Consider disabled CPO personnel for alternative employment within the force

In a landmark decision, the Delhi High Court, in Constable Gajendra Prashad Vs UOI, has directed the Ministry of Home Affairs to frame a rehabilitation policy to retain disabled personnel in less exacting duties which do not involve active combat roles.
Following are some excerpts from the progressive judgement which would have far-reaching consequences in all uniformed services :
“It is not in dispute that the medical disability of the petitioner which was opined in the year 2001 continues to be the same and there is no deterioration in the physique or the health of the petitioner. In fact, we must confess, that when the petitioner stood up in court on 4.3.2011 when we heard arguments in the writ petition, we saw him more smart in his turn out vis-à-vis other constables of para-military forces we see in court, who appear before us as litigants, but even as the security personnel deputed in the Delhi High Court complex. Not an inch of fat or flab on the stomach; a slim and trim jawan with a perfect body stood up when we wanted to see the petitioner. Indeed, learned counsel for the respondents was constrained to admit that notwithstanding the loss of a limb, the petitioner has kept himself more than physically fit and we are informed that the petitioner joins the morning drill at the Unit and ensures that his sedentary duties do not make him either dull or a flabby person.”
“The petitioner suffered the disability which placed him in Low Medical Category while performing duties in a hostile condition and there was logic and reason to let the petitioner serve, if he could, on a job where the department lost nothing. Since constables perform duties of a company clerk, why would it be that a physically fit jawan be made to do said duties and not a physically handicapped jawan. It would be a win-win situation. Physically fit jawans would be available for combat duties and those with disabilities, but not of a kind to render them totally unfit, could be accommodate on desk duties. This win-win situation would be in harmony with the concept of a welfare state, which India proclaims to be.”
“We find that the medical board opinion qua the petitioner rendered in the year 2007 continues to be the same as it was in the year 2001. The physical health or the condition of the petitioner has not deteriorated. The disability continues to be the amputation of the right lower limb above the knee and amputation of the left greater toe. If, on the same disability the petitioner was found fit to be adjusted against a lighter duty, we see no reason why he should be boarded out after 6 years. We highlight that the medical board opinion in the year 2007 does not certify or opined that the petitioner was in such Low Medical Category that he could not even perform the duties of a company clerk. Now, jawans are needed to perform wide and varied duties. These may be actual combat. These may be duty as a Sentry at a post. These may be duty in a recreational room. These may be duty as a telephone operator. These may be duty as the dak clerk. Thus, it stands to logic and reason and hence would be a part of fairness in action, a facet of Article 14 of the Constitution, to be observed by the State, that a lowly paid constable at the lowest rung of a Central Para-Military Force who is rendered physically disabled while on active service should be retained in service unless found unfit for any kind of job assigned to constables.”

Jawan caught impersonating Lt-Gen for medical test

Pervez Iqbal Siddiqui, TNN | Mar 28, 2011, 04.14am IST

LUCKNOW: A senior army officer in Bareilly allegedly ordered an army jawan to undergo a medical fitness test in place of himself. The lapse was detected but not before the jawan not only got himself medically examined but also went ahead to sign the document in place of the real applicant, only to vanish into thin air once the fraud was detected.
It all began on Friday morning when two army jawans arrived at Bareilly District Hospital for a medical fitness certificate. After due registration, the jawan -- posing as the applicant seeking the certificate -- appeared before a senior doctor for the check-up only to be declared fit by the attending doctor, who also attested the signature of the applicant seeking the certificate. Finally, when the file reached medical superintendent (MS), Dr Vijay Yadav, he discovered that the photograph of the applicant on the form on which the medical certificate was to be issued did not match the person posing as applicant before him. When a surprised MS questioned the individual if he has signed the document in column meant for the signature and attested photograph of the applicant, the army jawan boldly replied in the positive.
According to Dr Yadav, the application form identified the applicant as Lieutenant General (Lt Gen) PS Tavar, Cantonment, Bareilly. The certificate was reportedly sought for submission with the application for an arms licence. Dr Yadav, reportedly, not only refused to verify the document but, also cancelled the certificate. He then reported the matter to his senior, the CMO, who in turn brought the matter to the notice of the DM.
When contacted on Sunday, Dr Vijay Yadav refused to talk claiming that he had "directions from the top" to keep mum on the issue. CMO Dr A K Tyagi said that he has brought the matter to the notice of DM Anil Garg. The DM, in turn, admitted that the incident had taken place, but he was clear that they were not initiating any action into the incident. "It is for the army to take action," he said. Interestingly, when asked if he had intimated the army authorities about the issue, he hung up saying: "Please get back to me later".
On the other hand, legal experts in Lucknow insist that the incident is a fit case of "fraud'' under the Indian Penal Code, and must not be overlooked merely because it involves a top army officer. "No matter who the person is, if an individual applies for a government verification and presents someone else in his name for the job, it is fraud. There is no way that one can overlook this blatant crime," said senior high court lawyer, Atul Verma. Do you like this story?

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This is a ridiculous rule that we have had for too long....

Court paves way for Army major's marriage to US national

PTI | Mar 25, 2011, 06.40pm IST
MUMBAI: In a relief for a serving major of the Army, the Bombay high court has allowed him to marry his fiancée, who is a US national, and directed the Army authorities to reconsider his resignation request.
Major Yogesh Sayankar had approached the high court last year seeking a direction to the Army to allow his application for premature retirement, so as to facilitate his marriage to Shruti Kulkarni, who is a US citizen.
According to Army rules, a serving officer has to seek permission before marrying a foreign national, and the spouse has to renounce foreign citizenship.
However, Shruti had refused to renounce her US citizenship, so Yogesh sought premature retirement. He also agreed to pay Rs 2,50,000, as expenses incurred by Army on his training. But Army refused his request.
The Army lawyer had argued in the high court that if such pleas were allowed, in future people who wanted to quit army would use this "exit route". There was no way to ensure that person would indeed marry after obtaining premature retirement, lawyer said.
"The apprehension of the Army that Yogesh may not marry after acceptance of resignation can be easily taken care of by accepting his application with effect from the date of his marriage, which is to be held on May 28 this year," the division bench of Chief Justice Mohit Shah and Justice SJ Vazifdar observed on Friday.
"Let them get married. The Army's order of December last year rejecting Yogesh's application is quashed," Chief Justice Shah said while reading out the judgement in court.

Petition by Rajeev Chandrasekhar on Grant of One Rank, One Pension accepted by Petitions Committee of Parliament

I am are pleased to inform you all that the Petitions Committee of Parliament has accepted a Petition presented by Mr. Rajeev Chandrasekhar, Member of Parliament, on Grant of One Rank, One Pension to ex-servicemen and retired defense personnel. The Petition Committee will now meet to discuss the Petition and issue advertisements in leading news papers to seek comments and suggestions from public. The Committee will then consider all letters and suggestions received and take the matter of One Rank, One Pension for consideration.

This Petition by Mr. Chandrasekhar is in continuation of his efforts for the resolution of One Rank, One Pension issue for the armed forces veterans and to address the sense of hurt, injustice and dishonour in the Armed Forces and bring parity in the pensionary benefits for the retired personnel of Armed Forces.

MoD drops use of term PBOR in Armed Forces

The Ministry of Defence has accepted a long-pending demand of ex-servicemen to drop the use of the term ‘Personnel Below Officers Rank’ (PBOR) in official communication.

A letter to this effect has been issued to all command headquarters of the Army, Air Force and Navy.

Henceforth, in official communication, soldiers will be referred as Other Ranks (Sepoy, Naik and Havildar), Junior Commissioned Officers (Hony Naib Subedar, Naib Subedar, Subedar, Subedar Major) and Officers (Lieutenants and above).

Officers are commissioned in forces, so are Junior Commissioned Officers (JCOs). The JCOs also put on stars on shoulders like officers.

The JCOs are Class II gazetted officers and their gazette notification is also signed by the President of India. Some JCOs do take on officer’s duties, responsibilities and also draw officiating allowances for that.

Handling internal conflicts Avoid prolonged use of armed forces

By Gen V.P. Malik (Retd)

Carl Von Clausewitz’s “remarkable trinity” is the capstone thesis of his book “On War”. This is interpreted by most theorists as comprising three important elements of the state: the people (“passions that are to be kindled in war must be inherent in the people”), the government (“political aims are the business of government”), and the military (“the scope which the play of courage and talent will enjoy in the realm of probability and chance depends on the particular character of the commander and the army”). These three elements and their relationship are the basis for armed forces’ operations. The trinity theory has highlighted the relationship between the people and the armed forces in the performance of the role by the latter.

Before World War II, despite trinity linkage, the armed forces maintained a certain aloofness (cantonment living) from civil society. There was strong attachment to military values and a clearly defined distance from civil society. With increased democratic polity of the states and ever-increasing transparency, the armed forces have got more and more integrated into the values and interests of democratic society. Wars are no longer fought by the armed forces alone. National security has become a wider, more relevant and acceptable concept. Questions are raised whenever the role and mission of the armed forces come into conflict with civil society.

There has also been self-awareness and a shift in the self-image. The armed forces have become conscious that while remaining capable of deterring and fighting an enemy, they must remain part of a larger community. The weapons of war are to be wielded against armed opponents; not against unarmed civilians, particularly co-citizens. This attitudinal transition is best explained by the neutral stance maintained by the Egyptian armed forces during the recent civil unrest in the country to oust President Hosni Mubarak.

There are some basic differences in fighting an enemy and when engaged in internal security and law and order situations. Serving and defending the nation is a strong conviction among soldiers. There is no such conviction when a soldier is involved in handling internal conflicts. The former is unidimensional in which “attack” is the best form of “defence”. The soldier’s mindset of being able to use unrestricted violence against an enemy goes through confusion when he is ordered to use force against unarmed civilians for a preferred non-violent “conflict resolution”. Public expressions of defiance like hunger-strikes, dharnas, marches and demonstrations by civilians cause acute discomfort because they run contrary to the essence of all that a soldier is taught: respect for civil society and obedience of lawful authority. There is a conflict between the larger civil society and a sub-system of the society whose identity is defined by martial honour. A soldier’s professional and social identities come into conflict. After the Operation Bluestar experience, the Indian Army succeeded in avoiding any role in the Ram Janmabhoomi conflict.

But it must be admitted that the above mentioned military attitudinal transition notwithstanding, there are many instances, including some in close neighbourhood, wherein the armed forces have intervened to take over the nation and governance on the pretext of saving it from political instability and anarchy (“defense of motherland” syndrome!). Such instances have occurred mostly where democratic institutions have not been established or have remained weak; the forces have been politicised, and/or involved repeatedly and for prolonged durations in internal conflicts. Once in power, military rulers have developed vested interests. They have misused military authority for governance and internal conflicts and not allowed democratic forces to flourish. There are several such examples in West Asia, North Africa and, closer home, in Pakistan and Myanmar. Internal conflicts in Sri Lanka and Nepal, too, have had some impact on their armed forces.

India has been fortunate in this respect. Our armed forces have not only fought gallantly on the battlefield but also consistently and impartially upheld India’s integrity and secular democratic traditions even when many other institutions have failed the nation. The armed forces enjoy their unique status in national life because they are uniquely isolated from politics. But such a situation cannot be taken for granted. It can get diluted if the armed forces are misused or deprived of their legitimate rights and status.

Let us focus on some ground realities and consequential adaptations which have been made in the strategy, doctrine, force structures and re-orientation of our armed forces for employment in internal conflicts.

With considerable experience behind us, we usually adopt a holistic strategy wherein political, economic, social, psychological and military aspects are given simultaneous attention. The aim of security operations is to arrest or eliminate hardcore militants and to deter their supporters. The rules of engagement are based on two forms of self-restraint: “discrimination and proportionality”. “Use of minimum force” principle is employed in all such operations. The forces fight militants and anti-social elements but also reassure innocent people feeling insecure or neglected due to the inadequate role of the civil administration. During sustained operations, the forces often form citizens’ committees to learn about their difficulties and hold meetings with them. Along with sustained operations, small and large-scale civic action programmes are undertaken. The Army launches projects like Operation Goodwill and Sadbhavna for this purpose.

No democratic nation can afford to give full licence to the armed forces to operate freely. Their responsibility, authority, legality and accountability have to be defined clearly.

In handling internal conflicts, armed forces have to uphold human rights. Terrorists and insurgents are under no such constraints. I have personally come across instances of terrorists taking shelter in and firing from religious places, hospitals, schools and colleges. There have also been cases where they have used women and children as shields to escape when cornered by security forces. False allegations to implicate security forces personnel in cases of molestations and rape are not uncommon. Then there is also the question of human rights and legal protection of the armed forces, ordered by the state to counter terrorism.

It is a complex situation, contrary to the conventional war-oriented military culture and training of the soldier, which requires constant explaining and asserting that as good citizens of the nation, we cannot afford to compromise on human rights. It needs to be recognised that in such operations where it is impossible to identify the difference between a friend and a foe and its stress, strain, and often deliberate provocations, aberrations cannot be ruled out. These aberrations have to be dealt with legally in a transparent manner as far as possible.

With experience, we have realised the need for specially organised, equipped, area-oriented forces to deal with insurgencies and terrorism. Rashtrya Rifles is one such force wherein Army personnel have been organised to deal with internal conflicts. These forces undertake training for local terrain, people, their language, customs and traditions. It must be admitted, however, that such conversions, orientation and re-conversions of soldiers affects the primary operational role of the Army, which is a substantial cost.

Based on personal experience, I would like to make two essential points on the employment of armed forces in internal conflict situations. First, military pressure alone and cannot resolve matters unless there is good governance and a strong thrust on socio-political and socio-economic issues. Political leadership and civil administration have to govern the states and the country with greater commitment and efficiency. Second, protracted and excessive employment of the armed forces leads to “Law of Diminishing Returns”. The reasons are (a) over-dependence on the Army reflects lack of trust and faith in the capability of the state and the Central armed police and the paramilitary forces; (b) after a while, locals start treating the Army as another police force; (c) such deployments and prolonged duties have an adverse impact on the Army’s discipline, morale and operational effectiveness. Abhorrent incidents of “fake encounters” can also be ascribed to this reason. (d) During a war or war-like situation, the Army needs public support (trinity linkage). It cannot afford to alienate the local population due to public inconveniences that go alongside such deployments.

I would like to state that although constitutionally required to help the states in internal security and maintenance of law and order, excessive and prolonged use of the armed forces in internal conflicts is neither good for the armed forces nor for the nation.

Bribe-for-display taint to Aero India 2011

Chandan Nandy, Bangalore, March 5, DHNS:

Within days of its successful hosting here, Aero India 2011 has been tainted by allegations that an Indian Air Force (IAF) officer accepted bribes in large sums of money, including in euros, from foreign exhibitors for giving some of them favourable positions in the ''static display area.''
A Court of Inquiry (CoI) has been ordered against Wing Commander Thakur on the basis of a report of Assistant Provost Marshall (Bangalore), Wing Commander Vijay Kumar.
This report was sent to Air Headquarters in New Delhi a few days after February 12, the day Wg Cdr Thakur was allegedly caught red-handed accepting Rs 20,000 in marked currency notes from a decoy which the Department of Defence Productions and Supplies had employed to lay the trap. Thakur, previously a fighter pilot, had later moved to flying IAF transport aircraft.
The CoI is being presided over by Group Captain Daniel Victor. The trap was set up after allegations surfaced that Wg Cdr Thakur was seen accepting money on the first two days of Aero India from foreign exhibitors. According to preliminary investigations, he is suspected to have collected three lakh euros. IAF officers, like Wg Cdr Thakur, were decision makers to position exhibits in the static display area and they had leverage to favour some exhibitors over others.
Wg Cdr Kumar’s report has raised questions of not just the involvement of other senior IAF officers in the bribes-for-favourable-placements case, but also suspects that previous Aero India shows in Bangalore may also have been tainted with under-the-table dealings.
Senior Ministry of Defence (MoD) officials disclosed to Deccan Herald that soon after he was trapped, Wg Cdr Thakur first called up a Bangalore-based superior officer whose name is being withheld for legal reasons.
Honey traps used
It is reliably learnt that three weeks before the five-day Aero India show, which began in Yelahanka near here on February 9, Wg Cdr Thakur was counter-intelligence officer at the Yelahanka air base and was shifted to oversee the arrangements at the static display area along with another officer.
What has shocked the IAF community in Bangalore and the MoD is allegations that European women were employed to “soften up” officers who were involved with making arrangements for Aero India 2011.
A photograph of an Air Marshall in the company of a European woman believed to be a commercial sex worker has been found and which, along with a separate report, has been sent to the MoD in South Block, New Delhi.
While the CoI will probe Wg Thakur’s case, parallel investigations by the IAF, the MoD and the Intelligence Bureau (IB) will likely inquire into suspicions that senior officers might have links with foreign aircraft manufacturers.
The IB station in Bangalore is understood to have sent a detailed report to the Defence ministry and the Ministry of Home Affairs.

US Army overhauls its PT system

In a marked departure from the traditional PT system, the US Army is on the verge of introducing the ACRT – The Army Combat Readiness Test, with Yoga too reportedly on the table.
More details (and comments thereon) can be seen by clicking here.

Military Medical Boards : Mathematics or Medical science ?

The following appears in this month's 'Salute' magazine.

(Copyright : 'Salute to the Indian Soldier')

Military Medical Boards : Mathematics or Medical Science ?

Navdeep Singh

Disability benefits in the forces are contingent upon the declaration of a disability being either ‘attributable to, or aggravated by’ service conditions. Detailed Entitlement Rules promulgated by the Government further determine the question of attributability and aggravation. However, non-adherence to the ibid rules and a purely mathematical approach, as opposed to the desired medical one, is resulting in denial of benefits to the disabled and also overburdening judicial fora.

So who decides attributability and aggravation? Based on an artificial over-reliance on various judgements of the Supreme Court wherein it has been held that the opinion of medical boards has to be granted due weight, the system wrongly seems to believe that medical boards are supreme in this arena. They actually are not. Attributability and aggravation are determined under the rules and the boards are supposed to work within the four corners of these rules with proper application of medical and scientific procedures, not mathematical formulae. Primacy of medical opinion does not definitely imply that it would hold field even when rendered in contravention of the statute or when prima-facie perverse. Despite our progress, attributability of disabilities is still decided on primitive guidelines which reflect a strong disconnect with practical realities.

While the unpredictability of military service is universally appreciated, the Guide to Medical Officers published by the office of Director General of Armed Forces Medical Services, still prescribes that stress related disorders cannot be service-related unless a person spends a specific length of time in a field area and unless the symptoms arise within a period of some months after being posted out of field. Ignored is the fact that a solitary stressful incident in a single day can also trigger stress without any reference to length of service in a particular area, and as modern psychiatry has established, there can be a delayed onset of symptoms even 5 years after a stressful event. Then for example the requirement that the symptoms should manifest themselves within 3 months of being denied leave in case of the death of a parent when the individual happens to be the ‘only’ son. Would not a person be affected if he is not the ‘only’ son or if the symptoms arise after four months rather than the mathematical guideline of 3 months? What could also justify the basis of determining heart diseases on the basis of the ‘14 days charter of duties’ ? The service-connection of complicated heart problems in the Indian military is determined by activities a person had indulged in the last 14 days prior to the onset of the disease? It is common knowledge that heart diseases manifest over a long period of time, isn’t it time to shun these outdated practices and deal with such situations with a more scientific temperament on a case to case basis ?.

Claims of attributability and aggravation are rejected by one word terms such as ‘No’, ‘Constitutional’, ‘Unknown’, ‘idiopathic’ whereas the rules clearly stipulate that if the causes are unknown then presumption operates in favour of the claimant and attributability, or atleast aggravation, ‘shall’ be conceded.

In defence, naysayers harp on the argument that stress and lifestyle related disorders can happen to civilians too and thus have no link with military life. How wrong they are. Can one compare the stress levels of a soldier leading a strictly regimented life away from family under a strict disciplinary code 24 hours a day, 365 days a year, at times under the shadow of the gun, with a civil employee living with family, working from 9 to 5, enjoying weekends and holidays. Even seemingly trivial issues such as admission of children, property disputes and insignificant family rows can have a stressful impact on our soldiers especially those deployed away from families, irrespective of whether in peace or field, and to ignore such incidences of service as unrelated to stress related disorders would be the greatest disservice. Not may are aware that civilian employees have the protection of Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ which provides that if an employee gets disabled, even when not on duty and due to own negligence, his or her service remains protected and if the said employee is not able to work, still he or she is kept on supernumerary strength and paid full pay and allowances till the age of 60 and pension thereafter. This protection is not available to defence personnel who can be invalided even for minor disabilities, and who, at the lower ranks, even in normal circumstances anyway do not have the protection of employment beyond their 30s.

It is a quivering double jeopardy for disabled soldiers. On one hand, our own medical boards follow a self-defeating hyper-technical approach, and on the other, the protection of employment as guaranteed to all other government employees is unavailable to defence personnel. In theory, 2011 may be the year of the disabled soldier; it remains to be seen how it works on ground.

Major Navdeep Singh is a practising Advocate in the Punjab & Haryana High Court at Chandigarh

US Supreme Court comes to the rescue of a military reservist fired by his employer

Vincent Staub, an angiography technician serving a civilian hospital, was supposedly fired from his parent employment due to the fact that he was a reservist with the US Army Reserves.
Staub’s embodiment (mobilisation) in 2003 in Iraq resulted in his dismissal from the hospital in 2004. Litigation however led to an unfavourable decision with the Federal Appeals Court upholding the action of the Hospital.
The Supreme Court however overturned the Federal Appeal Court’s ruling by holding that the employer was liable under the federal anti-discrimination law for members of the military. The court also awarded Staub about $ 58,000 in damages.
More can be read about the above here.

Even in India, Territorial Army (TA) reservists have at times faced similar problems with their employers. Apart from private entities, there are instances when TA reservists serving in civil government departments have also faced difficulties despite the fact that the Territorial Army Act, 1948, provides full protection to the parent employment of TA volunteers when mobilised for military duty, whether voluntarily or compulsorily in a national emergency.