Defence Pension Regulations Are Under The Army Act Passed By The Parliament Of India

Defence Pension Regulations Are Under The Army Act Passed By The Parliament Of India

Editorial : Acts of Parliament cannot be messed around by neither by any Department of the Government nor by its Departmental Secretary or even the Concerned Minister.

In 2016 / 2017 the CGDA had acted like an extra constitutional authority and messed around the Govt Approval of 7^th Pay Commission. In 2019 it again defied everything on revision of PENSION as per OROP and acted on its own biased interpretations and caused immense harm to the defence pensioners. This has been rectified only now by the Honourable Sumpreme Court.

In fact now it has become imperative that the Department of Ex Servicemen Welfare should be headed by a Lt General as a Secretary to Govt of India and the staff down wards should be a mix of Civil and Military akin to Department of Military Affairs.

Major Navdeep’s reply to the Dept of ESW seeking public comments on the proposed finalization of PENSION Regulation 2021 is worth reading and is given below.

From : Major Navdeep Singh

To :Secretary, Department of Ex-Servicemen Welfare,

Room No 5-A, South Block, Ministry of Defence, New Delhi-110011

04 April 2022

CONCERNS AND ISSUES REGARDING THE PROPOSED PENSION REGULATIONS- 2021

1. This is in reference to your message dated 11 March 2022 seeking public comments on the proposed finalization of “Pension Regulations 2021” and thereafter to render statutory status to them.

• At the outset, I would like to point out that the Army Act, 1950 lays down the subjects where statutory rules and regulations can be initiated by the Government. The Rule making power is specified in Section 191 of the Act and does not contain any rule-making authority qua pension. The regulation-making power is specified in Section 192 and limits itself to the “purposes” of the Army Act, and needless to state, the Army Act does not contain any “purpose” in respect of “pension” and also does not apply to retirees. On the other hand, The Navy Act, 1957 provides the authority to make statutory regulations for pension under Section 184(2)(j). The same is also the reason why post-retirement benefits in case of the Army have till date not been initiated under the Army Act or statutory rules or regulations. In fact, even the Regulations for the Army, 1987, as amended from time to time, are non-statutory in nature. It would therefore be in the fitness of things to label this document “Pension Compendium-

2021” rather than Regulations, for the above reason and also reasons given in succeeding paragraphs. Even otherwise, it is well known that the process of amending and altering statutory documents is very cumbersome and difficult and also cannot be initiated by mere executive action such as issuance of ‘Correction Slips’ that can be undertaken with non-statutory provisions, which is more desirable.

• Secondly, I would also like to point out that the so-called “Pension Regualtions-2008” (the ones that your department is planning to make statutory by naming them Pension Regulations 2021), were initiated only as a compendium of updated pensionary provisions and were issued through a very suspect process which was discussed, with full inputs from the Ministry of Defence, in Paragraph 2.4.8 of the

Raksha Mantri’s Committee of Experts (Appended herewith as Flag-A), of which even I was a member. The top ministry hierarchy was informed by the staff of the then DESW and Defence Accounts Department that this was just an updated compendium

in the form of a book based on existing authority letters and which made no financial or drafting changes and were issued after endorsing that the “RM has seen”. But a close perusal of the ‘Regulations’ revealed that not only were many regulations re-drafted but many of these related to financial aspects were also incorporated without any authority. Some examples were recorded by the Committee in Paragraph 2.4.8 (supra). The following comments on the noting sheets while commencing this exercise or introducing these new “Regulations”, deserve your special attention:

“8…These Regulations are not being redrafted but are only being revised to incorporate the various amendments…”

Sd/-

Harbans Singh

Director (Pen/Policy)

24.9.2008

“8. As no new provision has been made in the revised Pension Regulations for the Army Part-I & Part-II, the financial implications are reported to be nil…”

Sd/-

Harbans Singh

Director (Pen/Policy)

27.08.2010

• For some more background, the said ‘Regulations’ were drafted by a retired officer of the Defence Accounts Department, namely Sh KC Gupta, a retired ACDA. A Group of Officers from the same Defence Accounts Department was tasked to liaise on the subject and no record has been maintained in the Ministry as to who were the members of this motley group. These Regulations are not just an updated compendium as projected, but changes, subtle and direct, have been made by the said group at their own level, without any authority, and presented further that there are no ‘financial changes’ or ‘redrafting’ whereas this is far from truth and some specific instances have been provided in the Committee Report itself (Flag-A supra). You would appreciate that the original Pension Regulations 1961 have been amended and altered over the years by way of various recommendations of the successive Pay Commissions after cabinet approval, by cabinet approved reports of Committee of Secretaries or Group of Ministers, by way of judicial directions, by way of mutatis mutandis changes on the civil side by the Department of Pensions and Pensioners’ Welfare (DoPPW) etc. The “Pension Regulations-2008” were meant to simply update the provisions I the form of a compendium alongwith the authority of the changes by way of a Memorandum Explanatory.

• However, if you look towards the Memo Explanatory closely (a small part enclosed as Flag-B), you will find that many of these changes have been made without any authority of the Cabinet or the Government or existing instructions and have simply been inserted in their own language by the officers deputed to compile this compendium (the names and identity of whom are unknown even to the MoD). For example, if you see Regulations 2, 4, 6 8 & 9, the Memo Explanatory says it has been

taken from the Central Civil Services (Pension) Rules. Now where is the authority to transpose the CCS Rules onto Army pensioners? When did the Government or the Cabinet take that decision? Could the officers compiling the compendium simply add such Regulations and draft them in their own language and flippantly mention that these are modelled after the CCS Rules? They were not given such authority and even while processing the Regulations on file, they made no mention that they had made such changes, and the notings rather say that there is no financial change or re-drafting and only the existing rules and provisions are being incorporated based upon existing authorities. In case, the modalities of CCS Rules need to be adopted, there is a proper way to be followed under the Rules of Business and administrative procedures, which cannot be done in this manner through a sleight of hand. See also Regulation 5, who gave the authority to the drafters of the so-called Regulations to draft a new Regulation for the Army based on the Navy Regulations? The memo explanatory states at many places that the original regulations have been “modified”, under whose authority is the question that arises? The officers tasked to draft this document were not given the authority to re-draft, modify, alter or create new provisions and were only asked to update them based upon the orders issued from time to time. Further, if you read certain “Regulations” very closely, the language has been subtly changed at the level by the staff of the defence accounts department to tide over judicial dicta. Who gave them the authority to alter the language without any such change authorised by the Government?

• There is also no scope of making these ‘Regulations’ applicable either from 2008 or 2021 since both dates have no connection with the pensionary provisions being compiled. Most of these provisions are based on Govt letters that were issued after the 4^th, 5^th, 6^th or 7^th Central Pay Commissions or after decisions by the GoMs or COSs. All such provisions, and consequently all such clauses in the compendium (labelled ‘Regulations’) therefore have a separate date of applicability and cannot be combined as such with one date of applicability. This will create far reaching problems not only for the pensioners but also for the Government. This again makes it a good case just to name them an updated “compendium” with the dates of applicability as already mentioned in the separate (actual) authorities cited in the Memo Explanatory.

• It may also be appreciated that such a serious process cannot be left to only the staff of the defence accounts department or MoD (Finance) and must go through the eyes of stakeholders and experts who can sieve through each clause with a very minute vision, discuss, debate, check, cross-check and then approve its validity or applicability. This cannot be, and must not be, left to only one section of officers enabling their will over millions of pensioners and serving defence personnel. Overreliance on any one stakeholder would also not be in the fitness of things. It is also well known that it is very difficult for an untrained or inexperienced eye to catch loopholes in such provisions (as happened the last time when the entire system failed to latch on to what was actually happening), and hence requires a proper discussion and deliberation. It is hence requested that a team may be constituted at your level consisting of representatives of the DESW, the CGDA, the three services, pensioner organisations and independent subject experts to examine the draft clause by clause, word by word and comma by comma. I am afraid, without such exercise, we would not be able to reach a legally and practically sustainable result.

• In nutshell, in view of the above concerns and observations, hence, I would request and recommend the following:

• There is no reason for making the document statutory and the same may simply be called “Pension Compendium-2021” or “Pension Compilation” or any other suitable term. The reasons are provided by me in Para 2 above. This will also leave easy scope for any progressive amendment, alteration or correction. Even otherwise, the Army Act does not provide the authority to make regulations concerning pensionary benefits.

• There is no reason for making this compilation applicable from any particular cut-off date, such as 2008 or 2021, since that contravenes the provisions mentioned in the draft, each being applicable from a different date, such as 1986, 1996, 2006, 2012, 2016 etc. Each clause is based upon different govt letters which have different dates of applicability.

• The current draft, which is actually the 2008 version, and which you intend making statutory, was drafted by a retired officer of the defence accounts department and further worked upon by a team whose names and details are not available. The same document was presented to higher staff of the Ministry with the specific note that it was merely an incorporation of various amendments from time to time and involved no financial changes or re-drafting of existing regulations. However, this statement was incorrect and far from truth since many changes were made in the language of the provisions by these officers and which was not specifically pointed out to the Ministry. Many such changes are without any authority as pointed out in Para 5 above. The language of regulations and letters issued over many years and approved by the Govt, the cabinet and judicial orders could not have been altered, more so, when a statement had been made on file that there would be no ‘redrafting’.

• A proper procedure of constituting stakeholders and experts with representatives from the DESW, pensioner organisations, Defence Accounts Department, the Army HQ and independent specialists may be arranged who must analyse each provision/regulation one by one with its purported authority and then approve it for further action. The process must not be allowed to be carried out in a one-way manner by overreliance on a draft essentially prepared by a retired officer of the Defence Accounts Department.

• The above is being brought to your knowledge for necessary information and action with a hope that it is considered in its entirety.

Sd/-

Navdeep Singh

Advocate, High Court

FLAG-A

2.4.8 Suspect Legality of Pension Regulations, 2008 and Entitlement Rules, 2010:

The Pension Regulations for the Army, 1961 and the Entitlement Rules, 1982, both were, in recent times purportedly replaced by the Pension Regulations 2008 and the Entitlement Rules, 2010, by issuance of a cryptic letter by the DESW.

It may be recalled that the basic Pension Regulations for the Army are not statutory in nature and are in fact a compendium of procedural rules and various pensionary policies implemented from time to time after implementation of successive pay commission recommendations as approved by the Union Cabinet or policy changes undertaken on the civil side (currently by the Department of Pension and Pensioners’ Welfare/DoPPW).

It was therefore a surprise to see the promulgation of the Pension Regulations, 2008, and also the Entitlement Rules, 2010, since no substantive changes of entitlement can be undertaken without a due democratic process of discussions with stakeholders or without approval of the DoPPW which alone can endorse pensionary policies for civil, railway and defence employees as per Schedule of the Allocation of Business Rules, 1961, which is appended as Annexure-60.

When we raised the question about the legality of the Pension Regulations, it was intimated to us by representatives of the DESW that as also informed to the top echelons of the DESW, the new Pension Regulations, 2008 were merely a collection of latest policies as issued from time to time and made no substantive or material changes to Pension Regulations, 1961. We were informed that it was just an exercise undertaken by officers of the Defence Accounts Department of collating all policies in one compilation for the ease of reference and operation. We have also been informed that no minutes have been maintained about any discussions undertaken while ‘compiling’ these so called ‘Regulations’. We were candidly however informed that these do not have the sanction of the DoPPW as required under the Rules of Business and even the higher authorities did not minutely go through the same since they were intimated that these ‘Regulations’ were merely a collection of the latest orders and not new rules per se. We were also informed that these were issued to the environment after the file was ‘seen’ by the then Raksha Mantri.

We are however constrained to observe that the higher echelons of the DESW or of the MoD or even the then Raksha Mantri have been kept totally in the dark about the reality and illegality of these ‘Regulations’ or the fact that many changes have been incorporated in the same by a sleight of hand in the name of ‘compiling’ existing policies.

To take a very few examples- the language of Regulation 16 of the Pension Regulations 1961 clearly implies that (unlike in the civil services) pension is not forfeited in the defence services on voluntary resignation unless a person is called upon to resign by the organisation or called upon to retire and he refuses to do so. However, while ostensibly ‘compiling’ the said Regulation as Pension Regulations 2008, it has been cleverly and innocuously provided in Note 5 under Regulation 17 that pension shall be forfeited on resignation. The reason of this deceivingly clever attempt is not far to seek. Based on Regulation 16, the Supreme Court in Union of India Vs Lt Col PS Bhargava 1997 AIR (SC) 565 had ruled that under the Pension Regulations, there was noautomatic forfeiture of service for pension or gratuity unless the person was called upon to resign or retire, this of course was different than the view prevailing in the Accounts wing or even in the Services HQ. To cleverly blunt-out the effect of the Supreme Court decision and to override the law with their own interpretation, the innocuous looking note has been added in the Pension Regulations 2008, but alas, without any sanction of the Union Cabinet, without due process, without approval of the DoPPW and against law laid down by the Supreme Court. If we may ask, who gave the drafter of these “Regulations” the authority to substantial rights of defence personnel?

Similarly in Entitlement Rules, 2010, many progressive provisions of the actual ‘Entitlement Rules 1982’ related to disabled soldiers have been removed, amended or blunted out. Even the definition of ‘invalidation’ as provided in Rule 4 of Entitlement Rules, 1982 (that any person who is in a low medical category at the time of release from service shall be deemed to have been ‘invalided’ out for the purposes of disability pension) on which many decisions of judicial fora including the Supreme Court, had been rendered, has been reworded to suit the interpretation of a few officers, but again without any permission or sanctity of law.

There are many other regressive changes in these provisions with which we do not want to burden this Report. It would be enough to say that the above examples are just two instances that we have pointed out to bring to the light for the eyes of senior officers of the DESW that the new provisions are not just compilations of instructions issued after pay commissions etc but illegal alteration of substantive provisions of the actual Pension Regulations and an attempt to circumvent the law laid down by way of judicial intervention. The compiling of this ‘compendium’ is not so innocent as it has been made out to be, to us or to senior officers of the DESW.

The Committee hence regretfully observes that the so called ‘Pension Regulations, 2008’ and ‘Entitlement Rules, 2010’ have no sanctity of law and are not validly issued documents. We say so on the strength of the following grounds:

• That these documents are not just a ‘collection’ of latest instructions etc issued from time to time after implementation of successive pay commission reports as has been projected very innocently. Many substantive provisions of the actual regulations stand amended by way of a sleight of hand in these so called ‘Regulations’. For example, there is no pay commission report and acceptance thereof which directs a change in the pensionary benefits on resignation in the defence services or the definition of ‘invalidation’, besides multiple other changes illegally carried out which we are not noting so as not to burden the dockets of our report.

• That no approval of the Union Cabinet has been obtained on these changes introduced cleverly in the text of these ‘Regulations’ and also no approval from the DoPPW which alone is authorized as per the Allocation of Business Rules, 1961, to approve pensionary provisions of civil, railway and defence personnel.

• That there has been no due democratic process or even any discussion with stakeholders before introducing these ‘Regulations’ or ‘Rules’. Needless to state, rules and pensionary policies cannot be imposed as one-way traffic by clandestinely introducing amendments by changing the language of substantive provisions in the garb of making a ‘compilation’.

• That no recorded minutes or notes of any alterations or amendments are available and the work of reframing and rewording had been handed over to officials of the Defence Accounts Department. Hence ultimately, the language chosen and imposed by a few officers has been circulated in the form of ‘Regulations’ and that too by altering the precious rights of retirees. Even the then Raksha Mantri was not informed about the true picture and the file was apparently simply shown to him without informing him about the fact that substantive provisions and rights of retirees had been altered. Thereafter, the

‘Regulations’ were simply circulated by way of a letter stating ‘RM has seen’.

• Pension Regulations of the three services are pari materia to a great extent. While these Regulations of 2008 have been issued only for the Army, we are told that the other two services continue with the old (actual) Regulations. The question arises whether such a situation be allowed to prevail wherein different services are governed by varied provisions and that the Army is saddled with regressive changes which are not applied to the other two services.

The Committee hence strongly observes that the so-called ‘Pension Regulations, 2008’ or the ‘Entitlement Rules, 2010’ have no sanctity of law as far as alteration of entitlements is concerned. The same can at best be adopted to regulate procedural aspects and if there is a conflict between the same and the actual Pension Regulations 1961 or actual Entitlement Rules 1982 thereby affecting the rights of pensioners negatively, then the Regulations of 1961 and Rules of 1982 shall prevail to determine the entitlement.

The Committee also recommends that any such changes in the future may be perused by senior officers of the Ministry with the minutest eye so that no amendment of beneficial or welfare oriented provisions is carried out by a sleight of hand. In fact, any change that may be recommended should be first put before the Standing Committee for Welfare of Ex-Servicemen as discussed in preceding parts of this Report. We would have recommended an enquiry into the officers involved in this crude attempt to change the entitlements of pensioners and disabled soldiers but refrain ourselves from doing so since many officers involved in this episode would have retired by now.

FLAG-B