Tuesday, 17 June 2014

Why ID Note dated 02.01.2014 was issued by DESW and withdrawn

Reply dated 11 Jun 14 (recd on 17 Jun 14)
RTI Application DEXSW/R/2014/60027 dated 13 Feb 14

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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

          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

(R. K. Arora)
Under Secretary to the Govt of India & CPIO
Tel: - 2301 5021

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F. No. 1 (11)/2013-D(Pen/Legal)
F No. 39382/BoM/MS/555/CC/6A/E-1A

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)
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.

OSD(Pen)                                                                       Sd/--------------     



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.
OSD/PL      Sd/--------- 12/12/13
US (P/L)     

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
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.
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.
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.
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.
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.
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.
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.

(R. K. Verma)
US (Pension/Legal-I)
Dt. 24.12.2013
OSD (Pension)                        -05-
                                                                             Sd/------------ 24/12/13
                   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


          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
          Pl do the needful immediately
OSD/P        Sd/---------- 27/12/13

US (P/L-I)


          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)

          Copies endorsed to MoD (Fin)/ CGDA & PCDA

          Fair signed ……. Get issued    Sd/---------- 02/01/2014

Issued -----------------------------------Encl 11-A
Issued ------------------------------------Encl 12-A
Receipt------------------------------------Encl 13-A
Receipt-------------------------------------Encl 14-A
Receipt-------------------------------------Encl 15-A


          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.
(R K Arora)

DS (Pen)     Sd/--------------17/01/2014

OSD (Pen)   Sd/------------17/1/14

JS (ESW)     Sd/-------------17/1/14


          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.
(Sangita Gairola)
Secretary (ESW)
RRM                                        Sd/--------23/1


          Rebuttal is not necessary.

          RRM may call the Army Chief and clarify the position.

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/


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.
US - D-Pen/Legal)
DS (Pen)

          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.

(R. K. Arora)
US (Pen/Legal-II)
Dt 04.02.2014
DS (Pension)                  Sd/-------


JS (ESW)              Urgent
                             Pl speak
                                      Sd/------- 4/2


          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.   

(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.

          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
 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

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Please note:  words “Service Hqrs” have been replaced with ‘Service HQ’

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