does not own a TV set"). So from the ramparts of the Red Fort, Dr Manmohan Singh announced, amongst other things, that the recommendations of the Pay Commission have been approved by the Govt.

Maybe his PS was not aware of the facts. Semantics or grammatical or factual error that remains uncorrected till date is that the Govt approved the recommendations of the CoS. Technically, the recommendations of the 6th CPC were not accepted because many were overturned by the CoS. Many out there in the ether world must be muttering to themselves – we knew that this guy was an idiot, now does he have to prove it? But today's mountain waves in the cybersphere (that's not Bushism) prove me right!

If the Govt wanted the amendments recommended by the CoS to be incorporated then it should have re-convened the 6th CPC and asked it to re-examine and amend the recommendations. But the 6th CPC was wound up. So the nation has something but it is a hybrid – some recommendations of the 6th CPC and the rest changes made by the CoS to benefit themselves at the cost of everyone else – IPS, CPOs, IDAS, MES, AFHQS et al.

Which brings me to two questions – how can the recommendations of a legally constituted and gazetted 6th CPC be overturned or amended by the CoS? Can you imagine the Supreme Court's judgment being amended by prison authorities?

The Armed Forces protested, but they did not stage a coup. That had been already done by the IAS led bureaucracy when a Cabinet Secretary, a super-bureaucrat, was set up in the 1970s, (but that and other things in another blog post).

Some learned and erudite gentleman, made editorial observations that appeared to draw inspiration from these rumours. He used the example of setting up war memorials as his respect for the Armed Forces. How ironical that a living issue was compared to dead heroes! How much is being done for war widows, their children, even disabled veterans could have been a better example and even my cynical heart would have missed a beat.

In their true role as the guardians of the Sovereignty of India's borders, seas and skies, the Armed Forces paid yet another tribute to the Father of the Nation (the supreme apostle of non-violence, non-cooperation and protestor on behalf of the oppressed) who lost his life for the Nation. The Chiefs of the Armed Forces (embodiment of violence?) took lessons from Mahatma Gandhi.

The Armed Forces Chiefs followed the chain of command and communications in expressing their opinions substantiated with proof backed by lucid and logical arguments. They informed the Raksha Mantri. He took up their case.

To believe that RM was either incompetent (as that editor made it out to be) or ignorant is to write the ridiculous. AK Antony is trusted enough to discipline errant Congressmen and women. So would he, as RM, have acquiesced to what the Chiefs were doing if they were wrong?

Temporarily blinded by their "brilliance" and bereft of that invincibility in the glare of TV cameras, the bureaucracy now scrambles to save itself in the way it knows how. It spreads rumours or inspired leaks that the Chiefs had disobeyed the Govt.

How and what did the Chiefs disobey? MoD had not released orders for implementing the recommendations of the CoS and not even the recommendations of the 6th CPC. So what were the Chiefs disobeying? Have they not read that there are sections in the Armed Forces Acts that one can represent against illegal orders? Did the IAS expect the Armed Forces to believe that the CoS recommendations are those of the 6th CPC?

Are the Central Police Organizations (CPOs) really casting their lines and fishing in troubled waters? Or is that another Nathism? The Armed Forces don't say that the IAS got this, so give us the same. The Armed Forces say loudly, clearly "DON'T OVERTURN THE RECOMMENDATIONS OF THE 6th CPC AND SUPPLANT IT WITH Nathism". Jai Hind.

(Air Marshal Savur retired in 2006 as AOC-in-C, Southern Air Command. A decorated transport pilot, Air Marshal Savur has flown several VIPs, including former PMs Indira Gandhi and Rajiv Gandhi. He now lives and works near Bangalore.)

Supreme Court rings the bell on behalf of Servicemen but would we ever wake up?

Sunday, April 4, 2010

Supreme Court rings the bell but would we ever wake up ?

“Why are you after disabled military personnel ?” was the query of a Division Bench of the Hon’ble Punjab & Haryana High Court recently while dismissing a Letter Patents Appeal (LPA) filed by the Union of India against a Single Bench decision awarding disability pension to an old veteran. In reply, the Central Govt Counsel very fairly informed the Hon’ble Court that though legal advice was tendered against filing of an appeal and the issue involved was a covered matter, the authorities still insisted on challenging the decision.

The very topical remarks of the Hon’ble Supreme Court hence did not come as a surprise to me at all. I have discussed it here on this blog before. It is time to tame these legal pundits in Delhi who are acting like raging bulls and filing mindless appeals against verdicts rendered in pensionary matters in favour of disabled veterans. These scheming legal minds work in a simple and rudimentary fashion – file appeals in almost all cases, take the cases to the Hon’ble Supreme Court - take a chance and in case of even one single verdict in favour of the govt, the same would be flaunted all over to introduce impediments in the system of grant of benefits to released and retired service-members.

These old hands in the legal advisory system clearly know that poor veterans would not be able to (afford and) represent themselves properly before the Apex Court which in turn gives them a free hand to twist legal issues while articulating them before the Supreme Court which sometimes results in decisions that can hardly be labelled well-rounded. Two examples that come to mind are Lt Col P K Kapur’s case where the govt faultily, incorrectly and misleadingly informed the Apex Court that rounding-off / broad-banding of disability percentage for calculating disability element was introduced as a benefit to cater for decreased service tenure of invalided personnel and hence was not applicable to personnel who retire on completion of terms of engagement or superannuation. The retired officer concerned, who was arguing in person without proper legal assistance, could not rebut the contention leading to a verdict against him. Needless to say, broad-banding / rounding-off was actually introduced to counter medical subjectivity and mistakes & disagreements of medical boards and not to cater for shortened tenures on invalidation.

In yet another case, the govt appealed to the Supreme Court against grant of disability pension for an injury sustained while on leave and contended that the verdict of the High Court was untenable since the person did not have the requisite length of service to earn a disability pension, again there was no proper assistance rendered to the Court and the decision of the High Court was reversed. But the decision of the High Court was reversed on the basis of a false statement again by the Union of India, since in reality, there is no minimum service requirement for earning a disability pension and disability pension in fact is even admissible to recruits under Regulation 181 of the Pension Regulations. Fortunately this false statement of the Union of India which was not rebutted by the poor veteran’s counsel (if there was any) is recorded in the order of the Apex Court and shall ultimately prove to be an albatross around the Union’s legal neck, mark my words.

In cases involving disability pension, the central govt has been getting away by informing the Hon’ble Apex Court that ‘medical opinion regarding attributability / aggravation is supreme’ and that High Courts cannot brush aside medical opinion. There have been decisions by the Apex Court endorsing this view, but Hon’ble High Courts and the Benches of the Armed ForcesTribunal have subtly distinguished such Apex Court decisions by ruling that in order to have primacy, the medical opinion must be within the four corners of the rules, and that perverse opinion in contravention of rules and regulations would have no value in the eyes of law. For the uninitiated, for a person to be entitled for disability pension, a disability needs to be declared as either attributable to, or aggravated by service. The Hon’ble Apex Court has never been informed by the Union of India that ‘attributability / aggravation’ is legally not to be determined by the Medical Board but by the Entitlement Rules (1982) and the same is clearly codified in Regulations 48 & 173 of the Pension Regulations which provide that attributability / aggravation shall be determined under the ‘Entitlement Rules’ which form a part of the Pension Regulations under Appendix II. The medical board has to work within the rules and is not a body above law. Rule 5(b) of the said rules clearly provides that there would be a presumption of attributability in case the disease occurs in service and Rule 9 further provides that service-members shall receive the benefit of doubt and would not be called upon to prove entitlement. Rule 15 read with Annexure III of the rules lists out diseases which are usually affected by stress and strain of service, but still, military medical boards routinely declare even such scheduled diseases as ‘constitutional’ or ‘idiopathic’ and ‘not connected with service’. Now having said that, Rule 18 further points out that even if there is a constitutional disposition, still the disease can be attributable to service. Rule 19 clearly says that if any disease is at a worsened stage at the time of discharge, aggravation is to be accepted which in fact covers almost every single member of the military who is discharged as an LMC. Rule 20 (a) also points out that if nothing is known of a disease then attributability is to be conceded unless it is rebutted by evidence. The medical boards of the defence services are functioning without an iota of proper application of mind on the entitlement rules. Relation with service of disabilities is not a purely a medical game but also involves interpretation and application of the Entitlement Rules. While military boards have been time and again rejecting diseases such as schizophrenia, psychosis and neurosis being ‘constitutional’ in nature, the same diseases are routinely being correctly held as ‘aggravated by service conditions’ by medical boards of the para-military forces. Moreover, military medical boards and adjudicating authorities have been rejecting claims of psychiatric diseases or even heart diseases by stating that the ‘onset was in peace area’ hence the disease is ‘not connected with service’. Even a child could tell that such diseases manifest over a long period of time and merely since these are discovered in a ‘peace area’ would mean nothing. There are official letters written by the office of DGAFMS which, in utter contravention of rules, direct medical boards not to grant ‘aggravation’ if the onset of disability is in peace areas, whereas the rules do not pose any such prohibition. Even otherwise, there may be instances wherein the stress and strain in a peace area may be much higher than in a particular field area, can there by a mathematical formula to determine attributability / aggravation as the office of DGAFMS would want us to believe ? Research shows that post-traumatic stress disorders can arise even after a period of 5 five years or more (‘delayed onset’) of the stressor / triggering event. Again, there is no such problem being faced by paramilitary personnel in medical boards convened by CPOs. Same diseases, similar service conditions but different opinion on attributability / aggravation ? Does the medical science differ for the Central Police Organisations ? One would rarely find an appeal before the Hon’ble Supreme Court filed by the Ministry of Home Affairs against decisions of High Courts granting disability pension to paramilitary personnel, but the Ministry of Defence alongwith the PS Directorate of the Army Headquarters have both made it their bread and butter of filing appeals with impunity. The Hon’ble Courts in the US have also since settled the law and held that medical opinion cannot be granted primacy if it is against legal principles or settled law. In Wagner Vs Principi (2004), the US Court of Appeal for the Federal Circuit clearly opined the following :

“…When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service…”

The natural parallel of the above with the Entitlement Rules as applicable to the Indian defence services seems strangely surreal. It has been hence held both by Indian and American Courts that to rebut the presumption of attributability / aggravation, the medical board has to present proper evidence and reasons backed with credible medical and pathological basis concerning the aetiology of the disease. Merely stating that the disease is ‘constitutional’ or ‘not connected with service’ is not enough. In yet another landmark decision rendered last week (Jones Vs Secretary allowed on 25-03-2010), the US Court of Veterans’ Appeals has re-iterated that while dealing with service related disabilities ‘medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus’ and that ‘the absence of actual evidence is not substantive negative evidence’. These decisions of the US Courts are in fact reflective of what the Hon’ble Delhi High Court had held in cases such as SS Gautam Vs UOI and Naveen Chandra Vs UOI rendered by a Division Bench which had as its senior member Justice Swatantar Kumar, now a Judge of the Supreme Court. The decisions also seem to have found a sounding board in the order rendered by the Principal Bench of the AFT in Nakhat Bharti Vs UOI and the decisions of Chandigarh Bench of the AFT in a series of recent judgements. The Courts have time and again distinguished decisions of the Supreme Court in Damodaran and Balachandran Nair cases based on the doctrine of sub-silentio since it has been authoritatively held, as explained in the preceding paragraphs, that medical opinion shall only be binding if rendered as per rules. A decision of the Supreme Court on any issue is anyway not binding on other Courts if a particular argument has not been discussed or deliberated in the said judgement [Raipur Ruda Meha Vs State of Gujarat (AIR 1980 SC 1707)].

While dealing with disabilities of military personnel, the much argued comparison with an ordinary person on the street by medical authorities is also incomprehensible. There are times when it is remarked that such a disease may also have arisen had the particular person not been in the Army and that the Army is one of the most stress-free organisations in the country. The question arises that here is a man who is 24 hours / 365 days on call, sometimes under the shadow of gun, mostly away from his family, in a strictly regimented routine, can he be simplistically compared with say a civilian employee who goes to office at 9 in the morning returns at 5, only five days a week, lives with his family, in his hometown, enjoys his gazetted holidays, retires at 60 !. It won’t take an expert to reply in the negative. Wouldn’t common ailments such as hypertension or IHD or minor psychiatric illnesses or psycho-somatic disorders get aggravated by even seemingly insignificant incidents at the home front such as non-performance of children in school, property disputes, sarkari red-tapism in other spheres, family problems etc ? The answer would be in the positive. To top this, the provisions of Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ are not applicable to the armed forces – the direct implication of this is that if a civilian employee gets disabled whether on duty or off duty, whether due to service or otherwise, whether due to his own negligence or not, in whichever circumstance, his or her service is protected under the ibid Act and if the said employee is not able to work, still he or she is to be kept on supernumerary strength and paid all pay and allowances till the age of 60. While on the other hand, if similarly placed service-members get disabled, then what to talk of full pay and allowances or even pension, it is ensured by the system that most are discharged on medical grounds without even a disability pension. The very non-applicability of Section 47 of the Act should have ideally resulted in liberalising the rules or liberalising the approach in determining attributability and aggravation but with the current mindset of internal and external bureaucracy, the same seems unlikely and the Hon’ble judicial fora seem to be the only saving grace in this myriad imagery of officially-sponsore d (paper) violence. The rules are being interpreted ‘literally’ and not ‘liberally’, the letter is being followed by dumping the spirit. The concerned authorities defend their decisions of jumping on to the ‘appeal’ bandwagon saying that the ‘rule-position’ does not allow them to disburse such benefits, but instead of appealing, why don’t we change these damn restrictive and otiose rules themselves ? Rather than putting up a noting sheet recommending appeal by saying how a particular High Court or Tribunal has erred in interpreting law, why can’t a noting sheet be moved to amend the particular rule which has given rise to a plethora of litigation? There are no winners in this vicious circle of obstinacies.

As this letter written by an ex-servicemen organisation and its enclosure would show, even legal advice rendered by the office of Solicitor General asking the MoD not to file appeals has been brushed under the carpet by lower level officers of the Ministry. The Army Headquarter has in fact pointed out in certain specific instances that the govt is defending cases in Hon’ble Courts despite fully being aware of the settled position of law in favour of disabled soldiers. In such actions, it is not just perversity but also sadism at play because anyone who opts to go in for his or her constitutional remedies by approaching Hon’ble Courts is viewed as an ‘enemy of the system’ as rightly pointed out in the ibid letter.

The buck stops there, at Delhi, at the offices of the Legal Advisor (Defence), the Director (Pensions) and to an extent the Director PS-4 (Legal). Mr Antony should instill a sense of judiciousness in these authorities. By filing frivolous and mindless appeals and by tacitly misleading Hon’ble Courts, they are not showing any loyalty to the Indian State or the Auditors but on the contrary are displaying a sense of insensitivity and disregard to this great nation and its even greater protectors. The disparaging remark of the Hon’ble Supreme Court is landmark in the sense that it signifies that from now on frivolities may not be accepted. There is a requirement of a shriller alarm bell, I see it coming round the corner, but would we still wake up ? Beggary is illegal, ban it here too !.

http://www.indianmilitary.info/

Don't treat army men like ''beggars'', Supreme Court tells Govt

Don't treat army men like ''beggars'', Supreme Court tells Govt
New Delhi , Apr 1 (PTI)

The Supreme Court has slammed the union government for treating army personnel like ''beggars''in respect of emoluments and pension and asked the authorities to adopt a more ''humane approach'' towards those bravely defending the country's borders.

"If a person goes to any part of Delhi and sits for begging, he will earn Rs 1000 every day and you are offering a pittance of Rs 1000 per month for a man who fought for the country in the high altitudes and whose arm was amputated?

"Is this the way you treat those brave army officers? It is unfortunate that you are treating them like beggars," a bench of Justices Markandeya Katju and A K Patnaik said in verbal comments while passing the order.

The apex court passed the order dismissing the Centre's appeal challenging a Punjab and Haryana High Court direction to pay higher pension to C S Siddu, a Short Commissioned Officer whose right arm had to be amputated due to an accident while on duty at the high altitudes on November November 21, 1970.

"The army personnel are bravely defending the country even at the cost of their lives and we feel they should be treated in a better and more humane manner by government authorities, particularly, in respect of their emoluments, pension and other benefits," the bench said in an order.

There was an element of drama in the court when Additional Solicitor General Parag Tripathi pleaded with the court not to use "strong words" in the order like "beggars," "niggardly" "miserly", following which the bench dropped them from the written order.

"We regret to say that the army officers and army men in our country are being treated in a shabby manner by the government. In this case, the respondent,( Sidhu) who was posted at a high altitude field area and met with an accident during discharge of his duties was granted a meagre pension. This is a pittance (about Rs 1000) per month plus D.A."If this is the manner in which the army personnel are treated, it can only be said that it is extremely unfortunate, " the bench however, noted in its written order. After Sidu challenged the government's decision to pay Rs 1000 pension, the High Court directed the government to count the entire period of "full pay commissioned service from June 22, 1968 to June 23, 1978" and give him enhanced pension.

The government however, challenged the direction claiming Sidhu could be treated only as a Short Commissioned Officer as he joined the service on June 22, 1968, and suffered the amputation on November 21, 1970, leading to his discharge from service on June 23, 1978. Hence it argued that he was not entitled to enhanced pension reserved for "fully commissioned officers."

MEMORANDUM TO THE PRESIDENT OF INDIA BY IESM

MEMORANDUM TO THE PRESIDENT OF INDIA BY IESM


Respected Madam President.

We the ex-servicemen are approaching you, The Supreme Commander of Armed Forces, with a very heavy heart that we have given our blood and lives on your order and that to without questioning and without even thinking about our families and their welfare. The ex-servicemen have been agitating for their demand of One Rank One Pension for a very long time. There is tremendous resentment amongst the EX-SERVICEMEN in the Country, on account of their pain & anguish brought about by years of neglect & apathy by the Govt. of India, in not addressing the various issues relating to their pension & resettlement.

In order to draw the attention of the Govt. of India for the amelioration of their problems relating to pension & resettlement; Ex-Servicemen in large numbers, led by retired Generals, Admirals and Air Marshals took part, in the following events all over the Country, viz.

a) A silent Memorial Service paying Homage to Martyrs at War Memorials, on Sunday, 27 April 2008;

b) A token one day FAST FOR JUSTICE on Tuesday, 27 May 2008;

c) A MARCH FOR JUSTICE on Sunday, 06 July 2008.

d) A token one day FAST FOR JUSTICE on Monday, 20 Oct 2008;

e) A relay FAST FOR JUSTICE at Jantar Mantar, Delhi, commencing on 16 Dec 2008 for 45 days.

f) Depositing of Medals with the President of India on five occasions viz 08 Feb 2009, 14 March 09, 12 April 09, 13 Sep 09 and 29 Oct 09; and till date over 22,000 Medals have been returned & deposited in the Rashtrapati Bhawan.


A gallantry medal of a soldier is his most cherished achievement which he wishes to be put on his chest even on his death. To part with a gallantry medal is like parting with one-self, but we are forced to part with our gallantry medals as all our efforts to get justice have fallen on deaf ears or are buried in bureaucratic procedures.

Military Service is UNIQUE, with a highly demanding 24 by 7 work culture under hostile environments; and secondly. A soldier is forced to retire from service around 40 yrs of age while a civil employee retires at 60 years of age. A soldier gets benefit of only one/two pay commissions in 20 yrs of service whereas a civil employee gets enhancement in his pay through four pay commissions in 40 yrs of service. Hence a soldier is at disadvantage viz a viz a civilian.

Let us take an example of military vs. police service. Two men of same age and education join army and police respectively. Soldier retires at 40yrs and policeman retires at 60yrs of age. If they both are living today at the age of 75 years, then the Sepoy would earn Rs 47 lacs less than the constable. The difference for a Naik/Head constable is 39 lacs. For Havildar/ASI it is 29 lacs. It carries on similarly. For a Sub Major/DSP it is 15 lacs. This is very demoralizing a soldier.

In military service a person holding a senior rank is always respected while in service and after retirement. Today the situation has become so bad that a sepoy gets more pension than a havildar who had retired say 10 years back. Recently retired Maj Gen had approached the courts as their pension was fixed less than Brigadiers. They have won the case in the courts and Govt is forced to increase their pension under the order of Supreme Court.

One Rank One Pension (OROP) is the only solution for the ex-servicemen. This means same pension for equal rank and equal length of service irrespective of their date of retirement for all ex-servicemen. At present all MsP, MsLA, Judges and 95% of bureaucrats of secretary level and only 1% of army officers of General rank are entitled for OROP. Refusal to grant OROP to the rest of ex-servicemen is gross injustice to the loyal defense forces of India

We have given our blood for the country happily but are very sad today that we have to sign this memorandum with our blood because all our efforts to draw your attention have failed. All ex-servicemen of India therefore urge the Supreme Commander to grant ONE RANK ONE PENSION for the ex-servicemen at the earliest.

BLOOD TO BE GIVEN FOR THE SECURITY OF THE COUNTRY IS BEING WASTED ON A PAPER BECAUSE OF APATHY AND NEGLECT OF EX-SERVICEMEN CONDITION BY THE GOVERNMENT. WE THE EX-SERVICEMEN ASSURE YOU THAT IF THERE IS A REQUIREMENT FOR US GIVE OUR BLOOD AND LIFE TO SAVE THE HONOUR OF THE MOTHER INDIA, WE WOULD NOT HESITATE AND HAPPILY COME FORWARD AND GIVE OUR LIFE.

We request you the President of India that our demands be considered and approved without any delay.



PRESS RELEASE

SUPREME COMMANDER HAS NO TIME TO RECEIVE THE MEDALS DEPOSITED BY HER OLD SOLDIERS
HER STAFF ACCEPTS MEMORANDUM SIGNED IN BLOOD BY 6000 EX-SERVICEMEN

Dated: 14 Mar 2010

Dear Member of the Media,

1. The Supreme Commander of Armed Forces today did not come to receive medals at Rastarpati Bhawan being deposited by military pensioners to press their demand of One Rank One Pension (OROP). Medal Deposit Rally was organized for the Seventh time at Jantar-Mantar New Delhi today where, 2000 defence pensioners including widows had come from all States of the Country to deposit their medals and sign Memorandum to the President in Blood.

2. The Chairman of Indian Ex-Servicemen Movement (IESM) Lt General Raj Kadyan had earlier requested the Supreme Commander to kindly make it convenient to receive the medals from military pensioners herself. All veterans in the Rally unanimously decided to bring back the medals if her Excellency the President did not receive the medals herself. With a heavy heart the Ex Servicemen did not handover the medals when they found the Supreme Commander did not come to receive their medals herself. They however deposited the memorandum signed in Blood by 6000 of Ex-Servicemen from all parts of Country with the staff of the President.

3. Ex-Servicemen hope that the Govt will seriously consider their demand and will grant OROP at the earliest. If Govt does not sanction their demand of OROP, all ESM have decided to intensify the Movement. They have resolved to continue the movement in a lawful and disciplined manner as hare-to-fore.

Jai Hind

With Kind Regards,

Yours Sincerely,

Maj Gen (Retd) Satbir Singh, SM