Pension of Hony Nb Sub
Copy of a letter written to the Raksha Mantri with copies to eight others is attached (less appendices) for information please. Great credit goes to Maj Navdeep for bringing out the startling manipulation by the govt and for doing the legwork for this communication. Best regards,
Lt Gen (Emeritus) Raj Kadyan, PVSM, AVSM, VSM
262, Sector-17A, Gurgaon – 122001
IESM/ESW/2009 dated 20 Aug 2011
To:Hon’ble Raksha Mantri
Ministry of DefenceSouth Block,
MAKING FACTUALLY AND LEGALLY INCORRECT STATEMENT BEFORE THE HON’BLE SUPREME COURT
1. This is to bring to your notice the unfortunate and unethical action by the staff of Department of Ex-Servicemen Welfare in incorrectly and misleadingly briefing Govt counsel before the apex court in litigation involving military personnel and their families. The latest in this chain is the statement made before the Supreme Court in Civil Appeal No 13139 / 2011 on 07-07-2011 (Enclosed as Appendix ‘A’). 2. Based on the acceptance of the recommendations of 6th CPC, the Ministry of Defence had, on 12-06-2009, issued a letter granting the pension as admissible to regular Naib Subedars to those Havildars who had been granted the Honorary rank of Naib Subedar on retirement. Having been issued after the 6th CPC, the said letter naturally contained a stipulation that it was to take effect from 01-01-2006 meaning thereby that the financial benefits were to apply from the said date. However, the MoD which had issued the said letter subsequently instructed the Controller General of Defence Accounts (CGDA) that the provisions were to be made applicable only to those personnel who retired after 01-01-2006 and that Honorary Naib Subedars who retired prior to 01-01-2006 were not to be granted this benefit of pension. This was in fact also against the universally accepted principles of modified parity which provide that pensions of personnel retiring prior to or after a cut-off date were to be determined on the same fresh pay scales introduced after the said cut-off date, albeit based on a different formula.
3. The interpretation of the MoD on the ibid letter was challenged by certain affected personnel before the Armed Forces Tribunal at Chandigarh in OA No 42 of 2010 (Virender Singh and others Vs UOI). The Tribunal was pleased to allow the same and it was ordered that effectuating two scales of two different ranks for determining the pension of personnel retiring in the same rank had resulted in serious discrimination and that this anomaly had to be rectified. As expected, this judgement was challenged by the MoD before the Hon’ble Supreme Court and the Hon’ble Apex Court was pleased to dismiss the appeal of the UOI in SLP No 36534 of 2010 on 13-12-2010. (Enclosed as Appendix ‘B’).
4. When the judgement of the AFT was upheld by the Apex Court, it was expected that the MoD would carry out the direction in letter and spirit, but it was not to be. Despite the fact that the law had been settled by the SC, the MoD still went ahead and filed a spate of appeals before the SC which came up for hearing on 07-07-2011 and which form the basis of this letter.
5. When the case came up for hearing, the SC again dismissed the Appeals filed by the UoI but on the request of the battery of lawyers representing the UoI led by Sh Gopal Subramanimum, the then Solicitor General, the following was observed in the order :- “It needs, however, to be clarified that the decision of the Armed Forces Tribunal shall relate only to the cases of Havildars who, before their retirement, were granted honorary promotion to the rank of Naib Subedar and shall not be used as a precedent in case of other ranks”.
6. The Solicitor General thus requested/advised the Court to clarify that the case shall only relate to Havildars granted the rank of Honorary Naib Subedar before retirement. But the shocking aspect highlighted here is that Havildars are never granted the Honorary rank of Naib Subedar before retirement, an Honorary rank of Naib Subedar is ONLY granted after retirement. If this were to be taken as the actual position, then no Honorary Naib Subedar shall be eligible for such benefits and even the letter dated 12-06-2009 issued by the MoD shall become redundant, null and void. The fact that the rank of Honorary Naib Subedar is only granted on retirement becomes amply clear from Paragraph 180 of the Regulations for the Army and Para 18 of Letter No B/43435/Policy/AG/CW-2 dated 16-05-2008 issued by the Ceremonial and Welfare Directorate of the Integrated HQ of MoD (Army).
7. More than the fact that a wrong statement was made before the Supreme Court by the Solicitor General, who apparently acted on wrong advice tendered by the Department of Ex-Servicemen Welfare, it pains the ex-servicemen community that the pension wing of the said department, instead of looking after the welfare of veterans, is increasingly assuming an adversarial role and scuttling all positive moves made by the higher echelons of the MoD and the Defence Services for the welfare of veterans and their families. The term ‘Welfare’ in the title of the Department is an unfortunate misnomer. This negative attitude is also resulting in delaying and denying the benefits even when upheld by the Supreme Court. This negative approach is very unfortunate and results in filing of multiple appeals before the Supreme Court by the MoD against its disabled soldiers and other pensioners imposing great financial burden by way of legal expenses on the affected Ex Servicemen. 8. As the above mentioned statement before the Supreme Court would indicate, the Department did not even spare veterans who were covered by an earlier judgment of the Supreme Court and took the opportunity to convey incorrect facts to the Court when even a notice had not yet been issued to the affected veterans (respondents in the appeal) who were thus not even represented in the Court either in person or through counsel. While I have no legal knowhow, but it seems clear that stating a wrong and misleading fact and that too in the absence of the affected party, may be contemptuous or even perjury. The fact that no attempt has been made till date to get the wrong statement rectified, modified or clarified, further lends credence to suspicion on the motive of the staff who would have briefed the then Solicitor General.
9. I request your intervention in undoing the mistake so that the veterans get their just due. There is also a need that the errant staff is taken to task so as to avoid repetition of such unfortunate misrepresentation of facts. With best regards,
1. Hon’ble Law Minister, Ministry of Law and Legislative Affairs, Shastri Bhawan, New Delhi
2. Hon’ble Rajya Raksha Mantri, Ministry of Defence, South Block, New Delhi
3. Chief of the Army Staff, COAS Secretariat, South Block, New Delhi
4. The Adjutant General, South Block, New Delhi
5. Director PS-4 (Legal), Sena Bhawan, DHQ PO, New Delhi
6. Solicitor General, c/o Supreme Court Bar Association, Supreme Court, New Delhi
7. Sh Gopal Subramanium, c/o Supreme Court Bar Association, Supreme Court, New Delhi
8. Ms Neelam Nath, Secretary, Department of Ex-Servicemen Welfare, Ministry of Defence, South Block, New Delhi
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