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 4th
(and 5th) Central Pay Commission(s), the Gazette Extraordinary
notifications or 4th and 5th 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 4th and 5th 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 17th 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
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