Final White Paper on Rank Pay – Is there Self- Exculpatory Mendacity for Discrimination by the letter dated 27.12.2012

There are six things that the LORD hates, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers.

The Bible, Proverbs 6:16–19

Uttering falsehood …… destroys the conscience altogether.

Swami Shivananda

"Truly Allah guides not one who transgresses and lies."

The Quran, Surah 40:28.

One who speaks lies shall fall into hell and burn. In all the world, the most blessed and sanctified are those who remain absorbed in Truth. One who eliminates selfishness and conceit is redeemed in the Court of the Lord.

                                                                        Shri Guru Granth Sahib page 142

(Please note: - above quotations are strictly in the alphabetical order of the religions – Christianity, Hinduism, Islam, and Sikhism.)

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1.         Does the GoI/MoD letter dated 27.12.2012 want to achieve by its exculpatory mendacity what it could not legally? Does it want to minimise payments to Armed Forces officers and NoK in line with its appeals in the Rank Pay case? Does it want to oppose/bypass the Hon’ble Supreme Court’s Court order on 8.3.2010 and the Court’s order dated 4.9.2012 declining to modify/recall/re-hear it order of 8.3.2010, and deciding in finality that all similarly situated officers who have, and those who have not, approached Courts/Tribunals are to be paid Rank Pay as per the “reasoning of the Kerala High Court in OP 2448/1996 and WA 518/1999? Does it want to stand on (false?) prestige as petitioner/respondent in IA No.9 of 2010 in TP (C) 56 of 2007 and related cases? Does it a perceive immunity from prosecution of concerned officers because permission of the Competent Authority (Union of India) is required to prosecute them and is unaware that, as per a Supreme Court order, no communications within 4 months means a "go ahead"? Then why the executive fiat/fatwa dated 27.12.2012?    

2.         MoD, with the concurrence of the Min of Fin’s Dept of Expenditure and Defence/Finance, by its order dated 27.12.2012 has, intentionally or unintentionally, discriminated between officers eligible for Rank Pay “as on 1.1.1986” and those eligible as per the Courts’ order “with retrospective effect from 1.1.1986.” There is a clear attempt to clear itself of the falsehood that it is discriminating between officers of the Armed Forces by quoting wrongly that “the aforesaid Order of the Hon’ble Supreme Court”……“upholding the Order of the Hon’ble High Court passed on 5.10.1998” in (the) case of Maj Dhanapalan. Any reader (of the proceedings in the Courts) with average intellectual capacity would not arrive at the same conclusion as MoD because the Hon’ble Supreme Court wrote in its order of 4.9.2012 that “…on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Maj A. K. Dhanapalan was dismissed by this Court on August, 2005……” In simple and easy words, the Hon’ble Supreme Court had refused, in year 2005, to hear the UoI & Ors in the SLP (CC) 5908 of 2005.   

3.         There is Stare Decisis [Latin, ‘Let the decision stand.’] - The policy of courts to abide by or adhere to principles established by decisions in earlier cases. For stare decisis to be effective, each judicial pronouncement must have one of the High Courts or the Supreme Court declare what the law is in a precedent-setting case. The Hon’ble High Court of Kerala and the Hon’ble Supreme Court have both served as precedential bodies, resolving conflicting interpretations of law or dealing with the Rank Pay issue by the decisions of these Courts in Maj A.K. Dhanapalan vs. UoI & Others in OP 2448/1996, UoI & Others vs. Maj Dhanapalan in WA 518/1999 and SLP (CC) 5908/2005. That has become a judicial precedent in the Rank Pay Issue in TP (C) 56 of 2007 and the subsequent IA No. 9 of 2010 in TP (C) 56 of 2007.

4.         Having established that, it is time to consider the methodology of promotion in the Armed Forces that prevailed in 1986 so as to rule out any discrimination in the policy and procedure in the Armed Forces for promoting officers to the next higher rank. The procedure is as follows : -

(a) Time Scale Promotions: - All eligible Lieutenants and Captains (and equivalent in the Navy and Air Force) are promoted to the rank of Captain and Major (and equivalent in the Navy and Air Force) respectively on the same date because of Service exigencies – subject to

(i) Numbers not exceeding approved vacancies in the cadre,

(ii) Not being away on training courses,

(iii) Not being temporarily medically unfit on due date,

(iv) Being found fit for promotion on a later date,

(v) Not passing the promotion when his/their turn for promotion came up, etc.

So, there will be many from a single course/entry (batch in civilian Services) due for promotion to Captain and Major (and equivalent in the Navy and Air Force) who could have been promoted on subsequent dates to 1.1.1986.

(b) Select Promotions: - Promotion Boards (PBs) considered all eligible Majors (and equivalent in the Navy and Air Force) for promotion to the rank of Lt Col, officers of the rank of Lt Col (and equivalent in the Navy and Air Force) to the rank of Colonel (and equivalent in the Navy and Air Force), officers of the ranks of Colonel (and equivalent in the Navy and Air Force) to the rank of Brigadier (and equivalent in the Navy and Air Force), depending on the projected vacancies that

(i) Numbers not exceeding the cadre vacancies (till implementation of the AVSC’s recommendations),

(ii) Be medically fit or attain medical fitness within the validity of the PB period,

(iii) Promotion, pre-mature retirement, superannuation of the higher ranked officer against whose vacancy every Major, Lt Col, Col (and equivalent in the Navy and Air Force) cleared by the PB would eventually be promoted to the respective higher rank(s).

So, there will be many from a course due for promotion to Lt Col and higher to Colonel and Brigadiers (and equivalent in the Navy and Air Force) who would have been promoted on subsequent dates to 1.1.1986 as and when vacancies arose because of reasons stated in sub-paras (b) (i), (ii) and (iii).

5.         In an extensive search of documents, policies and procedures, there is no judicial precedent for UoI/MoD to deny payment of Rank Pay to all officers of the ranks Capt to Brig (and their equivalents) irrespective of the date they attain the ranks of Captain, Major, Lt Col, Colonel and Brigadier (and their equivalents in the Navy and, Air Force). GoI Resolutions approving the Reports of the 4^th (and 5^th) Central Pay Commission(s), the Gazette Extraordinary notifications or 4^th and 5^th CPC recommendations do not state that for re-fixation of pay scales and payment of Rank Pay to officers of the ranks of Captain to Brigadiers (and their equivalents in the Navy and Air Force) it is limited to only those who were in the eligible ranks as on 1.1.1986 and that all others (promoted to Captain or higher ranks subsequently) should have their pay fixed at a different, even lower pay scale. If there was such a discriminatory rule, Courts and AFTs would have been flooded with litigation.

6.         That there should not be any discrimination, if any proof was needed, is now available in the Hon’ble Supreme Court’s Order in Civil Appeal Nos. 8848 - 8849 of 2012 (in the case Kallkkurichi Taluk Retired Official Association, Tamil Nadu & related cases vs State of Tamil Nadu & Other). A Bench of the Hon’ble Supreme Court comprising Justices D. K. Jain and Jagdish Singh Khehar ordered on January 17, 2013 as (parts of which are reproduced) below: -

            Page 28, Para 26: -

“We have given our thoughtful consideration to the controversy in hand. First and foremost, it needs to be understood that the quantum of discrimination is irrelevant to a challenge based on a plea of arbitrariness, under Article 14 of the Constitution of India. Article 14 of the Constitution of India ensures to all, equality before the law and equal protection of the laws. The question is of arbitrariness and discrimination. These rights flow to an individual under Articles 14 and 16 of the Constitution of India. The extent of benefit or loss in such a determination is irrelevant and inconsequential. The extent to which a benefit or loss actually affects the person concerned, cannot ever be a valid justification for a court in either granting or denying the claim raised on these counts. The rejection of the claim of the appellants by the High Court, merely on account of the belief that the carry home pension for employees who would retire after 1.6.1988, would be trivially lower than those retiring prior thereto, amounts to begging the issue pressed before the High Court….”

            Page 29, Para 27: -

“At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification… A valid classification is based on a just objective. The result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. A classification must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another must have reasonable nexus to the objective sought to be achieved…… Whenever a cut off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied…..”

Page 29, Para 28: -

“……….all pensioners (irrespective of the date of their entry into service or retirement), it is not per se possible to accept different levels of ‘dearness pay’……Just like the date of entry into service (for serving employees) would be wholly irrelevant to determine the ‘dearness allowance’ to be extended to serving employees would be wholly irrelevant…. In the absence of any objective, projected in this case……the pleadings filed on behalf of the State Government, do not reveal any reason for the classification, which is subject matter of challenge in the instant appeal.”

Page 32, Para 30: -

“……….The relevance and purpose of treating ‘dearness allowance’ as ‘dearness pay’, has been brought out in the foregoing paragraphs. Therefore, clearly, the object sought to be achieved by adding ‘dearness pay’ to the wage of a retiree, while determining pension payable to him, is to remedy the adverse effects of inflation. The aforesaid object has to be necessarily kept in mind, while examining the present controversy. Any classification without reference to the object sought to be achieved, would be arbitrary and violative of the protection afforded under Article 14 of the Constitution of India, it would also be discriminatory and violative of the protection afforded under Article 16 of the Constitution of India.”

         

Page 40, para 34: -

“34. The instant appeals are accordingly allowed. The impugned order dated 17.12.2007 passed by the High Court is hereby set aside. The impugned Government Order dated 9.8.1989, to the extent that it extends to employees who retire on or after 1.6.1988, a lower component of ‘dearness pay’, as against those who had retired prior to 1.6.1988, is set aside, being violative of Articles 14 and 16 of the Constitution of India.”

7.         So, since there isn’t any judicial pronouncement as stated often in the GoI/MoD letter dated 27.12.2012 nor any Govt Resolution in approving 4^th and 5^th CPC reports, providing judicial cover, or sanctioning, or approving discrimination, why is it

(a)               That an officer who is a Captain on 1.1.1986 will be have his emoluments re-fixed as Rs 3000 + Rank Pay Rs 200 Pay but any officer being promoted to the rank of Captain on any subsequent date will have his emoluments re-fixed at Rs 2800 + Rank Pay Rs 200? Isn’t this violative of Articles 14 and 16 of the Constitution of India? Has the Govt of India placed an Under Secretary as on 1.1.1986 at a higher Basic Pay than another Under Secretary who becomes/is promoted as Under Secretary after .1.1986?   

(b)               By not making any amendments in the integrated pay scales of 1986 and the pay scales of 1.1.1996 and 1.1.2006, will it not nullify the orders of the Hon’ble Supreme Court? A cursory glance at the examples for calculations provided by the PCDA (O) seems to point, unmistakably, in that direction.  

8.                  MoD and its financial advisers have sought to deprive by a bureaucratic order of the legitimate dues for all similarly situated officers in contradiction, even wilful defiance of the judicial pronouncements of the Hon’ble Supreme Court.  

9.         The judgments of the Hon’ble High Court of Kerala and dismissal by the Hon’ble Supreme Court (in UoI & Others vs Maj A. K. Dhanapalan) and the orders dated 8.3.2010 of the Hon’ble Supreme Court, confirmed by the Court’s order of 4.9.2012 (in UoI & Others vs. N. K. Nair & Others) do not contain any judicial pronouncements that Rank Pay must be paid only to those in the eligible ranks as on 1.1.1986.  Their learned Law Officers must have apprised them of the Hon’ble Supreme Court’s order of 17^th January 2013. Will we now see a corrigendum being issued to GoI/MoD letter dated 27.12.2012?

10.       Therefore, by what judicial order has the MoD (with concurrence of Min of Finance (Dept of Expenditure) and Defence (Finance), decided that it/they can bypass Articles 14 and 16 of the Constitution of India? Or did someone read and take to heart Machiavelli’s justification (in ‘The Prince’) that “pursuit of power justifies immoral means?”    

Concluded

                  

White Paper III - The Additional Affidavit and the GoI/MoD letter dated 27.12.2012 vs the Truth

You can bend it, and twist it…..You can misuse it, and abuse it…

But even God cannot change the Truth

-    Michael Levy

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This a comparative analysis of the Union of India’s Additional Affidavit, GoI/MoD letter dated 27.12.2012 vs the Truth (as is available) in the 4^th and 5^th CPC Reports, Resolutions of the GoI approving the Recommendations of the CPCs, Judgments of the Hon’ble High Court of Kerala and the Hon’ble Supreme Court in IA No. 9 of 2010 in TP (C) 56 of 2007.

Petitioners and Respondents

1.         Who were the Petitioners and Respondents in IA No. 9 of 2010 in TP (C) 56 of 2007?  

2.         Title of the Additional Affidavit:  As per the title of the Additional Affidavit, it is in the matter of: Union of India & Ors, the Petitioners and N.K. Nair & Ors (and connected matters), the Respondents.

3.         The Truth: - It is not Union of India and Ors vs and Maj A.K. Dhanapalan, the respondent as referred to many times in the GoI Letter dated 27.12.2012. That the case of UoI vs Maj Dhanapalan was over should have been evident even to the least perceptive person in UoI because The Hon’ble Supreme Court’s order dated 8.3.2010 states 

“….Since the issue involved in the writ petitions pending before the various High Courts is the same as in Writ Petition(C) Nos. 96/2009 and 34/2009 pending before this   Court, this    transfer petition is allowed. Writ petition Nos. 11056/2006, 11128/2006, 10810/2006, 13508/2006, 13497/2006 and 18176/2006 pending before the High Court of Kerala, Writ Petition No. 13904/2006 pending before the High Court of Andhra Pradesh and Writ Petition Nos. 1935/2006, 1934/2006, 1957/2006 and 47909/2006 pending before the High Court of    Allahabad are directed to be transferred to this Court and taken on Board.

The prayer in these writ petitions under Article 32 of the Constitution is for grant of benefits awarded by a learned Single Judge of the Kerala High Court vide his judgment dated 5.10.1998 in O.P. 2448/1996 which has been affirmed by the Division Bench of the High Court in Writ Appeal No. 518/1999 by judgment dated 4.7.2003.”

We   have   carefully  perused  the judgment dated 5.10.1998 of the learned Single Judge as well as judgment dated 4.7.2003 of the Division Bench of the High Court of Kerala and we respectfully agree with the reasoning given therein for grant of rank pay   retrospectively from  1.1.1986. We also direct interest to be paid thereon at 6% p.a.   Accordingly, these writ petitions as well as the transferred writ petitions are allowed.

5.         And confirmation, if UoI needed it, is provided in the Hon’ble Supreme Court’s order dated 4.9.2012 as follows

3…………… on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Major A.K. Dhanapalan was dismissed by this Court in August, 2005……..

             

Analysis: Is UoI/MoD persistently in mentioning Maj Dhanapalan but never N.K.Nair & Ors so as to limit the extent of compliance of the orders of the Supreme Court in the latter cases?

Para 2 of the Additional Affidavit

6. The Deponent states “The substantive issue involved in the present case (please note it is not Maj Dhanapalan case) related to the methodology of pay fixation (bold font in original addl affidavit) for Armed Forces officers pursuant to the recommendations of the Fourth Central Pay Commission and particularly whether “rank pay” which was being paid as a separate component, had to be deducted from the total emoluments before fixing the pay in the integrated scale w.e.f. 01.01.1986 (please note the date in this solemnly affirmed and on declared on oath affidavit). The detailed facts and circumstances that led to the filing of the present Application (being I.A. No.9) seeking modification/directions/recall of the Order dated 08.03.2010 passed by this Hon’ble Court have been set out in detail in the said Application and are not being repeated herein for the sake of brevity.”   

Please Note: The date mentioned is w.e.f (or with effect from) 01.01.1986 and not as on 01.01.1986 in page 2, para 6 of the GoI/MoD letter dated 27.12.2012.

Para 6 of the Additional Affidavit:

7.         The deponent solemnly affirms and swears on oath “I state and submit that the present case does not actually relate to “grant of Rank Pay to Armed Forces officers” but the issue involved therein is “the methodology adopted for re-fixation of pay” (emphasis in original additional affidavit.) Since Rank Pay was being made available as an additional component for the first time by the fourth central pay commission, the methodology of its calculation was neatly illustrated in Para. 28.113 of its report which was accepted by the Central Government. It is further submitted that Rank Pay being a separate element besides pay in the integrated pay scale (Rs 2300-100-3900-150-4200-EB-150-5100) was recommended by the IV Central Pay Commission for the Armed Forces officers in the ranks of Captain upto the rank of Brigadier. Para 28.113 is quoted herewith for ready reference:   

28.113. In chapter 30 we have recommended the method of fixation of pay in proposed scales for civilian officers, we recommend that the same method may be adopted for fixation of pay of armed forces personnel also. Since rank pay is a separate element for officers up to the rank of Brigadier and equivalent, the same may be taken into account while fixing pay in the integrated scale of pay recommended by us. An illustration showing pay in the integrated scale of pay for army officers of different ranks is given in Annexure 28.1.”

The Truth: In para 4 of the GoI/MoD letter of 27.12.2012 it quoted the Hon’ble Supreme Court order of 8.3.2010 as “….directed as under….and we respectfully agree with the reasoning given therein for grant of Rank Pay retrospectively from 1.1.1986….” (emphasis by author).

Other Parts of Additional Affidavit

8.         Additional Affidavit Para 7 reads “I state and submit that prior to the recommendation of the fourth Central Pay Commission, there was no concept of Rank Pay. For the first time, the Central Pay Commission in order to differentiate between Ranks introduced the concept of Rank Pay.

9.         Additional Affidavit, Para 8 reads “I state and submit that IV Central Pay Commission recommended that sine Rank Pay was being paid as a separate element of pay, the same may be taken into account while fixing pay in the integrated pay scale…..in which Rank Pay was deducted from the revised emoluments and the pay was then fixed as the stage next above the amount thus computed in the integrated pay scale.”

10.       Additional Affidavit, Para 9 reads “……from the total emoluments before fixing pay in the integrated pay scale with effect from 1-1-1986 (emphasis mine). In other words, since Rank Pay was going to be paid as a separate element, it has to be deducted from the total emoluments drawn as on the date of the implementation of the recommendation of the fourth pay commission.

The Truth: This is reproduced from the judgment of the Kerala High Court in Writ Appeal No. 518 of 1999 filed by UoI & Ors: -

2. When the writ appeal came up for admission, a Division Bench of this Court, because of an apparent conflict between the body of the order and the illustration, directed the appellants to file an additional affidavit. Accordingly, an additional affidavit refers to the pay commission recommendation, the order accepting the recommendation by the Govt …...and the illustration regarding the fixation based on such order.  

3. It is an admitted case, even in the additional affidavit, that the Army officers are entitled to rank pay. Para 28.13 of the Pay Commission report, as quoted in the affidavit reads as follows: -

28.13 We also recommend that, in addition to pay in the above integrated scale, the following rank pays may be given to officers in the Army and their equivalent in the other services…..”

Thus rank pay, is in addition to the pay that was getting. This recommendation has been accepted, and the Government issued orders as quoted in additional affidavit as follows: - 

            (b) Rank Pay – In addition to pay in the integrated scale, the following rank pays may be given to officers of the Army and their equivalents in the other services….

Thus, the rank pay as per the order accepting pay revision is in addition to the existing pay.

  

4. While formulating the principles for pay fixation, in case of those who are enjoying special pay, that element also has been directed to be reckoned for the purpose of pay fixation. In case of Army officers, it was ordered as follows:

“In Chapter 30, we have recommended the method of fixation of pay in proposed scales for civilian employees. We recommend that the same method may be adopted for fixation of pay of armed forces personnel also. Since rank pay is a separate element for officers upto the rank of Brigadier and equivalent, the same may be taken into account, while fixing pay in the integrated scale of pay recommended by us. 

 

Thus it is clear that for Civilian officers, there is no rank pay. But for Army officers, there is rank pay admittedly as mentioned above. Necessarily, when the principles as mentioned above applies to Army Officers, the rank pay shall also be added to the substantive pay.

The Misuse of Truth?: The judgment of the High Court of Kerala, based on the additional affidavit filed by UoI & Ors in WA 518 of 1999, contradicts what is being stated as the truth with solemnity and under oath in the present additional affidavit. Where did the Report of the 4^th CPC state that Rank Pay should be deducted from the amount computed in the integrated pay scale? Did the Resolution 9E dated 18.3.1987 or a separate Gazette of India Extraordinary (SRO 12 E dated 13.9.1986 was issued for civilian employees) state so? Then why were they not produced in the High Court of Kerala? Why did the UoI & Ors rely on Para 6 (a) (i) and (ii) of the SAI 1/S/1987?   

Para 14 of the Additional Affidavit

11.       The paragraph reads “The deponent respectfully submits that the aforesaid recommendations of the 5^th Pay Commission were accepted and duly implemented by the Central Government. The pay fixation was carried out in accordance with principles contained in the illustrations to the 4^th CPC….”

The Truth: This is what the Fifth Central Pay Commission has to state in its report (Please note that nowhere does the 4^th CPC mention deductions or rank pay in the above extract provided by UoI): -

Part VII, Section II Para 145.6….. As regards officers, the Fourth CPC felt that the pay structure should be such that it made the armed forces attractive as a career and provided a reasonable pay progression to the officers of the services.

Part VII, Section II, Para 147.12 Present Position – ……To compensate for ranks attained, rank pay is also granted which attracts dearness allowance and is reckoned for pensionary benefits.

The Misuse of Truth: UoI has submitted that pay fixation of the 5^th CPC was carried out in accordance with principles contained in illustrations to the 4^th CPC.

Please Note: Therefore, if the interpretation by the UoI/(Concerned Ministries)of the 4^th CPC also “granted Rank Pay” was found to be erroneous and ruled so by the High Court of Kerala (in OP 2448/1996 and WA 518/1999) and the Supreme Court in TP (C) 56 of 2007 on 8^th March 2010 and in IA No. 9 of 2010 in TP (C)56 of 2007, what is the higher order that persuades Concerned Ministries to persist with deducting Rank pay for the 5^th CPC and the consequent adverse effects on pay and allowances and pension benefits w.e.f 1.1.1996?

Paragraph 30 of Additional Affidavit

12.       The paragraph 30 which makes categorical statements reads “In these circumstances it is most respectfully submitted that Government of India is fully concerned with the grievances of the armed forces personnel however the order dated 8-3-2010 passed by this Hon’ble Court if implemented would lead to the following practical difficulties:

(a)               In the present matter, implementing the Hon’ble Court order dated 8-3-2010 would mean re-fixation of pay of not only the officers entitled to Rank Pay, but pay scales of other personnel above and below such officers would have to be revised w.e.f. 1.1.1986 firstly, and then from 1.1.1996 and 1.1.2006, i.e. at the time of subsequent pay revisions. Similar process would be carried out for revision of pension of the retired personnel. Any changes at one place will inevitably have impact on horizontal and vertical parities thereby changing the overall pay structure by the 4^th CPC.

   

(b)               Grant of this unintended benefit would place a heavy burden on exchequer. Para 9 and 10 of the Report (emphasis by deponent) of the  High Powered Committee constituted to assess the financial impact is reproduced below for ready reference: -

“9. Apart from the enormous financial implications, actual implementation of the Hon’ble Court’s order would involve the following stages: -

§                     Revision of pay of officers on 1.1.1986, 1.1.1996 and 1.1.2006 with simultaneous revision of all pay linked allowances/benefits. Enormous efforts are required to extract data from all backed up resources, including information relating to promotion, annual increment, stagnation increment, details of forfeiture, admissibility, discontinuation of relevant allowances, calculation of Income tax and apportioning the same over the years;

§                     Calculation of DA on slab basis from 1.1.1986 to 31.12.1995 is time consuming;

§                     Revision of retirement benefits (gratuity, leave encashment) of officers retiring after 1.1.1986;

§                     Revision of pension on 1.1.1986, 1.1.1996 and 1.1.2006;

§                     In several cases, family pensions would have to be revised on the basis of revised pay/pension of the officer;

§                     In some cases, payments may have to be made to legal heirs of the deceased retired officers; and

§                     Interest at the rate of 6% per annum for upto 24 years in each case will have to be calculated and paid.

This would be a protracted exercise taking a lot of time and involving huge manpower as each case will have to be examined/calculated individually.

10. Financial implications of around 1623.71 crores arising out of implementation of the Hon’ble Supreme Court   order dated 8-3-2010 would create a substantial impact on the public exchequer. This impact in only one time. In addition, it would also lead to enhanced recurring expenditure from Consolidated Fund of India. It would further nullify the recommendation of the Pay Commission as well as the decision of the Government thereon. The Committee, therefore, is of the view that the financial implications and above facts and in the present matter may be submitted to the Hon’ble Supreme Court   for considerations.”

13.       Contrast this with Para 6, 7, and 8 of the GoI/MoD letter dated 27.12.2012: -

(a)      Para 6 – “……………and to re-fix the initial pay (emphasis is mine) of the concerned officers of the Army, Navy and Air Force in the revised scale (integrated scale) as on 1.1.1986 as per para 6 of those instructions without deducting of Rank Pay appropriate to the rank held by the officer on 1^st January 1986….. 

The Truth: The Hon’ble Supreme Court order on 8.3.2010 states “with retrospective effect from 1.1.1986” and the Court’s order dated 4.9.2012 upholding its earlier order only changed the date of commencement of interest.

(b)       Para 7 – Except to the extent of modification of the provision contained in para 6 (a) (ii) of the aforesaid Army Instructions………….. which is in complete compliance of the aforesaid judicial pronouncement

The Truth: Complete compliance with judicial pronouncements of  the Hon’ble Supreme Court order on 8.3.2010 and 4.9.2012 will be meaningless unless the integrated pay scale is revised for the blatantly and wilful deduction of Rank Pay which lead to a lower pay scale for Armed Forces officers.

(c)        Para 8 – “As the aforesaid Order of the Hon’ble Supreme Court passed on 4.9.2012 read with their earlier order dt. 8.3.2010, has upheld the Order of the Hon’ble Kerala High Court passed on 5.10.1998 in case of Major A.K.Dhanapalan and as the said Order of the Hon’ble Kerala High Court dt. 5.10,1998 is for re-fixation of pay as on 1.1.1986, and as this sanction is in compliance with these judicial pronouncements, it is clarified there shall be no change in respect of Special Instructions of Army, Navy and Air Force issued on 19.12.1997 and 11.10.2008 (Army) and 18.10.2008 (Navy and Air Force) for implementation of the recommendations of the 5th and 6th Central Pay Commission respectively, except to the extent of the need for re-fixation of pay as on 1.1.1996 and 1.1.2006, necessitated due to re-fixation of pay as on 1.1.1986 in terms of these orders.

The Truth:

14.       Orders of the Hon’ble Supreme Court dated 8.3.2010 agreed the reasoning of the High Court of Kerala and did not uphold the order of the Kerala High Court passed on 5.10.1998. UOI’s Special Leave to Appeal was dismissed in August 2005 and the Hon’ble Supreme Court’s order (para 3) confirms this.

15.       MoD complied with and paid Maj Dhanapalan. Para 3 of GoI/MoD letter dated 27.12.2012 confirms that closure as it states “ Subsequently, after dismissal of SLP by the Hon’ble Supreme Court, the above direction of the Kerala High Court was implemented by this Ministry, re-fixing the pay of the petitioner w.e.f. 1.1.1986 …..”

16.       Division Bench of the Kerala High Court dismissed WA 518 of 1999 filed by UoI challenging the judgment of the Single Judge of the same Court in OP 2448 of 1996. The Single Judge’s judgment reads (on page 3) “Under these circumstances, the respondents 2 & 3 are directed to re-fix the pay of the petitioner with effect from 1-1-1986……”  and not as on 1.1.1986 as quoted in para 8 of the GoI/MoD letter dated 27.12.2012.     

Compliance or Defiance

17.       There has been no compliance with the judicial pronouncement as so piously (and sanctimoniously) stated. Consider the premeditation which is brought out in the next and final part.   

(a)        The Fifth Central Pay Commission Report states, in Part VII, Para 147.2 on page 1903, that the strength of the Armed Forces officers of the ranks from Captain to Brigadiers (and equivalents) were as follows: -

Rank	Army	Navy	Air Force
Brigadier	796	371	152
Colonel	3310		587
Lt Colonel	3794	1191	1791
Major	13889	3000#	3645
Captain	11000*		2300@
Total	32789	4562	8475

*interpolated from the combined figures of Capts and Subalterns

# interpolated from the figures for Lt Cmdrs and below

   @ interpolated from figures for Flt Lts and below           

18.       So, with due respect to abacus or computer wielding experts, the following is just one aspect of the pre-meditated (in the worst case scenario) or unintended (in the most compassionate scenario) disrespect for the judgments and orders of the Courts as GoI/MoD appears to have decided that Rank pay will be made applicable to appropriate rank as on 1.1.1986.

Average arrears (per officer as paid by PCDA (O)	Rs 1, 00, 000	1, 00, 000	1,00, 000
Arrears of Rank pay per Service (crores)	Rs 327.89 Say Rs 328 crores	Rs 45.62 Say Rs 46 crores	Rs 84.75 Say Rs 85 crores
Total arrears	Say Rs 459 crores
Interest @6% p.a. from 1986 to 2010	Rs 28 crores x 24 years = Rs 673 crores
Subsequent enhancement of Pension for a like number of officers for 45600 officers	Rs 250 crores (at 50% of Basic Pay)
Therefore Public Exchequer will pay from 1.1.86 to 8.3.2010	Arrears Rs 459 crores + Interest Rs 673 crores = Rs 1132 + crores for 24 years + Pension Rs 250 crores + Rs 150 crores interest = Rs 400 crores Or Rs 1532 crores
	Add 6% for E & OE and tantalisingly it is Rs 1624 crores

The Abuse of Truth: So,why do I ask myself the following questions

(a)               Was it a pre-meditated intention of the Concerned Ministries before filing the IA No.9 that total outgo would be restricted to Rs 1623.71 crores if the Hon’ble Supreme Court upheld its Order of 8^th March 2010?

(b)               Had they decided to do that by paying arrears only to officers holding ranks of Captain to Brigadiers as on 1.1.1986?

(c)                And only till 31.12.1995?

(d)               And not to officers promoted to Captain (and equivalent) after 1.1.1986?

In Conclusion

Effect of interest from 1.1.2006:

Arrears Rs 459 crores + Interest Rs 196 crores = Rs 655 crores + Pension Rs 250 + 90 crores = Rs 340 crores.

So total outgo = Rs 995 crores.

As my mathematics teacher used to write after solving a problem - Q. E. D

Jai Hind

WHITE PAPER II: WHY ARE THE CONCERNED MINISTRIES CONFUSING THEMSELVES & US

Please read in conjunction with previous post

The Background

       From the Fifth Pay Commission Report, Part VII, – Armed Forces Personnel: Pay Scales and Allowances: -

Our Approach in 114.10 ……………… We find that the Third CPC, while considering the issue of shortfall in the intake of the officer cadre had held that "the quality of recruitment to the Armed Forces will be satisfactory only if service pays are comparable to levels of remuneration in civilian employment." Considering all these factors, we have recommended a starting salary of Rs.8250/- p.m. for Commissioned Officers of the Armed Forces giving them an edge over the Civil Services.

Our Recommendations in 145. 17……… However, we have recommended continuance of all the existing concessions and have also recommended an edge in the starting scale to compensate for the special features of military life.

The Present Position in 147.12 Armed Forces officers up to the rank of Brigadier are presently paid on the basis of an integrated pay scale introduced on the recommendations of the Fourth CPC so as to provide reasonable career progression to service officers. To compensate for ranks attained, rank pay is also granted which attracts dearness allowance and is reckoned for pensionary benefits.

Our Recommendations 148.2. We have deliberated over the manner in which service pays should be fixed and in order to ensure equality of treatment suggest that the method of fixation of pay on revision recommended for civilian employees may also be adopted for service personnel. For Service Officers upto the rank of Brigadier who are to be brought on to regular scales of pay from the existing integrated scale, we suggest that for fixation of pay the existing rank pay may be taken into account but pay in revised scales be fixed after deducting the revised amount of rank pay.

 

Extracted from the Order of the Govt No. 50(1)/IC/97.

       The Fifth Central Pay Commission was set up by the Government of India by Resolution No. 5(12)/E. III/93 dated 9^th April, 1994 as amended by Resolution No. 5(12)/E. III/93 dated 12^th January, 1995, No. 5(12)/E. III/93 dated 17^th July, 1996, No. 5(12)/E, III/93 dated 24^th October, 1996 and No. 5(12)/E. III/93 dated 19^th November, 1996. The Commission submitted on the 30^th January, 1997, its Report relating to structure of emoluments, allowances, conditions of service and retirement benefits of Central Government employees including Union Territories, members of All India Services and personnel belonging to the Armed Forces.

2.       The Commission also submitted its Supplementary Report No. 1 on Improving the motivation Level and Supplementary Report No. 2 on Cabinet Secretariat on 28^th February, 1997. The Government have given careful consideration to the recommendations of the Commission in respect of civilian employees of the Central Government in Groups 'A', 'B', 'C' and 'D', as also those in the All India Services and have decided that the recommendations of the Commission in respect of these categories of Central Government employees and All India Services shall be accepted broadly subject to the modifications mentioned below: -

(i) The following six scales of pay (S-1, S-2, S-3, S-4, S-5 and S-13 grades), recommended by the Commission will be improved…………………

(ii) With regard to fixation of pay in the revised scales, the percentage of pre-revised basic pay to be added as fitment shall be 40% as against 20% recommended by the Fifth Central Pay Commission. The other recommendation of the Commission in this regard including the recommendation of one increment as a result of "bunching" (for the fifth stage) has been accepted; however, the fixation shall be made in the manner that every employee will get at least one increment in the revised scale of pay for every three increments.

3..............

4. The Commission's recommendations and Government decision thereon with regard to revised scales of pay and dearness allowance for civilian employees of the Central Government and personnel of the All India Services as detailed in the Part A of the Annexure shall be made effective from 1-1-1996.

5. The revised allowances, other than dearness allowance, will be effective from 1st day of August, 1997……

6.................

7. Department specific recommendations which arc not included in this Resolution shall be processed by the concerned Department/Ministry and approvals of the Government obtained in consultation with the Ministry of Finance and/or Department of Personnel and Training………….

8. The other recommendations of general nature made by the Commission which are not included in the Annexure are being examined by the Government and decisions thereon will be notified separately. 11. The Government of India wish to place on record their appreciation of the work done by the Commission.

9........................

ORDER

Ordered that the Resolution be published in the Gazette of India, Extraordinary.

Ordered that a copy of the Resolution be communicated to the Ministries/Departments of the Government of India, State Governments, Administrations of Union Territories and all others concerned.

Assessment: - By the time the Gazette notification was to take place, the UoI/MoD etc must have known that Maj A.K. Dhanapalan had filed OP 2448 in 1996 alleging that Rank Pay has been wrongly/wrongfully deducted from the re-fixation on transition from 3rd CPC to 4th CPC.

   

The Chronology below is self-explanatory

(a) February 1996 – Maj AK Dhanapalan (retd) files OP 2448 of 1996 in High Court of Kerala,

          (b) end 1997 – Govt of India approves Report of the Fifth Central Pay Commission

(c)      19^th December 1997 – MoD, with concurrence of Min of Finance issues SAI/SNI/SAFI 2/S/1997 being aware that Maj Dhanapalan has challenged the deduction of Rank Pay etc before re-fixation in transition from 3^rd CPC to 4^th CPC. It also communicated vide M of D I.D. No. 1(2)/95/D (pay/Sers) dated the same date that due to inability of DMR & F, the printing authority to suffix year 1997 and can only be printed in year 1998.

(d)      Copies are addressed to 1. COAS Office, 2. CNS Office, 3. CAS Office, 4. Pay Commission Cell, Army, 5. Pay Commission Cell, Navy, 6. Pay Commission Cell, Air Force, 7. Director, PS-3, Army HQrs, 8. Director, DPA/NHQ, 9. Director, DPP&R/Air HQrs, 10. DFA (AG), 11. DFA (Navy), 12. DFA (Air P&W), 13. O/O CGDA, 14. All CDAs.

(e)      5^th October 1998 - Single Judge of the High Court of Kerala passes judgment in OP 2448 of 1996, that deduction of Rank pay for re-fixation is wrong and asks Respondents 2 (COAS) and 3 (CDAO) to re-fix his pay without deducting Rank Pay.

(f)      1999 – Union of India files a Writ Appeal 518 of 1999 challenging the judgment in OP 2448 of 1996

Query: So, did some one in the Concerned Ministries forget (and it is quite possible, especially where matters concern the Armed Forces) to consider the implications of the judgment of the Single Judge of the High Court of Kerala and commit a contempt of court by continuing with deducting Rank Pay for the re-fixation because the Special Leave to Appeal was not filed till 2005 SLP (CC) 5908/2005 ?

           (g)         Govt of India’s Definition of Rank Pay in the Fifth CPC (reproduced fully)

No. 1(26)/97/I/D(Pay/Services)

Government of India,

Ministry of Defence,

New Delhi-110 011, dated the 29th February, 2000.

To

The Chief of the Army Staff, New Delhi.

The Chief of the Air Staff, New Delhi.

The Chief of the Naval Staff, New Delhi.

Subject : Removal of anomalies arising from the implementation of the revised pay scales and allowances consequent to the V CPC recommendations – definition of Rank Pay – reg.

Sir,

I am directed to refer to Instructions No. SAI, SNI and SAFI No. 2/S/98 dated 19.12.1997 and to state that the issue of merger of Rank Pay with the pay scales of the Defence Service officers upto the rank of Brigadier and equivalent has since been reconsidered by the Government in the light of the recommendations of a Committee specially constituted on the above subject and in view of the fact that the Rank Pay cannot be merged with the pay scales for the Defence Service officers and also keeping in view the difficulties being faced by the Defence Service officers with regard to interpretation of Rank Pay, it is clarified that:

"Rank Pay is admissible to the Commissioned Officers of the three Services, holding their rank either in a substantive or acting capacity. It is that element of their pay identified with their Rank, which, in turn, has a relationship with their scale of pay. It is granted separately in recognition of the specific needs of their conditions of service and command structure. It will consequently be taken into account for determining their entitlement to such of those financial benefits, concessions, etc, including retirement benefits, as are directly related to the basic pay or their pay scales."

3. The Army/Navy/Air Force Instructions would be amended accordingly

4. This issues with the concurrence of Ministry of Defence (Fin) vide their U.O.No.

1/77/99-PA dated 23.2.2000.

Yours faithfully.

Sd/- x x x x x x

(RK Grover)

Under Secretary to the Government of India.

DISTRIBUTION : As per standard list of distribution.

 

(h) 2003 – Division Bench of the High Court of Kerala disposes of WA 518 of 1999 upholding judgment of the Single Judge of the High Court of Kerala in OP 2448 of 1996.

(j)      2005 - UoI/MoD files a Special Leave to Appeal (CC) 5908 of 2005 in the Hon’ble Supreme Court which is dismissed in July 2005.

The Cumulative Consequences for 5^th and 6^th Pay Commission

Did the Concerned Ministries forget to discuss this aspect, that if the Hon’ble Supreme Court dismisses UoI’s SLP that Rank Pay can be deducted for re-fixation in OP 2448 of 1996, this has applicability to all matters where Rank pay is concerned, whether in the 5^th CPC or later?

 

If the Basic Pay itself has been reduced by the extent of the Rank Pay on 1.1.1986, then the fixation as on 1.1.1996 will be reduced by 40% of the difference i.e. difference between the correct interpretation brought out in the court’s orders and the incorrect interpretation by Concerned Ministries.

Its impact would continue to be felt when the lower figure is multiplied by a factor of 1.86 to arrive at the pay fixation from 1.1.2006. It would adversely affect the Pay Band, Grade Pay, Military Service Pay, and, leave encashment, gratuity as well as pensionary benefits.

So what is the obstinacy displayed by Concerned Ministries in correctly implementing the order of the Hon’ble Supreme Court dated 4.9.2012 instead of making loopholes where they don’t exist?

     

So why the prevailing confusion created by the GoI/MoD letter dated 27.12.2012?