Defence Personnel get a raw deal, disabled are worst hit

Please refer to my earlier post dated 11 Feb 2014 titled: Department of Ex-Servicemen Welfare working against the interest of Disabled Soldiers. 

Defence Personnel  or Ex-Servicemen are at a great disadvantage in respect of pay, pension and medical benefits compared with civilian government employees. It is none other than their own department called Department of Ex-servicemen Welfare who is working against their interest and resorting to appeals against all orders of Armed Forces Tribunal that went in favour of the soldiers. 

FRONTLINE Article

Over the past five years, ex-servicemen have been agitating against the injustice meted out to them by the Central government. They have lost faith in the Department of Ex-Servicemen Welfare (DESW), created specifically to take care of their welfare. Ex-servicemen have won 90 per cent of the cases filed in the Armed Forces Tribunals and the Supreme Court against the government, but the government has appealed in all the cases through the DESW.

The veterans have approached the Prime Minister and the Defence Minister to seek redress in numerous cases where they felt injustice had been done to them but to no avail. The Supreme Court’s judgments in their favour have either not been implemented or not been implemented in letter and spirit in cases pertaining to disability pensions, payment of arrears with retrospective effect from January 1, 2006, rank pay, and hospital charges on authorised Ex-servicemen Contributory Health Scheme (ECHS) rates for medical treatment abroad.

The government files en masse appeals against retired defence personnel whenever any case relating to pension benefits is decided in their favour by any court of law or the Armed Forces Tribunal. Facing the brunt of the government’s apathy is the category of disabled and war-disabled soldiers. Most of the special leave petitions and appeals filed by the Ministry of Defence in the Supreme Court are against the grant of disability or war injury benefits to disabled and war-disabled soldiers. As a result, the veterans are forced into expensive litigation.

Over 3,000 cases decided in favour of defence personnel by the Armed Forces Tribunal have not been implemented; the Defence Ministry has contested all these judgments in the Supreme Court. Imagine the plight of a widow of a sepoy living in a far-flung rural area. How is she going to find the resources to fight her case in the Supreme Court? The tribunals were created for delivering speedy justice to defence personnel at minimum cost. But the Ministry’s decision to appeal against the tribunal’s judgments has not only delayed justice but also made it near impossible for the defence personnel to fight their cases. The Armed Forces Tribunals do not have contempt powers to get their judgments implemented whereas Central Administrative Tribunals (CATs) are vested with such powers.

This is the biggest cause of heart burning in the military community today. Military personnel with non-service-related disabilities discharged with less than 10 years of service remaining are not entitled to any form of pension, whereas the employment of civilian employees who “acquires a disability during his service” is protected under Section 47 of the Persons with Disabilities Act, 1995.

As per the Sixth Central Pay Commission recommendations, all government servants are allowed three assured career progressions. Civilians who retire at the age of 60 are allowed promotions at 10, 20 and 30 years of service, and soldiers at eight, 16 and 24 years. However, since jawans are forced to retire early, largely between 15 and 19 years of service, to keep up the young profile of the forces, they miss out on at least one assured career progression, unlike their civil counterparts, who serve their full term until superannuation. It has been proposed to the government that the third career progression should be given to jawans automatically; they should be promoted to the rank of naib subedar at the time of retirement. Surprisingly, this demand has not been accepted.

Widow’s pension

Widow’s pension is one area of concern to the defence community that has received little attention from the government. A sepoy’s widow pension has remained a meagre Rs.3,500 a month while other sections of government employees have received periodic increases in such pension. The minimum family pension in respect of defence widows must be enhanced from Rs.3,500 to Rs.10,000 a month.

It is common knowledge that soldiers retire ahead of their time. What is not known, however, is that their life expectancy is shorter than that of civilians. The Institute of Applied Research in Manpower Analysis (IARM), which studied the lifespan of civilian employees at the behest of the Fifth Pay Commission, arrived at 77 years as the average life expectancy of a civilian government servant. The Railways conducted a similar exercise for their personnel and assessed that they achieved an average lifespan of 78 years. No such study was conducted for defence personnel since it was generally believed that soldiers lived longer than civilians. However, Major General (retired) Surjit Singh, AVSM (Athi Vishisht Seva Medal), VSM (Vishisht Seva Medal), who headed the Army Cell of the Fifth Pay Commission, carried out a detailed study in 2005 along with other experts. The study revealed that the average lifespan of defence officers was 72.5 years; that of junior commissioned officers (JCOs) 67 years; and that of other ranks was between 59.6 and 64 years.

These findings were forwarded to the Chief of the Army Staff General J.J. Singh on July 7, 2005, by Lieutenant General (retd) M.M. Lakhera, PVSM (Param Vishisht Seva Medal), AVSM, VSM, who was Lieutenant Governor of Puducherry. The findings were reported by all national newspapers and a question was asked in Parliament on the subject. Pranab Mukherjee, who was the Defence Minister then, maintained that the issue would be examined in detail. Nothing was heard about it after that.

Stress and strain of early retirement is one of the major reasons for the lower life expectancy among the defence personnel. Their legitimate demand for an assured second career until the age of 60 through an Act of Parliament has not yet been accepted.

While the pensions of all ranks were enhanced with effect from September 24, 2012, to redress the anomaly of the Sixth Pay Commission, the request to enhance the pension of JCOs proportionately was not granted. Majors with 13 years and more of service who retired before 2004 have been denied the benefit of the rank of lieutenant colonel (that is, the benefit of pay band-4 in the revised scale of the Sixth Pay Commission).

The government’s policy to grant lieutenant colonel rank on completion of 13 years of service was made applicable with effect from 2004. It would have been only just to grant all those who retired before 2004 in the rank of major with 13 years of commissioned service (this number being finite) the benefit of pension on the scale of lieutenant colonel. The strong plea in this regard has not been accepted.

Also, the non-functional upgrade (NFU) granted to civilian employees has been denied to defence personnel, thereby putting them at a disadvantage.

One Rank One Pension

One of the major demands of veterans is same pension for same rank and same length of service, that is, same rank + same length of service = same pension, irrespective of the date of retirement. They want a legislative guarantee to this. Although all major political parties have agreed to this in principle and frequently incorporate it in their election manifestos, this 40-year-old demand has not been implemented. The bureaucratic excuses in the form of administrative, legal and financial hurdles in implementing the demand were heard in detail in 2011 by the Rajya Sabha Petition Committee set up to look into all aspects of the demand and rejected them in the strongest terms. Prime Minister Indira Gandhi had agreed to this provision in principle, but her untimely death scuttled the proposal. Successive Standing Committees on Defence and the Rajya Sabha Petition Committee have recommended this but to no avail.

Before 2006, the difference in the pensions of Major General and Lieutenant General was only Rs.1,400. Subsequently, it became Rs.700. With the extension of higher administrative grade (HAG) and HAG+ to the rank of Lieutenant General and above, the difference in pension is more than Rs.8,000 even after the increase with effect from September 24, 2012. The government has overlooked the Sixth Pay Commission recommendations, which suggested that all government employees with a basic pay of Rs. 20,000 and above be clubbed under the same pay band. Major Generals retire with a basic pay of Rs.22,400 and above while Lieutenant Generals retire with a basic pay of Rs.23,500 and above. Non-inclusion of major generals in HAG has caused an anomaly.

On losing the case, the Defence Ministry filed a review petition in the Supreme Court, denying enhanced arrears to army pensioners as ordered by the Delhi High Court with retrospective effect from January 1, 2006, instead of September 24, 2012.

Civilian employees are provided health care under the Central Government Health Scheme (CGHS) while ex-servicemen are covered under the ECHS. The provision of budget for the CGHS is calculated (for 2013-14) at the rate Rs.10,700 for every beneficiary while for the ECHS, it has been budgeted at Rs.3,150 a beneficiary. As a result, super-speciality hospitals do not offer themselves for ECHS empanelment. Over 80 per cent of the health care units have withdrawn from empanelment in view of delayed payment of bills and inadequate rates for various medical procedures. This has resulted in unsatisfactory or poor medical care for ex-servicemen. Sophisticated procedures have not been included in the ECHS. The veterans’ request for inclusion of the latest medical procedures on the ECHS benefits list has not been accepted yet. Ex-servicemen had requested that the budget be enhanced and not be less than the CGHS rates.

Here is an example to illustrate the poor nature of health care benefits provided by the government to ex-servicemen. Non-availability of funds with the ECHS and, as a consequence, non-payment of hospital dues made an empanelled hospital in Gurgaon in the National Capital Region to stop accepting patients for cashless medical treatment. Ex-Subedar Prakash Chandra Tomar from Meerut was brought to the hospital in a serious condition on December 8, 2013, which as per the ECHS scheme is permitted. The family was asked by the hospital authorities to deposit the money for the treatment or transfer the patient to some other hospital. Since the condition of the patient was serious, the family raised a loan and deposited Rs.11 lakh for 20 days of hospitalisation and treatment.

When the family was in no position to arrange further funds, Tomar’s son, Raj Kumar Tomar, approached the Indian Ex-Servicemen’s Movement (IESM) and the case was taken up with the Managing Director of the ECHS, who promised to get cashless treatment. But he did not succeed. The family deposited another Rs.2 lakh in the hospital. On January 1, Subedar Prakash died. The hospital did not accede to the request of the ECHS to release the body and insisted that the family clear the hospital bills.

In November 2008, the government had announced that in future there would be a separate pay commission for the defence forces. The defence fraternity feels betrayed as the government has not constituted a separate pay commission, and, as in the case of the previous commissions, there is no representation for defence forces in the newly constituted Seventh Pay Commission. Some 39 anomalies in defence pensions are yet to be resolved and with no defence representation in the new pay commission, more anomalies are likely to appear thereby increasing the magnitude of injustice already done to defence pensioners.

Denial of voting rights

It is surprising that serving defence personnel are denied the right to get themselves registered as voters at the place of posting. In spite of a clear judgment by the Supreme Court in 1971, this basic right has not been extended to soldiers. The option of postal ballot and proxy voting available to serving soldiers has not proved effective. There is no restriction imposed in the Representation of the People Act, 1950, to deny this right to defence personnel. There is an urgent need to restore this right immediately to allow serving soldiers to vote at their place of posting in the coming Lok Sabha elections.

The prevailing security environment calls for strong measures to upgrade the country’s defence preparedness in terms of manpower, equipment and weapon systems. Equally important are measures to keep the soldier’s morale high.

Source: Frontline

Department of Ex-Servicemen Welfare working against interests of Disabled Soldiers

This is how our bureaucracy treats the disabled! If any ex-serviceman and disabled soldier moves a case for disability  pension benefits against Ministry of Defence, he will be challenged all the way up to Supreme Court, ruled the Department of Ex-Servicemen Welfare (DESW) - a wing of Min. of Defence on 02 Jan 14.

In other words, a disabled soldier or war veteran either accepts what is doled out as charity or be ready to fight a losing battle even after winning the case in Armed Forces Tribunal in next two superior courts. Reason- Babus feel that reference to legal opinion is time consuming and involves lot of paper work hence the department will appeal automatically against each case won by the soldiers- first in High Court and then in SC. That means babus will pay hefty fee (from tax payers' money) to the standing counsels but not release legal dues ordered by its own Tribunal to the deserving soldiers...!  It is not a challenging guess as to how many disabled soldiers or veterans can afford to keep fighting from the Armed Forces Tribunal to the High Court to the Supreme Court!

An elected representative in parliament went on to write that the impugned order smacked of callousness and high handedness on the part of the Government and that the order would aggravate the misery of those who have lost their limbs or eyesight or sustained any other grievous harm in the service of the nation.

Its only after the hue and cry for over a month against MoD's heartless and desperate effort to "tire the disabled out" in the autumn of their lives, the defence minister has personally intervened.

Thank you Mr. Antony for intervening and withdrawing this most unreasonable rule thrown at the face of those who gave the nation their prime time of life, though after more than a month!

See Related Links:

Disabled Ex-servicemen get breather from Antony
http://epaper.mailtoday.in/showtext.aspx?boxid=34956953&parentid=90673&issuedate=1122014

Army Chief to Protest Defence Ministry treatment of Ex-servicemen
http://www.business-standard.com/article/economy-policy/army-chief-to-protest-defence-ministry-treatment-of-ex-servicemen-114011500026_1.html  

Resolve issue of pension of disabled soldiers: Smriti to govt.
http://archive.indianexpress.com/news/resolve-issue-of-pension-of-disabled-soldiers-smriti-to-govt/1156349/0

Voluntarily retired soldiers entitled to disability pension

http://www.thehindu.com/todays-paper/tp-national/voluntarily-retired-soldier-entitled-to-disability-pension/article3976340.ece  

Now, all disabled soldiers to get disability pension
http://articles.timesofindia.indiatimes.com/2012-08-04/india/33034927_1_disabled-soldiers-disability-pension-lt-gen-ns-brar

Law on disabilities in service- Supreme Court holds the hand of the disabled soldier yet again in a landmark judgement

Non discrimination, UN CRPD and Disabled Soldiers in India

Dear Friends,

The two most enabling sections of the The Persons with Disabilities Act 1995 i.e. section 33 (Employment Chapter) and section 47 (Non Discrimination Chapter) have been made redundant by their disabling proviso which I call as Black proviso i.e.  "Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

This black provisio continues in the new draft Right of Persons with Disabilities Bill 2012  ready to be tabled in the parliament in different sections. The biggest victim of this proviso under Section 47,  have been those brave citizen of this vast nation who risked their lives to preserve the integrity of their motherland while being in defense forces, para-military forces & police departments and acquired disabilities - both minor or severe. The effect of this black proviso has been catastrophic on the morale of those who are out there on the borders to defend the nation or stationed in troubled areas to control the  law and order and save the democracies.

What will happen to me and my family if I become disabled during the course of duty or during my job? Am I being treated like my civilian counter parts when it comes to the social protection or non-discrimination? .... such questions plague the psyche of the ordinary officers of our forces - thanks to the black proviso and the subsequent notification by the Govt. of India under the said proviso declaring the defense forces to be kept out of the ambit of the protections available under this section.

Civilian Employees Versus Combatant Employees

Lets understand how the two employees - one civilian and one from the forces is treated under section 47 of the disabilities Act:

The section mandates as below:

"47. Non-discrimination in Government Employment - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.  (most misused proviso)

Now if it was a civilian employee under the government, on acquiring a disability due to any reason, his pay scale and service benefits remain protected even if the disability sustained limits the functional capacities of the person to an extent that he/she can not be adjusted against any existing post. Such a person remains on a supernumerary post until a post is found out or till he attains age of superannuation.

On the contrary, an employee from the forces, on acquiring a disability - whether during the course of duty or during any mishap when not on duty is invariably  medically  boarded out with a paltry disability pension and left to fend for himself in the grim employment scenario. The family members and dependents suffer due to sudden calamity and the person becomes a liability for the family in absence of strong social security provisions. 

Why the talented youth is not attracted to Forces any more

Given an option, any talented young person would prefer a civil employment to an employment in the forces since the forces have not thought to respect for the sacrifices or say the human rights, social security and non-discrimination clauses of the central laws and international human right conventions. The youth of today knows there is no future in the forces. Worst - in case of a mishap - death or disability is inevitable. And both  will take away the bread winner of the family with no social protections.

Need to think out of box in light of UN CRPD

We as a nation has to think what we offer to our sons and daughters  who risk their lives for the country in comparison to a civilian on duty. Also we have to walk the talk since India is among first few handful countries  who signed the UN Convention on Rights of Persons with Disabilities on the very first day of its opening for signature and subsequently ratified the same. However, we continue to discriminate on the basis of disability when it comes to government employment in forces.

The UN Convention defines "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

Some possibilities worth considering

Not all jobs in the forces are of combatant nature and many involve desk jobs such administration, logistics, equipment, stores, purchase and several others. This means that the exemption given under the garb of black proviso, can be easily withdrawn and combatants acquiring disabilities can be adjusted in non-combatant jobs/branches. 

If the Government feels that it may compromise with the war preparedness of the forces, it may also consider keeping all such severely disabled combatant employees on supernumerary posts with full pay scale and other benefits. While those who are with disabilities that allow sufficient functional abilities to be gainfully occupied in the desk operations, should be accommodated in the base units/formations.

This can help fill up the huge shortfall in the forces by motivating the youth and assuring them that they would not be discriminated if they become disabled while in service- whether the injury was or not attributable to service.

This would ensure that our forces do not discriminate on the basis of disability and are in conformity with the UN Convention on the Rights of Persons with Disabilities. There have been several examples in the defence forces where combatants who acquired disability during action were retained and such a trend is very good, however, one should not be forced to go to Armed Forces Tribunal each time to obtain right to equality before the law and equal protection of the law (Art 14 of the Constitution) and Article 5 (equality and non-discrimination) of the UNCRPD.

We don't need to wait for the new draft law to come in to being to enforce this and it can be simply done by withdrawing the "Black Proviso" and the Notification of Exemption accordingly encapsulating the above.

Discharged on request with undertaking- will not seek pension- illegal, arbitrary & bad in law

 Dear friends,

Here is a fit case that has come to light which reinforces that the principals of natural justice can't be overruled with illegal undertakings got signed from the outgoing employees. Disregarding the earlier rejection of the petition by lower court and also refusal from Punjab and Haryana High court, the Chandigarh bench of the Armed Forces Tribunal (AFT) decided the disability pension case in favour of the retired subedar, a day before i.e. on 09th March 2010.

The Subedar was discharged on his own request and the employer got an undertaking signed from him that he would not claim any pension. The court held it absoutely illegal, arbitrary and bad in law. Though the matter took a long time but finally some justice seems to be coming through.

This matter also indicates that specific courts can do much better job in rendering justice than a regular or general court. The same holds true for matters relating to disability- where our experience confirms that the Court of Chief Commissioner-Disabilities constituted under the Persons with Disabilities Act 1995 has done far better job while CAT and High Court went on against the petitioners in similar matters.

regards

SC Vashishth, Advocate-Disability Rights

To read from source click here:  VRS no ground for rejecting pension, says defence tribunal

The Chandigarh bench of the Armed Forces Tribunal (AFT) decided a disability pension case in favour of a retired subedar on Tuesday. The case had earlier been rejected by a lower court and the Punjab and Haryana High Court on the grounds that the army personnel had given an undertaking at the time of voluntary retirement stating he would not claim disability pension.

Citing the decision of the Division Bench of the Delhi High Court in the case of Mahavir Singh Narwal versus Union of India of 2005 in support of this case, the Chandigarh bench of AFT, comprising Justice Ghanshyam Prasad and Lieutenant General (retired) Justice N S Brar, decided that the lower court was neither legal nor justified and had wrongly rejected the suit of the petitioner.

The bench decided that the petitioner, former subedar Rohtash Singh, resident of Umrawal village, district Bhiwani, was entitled to get disability pension from the date of his discharge plus the arrears of three years prior to filing of the suit with eight per cent annual interest. It was stated that the rejection of Singh’s claim for grant of disability pension on the grounds that he was discharged from service at his own request and gave an undertaking that he would not claim any pension was absolutely illegal, arbitrary and bad in law.

Rohtash Singh joined the Regiment of Artillery on May 25, 1967. He had a head injury after he met with a serious accident on September 26, 1989.

The medical board proceedings conducted by the Military Hospital in Ambala Cantonment awarded him 30 per cent disability and he was discharged on September 1, 1992.

He approached the appropriate authority for the grant of disability pension, which was rejected by the Artillery Record, Nasik, on January 12, 1994, on the plea that he was discharged at his own request and hence not entitled for disability pension. He also filed an appeal against the rejection of his appeal which was also rejected by the competent authority on July 22, 1994.

The Punjab and Haryana High Court relegated the matter to the civil court on August 12, 2005. The civil court also rejected Singh’s appeal on the grounds that he was discharged from service at his own request on extreme compassionate grounds as per the Army Headquarters and he has approached the court after the lapse of nine years of rejection of his appeal.