You can bend it, and
twist it…..You can misuse it, and abuse it…
But even God cannot
change the Truth
- Michael Levy
---------
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 4th and 5th 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 4th 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 5th 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 4th CPC….”
The Truth: This is what the Fifth Central Pay
Commission has to state in its report (Please note that nowhere does the 4th
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 5th CPC was carried out in accordance with principles
contained in illustrations to the 4th CPC.
Please Note: Therefore, if the interpretation by
the UoI/(Concerned Ministries)of the 4th 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 8th
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 5th 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 4th
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 1st
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 8th 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
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