1. In 1987 the Rajiv Gandhi Govt approved the recommendations of the 4th Central Pay Commission for payment of an additional amount designated as Rank Pay to all officers of the Army in the ranks of Captains, Major, Lieutenant Colonels, Colonels and Brigadiers and their equivalents in the Navy and Air Force. This Rank Pay was to be paid over and above what was recommended to be paid to Civilian officers of the Central Government.
2. The methodology for pay fixation of civilian officers was made vide Gazette of India notification No. SRO 12E dated 13th September 1986 and for the Armed Forces vide Para 28 of Resolution 9E dated 18th March 1987.
3. A weekly magazine, The Week (issue dated 23rd September 2012, page 28) quotes Maj Dhanapalan, who proved that the UoI & Others wrong in what is now known as Rank Pay Issue, as saying “The government paid arrears only till 1996. I decided not to contest it, as by then RDOA took up the fight,” and The Week continues somewhat presciently ‘There are fears the government might give arrears only till 1996 to others too.’ This brings to the forefront whether, and if so how and why Concerned Ministries of the Government of India are playing with fire by tweaking the orders of the Honourable Supreme Court dated 4th September 2012.
4. Ministry of Defence, Government of India, while translating the approval into execution, made a change vide Para 6 (a) (ii) of the Special Army Instructions 1/S/1987, and those of the Navy and Air Force. In that sub-sub-para, the MoD ordered a different pay fixation for Armed Forces officers which was not the same as for civilian officers despite the explicit orders of the Govt of India. By this order, Pay disbursing authorities arrived, by a convoluted process, at a revised scale for Armed Forces officers by
Proof the Problem Exists
5. Major A.K. Dhanapalan (since retired) filed an Original Petition (OP) No. 2448 of 1996 N in the High Court of Kerala at Ernakulam. The respondents were (1) Union of India (UoI/MoD through Secretary in the Ministry of Defence), (2) Chief of the Army Staff (COAS), and (3) the Controller of Defence Accounts (Officers) at Pune, (CDA(O), the pay disbursing agency represented by Shri Mathew J. Nedumpara, the ACGSC. Maj Dhanapalan was represented by Advocate Shri S.N. Sugunapalan.
6. A Single Judge heard the OP on 5th October 1998 and observed (Please see pages 2 and 3 of the judgment):-
7. The Single Judge then ordered “respondents 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1.1.1986 without deducting the rank pay…”
8. UoI, COAS, and CDA (O), now the appellants, filed a Writ Appeal (WA) No. 518 of 1999 (B) which was heard by a Division Bench of the High Court of Kerala at Ernakulam. Learned Advocate Sri Mathews J Nedumpara ACGSC represented UoI & Ors, the petitioner, and Maj Dhanapalan, now the respondent, was represented by Advocate Sri Sugunapalan. The appeal was heard and the Division Bench passed its judgment on 4th July 2003.
9. The Division Bench observed in its judgment written by Justice Abdul Gafoor J as follows:-
10. Dissatisfied with the order of the Division Bench of the Kerala High Court, UoI & Others filed a Special Leave to Appeal (Civil) CC 5908 of 2005 in the Hon’ble Supreme Court of India. The petitioners (UoI & Ors) were represented by the learned Additional Solicitor General of India and Advocates on Record.
11. The order of the Hon’ble Supreme Court dated 12th July 2005 was to the point, “We do not find any justifiable explanation for the delay of leave petition. The special leave petition is, therefore, dismissed.”
12. UoI i.e MoD confirmed vide para 3 of GoI/MoD letter No. 34 (6) 2012 – D (Pay/Services) dated 27th December 2012 (hereinafter referred to as GoI/MoD letter of 27.12.2012) paid Maj Dhanapalan the arrears but showed its annoyance with other similarly placed officers who appealed to the MoD for payment of arrears of Rank pay in the light of these Court orders and consequent action by MoD.
13. Then many affected officers approached different High Courts for justice. UoI, represented by the learned Additional Solicitor General, requested the Hon’ble Supreme Court for transfer of all these Writ Petitions to the Apex Court and thus Transfer Petition (Civil) No. 56 of 2007 was heard by a Bench of the Apex Court.
14. On 8th March 2010, the Bench stated in its order: -
15. It would be interesting to note that the National Litigation Policy Document released by Ministry of Law and Justice of the Govt of India on 23rd June 2010 states in Part V – Filing of Appeals as under: -
a) the case involves a question of law;
b) If it is a question of fact, the conclusion of the fact is so perverse that an honest judicial opinion could not have arrived at that conclusion;
c) Where public finances are adversely affected;
d) Where there is substantial interference with public justice;
e) Where there is a question of law arising under the Constitution;
f) Where the High Court has exceeded its jurisdiction;
g) Where the High Court has struck down a statutory provision as ultra vires;
h) Where the interpretation of the High Court is plainly erroneous.
I) In each case, there will be a proper certification of the need to file an appeal. Such certification will contain brief but cogent reasons in support. At the same time, reasons will also be recorded as to why it was not considered fit or proper to file an appeal.
16. Notwithstanding National Litigation Policy and the fact that it had erred ab initio in including the impugned para 6 (a) (ii) in the Special Army/Navy/Air Force Instructions 1/S/1987, UoI/MoD utilised the services of no less a legal luminary than the learned Solicitor General of India to settle an Interlocutory Application No. 9 of 2010 in TP (C) 56 of 2007. It read as follows: -
17. The High Powered Committee comprised the Defence Secretary, Secretary (Expenditure) in the Ministry of Finance and the Secretary (Defence/Finance) and reportedly arrived at the implication and financial aspects in a record 4 days. However, at no stage did UoI file a Review Petition in OP 2448 of 1996, WA 518 of 1999 or SLP (CC) 5908 of 2005 nor does the affidavit state why it was considered fit to pay arrears to Maj Dhanapalan and why UoI was now demurring.
18. There were many hearings, a few of which were adjourned (when it was pointed out on 5th May 2011 by the respondent’s advocates that the SG was not available for the previous 4 or 5 hearing) as advocates of UoI insisted that only the Solicitor General will represent the UoI despite Justice Katju (now retired) admonishing the SG on 18th October 2010 for seeking unnecessary extension of time limit. Finally, a Three Judge Bench of the Hon’ble Supreme
Court ordered on 4th September 2012 as follows: -
I.A. No. 9 in T.P. (C) No. 56 of 2007:
19. The Hon’ble Supreme Court directed that the order shall govern all similarly situated officers irrespective of whether they have not approached the Courts or their petitions are pending in various High Courts/Armed Forces Tribunals.
20. Though the Hon’ble Supreme Court also directed completion of payment of arrears with interest with 12 weeks of the order dated 4th September 2012, the fact MoD was not going to heed the orders of the Supreme Court became evident when on the last day of the 12 weeks period granted for completion of payment of arrears and interest, the MoD issued a letter dated 26th November 2012 that stated, inter alia “Govt of India has decided to re-fix the pay without deducting rank pay w.e.f 1.1.1986.” Ministry of Finance (Dept of Expenditure), Def (Fin) and MoD, hereinafter referred to as concerned Ministries, conveyed an impression of not worried at being cited for contempt of Court and the orders of the Hon’ble Supreme Court, based on the statement of the Solicitor General had no sanctity, let alone legal importance for it.
21. A month later i.e. 27th December 2012, the MoD, with concurrence of the Ministry of Finance (Dept of Expenditure) and Def/Fin, converted that intention pretty by issuing an order to PCDA (O), Naval Pay Office and Air Force Central Accounts Office to pay only those officers who were eligible for Rank Pay “as on 1.1.1986” (para 6) and not as ordered by the Hon’ble Supreme Court of 8th March 2010 and confirmed by its order dated 4th September 2012 in IA No. 9 of 2010 in TP (C) 56 of 2007 “retrospectively from 1.1.1986.”
22. By confining the implementation of the order of the Supreme Court as interpreted by the concerned Ministries have made an overt attempt at subverting not only what it expressed in the affidavits and counter-affidavits filed in the High Court of Kerala and the Supreme Court but also confirmed that either the contents of the additional affidavit are false or it intends to ignore them.
23. To an intelligent and sane observer it is clear that Maj Dhanapalan’s case concluded when The Hon’ble Supreme Court dismissed UoI & Ors Special Leave to Appeal in 2005. Maj Dhanapalan’s was paid arrears till the date of his retirement in 1996. He was not a litigant in IA No.9 of 2010 or TP (C) 56 of 2007 and related cases.
24. The facts of IA No. 9 of 2010 in TP (C) 56 of 2007, the assumed interpretation by concerned Ministries based on the GoI/MoD letter dated 27.12.2012, and an Intelligent Assessment are given below: -
All the Writ Petitions in TP (C) 56 of 2007 were filed in 2006 or thereafter. Those claimants may have served longer and through the 4th, 5th and 6th CPC tenures. Their losses due to the incorrect, and now impugned, deduction of Rank Pay in fixation may result in higher compensation amounts.
(b) Fact Number 2: - The Hon’ble Supreme Court in its order of 8.3.2010 stated: -
“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 (emphasis in original on the Hon’ble Supreme Court’s website).
The Basic & Long Term Solution to Matters Concerning Handling Armed Forces
24. I strongly recommend the following measures for the concerned Ministries: -
The Solution for the Rank Pay Matter
25. One things would be clear, even to the most obdurate and least intelligent of human beings. Concerned Ministries, by holding the sword of misinterpretation and shield of recourse to unlimited and free (from personal expenditure) legal representation, are only delaying giving Armed Forces officers what was approved by the Govt of India. It could only be veniality and not lack of sanity in the Concerned Ministries not to recognise the truth not only in OP 2448/1996, WA 518/1999, and SLP (CC) 5908/2005 in the case of Maj Dhanapalan, but also in the several Writ Petitions in different High Courts and Interlocutory Application as well as IA No. 9 of 2010 in the Transfer Petition (C) 56 of 2007 recorded in the orders of the Hon’ble Supreme Court. Concerned Ministries tried to make its case in the High Court of Kerala which found them to be wrong and the judgement upheld that a sole litigant was right and the might of the UoI was not. This judgment was confirmed by the Hon’ble Supreme Court in 2010 and agin in 2012.
26. The matter assumes serious dimensions because it has been heard over a period of 16 years by a Single Judge and a Division Bench of the Kerala High Court and three Benches of the Hon’ble Supreme Court. It now appears that the orders of the Hon’ble Supreme Court are being circumvented, if not covertly flouted, to deny similarly situated officers of their legitimate dues. If this happens with the orders of highest Court of India in a case that has drawn national attention, it could happen to any case being dealt with by the combined might of the concerned Ministries. 2500 cases decided by the Armed Forces Tribunals awaiting implementation of orders is more proof, if any was needed.
27. I recommend the Concerned Ministries to think over and let the words of Sa’adi permeate their dormant consciences on the following: -