Reply dated
11 Jun 14 (recd on 17 Jun 14)
to
RTI
Application DEXSW/R/2014/60027 dated 13 Feb 14
* * * * *
RTI MATTER
MOST
IMMEDIATE
F. No. 5 (1)2014/D (Pension/Legal)
Ministry of
Defence
Deptt. of
Ex-Servicemen Welfare
D
(Pension/Legal)
Room No. 224, ‘B’ Wing,
Sena Bhawan, New Delhi dated 11.06.14
To,
Sh. S. Y. Savur,
141, Jal Vayu Towers,
NGEF Layout Indira Nagar,
Bangalore – 560038
Subject:
Seeking information under RTI Act, 2005
Reference your
Online RTI application dated 13.02.14 on the above subject.
2. In continuation of your online RTI
application, the information with complete correspondence is forwarded
herewith.
Encl:
- As Above
Sd/------------
(R. K. Arora)
Under Secretary to the Govt of India &
CPIO
Tel: - 2301 5021
* * * * *
F. No. 1 (11)/2013-D(Pen/Legal)
F No. 39382/BoM/MS/555/CC/6A/E-1A
-18-
Ministry of Defence
D (Pen/Legal)
The case is
regarding examining the feasibility of filing appeal against the order dated
08.11.2011 (flagged) passed by Hon’ble AFT (RB) Chandigarh in OA No. 225/2011
filed by No. 1580622 Ex Spr Man Singh for grant of disability pension.
2. Facts of the case
are available vide Note 15 ante. The petitioner was enrolled in the Army on
29.12.1989 and was discharged from service on 31.03.2008 after rendering more
than 18 years service due to non availability of sheltered appointment in low
Medical Category for disability “FRACTURE
OF NECK FEMUR (LT) (OPTD).” His disability was assessed as neither attributable to nor aggravated by
Military service (NANA) @ 20% for life, since the injury was sustained at
his home while on annual leave. The claim of the petitioner for grant of
disability pension was fwd to PCDA (P) Allahabad. However, the same was
rejected by the PCDA (P) on the grounds that as the disability of the
petitioner was neither attributable nor
aggravated by Military service (NANA).
3. The petitioner
preferred appeals which were rejected by competent authority.
4. Aggrieved, the
petitioner filed OA No. 255/2011 in AFT (RB) Chandigarh for grant of disability
pension. The Hon’ble AFT (RB) Chandigarh, vide its order dated 08.11.2011
allowed the OA in favour of the petitioner. The operative part of the
judgment/order is as follows: -
“The respondents are directed to assess and release the disability
pension/disability element as the case may be with benefits of rounding off as
said above within six months on the receipt of this order. However, the arrears
shall be restricted to a period of 3 years prior to filing of this petition
with interest @ 10% per annum.”
5. In terms of the
eligibility conditions laid down under Rule 173 of the Pension Regulations for
the Army 1961 (Part-I), a disability pension may be granted to an individual
who is invalided out of service on account of disability which is attributable
to or aggravated by military service, and is assessed at 20% or above. In the
instant case, the disability of the petitioner was assessed as neither attributable nor aggravated by Military
service (NANA). Hence, the petitioner is not eligible for grant of
disability element of disability pension and the benefit of rounding off.
6. Service HQ opined
that indl being a NANA case, is not entitled to grant of disability pension.
Appeal should be filed to assail the impugned order (Note 15 ante).
7. JAG (Army) endorsed the view of Service
HQ (Note 5 ante).
8. The petitioner had filed MA (E) 1533/2012 for non-execution
of AFT order dated 08.11.2011. Accordingly a conditional sanction was issued on
18.12.2012.
9. The Hon’ble AFT (RB)
Chandigarh, vide its order dated 20.12.12 (Flagged) dismissed leave to appeal
in this case.
10. We may agree for
filing an appeal against the AFT Order dated 08.11.2011 and seek opinion of Min
of Law through LA (Defence) in the matter.
US
(P/L-I)
-19- (struck off)
-2-
The
Ld Solicitor General of India Shri Mohan Parasaran, has opined in Sept
2013 in similar ‘NANA’ case of Ex Sep Bashir Khan (Dairy No. 270/2013) to go
for SLP/Civil Appeal.
Further ASG Rakesh Kumar Khanna kas
also opined to go for SLP/Civil Appeal in similar ‘NANA’ case of Ex-Cfn Arad
Singh /OA No. 190/2012 F No. B/12048/2565/GEN/EME/Pers
‘X’
of noting 18 ante for approval.
Sd/------------------
06/12/2013
OSD(Pen) Sd/--------------
10/12/2013
JS
(ESW)
-3-
Action
may be taken by Service HQ to file appeal based on our ASG’s opinions as given
above.
2. Also pl examine whether Service HQ can
proceed with action for filing appeals in such cases without referring to DESW
since ASGs have given favourable opinions in similar cases/issues. Pl put up a
note on this aspect for consideration of Secy ESW immediately.
Sd/---------------------
11/12/13
OSD/PL Sd/--------- 12/12/13
US
(P/L)
-04-
Ministry of
defence
Deptt. of
Ex-Servicemen Welfare
******
Subject:- Processing of stereotypic court cases for
appeal on the strength of earlier advice tendered by Ld. SG/Ld. ASG –
instructions to the Service Headquarters
JS (ESW) observations at 3/anter refers.
2. It has been
experienced during processing of court cases for months that the Deptt receives
hundreds of court cases easily segregated into the following types: -
|
S No.
|
Case type
|
Opinion of
Ld SG/Ld ASG
|
Status
|
|
1
|
Extending the benefit of broad banding of disability meant for
“invalided out” Armed Forces Personnel Retired/discharged/released (leading
case of Ex Lt Gen Vijay Oberoi, OA No. 329 of 2010 in AFT Chandigarh – case
of post 1996 ear Armed Forces Personnel retired on attaining age of
superannuation
|
Ld ASG Vivek K Thanka opined in April 2011 to go for appeal.
Later on, on a separate reference the Ld SG of India Shri Rohinton F. Nariman
seconded in November 2012 to go for appeal in all cases where broad-banding
of disability has been allowed in Retired/discharged/releases cases (Flag A1)
|
Civil appeal no. 2258 of 2012 stands admitted by the Hon’ble
Supreme Court.
|
|
2
|
Extending the benefit of broad banding of disability meant for
“invalided out” Armed Forces personnel only to ineligible class of Armed
Force Personnel – Retired/discharged/released (leading case of ex Capt K. J.
S. Buttar, SLP No. 5591 of 2006 – case of pre-1996 era Armed Forces Personnel
discharged on completion of tenure.)
|
Ld. ASG Harin P Raval opined in Sept 2011 to go for review of
judgment of Hon’ble Supreme Court in KJS Buttar’s case. Later on, on a
reference separately Ld Solicitor General Shri. Rohintn F. Nariman seconded
in November 2012 for review of decision in KJS Buttar’s case (Flag A2)
|
The review petition stands filed before the Hon’ble Supreme
Court.
|
|
3
|
Granting disability pension to Armed Forces Personnel whose IDs
are assessed and graded by Medical Board as neither attributable nor
aggravated (NANA) by Military service.
|
Ld Solicitor General of India Shri Mohan Parasaran opined in
September 2013 to go for appeal in case of ex Sep Bashir Khan (Flag A3)
|
Drafting SLP is in process of being filed. Few appeals in “NANA”
cases are filed in the Supreme Court.
|
|
4
|
Granting benefit of trade rationalisation to pre-96 retirees
from 01.01.96 irrespective of the Govt instructions providing for flow of
benefits from 01.07.2009 (leading case of Jai Narayan Jakhar, CWP No. 15400
of 2006
|
Ld ASG Vivek K.Tankha has opined in March 2012 to go for appeal
in all such cases decided after issue of Govt policy letter dated 08.03.2010
|
Civil appeal has bee filed in number of cases decided on the
basis of Jai Narayan Jakhar case.
|
|
5
|
Granting parity of pension to Personnel Below Officer Rank
(PBoRs) and Other Ranks (ORs) vis-à-vis Viceroy Commissioned Officers even
when Table No. 133 tabulating pension of Viceroy Commissioned Officers has
been deleted from Govt instructions (leading case Hardev Singh OA No. 50 of
2010)
|
Ld ASGs have been opining to go for appeal in numerous cases of
like nature (Flag A5)
|
Civil appeal stands filed in number of cases decided by AFT in
common order of Hardev Singh.
|
|
6
|
Grant of Reservist Pension to ineligible Armed Forces Personnel
not rendered required length of 09 years active service plus 06 years of
reserve service
|
Ld ASG (Shri P. P. Malhotra) has opned in case of G. C. Singh
ex-Airman to go for appeal as required length of service (9 years regular + 6
years reserve service) is not rendered by the petitioner.
|
Draft SLP received from Central Agency Section, Supreme Court.
Forwarded to Service HQ for filing with supporting documents.
|
|
7
|
Grant of pensionary benefits in hony rank to pre-2006 retired
Havildars conferred Hony rank after retirement (leading case Sohan Lal Bawa
and Virender Singh
|
The matter is under consideration to evolve further course of
action.
|
SLP is being finalised on advice of LA (Def)
|
3. The stand of
Department in all the above mentioned specimen cases has crystallised and
endorsed by LA (Defence) as well as Law Officers including Ld SG of India.
There is hardly any scope for addition or deviation of Department stand. Processing
of hundreds of such cases at Department level on stereotypic line of action is
only adding burden to the stressed-to-limit officers of Pension/Legal Division
and delaying appeal process.
4. Processing of types
of cases mentioned above for appeals can be easily instructed to Service HQ
without routing the proposals through Department. This step will not only cut
down paper work at various levels to some extent but also reduce time take in
processing cases for appeal detailed in SOP drawn by D (AG).
5. Submitted for consideration whether
instructions may be issued to Service HQ and JAGs to process type of cases
mentioned at 1/6 above for appeal in consultation with respective JAGs without
routing such cases to the Department. In case of doubt or difference of
opinion, the Service HQ shall submit the matter to the Department for
directions.
Sd/----------------
24/12/2013
(R. K. Verma)
US (Pension/Legal-I)
Dt. 24.12.2013
OSD (Pension) -05-
Sd/------------
24/12/13
JS
(ESW)
A large number of judgments
are being passed by various AFTs which are required to be challenged by MoD.
Most of the cases pertain to the categories mentioned in the table given in
note 4 ante. It is proposed to direct the Service HQ to process appeals without
referring to DESW/MoD as proposed in para 5 pre-page as similar cases have
already been approved for filing appeals or appeals have already been
filed.
Submitted for approval please
Sd/-----------
16/12/13
Secy/ESW
-06-
I agree, except in case of Serial No.
7 on pre-page, where the SLP is yet to be approved before filing.
Sd/- Sangita Gairola
26.12.13
JS
(ESW)
-07-
Pl do the needful immediately
Sd/----------26/12/13
OSD/P Sd/---------- 27/12/13
US
(P/L-I)
-08-
Draft instruction to Service HQ /JAGs
submitted for approval.
Sd/------30/12/2013 OSD (Pen)
Sd/-----------
30/12/13/
JS (ESW) -09-
Copies may also be endorsed to MoD/Fin & CGDA/PCDAs
Sd/--------------
31/12/13
OSD
(P) Sd/----2/1/14
US
(P/L-I)
-10-
Copies endorsed to MoD (Fin)/ CGDA
& PCDA
Fair signed ……. Get issued Sd/---------- 02/01/2014
SO©
Issued
-----------------------------------Encl 11-A
-12-
Issued
------------------------------------Encl 12-A
-13-
Receipt------------------------------------Encl
13-A
-14-
Receipt-------------------------------------Encl
14-A
-15-
Receipt-------------------------------------Encl
15-A
-16-
Some reports have
appeared in some national dailies under various captions such as “Army Chief to
protest Defence Ministry treatment of Ex-Servicemen” etc. These reports have
drawn attention to some instructions
issued on 2.01.2014 by the Department with reference to processing certain
types of Court cases for Appeal. These reports have however presented the
entire matter without proper appreciation of facts. The instructions issued on
2.01.2014 were meant to simplify the process of decision making regarding
filing of Appeals wherever required and to avoid delays. The intention was not
to suggest that Appeals be automatically filed in each and every case. The
decision to file the Appeal may be exercised by Service HQ in consultation with
JAG in each case, as usual, and would depend upon the facts and circumstances
with reference to each case. Further, wherever there is a difference of opinion
the Service HQ can send such cases to the Department for consideration.
2. The other purpose
was to avoid different opinions of the Ministry of Law on identical issues. It
has been our experience that when the same issue was referred to different Ld
Law Officers, the opinions rendered by them, there was every scope, used to be
different compelling the Department to make another reference to the Ministry
of Law for reconsideration of the same. This processing not only involved time,
wastage of manpower, also used to irk the Ministry of Law.
3.
It may be kindly appreciated that there was no other intention of
this Department in issuing the ID N dated 2.1.2014 except for smoothening the
process of court matters. We may place the above facts before the Hon’ble
RRM/Hon’ble RM, for their kind perusal and directions, if any.
Sd/------------17/1/14
(R K Arora)
US, D (PEN/LEGAL)
DS
(Pen) Sd/--------------17/01/2014
OSD
(Pen) Sd/------------17/1/14
JS
(ESW) Sd/-------------17/1/14
Secy/ESW
:17:
Directions of RM on
the news item at page 14A may please be seen. The note at 16/N is in context of
certain news items that have appeared recently in some newspapers, regarding
the instructions issued on 2nd January, 2014 by the DESW regarding
processing of certain types of court cases for appeal (F/A). These instructions
were addressed to the JAG and the legal branch of AG and were meant essentially
to simplify the process of filing appeals in the specified types of cases.
2. The Department has
been receiving numerous cases from the Service HQ for decision regarding filing
of appeals and usually goes by the legal opinion of the JAG concerned and the
views of the learned law officers (ASG). There is often a substantial delay in
the processing of cases as various levels. Usually by the time they reach DESW
for final advice, the time limit for compliance/appeal are over and the only
option left is to approve conditional sanctions because the Hon AFTs levy
substantial costs for con-compliance on time. I had held a meeting with
officers of JAG to resolve the issue of delay. They have also been requested to
adhere strictly to the time schedule already laid down by way of a SOP for
dealing with such matters (copy at F/B). With a view to reducing the delay in
decisions on similar types of cases where legal advice was already available,
it was felt appropriate to issue instructions to the JAGs.
3. The intention was
not, however, to suggest automatic filing of appeals in each and every case.
Obviously, the facts of each case have to be examined by the concerned Service
HQ and the decision to file an appeal would be exercised by them only in
consultation with the JAG. Where the facts and circumstances of the cases are
different, the Department would continue to examine such cases and this also
has been mentioned in the last para of the instructions.
4. Since the
conclusions drawn by the media are based on an inaccurate interpretation of the
instructions, we may, if approved, consider issuing a rebuttal in the media as
per the formulation at F/X.
4.
Submitted for information and approval please.
Sd/----------------------
(Sangita Gairola)
Secretary (ESW)
20.1.2014
RRM Sd/--------23/1
RM
-18-
Rebuttal is not necessary.
RRM may call the Army Chief and
clarify the position.
Sd/---------27/1
-19-
RRM Have discussed with Army Chief Sd/-------- 28/1
Secretary/ESW
Sd/--------29/1
JS
(ESW) Sd/----------29/1
DS/P -20-
Bring up on
02.02.2014
SO
D(P/L) Sd/-----------31/1/
-21-
Ref N-17-18 ante
May like to see observations of Secy ESW at N-2 on AG/PS-4 IDN dt
20.1.2014 placed opposite.
Matter has been deliberated in Section
N.16 ante. N.17 recorded by Secy (ESW) placing Deptt’s views before Hon’ble RM
may be perused. It is seen from N-18-19 ante that Hon’ble RRM, on directions of
Hon’ble RM has discussed the matter with Army Chief.
Submitted for kind perusal and further orders, if any, w.r.t. our
IDN dt 2.01.2014.
Sd/---------------3/02/2014
US - D-Pen/Legal)
DS
(Pen)
-22-
Reference note 17/ante onwards.
2. This is regarding
processing of Court/AFT cases where SLP has already been filed in the Hon’ble
Supreme Court of India in similar cases. It was decided with the approval of
Secretary (ESW) that in such cases Service HQ may directly take up cases with
the Ministry of Law through the LA (Def) for filing SLP in such cases vide note
4 to 6/ ante. After having taken this decision an ID dated 02.01.2014 was
issued. Our IDN dated 02.01.2014 was issued with the intention to simplify the process
of decision making regarding filing of appeals in six identified categories of
cases, in order to avoid delays as well as to avoid different opinions of
Ministry of Law on identical issues. However, Service Headquarters have pointed
out that LA (Defence) is not accepting the cases for filing appeals directly.
As a result, there are roughly 275 cases pertaining to the six identified
categories, which are getting delayed in the process, and this situation could
not be allowed to continue without resolving the issues involved.
3. In this regard it is
proposed that the issue regarding sending the cases of SLP directly by the
Service HQ to LA (Def) may be taken up separately with Ministry of Law for
their views as to whether this kind of procedure is acceptable to the Ministry
of Law. Meanwhile, the appeals/SLP cases may continue to be processed and
referred to the LA (Def) through the Ministry.
Sd/------------
(R. K. Arora)
US (Pen/Legal-II)
Dt 04.02.2014
DS
(Pension) Sd/-------
04/02/2014
-23-
JS
(ESW) Urgent
Pl speak
Sd/-------
4/2
DS/P
-24-
Reference notes 22 and 23/ante.
2. This is regarding
processing if Court/AFT cases where SLP has already been file in the Hon’ble
Supreme Court of India in similar cases. It was earlier decided, with the
approval of Secretary (ESW), that in such cases Service HQ may directly take up
the cases with Ministry of Law through LA (Def) for filing SLP, vide note 4 to
6/ante. After having taken this decision an ID dated 02.01.2014 was issued. Our
IDN dated 02.10.2014 was issued with the intention to simplify the process of
decision making regarding filing of appeals in six identified categories of
cases, in order to avoid delays as well as to avoid different opinions of
Ministry of Law on identical issues. However, Service HQ have pointed out that
LA (Def) is not accepting the cases for filing appeals directly. One such file
(linked below) LA (Def) observed that
MoD may reconsider the decision, i.e. the procedure adopted vide
our IDN dated 02.01.2014, because the Law Ministry is supposed to entertain the
references from the administrative Ministry itself ad not from the Service HQ
directly.
3.
Keeping in view the observations of LA (Def), the fact that there
are roughly 275 cases pertaining to the six identified categories which are
getting delayed in the process and this
situation could not be allowed to continue without resolving the issues
involved, and also the fact that various concerns have been expressed and
Ministry’s intention behind issuing the said IDN has been generally not well
received, it may be appropriate to revert to the status quo ante i.e. prior to
issuing our IDN dated 02.01.2014. Accordingly, a draft IDN conveying the same
to Service HQ to the effect that the said IDN dated (02.01.2014) stands
withdrawn is placed opposite.
Sd/---------------------------
(R. K. Arora)
US (Pen/Legal-II)
Dt. 05.02.2014
DS
(PENSION) Sd/-----------05.02.2014
JS
(ESW) Draft ID note enclosed may
kindly be approved.
Sd/----6/2/14
Secy/ESW
RRM and RM had seen this matter at 18
& 19/N.
In view of the reasons mentioned in
24/N above, it is proposed to withdraw the earlier instructions.
Sd/-
Sangita Gairola
6-12-14
RRM Sd/- 6/2
RM Sd/-- 8/2
Def
Secy in meeting SO to Def Secy 8/2
Secy
(ESW) Sd/------ 10/2
JS
(ESW) Sd/------ 10/2
DS/P Sd/-------- 10/2
* * * * *
Please note: words “Service Hqrs” have been replaced with
‘Service HQ’
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