Please note:
- 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.
-----------------------------------
-1-
Receipt Encl. 1/A
(Supreme Court order
dated 4.9.2012)
-2-
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.
Sd/-----------------------
(P.S. Walia)
Under Secretary, D
(Pay/Services)
10.09.2012
Director
(AG-I)
-3-
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/
10/9/12
JS (E)
-4-
Please
discuss on 11/9/12 alongwith US (P/S)
Sd/-----
10/09/12
JS
(E) PO?
Dir (AG) Sd/------ 11/9/10 Diary
No. 8361
Date
10/9
US/P/S
-5-
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.
Sd/----------------------------
(P.S.
Walia)
Under
Secretary
11.09.2012
Director (AG-I)
-6-
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.
Sd/--------
11/9/12
JS (E)
-7-
Pl put up a detailed note for
deliberation,
Sd/------------
11/09/12
Dir (AG) Sd/---------
11/9/12
US/P/S Sd/ no date
-8-
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.
Sd-----------------
(P.S.
Walia)
Under
Secretary
12.9.2012
Dir (AG.I)
-9-
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.
Sd/----------
13/9/12
JS E (on local trg)
AS/A
-10-
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(?)
Defence Secretary
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
Defence Secretary
FA (DS)
-11-
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
14/9
Defence Secretary
Sd/--------------
14/9/2012
SHASHI
KANT SHARMA
AS (A) Defence
Secretary
Sd/---------
14/9
Urgent
JS (E) on tour
LA (Defence) Office
of Legal Adviser (Def)
Dy
No. 1932/XII/LA
Sd/-------- Date:
14/9/12
14/9/12
LO (RS)
-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.
Sd/-------------------------------
(Rajiv
Sachan) Col
Legal
Officer
25.09.2012
Department of Legal Affiars
Advice & ?...... 3770
Dated…………..
Legal Adviser (Defence)
Sd/----------------
25/09/12
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.
Sd/-------------
Department of Legal Affairs 9-10-12
Advice
FTS 3770/12
Date: 10/10/12
Ld. Solicitor General of India
Office of Solicitor General D No
92/SG/2012
Date: 17/x/12
-13-
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.
Sd-----------------
18/10/12
(A. S.KOHLI)
PPS
to Solicitor General
Addl Secy (Sh. M.K. Sharma
Pl
put up for the app…. Of L.S
Sd/----------------
18/10/12
LA (Def)
Office of Legal Adviser (Def)
Dy No. 1932(RB)/XII/LA (Def)
Date: 19/X/12
-14-
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.
Sd/--------------------------------
(R S Shukla)
Legal Advisor (Defence)
19.10.2012
Addl. Secy (Shri M.K. Sharma) sd/------------------
19.10.12
Law Secretary sd/--------------
19.10.12
MLJ sd/-----------
22/10/12
L.S. sd/----------
23.10.12
AS (MKS) sd/------------
25-10-12
L.A. (Def) on tour
LO (Col Rajiv Sachan) sd/--------- 26.10.2012
AS (A)
Immediate
Sd/----------
26/10/12
Dir (AG)
-15-
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.
Sd/--------------------
29/10/12
-16-
Ministry of Defence
D (Pay/Services)
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.
Sd/--------------------
(Praveen Kumar)
Director (AG-I)
30.10.2012
JS (E)
Sd/----------------
30/10/12
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
-17-
Please send the file immediately to MOF for concurrence
regarding the implementation of the Hon’ble Supreme Court order dtd 4.9.2012
Sd/--------------
5/11/12
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.
Sd/------------
-
6/11
SO (E-III A).
(This part is
concluded)
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