Court's 'AFT only' verdict wounds defence personnel

Resentment is brewing in serving and retired defence personnel after a recent Supreme Court verdict made Armed Forces Tribunals (AFTs) the only forum for them to redress their grievances. Many feel their legal right to appeal against AFT orders has been unfairly curtailed.

Several armed forces welfare organizations have approached the central government to amendment the AFT Act to negate the impact of the verdict. According to them, most complaints are against the ministry of defence (MOD) and given that AFTs are an organ of the MOD, there should be a separate body to challenge orders. 

Bhimsen Sehgal, chairman of All India Ex-serviceman welfare association, argues that the right of judicial remedy should not be snatched away from defence personnel. He has submitted a representation to the defence minister, requesting him to either have the AFT Act amended, make room for appeal after AFT orders or set aside the AFTs altogether. 

Defence personnel could challenge AFT orders before the high courts until the Supreme Court's March 11 order which held that AFT verdicts cannot be challenged. An aggrieved serving or retired soldier would have no other remedy. They can challenge the order before the Supreme Court but only if a "point of law of general public importance" is involved. 

Veterans and legal experts say a war widow, whose pension has been abruptly stopped would hardly be able to convince the apex court that her case is of public importance, effectively closing all doors for her. 

Setup in 2009, AFTs are part of a separate redressal mechanism that handles all cases related to retired and serving personnel. 

Advocate and a former officer of Army's legal branch, Colonel N K Kohli (retd) says in the past few years, thousands of AFT orders have been set aside by the high courts and Supreme Court. "The situation was much better before the AFTs were constitutedIt allowed armed forces personnel to move the high courts or Supreme Courts for their grievance," he adds . 

Founder president of AFT's Chandigarh bar association, Major Navdeep Singh says, "By losing their access to judicial review, defence personnel and their families have become lesser citizens. One cannot imagine veterans and widows from various parts of the country fighting their cases of benefits involving a few hundred rupees in the Supreme Court." 

HCs turned down 90% orders The high courts turned down nearly 90% of orders by the Armed Forces Tribunals after they were made the appellate body in 2011. This was especially true in cases of disability pension to soldiers, where the AFT upheld the defence ministry's stand. A soldier who is disabled during service gets 25% more pension. However, MOD often refuses to pay the additional amount on technical grounds. High courts had favoured the soldiers. 

Verdict Impact 

1) AFT would become the court of first instance as well as court of last instance 

2) Defence personnel, ex-servicemen and their families across the country would have no choice but to travel to Delhi and engage lawyers 

3) Contesting cases in SC involve huge litigation cost 

4) SC will hear a case only id it involve a point of general public importance

Courtesy: The Times of India

OROP scheme to be executed after session: Rao Inderjit

Union Minister of State for Defence Rao Inderjit said today that the announcement about implementation of the one-rank,one-pension (OROP) scheme would be made immediately after the conclusion of parliamentery session.

Interacting with mediapersons at his residence in Rampura village here today, he said the BJP government was committed to executing the OROP scheme for ex-servicemen.

He maintained the financial burden on account of implementing the OROP scheme had been taken care of in the Budget. If needed, additional funds would be transferred for the scheme.

“Any monetary problem will not be allowed to come in the way of the OROP scheme,” said Inderjit.

Courtesy: The Tribune

Pay arrears of pension to all Pre-2006 retiree Central Govt pensioners from 01 January 2006 rather than 24 September 2012 : Supreme Court

As most readers would know, there were anomalies in the fixation of pension of pre-2006 central govt retirees with effect from 01 Jan 2006 and the question was whether pension was to be calculated based on the minimum of each grade/rank within the newly introduced pay-bands or on the minimum of the pay-band itself. The said anomaly was resolved by way of judgements of the Central Administrative Tribunal (CAT) as well as Armed Forces Tribunal (AFT) which inter alia ruled that pension would be calculated on the basis of minima of each rank/grade within the pay-band. The judgement of the CAT was challenged by the Govt before the Delhi High Court. In the meantime however, the Govt itself removed the anomaly but granted the benefits from 24 Sept 2012 rather than 01 Jan 2006 which was the date of the inception of the anomaly.

Hence the exact controversy now stood narrowed down to whether the benefits of the correct pension were to flow from 01 Jan 2006 which was the date from which the 6th Central Pay Commission recommendations were implemented or from 24 Sept 2012 which was when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission.

The controversy was finally resolved by the Delhi High Court which directed that after removal of the anomaly, the pension arrears were to flow from 01 Jan 2006 and not from the future artificial date of 24 Sep 2012. Never to respect well-rounded judicial verdicts, the Govt challenged the decision of the High Court before the Supreme Court, however the Supreme Court was pleased to dismiss the SLP filed by the Govt in July 2013.The Govt then filed a review petition followed by a curative petition alleging ‘gross miscarriage of justice’ but a 5 Judge Bench dismissed the curative petition too.

The Govt however did not implement the decision across the board and kept filing SLPs and Civil Appeals across the board against decisions of judicial fora in favour of pensioners.

Ultimately, all these cases were clubbed together and were finally heard today by the Supreme Court.

The Supreme Court has today dismissed all appeals filed by the Union of India and upheld the decision of grant of arrears with effect from 01 January 2006 rather than 24 September 2012.

Another closure to another agony. 

The amount of basic pension which was made admissible from 24 September 2012 for each rank can be discerned fromthis Circular issued by the Principal Controller of Defence Accounts (Pensions). The said amount plus applicable DA/DR would now be admissible from 01 January 2006. 

Courtesy: MAjor Navdeep Singh

OROP final nod likely by April-end: Army Chief

Army Chief  General Dalbir Singh Suhag has said that ex-servicemen need not worry about the ‘one rank-one pension’ scheme as they would be able to get its benefit with arrears from April 1, 2014. The process to implement the scheme was on and was likely to be completed by the end of April, he said.

General Suhag was addressing a gathering during the ‘Veer Senani Rally’ organised by the Army at the Police Lines ground in Jhajjar today. 

It was General Suhag’s first visit to his native place after assuming charge over seven months ago. He belongs to Bisaan village in Jhajjar district. He was accompanied by his wife Namita Suhag.

“I admit the delay in the execution of the one rank-one pension scheme but there were many technicalities that needed to be resolved before taking a final call on it. I am in touch with the Union Minister for Defence over the issue, who has recently dispatched the file to the finance department for the final nod,” said the Army Chief. He said that the matter would be placed in the meeting of the finance department scheduled next week.

“The scheme is likely to get the final approval by next month, but ex-servicemen need not worry if it takes more time. The delay will not cause any loss to them as the scheme will be executed from April 1, 2014 and the beneficiaries will be able to get arrears from that date," he said.

General Suhag said the Indian Army was being equipped with ultramodern weapons and ammunition. An amount of Rs 15,750 crore had been approved for buying artillery guns and Rs 3,500 crore would be spent to purchase other equipment. Later, he interacted with ex-servicemen and assured them of redressing their grievances.

Courtesy: The Tribune

Supreme Court rules out high court appeal for soldiers

On Wednesday, the Supreme Court rendered a decision that practically makes the Armed Forces Tribunal (AFT) the first and the last forum for serving and retired soldiers, sailors and airmen and their families, sharply eroding their legal rights compared with other Indian citizens. 

The apex court has ruled that AFT verdicts cannot be challenged before high courts, as was being done till now. The only recourse available after the AFT will now be the Supreme Court.

However, in 2012, the Supreme Court had ruled that military litigants have no vested right of appeal against an AFT judgment. According to the Armed Forces Tribunal Act, 2007, the apex court can only be approached if a "point of law of general public importance" is involved, or if the issue is important enough to warrant the attention of the apex court.

"Most issues before the AFT are not of public importance. They relate to veterans' pensions, medical disabilities, etc. Since these cannot now be taken before the Supreme Court as a matter of right, the AFT has become the only court for military litigants, effectively denying poor soldiers the right of judicial review," says Navdeep Singh, a Chandigarh-based lawyer, widely respected for his legal services to military veterans.

In contrast, a seven-judge Supreme Court Bench had deemed "unconstitutional" a similar ruling that prevented high court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs).

The AFT was established in 2009 under the Armed Forces Tribunal Act, 2007, as a judicial tribunal that soldiers petition for justice before approaching civil courts.

Legal experts have questioned the AFT's independence, since it functions directly under the Ministry of Defence (MoD). The MoD appoints the judges to the AFT. The Defence Secretary (who is on the panel that selects AFT judges) is also the First Respondent in most cases filed by soldiers, sailors and airmen.

In November 2012, the Punjab & Haryana High Court ordered that the AFT be placed under the Ministry of Law & Justice. An MoD appeal against this verdict is pending in the Supreme Court.

Right to Information applications have revealed MoD patronage of AFT judges. As Business Standard has reported (April 2, 2013, "RTI reveals MoD largesse to Armed Forces Tribunal") the MoD admitted spending over Rs 67 lakhs for "official foreign visits" by the then AFT chairperson and members, and having provided them with unauthorised canteen cards to shop at subsidised military retail outlets. AFT Administrative Members (military generals on the tribunals) are called to army formations to "sensitise" them about cases that the were hearing.

Recently a Supreme Court Constitution Bench struck down the national tax tribunal on the grounds that it was not independent of the government. Arvind Datar, who was counsel in that case, asserts that Article 226 of the Constitution, which provides judicial review before the High Court, cannot be struck down.

"Look at the poor soldier and how he would be affected by such a judgment. A jawan living in Tamil Nadu, or Assam, would have to engage a Supreme Court lawyer in Delhi, and bear all the expenses of travel in order to appeal against an AFT ruling. This is completely unfair", says Datar.

Meanwhile, the MoD's battery of lawyers in New Delhi continue filing automatic appeals in the Supreme Court against unfavourable AFT orders. So serious is the problem that Defence Minister Manohar Parrikar recently pledged to end this practice.

Legal experts point out that, if High Courts can no longer hear challenges and provide redress, the Supreme Court would directly receive a flood of appeals, diverting it from its primary task - to adjudicate on matters of importance and Constitutional issues.

"Ultimately, defence personnel have become even lesser citizens than what they already were. Justice will now be neither affordable, nor accessible. We will request the honourable Supreme Court in other similar pending matters to refer this issue to a larger bench", says Navdeep Singh. 

Courtesy: Business Standard

One rank one pension: Veterans meet defence minister, decide to wait

CHANDIGARH: The ex-servicemen fraternity has now decided to wait and watch for the announcement of one rank one pension (OROP) — the much-awaited demand of veterans, which the finance minister did not mention in his budget speech.

The decision to wait for the announcement of OROP has been take by the veterans after holding a meeting with the defence minister on Monday afternoon. A five member delegation led by Major General Satbir Singh (Retd), Chairman, Indian Ex-servicemen Movement (IESM) had hold a meeting with the defence minister Manohar Parrikar for around 45 minutes to express the grievance of the ex-servicemen fraternity about OROP. Major DP Singh, blade runner who had lost his leg in Kargil war, also accompanied the delegation.

Talking to TOI, Major General Satbir Singh (Retd), who has been leading the campaign of several ex-servicemen organizations for implementation of OROP, said that the defence minister Manohar Parikar has confirmed him on Monday that government is committed to implement the OROP and immediately after completing the modalities with the finance ministry, it would be implemented.

"I have conveyed the defence minister that we are not fighting for money but for 'ijjat' (respect) for giving our valuable period of life for the country. Since defence minister himself had called us and promised to fulfill the demand I think we should wait for some more time," Gen Singh added.

Gen Satbir, however, made it clear that if nothing moves till March 31, the veterans would chart out plan for their massive protests across the country for the breach of trust against government.

Major DP Singh, who was also part of the delegation also confirmed that the defence minister has clarified during the meeting that there is no doubt about the allocation of money for OROP, which would be announced very soon.

The defence fraternity that was desperately waiting for the announcement of OROP in the union budget announced on February 28, was disappointed when nothing about OROP was mentioned by the finance minister in his budget speech.

Earlier the veterans were under the impression that Rs 22 thousand crore increase in the defence budget includes Rs 8300 crore required for the OROP. However, the experts of the defence accounts clarified that the increased amount of Rs 22 thousand crore is just to meet the inflation of last years budget and OROP could not be included in it.

Out of 30-lakh ex-servicemen in the country, Punjab alone has around three lakh ex-servicemen, Haryana has nearly 2.8 lakh, Himachal Pradesh (HP) has around two lakh and there are around 10000 retired ex-servicemen in UT Chandigarh.

OROP basically implies payment of uniform pension to personnel retiring in the same rank with the same length of service irrespective of their date of retirement.

Courtesy: The Times of India

The great betrayal on OROP front

During his interview after the Budget speech, the Union finance minister, when asked about the fate of “one rank, one pension” (OROP) for the defence personnel, remarked that modalities were being worked out between the defence services and the Ministry of Defence (MoD). He went on to say that he had given an additional 12.5% to the defence budget, giving the impression that he had done great personnel favour to the defence services. He does not appear to know how far removed are the Indian defence forces from the state-of-the-art weapon systems and how long has it been crying for modernisation.

Surely he would know that this additional amount for the defence budget, as such, has no link with OROP, because pensions for the defence personnel do not flow out of the defence budget. This additional allocation barely covers inflation in the cost of defence equipment. In the remaining Budget, there is no allocation of funds for OROP.

Soldiers at disadvantage

The demand for OROP has been pending for well over two decades. The rationale for this demand has been articulated umpteen times. More than 80% of the soldiers retire between the age of 34 and 36, and the remaining 20% at varying ages, with only 0.2% retiring at 60, when all the central services employees retire. Early retirement and extremely limited avenues for career advancement (promotions) place the defence personnel at great disadvantage vis-à-vis their counterparts in the civil services.

This early retirement places defence personnel at great financial disadvantage and takes its toll on them in way of shortening their lives: of both officers and soldiers, notwithstanding the fact that on retirement, they are physically much fitter in every respect compared with their civilian counterparts. The average life expectancy of the officers is 72.5, of the JCOs is 67, and of the soldiers is 64. These are figures from the Institute of Applied Research and Manpower (IARM). The life expectancy figure for civil servants is 77 years. The Railways, in their study, arrived at a figure of 78.

This issue of the shortening life of soldiers was raised in Parliament and the-then defence minister (the present President and supreme commander of the Indian forces) had stated that it would be examined in detail. Those were his famous words!

Babus flummox defence minister

The demand for OROP became all the more strident when the civilian counterparts granted to themselves what is called non-functional upgrade (NFU). Simply stated, it implies that that their pay and allowances will have no relation to their job content but only to the length of the service; and that their advancement in career will have no bearing on the availability of higher posts and performance.

Political parties have repeatedly been promising the grant of OROP. Narendra Modi, as prime ministerial candidate of the Bharatiya Janata Party (BJP), during his election rally at Rewari had promised that on coming to power, his party would announce OROP. Later, speaking to the troops in Siachen as Prime Minister, he said he had granted them this benefit.

More recently, the defence minister has been giving all manner of assurances to veterans, assurances which include specific dates when the case would be finalised and forwarded to the Finance Ministry: well before the Budget date.

Now it appears that the MoD has not been able to resolve the modalities for working out the details. Obliviously, the babus in the MoD have flummoxed the defence minister successfully and made him cut a sorry figure before the nation’s veterans.

Today’s soldiers tomorrow’s veterans

Neither the PM and nor the DM appears to realise that there exists a very strong bond between the veterans and the serving troops. Today’s soldiers are tomorrow’s veterans, and this betrayal on part of the government cannot go unnoticed by them, and will impact their morale surely.

The government’s general lack of sensitivity to the disadvantages of military service and the consequent disinterest of suitable youth in joining the defence services has led to both fall in standards on one part and a huge shortage in the officer cadre. The nations that do not send the better lot to the defence services will one day suffer the consequences.

Finally, a quote from Phillip Mason, ICS, would be appropriate in the present setting. While commenting on India’s dismal war record, he notes in his book, “A Matter of Honour”, that: “Indian disadvantage lay in the nature of organisations of armies and, in the end, in politics and the kind of governments that had grown up in India.” One may venture to ask, if the state of affairs are any different today?

Lt Gen Harwant Singh (retd), Hindustan Times, Chandigarh
(The writer is a former deputy chief of the army staff and an expert on defence matters. The views expressed are personal)
Courtesy: Hindustan Times