- Flagging of enclosure and Dairy Numbers are shown in parenthesis as (Flag ‘A’)/ (Dairy Number…..).
- Italics are used by this author to draw attention of readers to certain aspects and contradictions.
- Otherwise this is faithful re-production of reply to RTI application dated 21.1.2013 vide No. 35(1)/2013/D (Pay/Services) dated 11th March 2013 received on 19th March 2013 by ordinary parcel post.
- The next part will be continuation of Notes on file.
Receipt Encl. 1/A
(Supreme Court order dated 4.9.2012)
This is regarding Rank Pay matter which was sub-judice for a long time. The Hon’ble Supreme Court decided the matter finally on 4.9.2012 in favour of the Armed Forces. Sh. R.F. Nariman, the Ld. Solicitor General appeared from the Govt side. The verbal orders of the Hon’ble Court were brought to the notice of JS (E) and AS (A) immediately.
2. The order of the Hon’ble Court has become available today only on the Supreme Court website. It has been gone through. The Hon’ble Supreme Court has held that their order dated 08.03.2010 does not require any modification or variation save and except the interest part. The Hon’ble Court took note of the fact that as the Kerala High Court as well as the Hon’ble Supreme Court in its dismissal of Department’s SLP on 12.7.2005 did not order payment of interest, the interest in the present matter shall be paid by the Department to the Respondent officers at the rate of 6% from 01.01.2006 instead of 01.01.1986. It is further clarified that this order shall govern all similarly situated officers who have approached the court and also those who have filed writ petitions which are pending before various High Courts/Armed Forces Tribunals. (Blog author’s note: the actual order reads all similarly situated officers who have not approached the court and also those who have filed Writ Petitions which are pending before various High Courts/Armed Forces Tribunal.) The Hon’ble Court also accepted the statement of the Ld. Solicitor general that arrears of pay with interest as directed by the Court shall be paid to the concerned officers within twelve weeks from today i.e. 04.09.2012.
3. As the Kerala High Court Order has already been implemented in respect of Major A.K. Dhanapalan and no changes in the Kerala High Court Orders have been made by the Hon’ble Supreme Court except payment of interest on arrears of pay, it is proposed that the Hon’ble Supreme Court Order dated 04.09.2012 may be implemented strictly as per the directions of the Court in respect of all the concerned armed forces officers including those who did not approach the court.
4. Submitted for approval of Hon’ble RM. Thereafter the matter would be taken up with Finance Ministry for their approval.
Under Secretary, D (Pay/Services)
Order dtd 4/9/12 of the Hon’ble Supreme Court has four directions:
(i) Order dated 08.03.2010 of the Supreme Court does not require any modification or variation save and except the interest part
(ii) Interest shall be paid by the petitioner to the respondents @ 6% p.a. from January1, 2006
(iii) This order shall govern all similarly placed officers who have not approached the Court and also those who have filed writ petitions which are pending before various High Courts/Armed Forces Tribunal.
(iv) Arrears of pay with interest as directed above shall be paid to the concerned officers expeditiously and positively within twelve weeks from the date of the order.
Since the judgment has attained its finality, it is proposed that the same may be implemented as per aforesaid directions to avoid any contempt in future after consultations with MOF.
Submitted for kind perusal and approval. Director (AG-I) Office
Diary No. 1243
Sd/---------- date: 10/9/
Please discuss on 11/9/12 alongwith US (P/S)
JS (E) PO?
Dir (AG) Sd/------ 11/9/10 Diary No. 8361
As directed by JS (E) on phone the matter was discussed with Shri A.N. Singh, Deputy Secretary, Ministry of Finance today. He examined the Supreme Court order dated 04.09.2012 and sought to know as to whether there are further legal options available with the Government for contesting the issue in a larger Bench of the Hon’ble Supreme Court. He advised that legal opinion may be sought in this regard at the earliest. He also sought to know what would be the financial implications as per the latest court order. The financial implications are being sought from CGDA (Encl 5/A).
2. The matter of fixation of pay w.e.f 1.1.1986 for armed forces officers from the rank of Captain to Brig who were granted an additional element of rank pay by the 4th CPC has been under contention. A brief in this regard is placed opposite. The Hon’ble Supreme Court heard the matter on 4th instant when the Ld. SG appeared on behalf of the Government. After hearing the matter in a detailed manner, the Hon’ble Court did not find any infirmity in its earlier court order dated 08.03.2010 but in the matter of interest it held that interest be charged only from 01.01.2006.
3. The Hon’ble Supreme Court has thus not made any change in the operative part of the earlier court orders of the Kerala High Court wherein deduction of rank pay in fixation of pay of the concerned officers as on 01.01.1986 was not agreed to. These orders do not make any further change in the methodology of pay fixation as prescribed in the relevant service instructions. So these orders as confirmed by the latest Supreme Court order dated 04.09.2012 have to be implemented only by amending the process of fixation from 01.01.1986.
4. Before the Supreme Court order is examined further by the Government, LA (Def.) may go through the matter and advice if there are further legal remedies available with the Government by placing the matter before a larger bench.
The following line of actions is proposed:
(i) Seek legal opinion as to whether any flaw or perversity is observed in the judgement of the Hon’ble Supreme Court due to which the possibility of further legal option can be explored
(ii) Ask CGDA to ascertain and intimate the exact financial implications arising out of the implementation of the judgment
(iii) Arrange a meeting in the office of AS (A) in which representatives of MoD, MoF, CGDA and PCDA would be present where the ramifications and implications of the judgment could be deliberated and future strategy or action plan could be chalked out.
Submitted for kind perusal and approval.
Pl put up a detailed note for deliberation,
Dir (AG) Sd/---------
US/P/S Sd/ no date
The only issue involved in this matter (Rank pay case) is regarding the methodology of pay fixation in respect of armed forces officers in the ranks from Captain to Brig/eq w.e.f 01.01.1986 as per the recommendations of the 4th Pay Commission.
2. On a specific proposal from the Services, the Pay Commission recommended an integrated pay scale for all officers upto the rank of Brig & equivalent (Rs 2300-100-4200-EB-100-5000). In addition to the pay in the integrated scale, the Pay Commission also recommended grant of rank pay to these officers. Amount of rank pay ranged from Rs 200/- (for Captain/eq) to Rs 1200 (for Brig/eq). In the matter of pay fixation the Pay Commission recommended that the same method as applicable to civilian employees is to be adopted for fixation of pay of armed forces personnel. However, as rank pay was a separate element for certain officers, the Pay Commission recommended that this (Rank Pay) may also be taken into account while fixing their pay in the integrated scale. The manner in which this was to be done was illustrated by way (underlining appears to have been done by hand in the original note) of certain examples given by Pay Commission in para 28.113. These examples are shown hereunder: -
Illustration No. 1
1. Rank - Captain
2. Existing basic pay - Rs 1300.00
3. DP/DA on basic pay at index average - Rs 1650.00
608 and Interim relief
4. Existing emoluments - Rs 2950.00
5. Add 20% of basic pay - Rs 260.00
Total -Rs 3210.00 (faintly legible) + 200 = 3410
-200 (inserted by hand)
6. Pay to be fixed in integrated scale - Rs 3100 + Rank pay Rs 200 (faintly legible (insertion by hand) = 3400
Illustration No. 2
1. Rank - Major
2. Existing basic pay - Rs 1600.00
3. DP/DA on basic pay at index average - Rs 1740.00
608 and Interim relief
4. Existing emoluments - Rs 3340.00
5. Add 20% of basic pay - Rs 320.00
Total -Rs 3660.00 (faintly legible) + 400 = 4660
-400 (inserted by hand)
6. Pay to be fixed in integrated scale - Rs 3400 + Rank pay Rs 400 (faintly legible (insertion by hand) = 3800
Illustration No. 3
1. Rank - Lt Col (Time scale)
2. Existing basic pay - Rs 1900.00
3. DP/DA on basic pay at index average - Rs 2037.00
608 and Interim relief
4. Existing emoluments - Rs 3937.00
5. Add 20% of basic pay - Rs 380.00
Total -Rs 4317.00
6. Pay to be fixed in integrated scale - Rs 4400 + Rank pay Rs 400 for rank of Major
Illustration No. 4
1. Rank - Brigadier
2. Existing basic pay - Rs 2200.00
3. DP/DA on basic pay at index average - Rs 2346.00
608 and Interim relief
4. Existing emoluments - Rs 4546.00
5. Add 20% of basic pay - Rs 440.00
Total -Rs 4986.00
6. Pay to be fixed in integrated scale - Rs 4600 + Rank pay Rs 1200 (as the maximum pay admissible for the rank of Brigadier is Rs 4600/- in integrated scale)
3. These recommendations were accepted by the Government vide Resolution dated 18.3.1987 with improvements in the integrated scale of pay (revised scale being Rs 2300-100-3900-150-4200-EB-150-5100) and the amount of rank pay for Major, Lt Col, and Col/equivalent officers. Improved rates of rank pay as accepted by the Government were as under: -
Rank Amount of rank pay
(Rs. Per month)
Captain & equivalent 200
Major & equivalent 600
Lt Col (Selection) & equivalent 800
Col & equivalent 1000
Brig & equivalent 1200
4. The Service Instructions issued in this regard were based on the GoI Resolutions and the portion there from relevant to the instant case read as under: -
“6. Fixation of initial pay in the revised scales will be regulated as follows: -
a (i) An amount representing 20 percent of the basic pay in the existing scale shall be added to the existing emoluments of the officer.
(ii) After the existing emoluments have been so increased, an amount equivalent to the rank pay, if any appropriate to the rank held by the officer on 01 January, 1986 as the rates prescribed in para 3 (a) (ii) above, will be deducted. Thereafter, the officer’s pay will be fixed in the revised scale at the stage next above the amount thus computed.”
5. In 1996 an army officer, Major A.K. Dhanapalan (Retd.) approached the Hon’ble Kerala High Court seeking to refix his pay without deducting the amount of rank pay as held in para 6 (a) (ii) of SAI. The Hon’ble High Court decided the case in his favour vide its judgement dated 05.10.1998. An appeal filed against this in the Division Bench of the High Court was decided against the Government. An SLP filed against the dismissal order was dismissed on grounds of delay in July, 2005 after which the Kerala High Court decision was implemented in respect of the petitioner (Major Dhanapalan) by paying Rs 28, 031/- as arrears of pay on account of fixation of pay. A number of officers had by then approached different High Courts seeking similar benefit. The matter was taken up with Law Officers of the Union of India and a Transfer Petition was filed in the Hon’ble Supreme Court seeking transfer in 11 such Writ Petitions filed in the High Courts of Kerala, Andhra Pradesh, and Allahabad. Later two writ petitions namely writ petition No. 96 of 2009 and 24 of 2009 were also filed directly in the Supreme Court by Sunil Kr. Chand and others and K.K.Rohatgi and others respectively. The Hon’ble Supreme Court took up the matter on 8th March, 2010 and agreed with the reasoning in the Kerala High Court orders dated 05.10.1998 and 04.07.2003. The Hon’ble Supreme Court also directed that interest be also paid at the rate of 6% per annum in this regard. All the writ petitions as well as transferred writ petitions were allowed accordingly.
6. As the points put forth by the Union of India in its Transfer Petitions were not taken up specifically and replied to in the Court order dated 08.03.2010, the matter was considered further. As per the directions of the then Solicitor General (Shri Gopal Subramanium) the Government set up a High Powered Committee consisting of Defence Secretary, Secretary (Expenditure) and Secretary, Def. (Fin) to assess the financial implications arising out of the implementation of Court Order dated 08.03.2010. The Committee concluded that there would be financial burden of Rs 1623.71 crores on account of payment of arrears, pension, and interest thereupon with subsequent recurring expenditure. The matter was further discussed with Ld. SG and it was decided to file an application seeking modification/directions/recall of order dated 08.03.2010. During the pendency of this application (IA No. 9 of 2010) some more petitions were filed in the matter directly in the Supreme Court. Some affidavits explaining the Govt. stand were also filed in the Hon’ble Court. The views of Ministry of Finance, Defence (Finance) were also incorporated (underlining in the original note) in these and they were also vetted by Ld. Solicitor General.
7. The matter was taken up by the Hon’ble Supreme Court on 04.09.2012 when Shri R.F. Nariman, Ld. Solicitor General of India appeared on behalf of the Government. Sh. Farrukh Rasheed, Advocate assisted him. The Hon’ble Court heard the Law Officer who explained the issue in a very lucid manner. After going through the matter for a long time, the Hon’ble Court ordered that they are satisfied that the order dated 8.3.2010 does not require any modification or variation save and except the interest part. On this issues, the Hon’ble Court held that interest on the arrears should be given from 1.1.2006. The Ld. Solicitor general also agreed to pay the arrears with interest as directed by the Court to the concerned officers expeditiously and positively within twelve weeks. Copy of the Hon’ble Court Order is placed in the file.
8. In the instant order also, the Hon’ble Court has not made any remarks against individual points/grounds raised by the Union of India in its appeal and subsequent affidavits. It is felt that implementation of court order would bring up the following administrative, technical and financial issues: -
(i) There is no ambiguity whatsoever in the 4th Pay Commission recommendations as contained in para 28.113. Any reversal or change of Pay Commission recommendations after such a long time (underlining in the original note) would encourage employees to take up such matters directly with the courts.
(ii) For fixation of pay of the concerned Armed Forces officers, the Government has adopted the method of fixation of pay for civilian employees but they are not getting rank pay, Rank Pay was to be taken into account as per recommendations. As such, the Government orders (Service instructions) were based on the illustrative examples given in para 28.113 which were also part of the recommendations of the Pay Commission, and later accepted by the Government.
(iii) The existing methodology gives 20% benefit on existing pay to all Govt employees. Armed Forces of certain ranks get additional element of Rank Pay which is paid separately. In order to ensure that no distortion takes place in regard to the amount of fitment benefit it clarified by way of illustrative examples as how the rank pay is to be taken into account. Revising the methodology, thus, would result in granting extra benefit which was never intended by the Pay Commission/Government.
(iv) The rank pay as improved by the Government has already been allowed to all concerned officers w.e.f. 1.1.1986 itself in addition to their pays in the integrated scale of pay.
(v) The Government has also decided that rank pay is that element of pay identified with their rank which has a relationship with their scale of pay and is granted separately in recognition of the specific needs of their conditions of service and command structure.
(vi) It was recommended exclusively by the Commission in para 28.113 that fixation of pay of armed forces personnel of the relevant ranks was to be carried out on the basis of illustrative examples and not wholly as per the method given in chapter 30 for civilian employees as rank pay was not admissible to the latter category employees. Therefore illustrative examples were given.
(vii) The concerned armed forces officers were in receipt of Special Disturbance Allowance since 1950 which was initially given as a temporary measure in view of the recommendations of the Post War Pay Committee. The Services sought this allowance to be increased from Rs 45/- per month to Rs 100/- per month (for Captain and below equivalent) and Rs 150/- per month for Majors and above. The Third Pay Commission examined the matter ad recommended discontinuance of Special Disturbance Allowance as a separate entity. But it however added that as it (SDA) had been in vogue for a long time and its discontinuance might result in an immediate loss of emoluments., the Commission recommended a higher starting salary for the commissioned officers as compared to officers of Civilian Class I taking into account the existing rate of allowance for fixing new scales of pay. So after 3rd Pay Commission the pay of the armed forces officers of the relevant ranks had an edge which was in lieu of Special Disturbance Allowance.
(viii) The proposal of the Services before the 4th Pay Commission seeking integrated scale of pay was based on the fact that at that time there was system of time scale promotions upto the rank of Lt. Col (Time Scale) only and promotions to higher ranks i.e. Col & Brig/eq were done by selection and as per the availability of posts. Accordingly, the Pay Commission granted them an integrated scale for officers upto the rank of Brig, with an additional and separate element of Rank Pay. The manner in which their pay was to be fixed in the integrated scale was explained in para 28.113 with examples.
(ix) An affidavit filed in the Hon’ble Court on 21st April, 2011 submitted a comparative statement showing fixation of pay in respect of civilian employees and armed forces personnel. The statement showed that while Captain/eq got same pay Rs 3300 (Rs 3100 + Rs 200 rank pay) as fixed for a comparatively placed civilian officer, the benefit accruing to other senior officers was quite pronounced as compared to civilian officers – Major Rs 4000/- against Rs 3700/-, Lt Col Rs 4700/- against Rs 4325/- and Brig Rs 6150/- against Rs 5250/-. Thus it is clearly evident that deduction of rank pay as shown in the illustrative examples of Pay Commission did not put all of these officers to any financial loss as compared to their civilian counterparts.
(x) Rank pay though paid separately has been treated as basic pay. This is taken into account for payment of a number of allowances like HRA, Dearness Allowance, etc and for calculation of all retirement benefits including pension. As such the existing methodology has not put the concerned officers to any financial loss as brought out in the petitions before the courts.
(xi) Any other interpretations of the Government’s orders on the 4th Pay Commission recommendations in para 28.113 would not see appropriate and also would not be in line with the intention of the 4th CPC/Government.
(xii) The Pay Commissions are specific device by which an independent body appointed by the Government investigates the demands relating to pay and allowances of the Central Government employees and such Commissions recommendations are binding on both the Government as well as its employees. The Pay Commissions provide an opportunity for a periodic review by an outside body in which both the Government and the employees have confidence. The Hon’ble Supreme Court has repeatedly held the view that equations of job evaluation of equations of pay or determination of pay scales are the primary functions of the expert bodies like Pay Commissions with which normally the courts should not interfere except on any grounds of unjust or arbitrary State action or inaction or any grave error having crept in while fixing the pay scales which may warranted the interference of the Court. [Secretary, Finance Department & others vs. West Bengal Registration Service Association & Others 1993 (SUPP) (1)(SCC1)]. The instant order of the Hon’ble Court might be taken as a basis by certain Central Government employees/Unions to place their grievances before the Hon’ble Apex Court which would place heavy burden on the Hon’ble Court.
(xiii) Pay Commissions are only recommendatory authorities. (please see contradiction in xii above). The final decision on their recommendations is taken by the Cabinet ad as such the Cabinet decision is the final word on these matters. In the present case as the illustrative examples were part of the recommendations in para 28.113 and the para in whole was approved by the Government, the existing methodology is in order.
9. Apart from the above issues which were placed before the Hon’ble Court, there are other additional issue which might come up with the implementation of the court order dated 04.09.2012. These issues are: -
· The initial case of Maj Dhanapalan (Retd.) only sought to refix his pay. The Hon’ble Kerala High Court while allowing his petition directed the department for refixing/revising his pay w.e.f. 01.01.1986 without deducting the rank pay. The Division Bench decision also supported this decision of not deducting rank pay in pay fixation but nowhere including the decisions of Supreme Court the Court have directed for refixing/revising the pay scales (integrated pay scale) of the concerned personnel. Now when the deduction of Rank Pay is not to be done as per Court directions the revised pay of Col. & Brig might be fixed in the last stages of the integrated scale. Therefore the court order is not clear as to whether the pay scales also are to be revised for implementing these orders. (underlined in the original note.)
· Similarly if the revised pay on the basis of the Court Order takes the pay beyond the pay scales those recommended by 5th and 6th CPC, are these pay scales to be revised again? No clarity has been provided in the matter.
· In the integrated pay scales for each rank there was a minimum pay fixed for separate ranks. This minimum was arrived at after deduction of rank pay. Now after deduction step has been removed would it also require refixing the minimum pay for each rank once again. It has not been made clear in the Court Order,
· Again in the matter of minimum pay fixation in the integrated scale, the illustrations in the case of Major and Brig. show while fixing their pay in the integrated scale Rank Pay has been deducted and their pays have been thereafter upgraded to the minimum for that particular rank Rs.3400/- for Major and Rs 4600/- for Brig. With improvement in integrated pay scale by the Govt. the latter figure was fixed at Rs 4950/-. So it cannot be said that for all officers the Rank Pay was deducted in full and this deduction has financially harmed all officers. As such, a question arises as to whether the ratio (rationale?) of the Court order should be applied/extended to these senior officers also. This has not been clarified anywhere in the Court Order.
· The rank pay has been paid since 1986 and is being taken into account for payment of several allowances/benefits including retirement benefits. Are all these benefits to be revised once again?
· Calculation of income tax and apportioning arrears over the years would also be difficult for the pay accounting authorities before actual payment is made. The Court order is silent on these issues.
· Revision of retirement benefits after 01.01.1986 is also going to be a long process involving a number of agencies and as such it is very difficult to complete within twelve weeks as directed. In some cases the payments might have to be made to legal heirs of the diseased (deceased?) retired officers, for whom it may be difficult to give details of pay particulars as they existed at the time of revision in 1986.
10. All the above points have first to be discussed in a detailed manner with representatives of Ministry of Finance, Def. (Fin), CGDA and PCDA (O), Pune, the implementing authority for army officers which might bring up some more issues relating to this matter. Only thereafter a case can be referred to LA (Def.) for his advice/comments. CGDA has already been asked to calculate financial implications as per Court order dated 4.9.2012 awarding interest from 1.1.2006.
1) The self-contained Note covers all issues involved.
2) It is proposed that a meeting may be held in the office of AS/A next week in which officers of MoD, CGDA, PCDA (O) and MoF will be present to deliberate upon the implications and ramifications of the Supreme Court judgement dtd 4/9/12.
3) In the meeting proposed above, views of MoD can be firmed up and then the matter can be referred to LA (Def.) for exploring further legal options, if any.
Submitted for kind perusal and orders, pl.
JS E (on local trg)
In view of the inconsistencies/difficulties expressed in the note of US (note #8), we may seek opinion of LA Def regarding further legal course available to MoD before further na. is taken on the implementation of the order of S.C.
Sd/___________ AS (A)’s Office
13/9 Dy No. 5923
Date: 13/9 + 1F(?)
May please also see and advise.
Defence Secretary’s office Sd/------------
Diary No. 10056 13/9/12
Date: 13-9-12 (& ILF?) SHASHI KANT SHARMA
1377/FA (DS) I agree with the course of action proposed. Legal advice maybe 13/9/2012 sought. Technical and practical difficulties in implementation in the
existing pay-structure/scales could be discussed in a meeting with reps of CGDA, Def (Fin) and M.O.F. Comments of A.G. could also be taken.
Sd/- P Mohanty
SHASHI KANT SHARMA
AS (A) Defence Secretary
JS (E) on tour
LA (Defence) Office of Legal Adviser (Def)
Dy No. 1932/XII/LA
Sd/-------- Date: 14/9/12
Dy. No. 1932/XII/LA (Def)
Ministry of Law & Justice
OFFICE of LA (DEF)
Ministry of defence has referred the file for seeking our opinion as to whether any further legal course is available before necessary action is taken on the implementation of Hon’ble Supreme Court order dated 04.09.2012 (F/A) in IA No. 9/2010 in Transfer Petition (C) No. 56/2007 titles as UOI & Others Vs. N.K.Nair & Ors.
2. Brief facts of the case are that after implementation of 4th Pay Commission, Major (Retd) A.K. Dhanapalan filed a writ petition before Hon’ble High Court of Kerala praying that his pay be re-fixed in the rank of Captain as on 01.01.1986 without deducting the amount of rank pay of Rs 200/- from his emoluments and that rank pay appropriate to his rank should be paid to him over and above the pay so fixed. Hon’ble High Court vide its judgment dated 05.10.1998 (F/B, Linked File) allowed the petition holding that Deptt had completely misunderstood the scope of extending the benefit of rank pay to Army Officers and directed the Deptt to re-fix the pay of the individual w.e.f, 01.01.1986 without deducting the rank pay of Rs 200/-. An appeal against the said judgment filed by the Deptt was also dismissed on 04.07.2003 (F/C, Linked File) by Division Bench of Hon’ble Kerala High Court. SLP filed in Hon’ble Supreme Court was also dismissed on 26.08.2005 (F/D, Linked File) on account of inordinate delay. The Deptt then implemented the Hon’ble Kerala High Court order dated 05.10.1998 in respect of Major (Retd) A.K. Dhanapalan.
3. Subsequently, a number of writ petitions were filed in various High Courts seeking similar relief as given to Major (Retd) A.K. Dhanapalan by Hon’ble Kerala High Court. In the circumstances, the Deptt then filed Transfer Petition (C) No. 56/2007 titled UOU & Ors Vs N.K. Nair & Ors before Hon’ble Supreme Court, seeking transfer of all such writ petitions pending before various High Courts. During the pendency of the Transfer Petition, more petitions were filed directly in the Hon’ble Supreme Court, seeking the benefit granted to Major (Retd) A.K. Dhanapalan and these were tagged together with Transfer Petition for adjudication. Hon’ble Supreme Court disposed of these petitions on merit on 08.03.2010 (F/E, Linked File) as under: -
“We have carefully perused the judgment dated 05.10.1998 of the learned Single Judge as well as judgment dated 04.07.2003 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 01.01.1986. We also direct interest to be paid thereon at 6% p.a. Accordingly, these writ petitioners (as in the note) as well as transferred writ petitions are allowed.”
4. Deptt, subsequently filed IA No. 9/2010 before Hon’ble Supreme Court inter alia praying to recall its order dated 08.03.2010, contending that financial implications are approximately Rs. 1623.71 crores and that pay was correctly fixed as per recommendations/implementation of 4th Pay Commission. Ld. Solicitor General of India, Mr. R.F. Nariman appeared in the matter and Hon’ble Supreme Court was pleased to dispose of IA No. 9/2010 on 04.09.2012 as under: -
“On thoughtful consideration of the entire matter, we are satisfied that the order dated March 8, 2010 does not require any modification or variation, save and except the interest part.
As regards interest, 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 and the Kerala High Court had not ordered payment of interest on the arrears of pay, we direct that the interest shall be paid by the petitioners to the respondents @ 6% p.a. from January 1, 2006 instead of January 1, 1986. It is clarified that this order shall govern all similarly situated officers who have not approached the court and also those who have filed Writ Petitions which are pending before various High Courts/Armed Forces Tribunal.
We record and accept the statement of the learned Solicitor General that arrears of pay with interest, as directed above, shall be paid to the concerned officers expeditiously and positively within twelve weeks from today.”
5. The administrative Ministry has now referred the matter for seeking our opinion as to whether any further legal option open before necessary action is taken for implementation of order dated 04.09.2012. The administrative Ministry in para 8 & 9 of note 8/ante has raised various administrative, technical, and financial issues, which as per them arises for consideration while implementing the Hon’ble Apex Court’s order dated 04.09.2012.
6. We have examined the complete record alongwith order in question. Considering the genesis of the long litigation in the matter and various orders including the last order dated 04.09.2012 on the subject, which does contain the statement of Ld. Solicitor General of India that arrears of pay with interest shall be paid positively within twelve weeks, it appears prima-facie that Deptt is now left with no legal option but to implement the order. However, before concluding our opinion in the matter, we proceed to examine the impugned order only from the point of law, to see whether a review of the said impugned order or curative petition or any other legal option is feasible.
(a) (i) As regards the feasibility of review of the order, it will be prudent to first place on record the law on the subject. Article 137 of the Constitution of India empowers Supreme Court to review any judgment or order subject to the provisions of any law made by the Parliament or any rules made under Article 145. The Supreme Court Rules framed under Article 145 provide to review any judgment or order on any grounds specified in Order 47, Rule 1 of the Civil Procedure Code, 1908. These grounds are: an error apparent on the face of the record or omission to bring to the notice of the Hon’ble Court the relevant provisions; the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the parties seeking review or could not be produced by that party at the time when the order was made; or have any other sufficient reason.
(ii) We find that none of these grounds have been specified by the administrative Ministry to seek review. Further, it may not be out of place to mention that the Deptt has already exhausted option for Review by filing IA No. 9/2010 for recalling of the order dated 08.03.2010, which stands disposed of on 04.09.2012. In fact, the IA is as good as Review, which is evident from the nature of prayers made therein. Having exercised the option of review once, there is no scope under the law for further Review of the order. Hence, in our opinion, the matter appears not fit for seeking review of the order dated 04.09.2012 of the Hon’ble Apex Court.
(b) (i) Another option which needs to be examined is whether Deptt has option to file ‘Curative Petition’ on the impugned order dated 04.09.2012. In this regard, it may be mentioned that the fundamental law on the ‘Curative Petition’ is more or less same in the sense that final judgment or order may be open to challenge only on very special circumstances. In fact, the plenary power of Court under Article 142 of the Constitution of India, are inherent and are complementary to those powers which are specifically conferred on the Court by various statutes. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature, cannot construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. The Hon’ble Supreme Court in exercise of its jurisdiction under Article 142 has power to make such order as is necessary for doing complete justice between the parties. In one of the pronouncements (Rupa Ashok Vs Ashok Hurra reported in AIR 2002 SC 1771). Hon’ble Apex Court mentioned that the inherent power being curative in nature are subject o check and balance so that floodgates not opened for filing a second petition as a matter of course in the guise of ‘Curative Petition.’ In the said order, Hon’ble Supreme Court discussed the grounds for ‘Curative Petition’ for relief ex debito justitiae that if the applicant establishes (1) violation of principles of natural justice in that he was not a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject matter or parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. Further, it is required that the petitioner, in a curative petition, shall ever specify that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. Furthermore, the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.
(ii) In the backdrop of the above law on the subject and facts as on record, we find none of the grounds stated hereinabove have been specified by the administrative Ministry justifying curative petition in the matter. Hence, in our opinion, there appears no scope for filing ‘Curative Petition’ as well.
(c) Besides, we examined the matter further to see the feasibility of any other option as well. In this regard, we find that Hon’ble Supreme Court order dated 04.09.2012 appears to be final as evident from the order itself which reads – “On thoughtful consideration of the entire matter, we are satisfied that the order dated March 8, 2010 does not require any modification or variation save and except the interest part.” Moreover, statement of Ld. Solicitor general of India for implementation of the order dated 04.09.2012 accepted the Hon’ble Apex Court is on the record.
7. In view of the above legal position and also the fact that SLP arising from the judgment dated 04.07.2003 in the matter of Major (Retd) A. K. Dhanapalan was dismissed by Hon’ble Supreme Court in August, 2005 and the Deptt has already implemented the order of Hon’ble Kerala High Court dated 05.10.1998 in respect of Major (Retd) A. K. Dhanapalan, in our opinion there is no other option left but to implement the order dated 04.09.2012. (underlining in the original). More so, because the Deptt at this stage cannot ignore the statement of Ld. Solicitor General for payment of the arrears with interest within twelve weeks. In the given facts and circumstances, we apprehend that non-implementation of the order may likely invite contempt in the matter. As regards the administrative, technical and financial issues raised by the administrative Ministry in para 8 & 9 of note 8/ante, in our opinion, the said changes do not change the legal position. However, it is for consideration whether the matter may be referred to Ld. Solicitor General for his consideration of the concerns expressed by the administrative Ministry in para 8 & 9 of note 8/ante.
May kindly see.
(Rajiv Sachan) Col
Department of Legal Affiars
Advice & ?...... 3770
Legal Adviser (Defence)
To discuss with LA (D)/LS
Additional Secretary (Shri M.K. Sharma)
Ls. S.G may kindly see for his considered opinion in the matter.
Department of Legal Affairs 9-10-12
Ld. Solicitor General of India
Office of Solicitor General D No 92/SG/2012
Office of the Solicitor General of India
Reference note on previous page.
2. As desired the opinion of Ld. S.G is placed in a separate cover. The opinion runs into (06) six pages.
PPS to Solicitor General
Addl Secy (Sh. M.K. Sharma
Pl put up for the app…. Of L.S
Office of Legal Adviser (Def)
Dy No. 1932(RB)/XII/LA (Def)
Dy.No. 1932 (RB) /XII/LA (Def)
Ministry of Law & Justice
Department of Legal Affairs
It may kindly be recalled that vide our Note 12/ante dated 25.09.2012, the Ld. Solicitor general of India was requested to tender his considered opinion in this matter which related to the implementation of the Hon’ble Supreme Court’s order dated 04.09.2012 in IA No. 9 of 2010 in Transfer Petition (C) No. 56 of 2007 titled as Union of India & Ors Vs. N. K. Nair & Ors.
2. The opinion dated 17.10.2012 of the Ld. SG has been received and the same is placed at F/X for kind perusal. The following is the summarised version of the Ld. SG’s opinion.
3. In para 2 of the opinion the Ld. SG has dealt with the brief background of the matter by stating that by an order dated 05.10.1998, a Ld. Single Judge of the Hon’ble Kerala High Court was pleased to allow O.P. No. 2448/1996 filed by one Major A.K. Dhanapalan with the following directions:
“Rank pay is something which has been given to the Army Officers in addition to the existing pay scales. That is not an amount which has to be deducted in order to arrive at the total emoluments which an Army Officer is entitled to get.
Under these circumstances, the 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 of Rs 200/- as has been done by the respondents 2 and 3. The petitioner is also entitles to get his pay re-fixed in accordance with the pay fixation of 1987 evidenced by Ext P1. Respondents 2 and 3 are directed to complete the process of re-fixation of pay of the petitioner as directed above, within three months from the date of receipt of a copy of this judgment.”
4. The Writ Appeal filed by the administrative Ministry before the Division Bench of the Hon’ble High Court as well as the Special Leave Petition against the order of the Division Bench were dismissed. A number of Petitions filed before the Apex Court and several High Courts for granting similar benefits were filed. The Hon’ble Apex Court vide its order dated 08.03.2010 was pleased to transfer to itself these Petitions from different High Courts and disposed of the matter itself by issuing the following directions:
“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. IA No.9 of 2010 in which the Hon’ble Apex Court passed the order dated 04.09.2012, was filed seeking inter-alia recall of the aforesaid order dated 08.03.2010 of the Apex Court. The Hon’ble Apex Court vide order 04.09.2012 was pleased to dispose of the said I.A. in the following terms:
“2. On thoughtful consideration of the entire matter, we are satisfied that the order dated March 8, 2010 does not require any modification or variation save and except the interest part.
3. As regards interest, 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 and the Kerala High Court had not ordered payment of interest on the arrears of pay, we direct that the interest shall be paid by the petitioners to the respondents @ 6% p.a. from January 1, 2006 instead of January 1, 1986. It is
clarified that this order shall govern all similarly situated officers who have not approached the court and also those who have filed Writ Petitions which are pending before various High Courts/Armed Forces Tribunal.
4. We record and accept the statement of the learned Solicitor General that arrears of pay with interest, as directed above, shall be paid to the concerned officers expeditiously and positively within twelve weeks from today.
5. I.A. No 9 of 2010 stands disposed of accordingly.”
6. The difficulties raised by the administrative Ministry in implementing the aforesaid order of the Apex Court have been considered in Para 4 of his opinion. In Para 5, the Ld. SG has opined that the said difficulties do not obtain in implementing the order dated 04.09.2012 passed by the Hon’ble Supreme Court for reasons cited in Para 5.1 to 5.6 of the opinion.
7. Ultimately, in Para 3, the Ld. SG has observed that the order passed by the Hon’ble Supreme Court is final and binding. Since the I.A. which was disposed of by the Hon’ble Supreme Court was in the nature of a review petition, a second review petition before the Hon’ble Supreme Court would not lie in this case. According to the Ld. SG a Curative Petition would also not lie for the reason that it is not a case where there is bias or no hearing within the meaning of Rupa Ashok Hurra Vs. Ashok Hurra, (2002) 4 SCC 388 at Para 51. (underlined in the original).
8. In the concluding para , the Ld. SG has opined that the Querist (Ministry of Defence) should comply with the order dated 04.09.2012 passed by the Hon’ble Supreme Court within time period stipulated in that order. (underlined in the original).
9. The opinion dated 17.10.2012 of the Ld. SG is submitted for kind consideration and approval of Law Secretary/MLJ.
(R S Shukla)
Legal Advisor (Defence)
Addl. Secy (Shri M.K. Sharma) sd/------------------
Law Secretary sd/--------------
AS (MKS) sd/------------
L.A. (Def) on tour
LO (Col Rajiv Sachan) sd/--------- 26.10.2012
A meeting has been convened in this matter in the office of AS (A) on 29/10/2012 at 5.30 pm. Please bring this file in the meeting.
Ministry of Defence
Reference preceding notes.
1. In the Rank Pay case of Union of India & Ors Vs. N. K. Nair & Ors, the Supreme Court has given judgement on 4.9.2012 (Flag ‘A’) which contained four directions:
(i) Order dated 8.3.2010 (Flag ‘E’ Link Folder) of the Supreme Court does not require any modification or variation save and except the interest part;
(ii) Interest shall be paid by the petitioners to the respondents at 6% per annum from January 1, 2006;
(iii) This order shall govern all similarly placed officers who have not approached the Court and also those who have filed writ petitions which are pending before various High Courts/Armed Forces Tribunals;
(iv) Arrears of pay with interest as directed above shall be paid to the concerned officers expeditiously and positively within 12 weeks of the date of the order.
2. Pursuant to the aforesaid judgement dated 4.9.2012, a note was put up in which it was decided to seek legal opinion in the matter.
3. The case was referred to LA (Def) who opined that there is no other option but to implement the order dated 4.9.2012 within the stipulated time frame.
4. From LA (Def), the case was referred to Addl. Secretary, Law who sought the considered opinion of Solicitor General in the matter.
5. The Solicitor General has rendered ( Flag ‘X’ Encl 13A) the following legal opinion:
(i) The order dated 4.9.2012 is to be implemented by the Querist in respect of the persons referred to in the order, in the same manner as the Court’s order was implemented in the case of Maj Dhanapalan (the petitioner before the Kerala High Court);
(ii) Order of the Supreme Court should be implemented by re-fixing the pay of officers w.e.f. 1.1.1986 without deducting rank pay in terms of the orders passed by the Kerala High Court and the Supreme Court; The application of the order dated 4.9.2012 is not excluded in respect of the officers in respect of whom the rank pay deduction was only in part and not full. Such persons would also be covered by the order dated 4.9.2012;
(iii) Once the revised pay is determined, the legal consequences thereof vis-à-vis payments of benefits which are determined on the basis of pay including rank pay, would naturally follow;
(iv) The requirement of making difficult calculations would not constitute a sufficient ground for delaying compliance with an order of the Supreme Court;
(v) In so far as legal heirs of deceased retired officers are concerned, the Querist should issue a advertisement in the newspapers so that such persons can come forward and approach the Querist on their own in this regard;
(vi) The Querist should comply with the order dated 4.9.2012 passed by the Supreme Court within the time period stipulated in that order.
6. The legal opinion of the Solicitor General on the order dated 4.9.2012 of the Supreme Court duly approved by the Hon’ble Law Minister was deliberated in the office of the AS (A) on 29.10.2012 in a meeting in which officers of MoD, Def (Fin), CGDA and MoF were present. Consequent upon deliberations, the following line of action was decided:
(i) Obtain approval of Hon’ble RM in principle for implementation of the order dated 4.9.2012 of the Supreme Court in the rank pay matter;
(ii) After in principle approval of the Hon’ble RM, refer the case to MoF for their concurrence through Def (Fin) regarding the implementation of the aforesaid Supreme Court order;
(iii) Parallel action be taken for preparation of the DGL by the Service Hqrs which will be subsequently vetted by CGDA, approved by MoD and concurred by Def (Fin) and MoF;
(iv) Office of CGDA to get in touch with Service Hqrs for obtaining data inputs in respect of retired officers so that pay fixation and related arrears of pay alongwith interest could be worked out expeditiously;
(v) JS (E) to hold meetings with officers of Service Hqrs and Def (Fin) very soon in which the modalities of implementation of the Supreme Court order dated 4.9.2012 could be decided alongwith the active cooperation and assistance of Service Hqrs.
7. The line of action enumerated in the preceding para is submitted for kind approval of Hon’ble RM.
AS (A) Sd/----------------- 30/x
FA (DS) Sd/------------------- 31/10
Defence Secretary Sd/---------------------- 1/11/12
RM Sd/------------ 3/11
Def Secy In meeting sd/SO to Def Secy 5/11/2012
AS (A) Sd/---------------- 5/XI
JS (E) Sd/-------------- 5/11/12
Dir (AG) Sd --------------- 5/11/12
Please send the file immediately to MOF for concurrence regarding the implementation of the Hon’ble Supreme Court order dtd 4.9.2012
SO/P/S Sd------------- 5/11/12
Deptt of Expenditure (Sh. A. N. Singh, Dy Secy
MoD ID F No. 34 (6)/2012-D (Pay/Services) dt 5/11/12
URGENT Sd/-------------- 5/11/12
US E.III. A Toady pl.
Pl. put up immediately.
SO (E-III A).
(This part is concluded)