The irony is hard to miss. While India celebrates the performance of the armed forces in the recent, short-lived conflict with Pakistan in Balakot and the political class exploits them for electoral gains, the military personnel continue to fight a battle with the government in the Supreme Court.
The case pertains to not granting non-functional upgradation (NFU) to the officers of the armed forces that members of some other central services enjoy. The government has been delaying and dithering on financially compensating India’s armed forces that lack adequate promotional avenues.
What is NFU? How does it work?
Civil services are classified into All India Services – Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS) – and Central Civil Services (CCS) – Group A and Group B. Based on cadre review, the CCS Group A have been further sub-divided into Organised (constituted by the Cadre Controlling Authority) and Non-Organised.
Keeping in view the stagnation in promotion of CCS Group A officers, the Sixth Central Pay Commission recommended NFU, linking their pay scales with those of their batch officers in the IAS. So, two years after the IAS officers are promoted, their batchmates in these services are automatically upgraded to the same level on a non-functional basis, irrespective of whether they are actually promoted or not. The usual system of promotion, meanwhile, continues. This upgrading is applicable for all ranks of officers up to the rank of Additional Secretary.
Non-grant of NFU to certain services
The government had initially granted NFU to only CCS Group A (Organised) even though the pay commission made no such distinction. In 2008 it was extended to the All India Services — IPS and IFS. The IAS as such is not entitled to NFU but its promotions are used as a benchmark as these are much faster than the other services.
The officers of the armed forces face maximum stagnation due to the conical pyramidical structure. An IAS officer gets promoted to the rank of Joint Secretary, equivalent to a Major General, after 18 to 20 years in service. An army officer becomes due for promotion to the rank of Major General with 32 to 33 years in service. Most army officers retire in the rank of Colonel at age of 54 years, while all IAS officers retire as Additional Secretary and above, which is equivalent to Lt Gen and above.
The government’s stand in not extending the NFU to the armed forces and the Central Armed Police Forces (CAPF) was that these two forces do not meet the criteria of being ‘Organised’ as per the policy laid down.
A bitter battle has ensued over the last decade between the CAPF and the Ministry of Home Affairs, and between the armed forces and the Ministry of Defence. The CAPF’s case went to the Supreme Court, which upheld the judgment of the Delhi High Court on 5 February 2019, which granted them NFU.
Case of the armed forces
The armed forces, on the other hand, found hurdle in a government unwilling to extend the NFU to them. Years after first taking up the matter in 2008, the armed forces strongly presented its case before the Seventh Central Pay Commission. While its chairman supported their inclusion in the NFU system, the other two members found the NFU concept flawed. They said it was unmeritorious and must be done away with for all services. The government took advantage of this ambiguity and summarily rejected the case, causing a lot of resentment among both the serving and the retired officers.
After dilly-dallying by the government at subsequent hearings, the case was finally heard on 12 March 2019. The judgement stands reserved.
Government’s arguments – and counter-arguments
Most of the arguments presented by the government would not withstand a layman’s scrutiny let alone legal scrutiny. For instance:
Policy making is government’s exclusive domain.Yes, it is indeed, but all our pay commissions have correlated the pay and allowances of all services, including the armed forces, and tried to maintain parity. The government should be responsible enough to ensure that its policies are on an equal basis and not selective and biased against the armed forces.
Constitutional right to equality enshrined in Article 14 and 16 is not applicable to armed forces.This is untenable. While Article 33 of theConstitution empowers Parliament to restrict or abrogate somefundamental rights of the armed forces, to misinterpret it to include right to equality in salary and status goes against the very spirit of theConstitution.
NFU to armed forces will have adverse effect on status, command and control, discipline, efficiency and morale, and reduce the desire to aspire for higher ranks. If anything, the NFU will only provide a greater degree of motivation to super ceded officers. The armed forces have enough safeguards in form of rules, regulations, law and the appraisal system to deal with errant, non-motivated and non performing officers.
NFU will result in additional financial burden on government.On 12 March 2019 the government for the first time gave out the details of the financial burden – ₹1,065 crore for arrears and ₹269 crore as annual recurring cost. If the financial burden is unbearable, then NFU should be scrapped for all services. The arrears can be given in instalments and Rs 269 crore is hardly a burden on the government.
Armed forces enjoy various prerequisites and amenities that are not available to the civil services.Most of the ‘subsidised’ amenities are available at par to the other services in one form or the other. Apart from these, the other facilities are from the armed forces private funds built up over the years through contributions by all ranks. This argument only reflects on the petty mind of the bureaucrats.
The armed forces are entitled to Military Service Pay (MSP).The MSP is based on the erstwhile Special Disturbance Allowance. It is meant to address the intangible constraints and disadvantages unique to military personnel. It is certainly not a compensation for financial loss due to stagnation which is the basis for the NFU.
Either due to ignorance or guided by inappropriate advice, the governments since Independence have discriminated against the armed forces in the matter of pay and allowance. Anomalies of pay commissions are only resolved through prolonged litigation stretching over 10-15 years.
The government should be responsible enough to ensure that its policies are on an equal basis and not selective and biased against the armed forces.
The armed forces are in the hearts and minds of the public and the political parties hope to win elections by exploiting the soldiers, and yet the government is fighting them tooth and nail in courts for a mere Rs 269 crore.
Lt Gen H S Panag PVSM, AVSM (R) served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post retirement, he was Member of Armed Forces Tribunal.
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