Dis Pen

Ref: ESM/GC-M/09/39

Dated: 17 Dec 09

To: 1. Sh A K Antony, Defence Minister, Ministry of Defence, South Block, New Delhi-110 011 2. Dr M Veerappa Moily, Law Minister, Ministry of Law and Justice, 4th Foor, AWing, Shastri Bhawan, Dr Rajendra Prasad Road, New Delhi- 110 001 3. Defence Secretary, Ministry of Defence, South Block, New Delhi- 110 011 4. Secretary, Ex-Servicemen Welfare Dept, Ministry of Defence, South Block, New Delhi – 110 011 5. Secretary to Govt of India, Ministry of Law and Justice, 4th Floor, A-Wing, Shastri Bhawan, Dr Rajendra Prasad Road, New Delhi – 110 001 6. Secretary to Govt of India, Ministry of Social Justice & Empowerment, A-Wing, Shastri Bhawan, Dr Rajendra Prasad Road, New Delhi – 110 001 7. Solicitor General, Solicitor General’s Office, Supreme Court of India, New Delhi- 110 001 8. Chief of the Army Staff, COAS Secretariat, South Block, New Delhi- 110 011 ( Note: I would humbly request all addressees to please go through this personally and not merely pass it on to subordinate staff) UNETHICAL, IRRESPONSIBLE AND EGO-BASED LITIGATION & APPEALS INITIATED BY GOVERNMENT DEPARTMENTS, ESPECIALLY AGAINST DISABLED SOLDIERS GRANTED DISABILITY PENSION BY HON’BLE COURTS Sir / Ma’am, 1. The statement of Sh Veerapa Moily, seeking to make our government a responsible and reluctant litigant was much welcomed by the society at large. While the intentions of the government are highly appreciated, it is most definitely required to rein in the attitude of officialdom which views all litigants as Enemies of the State. Whomsoever is aggrieved by an action of the government is reluctantly forced to knock the doors of our Hon’ble Courts of Law but even in case of favourable verdicts which are logical, equitable and based on earlier precedents, some of our ministries and departments make it a point to file frivolous, misleading and unethical appeals not only leading to a burden on the judiciary but also forcing a waste on the exchequer and putting burden on the earnings of poor litigants. 2. A case in point is the vastly favourable verdicts of our Courts in matters involving grant of disability pension to our disabled soldiers. The Ministry of Defence, more specifically, the Department of Pensions of the said Ministry and the Personnel Services Directorate of the Army Headquarters, are making it a point to file appeals against almost all decisions of Hon’ble Courts rendered in favour of disabled soldiers. It is not understood as to what harm have these poor disabled soldiers caused to our government that time and again the said Ministry is filing appeals against grant of disability pension. More than the logic behind the decisions, it is the ego of the mighty government machinery which swings into action once a verdict is pronounced in favour of a disabled soldier. Specific examples are enclosed which show that the Ministry of Defence had been filing appeals by brushing under the carpet the legal opinion of the office of Solicitor General and verdicts of the Hon’ble Supreme Court. The said Ministry continues to file Appeals against the decisions of Single Benches before Division Benches and of Division Benches before the Hon’ble Supreme Court even when the law is well settled by the Hon’ble Supreme Court. A noting sheet obtained under the RTI Act on one such issue showing that the Ministry of Defence

ignored legal opinion of the office of the Solicitor General is attached with this letter to you. In fact, in the Hon’ble Punjab & Haryana High Court, most of the Letter Patents Appeals (LPAs) filed by the Union Government before Division Benches are appeals against favourable verdicts granting disability pension to disabled soldiers. Lower staff at the Pension wing of the Defence Ministry is also known to prepare misleading and deceptive noting sheets which are put up to senior officers and even the Raksha Mantri, who in good faith affix their initials leaving the gallery open to such officers who then flaunt that the said approvals by stating that the same have the sanction of the Defence Minister. It is also learnt that the officers in the Defence Ministry have asked Govt lawyers in writing to change their legal opinion when such lawyers had advised against filing of appeals. 3. Firstly, the military authorities and the Ministry of Defence are not sensitive enough to the needs of disabled personnel and make it a point to mostly refuse disability pension claims on the grounds that such disabilities are ‘neither attributable to, nor aggravated by military service’, not realising the ground realities of the physical and mental stress and strain of service that our soldiers undergo in both peace and field areas. The rules in this regard are interpreted in a narrow and negative manner rather than a liberal and compensatory approach for which these are meant. Moreover it is not appreciated by the said Ministry that while civilian employees have the benefit of the protection of Section 47 of the People with Disabilities Act 1995 which provides that disabled civil personnel cannot be released from service in case of disabilities and shall be retained and paid full remuneration till the age of retirement (60 Years), the said luxury is not available to our soldiers. Our soldiers are discharged and released on medical grounds even because of minor ailments and that too mostly without pension or even disability pension. So while on the civil side, a disabled employee remains entitled to full pay till the age of 60 years, defence personnel are not guaranteed pension or even disability pension even when released from service due to very minor medical problems. It is also not realised that as on date after the 6th Pay Commission, the minimum guaranteed disability element of pension admissible to a Sepoy who is 20% disabled is a measly amount just over Rs 600/-. 4. Another sad precedent is the tendency of some of our Departments to create false and artificial links between decisions of our Courts and pending cases before the Hon’ble Supreme Court and by requesting Hon’ble High Courts and other fora to await decision of the Supreme Court in ‘similar cases’. It is just like saying that just because one remote case involving the issue of say ‘promotion’ is pending before the Hon’ble Supreme Court and is under an interim stay, all courts below should stop hearing cases involving the subject of promotion of employees and should adjourn such cases sine die. 5. Unnecessary litigation against our disabled soldiers not only causes extreme financial and psychological distress to them but is also against the overall spirit of the policy in this regard of the government and the stated position of the Law Ministry. 6. I hope that all the esteemed addressees of this letter would be able to instil some sensitivity into the minds of the officers dealing with such issues to go slow on antidisabled activities and to ensure that the dues of the soldiers are taken care of in the first instance. Yours Sincerely, Sd/(Lt Col SS Sohi, Retd). President, Ex-Servicemen Grievances Cell (Regd). House No 1121, Sector 71, Mohali, Punjab – 160 071