Part III – RTI
Please note:
- Flagging of enclosure and Dairy Numbers are shown in parenthesis as (Flag ‘A’)/ (Diary 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.
- Figures provided by CGDA etc vide UO note and Annexures mentioned were posted on this blog earlier. Please co-relate and do not raise doubts/ ask questions.
- None of the Enclosures mentioned were provided. An appeal is being filed in the next few days for being provided with the Enclosures.
- Lines underlined are by the officials of MoD and not by this author.
- This is the final part of the notes on MoD File No. 34 (6)/2012 – D (Pay/Services)
---------------------------------
-67-
Ministry of
Defence
D (Pay/Services)
Reference
preceding notes.
2.
Pursuant to the note 64, a meeting was held in
the office of AS (A) on 6.12.2012 to discuss the finalisation of DGL regarding
implementation of the Supreme Court Judgement dated 4.9.2012 in the Rank Pay
case. The meeting was attended by JS (E), Director (AG-I), Officers from
Defence Finance and CGDA and LA (Defence).
3.
LA (Defence) was of the view that the principle
of fixation of pay has been decided by the Supreme Court according to which pay
of the affected officers has to be re-fixed with effect from 1.1.1986 without deducting the Rank Pay. This
principle has to be followed for re-fixation of pay of the affected officer in
IV CPC, as well as V CPC.
4.
Based on the aforesaid opinion of LA (Defence)
and deliberations held with reference to the issues raised in note 63, the
following decisions were taken:
(i)
Letter dated 6.12.2012 (Encl 66A) to be given by
hand to the representative of CGDA which contains the observations of MoD with
reference to the DGL submitted by CGDA (Encl 59A).
(ii)
CGDA to prepare a revised DGL keeping in view
the observations of the MoD contained in letter dated 6.12.2012 and the legal
opinion expressed by LA (Defence) as stated in Para 3. The revised DGL of CGDA
must be submitted to Defence Finance and LA (Defence) for vetting and copy of
the same must be endorsed to MoD for examination on 6.12.2012 itself
positively.
(iii)
The proposed DGL of the CGDA duly vetted by
Defence Finance and LA (Defence) will be put up for deliberations in the
meeting to be taken by Defence Secretary on 7.12.2012 at 3.30 pm which will be
attended by FADS, CGDA, AS (Law), LA (Defence), officers from MoF and MoD.
(iv)
CGDA should also make rank-wise calculations of
the minimum and the maximum pay scales based on the proposed revised scale
(written by hand) and submit the same to MoD duly vetted by Defence Finance on
6.12.2012 positively.
Submitted for kind perusal and
approval of AS (A).
Sd/___________________
(Praveen Kumar)
Director (AG-I)
6.12.2012
JS (E)
Sd/---------------
6/12/12
AS (A) Sd/--------------------
6/XII
JS (E) Sd/---------------------
6/12/12
Dir (AG-I) Sd/----------------------
6/12/12
SO/P/S Sd/----------------------
6/12
-68-
Issue
------------------------------------------------ Encl 68/A-
-69-
Issue
------------------------------------------------Encl 69/A-
-70-
Issue---------------------------------------------Encl
70/A-
-71-
Receipt--------------------------------------------------Encl
71/A
-72-
Receipt--------------------------------------------------Encl
72/A
-73-
Receipt------------------------------------------------Encl
73/A
-74-
Receipt------------------------------------------------Encl
74/A
-75-
Receipt--------------------------------------------------Encl
75/A
-76-
Receipt--------------------------------------------Encl
76/A
-77-
Issue---------------------------------------------------Encl
77/A
-78-
Receipt Encl 78A
-79-
Ministry of
Defence
D (Pay/Services)
Reference
preceding notes.
2.
This case related to implementation of Supreme
Court Order dated 04.09.2012 passed in I.A. No. 9/2010 [Flag – S.C. Order dated
04.09.2012 of LF No. 1] in Transfer Petition No. 56/2007 relating to Rank Pay
case.
3.
The case in brief is as under:
(a)
In 1996, one officer Major A.K. Dhanapalan
(Retired) filed a Petition O.P. No. 2448/96 in the High Court of Kerala praying
that his pay be fixed in the Rank of Captain as on 1.1.1986 without deducting
the amount of Rank Pay of Rs 200/- from his emoluments and that the Rank Pay
appropriate to his Rank should be paid to him over and above the pay so fixed.
(b)
The Single (Judge)
Bench of Kerala High Court decided the case in favour of the Petitioner vide
its Order dated 05.10.1998 [Flag – Kerala HC Single Bench Judgement dated
05.10.1998 of LF No.1]. The operative part of which reads as under:
“Rank Pay is something which has been given
to the Army officers in addition to the existing Pay Scales. That it 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, Respondents 2
and 3 are directed to refix 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.”
(c)
The above Order was challenged before the
Division Bench of the Kerala High Court vide W.A. No. 518/1999 by the Department.
The Division Bench of the Kerala High Court vide its Order dated 04.07.2004
[Flag – Kerala H.C. Division Bench Judgement dated 04.07.2003 of L.F. No. 1]
decided against the Department and dismissed the Appeal. The operative part of
the Order is as under:
“…… it is clear that for civilian officers,
there is no Rank Pay. But for Army Officers there is Rank Pay admittedly as
mentioned above. Necessarily, when the principles as mentioned above applies to
the Army officers, the Rank Pay shall also be added to the Substantive Pay.
That is what has been directed in the impugned Judgement. Therefore, there is
no merit in the Appeal. The Appeal
fails, dismissed.”
(d)
The Petition for a Special Leave to Appeal was
filed by the Union of India before the Supreme Court of India vide CC
5908/2005. But the same was dismissed on 12.7.2005 [Flag – Supreme Court Order
dated 12.07.2005 of LF No.1] by the Supreme Court on account of inordinate
delay of 561 days. The Department then implemented the Kerala High Court Order dated
05.10.1998 in respect of major (Retd.) A. K. Dhanapalan.
(e)
Subsequently, a number of Writ Petitions were
filed in various High Courts seeking similar relief as was given to Major
(Retd.) A.K. Dhanapalan by the Kerala High Court. In the circumstances, the
Department then filed Transfer Petition (C) No. 56/2007 titled UoI & Ors
Vs. N.K. Nair & Ors before Supreme Court seeking transfer of all such Writ
Petitions pending before various High Courts. During the pendency of the
Transfer Petitions, more Petitions were filed directly in the Supreme Court,
seeking the benefit granted to Major (Retd.) A. K. Dhanapalan and these were
tagged together with the Transfer Petition for adjudication. Supreme Court
disposed off these Petitions on merit vide order dated 08.03.2010 [Flag –
Supreme Court Order dated o8.03.2010 in LF No.1] operative portion of which is
as under:
“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.”
(f)
Union of India subsequently filed I.A. No.9/2010
before Supreme Court praying to recall its Order dated 08.03.2010 contending
that financial implications are approximately Rs 1623.71 crore and that Pay was
correctly fixed as per recommendations/implementation of IV CPC. The Supreme
Court disposed off I.A. No. 9/2010 on 04.09.2012 [Flag – Supreme Court Order
dated 04.09.2012 of LF No. 1] with the following order:
“On thoughtful considerations 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……………… We direct
that the interest shall be paid by Petitioners to the Respondents at the rate
of 6% per annum 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.”
(g)
On receipt of the Supreme Court order dated
04.09.2012, views of the Solicitor General was sought. Solicitor General
rendered the legal opinion which can be seen at Flag ‘X’ – Opinion of SG]. He
advised in brief that:
“5.1…….. Order dated 4.9.2012 has 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 Major
Dhanapalan (the Petitioner before the Kerala High Court).
“5.4……………….. Once the revised rats is
determined, the legal consequences thereof vis-à-vis payment of arrears which
are determined on the basis of pay including Rank Pay would naturally follow.”
(h)
With the approval of the Hon’ble RM on note 16,
the file was endorsed to Ministry of Finance on 05.11.2012 for concurrence for
implementation of the Order of Supreme Court dated 04.09.2012.
(i)
The Ministry of Finance, while agreeing ‘in
principle’ to implement the Order dated 04.09.2012 of the Supreme Court, has
given certain observations and sought action/views of MoD on those
observations. The views of MoD on each of the observations are placed opposite
at Flag ‘Y.’
(j)
The CGDA has submitted a DGL [See Flag
‘Z’] in the matter the salient provisions of which are as under:
1)
The provisions of this letter will be applicable
to all the officers who were in service as on 01.01.1986 in the rank of
Captain to Brigadier and their equivalents in Air Force and Navy.
2)
In partial modification of the regulation for
fixation of initial pay in the revised scales stipulated in SAI/SNI/SAFI
1/S/87, with effect from 01 January 1986, the pay of the officers will be
re-fixed in the Integrated scale as per the Orders already existing in the
ibid SAI [Flag – SAI 1/S/87 of LF No.1]/SNI/SAFI without deducting Rank Pay.
The relevant provisions of SAI/SNI/SAFI 1/S/87 stand amended to that extent.
3)
If, after the re-fixation of pay, in case the
pay so computed is more than the maximum of the revised scale, the
difference shall be allowed as personal pay to be absorbed in future
increases in the pay. The relevant provisions of Para 6 (c) of SAI 1/S/87 and
corresponding provisions of SNI and SAFI stand amended to that extent.
4)
Minimum pay in the Integrated Scale for
each Rank after completion of prescribed years of service stipulated in Para 6
(a) (ii) and Integrated Pay Scale prescribed in Para 3 (a) (i) of SAI 1/S/87
and corresponding Para of SNI/SAFI will not undergo any change.
5)
After the re-fixation of pay as above, the pay
of the officers as on 01.01.1996 and as on 01.01.2006 will be revised, if there
is a change in pay on 31.12.1995 and 31.12.2005 respectively, as per the
existing provisions of SAI [Flag SAI 2/S/98 and SAI 2/S/08 of LF No. 1]
/SNI/SAFI of 1998 and 2008 as amended from time to time.
6)
Method of fixation of pay on 01.01.1996 will not
undergo any change.
7)
Grade Pay will also not undergo any change
on re-fixation of pay after 01.01.2006.
8)
Dearness Allowance,
Interim Relief, Dearness Pay and Non-Practising Allowance in respect of
AMC/ADC/RVC officers will be revised.
9)
Interest @ 6% per annum on the arrears will be paid
with effect from 01.01.2006.
4. It is now proposed that we may endorse the file to the
Ministry of Finance for concurrence of the DGL submitted by CGDA.
Sd/----------------------------------
(Praveen Kumar)
Director (AG-I)
10.12.2012
JS (E) Sd/______________
10/12/12
AS (A) -80-
Case in respect of V CPC be examined & put up
separately.
Sd/________________
10/XII
FA (DS)
-81-
Addl
FA (M?) to also see. Is it as per decisions taken in the meeting
held
by Defence Secretary on 7/12?
Sd/___________
11/12
-82-
Re
kind posers from FA (DS) as at above
I
have gone through the observations and notings of MoD as at 79/N ante onwards .
The proposed course of action are as per the discussions taken in the meeting,
chaired by the Defence Secretary on 07/12/12.
2. Queries of
MoF as at 18/N ante, have been attempted to be replied by MoD, as at F/Y, which
seem to be in order.
3. The revised DGL, furnished by
CGDA on 10/12/2012 as at F/Z seems to be in order and require approval of MoF
for implementation of Supreme Court order dtd 04/9/2012 in all respects.
4. May kindly like to peruse, for
soliciting approvals of Defence Secretary and Hon’ble R.M.
5. After
approval of Hon’ble RM, the reference has to be sent in RF of Def (Finance)
Sd/--------------------
11/12/12
(JS
& Addl FA (M)
FA (DS) Sd/---------
11/12
Defence Secretary Sd/--------------------
AS (A) Sd/-----------------
JS (E) Urgent
Sd/-----------
D(AG-I) As discussed
-83-
Reference preceding notes.
2. This is regarding the judgment/order of the Supreme Court
dated 4.9.2012 in the rank pay case of Union of India & others Vs. N.K.
Nair & others.
3. After the IV Central Pay Commission, fixation of initial pay
in the revised scale was regulated as follows:
(i) An amount representing 20% of the basic
pay in the existing scale was added to the existing emoluments of the officer.
(ii) After the existing emoluments were so
increased, an amount equivalent to rank pay, if any, appropriate to the rank
held by the officer on 1.1.1986 at the rates prescribed by the Government was
deducted. Thereafter the officer’s pay fixed in the revised scale at the stage
net above the amount thus computed.
4. The fixation of pay deduction of rank pay as elucidated
above was challenged in the various Courts by the officers from the Army, Air
Force and the Navy. The Writ Petitions were transferred to the Supreme Court.
5. The Supreme Court delivered a judgment
in the matter on 4.9.2012 with the following directions:
(i)
Order dated 8.3.2010 of the Supreme Court which upheld the legality of the
judgment of the Kerala High Court for re-fixation of pay without deduction of
rank pay does not require any modification save and except the interest part.
(ii)
Interest shall be paid by the Petitioners to the Respondents @ 6% per annum
from January 1, 2006 instead of January 1, 1986.
(iii)
This order shall govern all similarly placed officers who have not approached
the court also those who have filed writ petitions which are pending before
various High Courts/Armed Force Tribunals.
(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.
6. It has been decided by the Ministry of
defence in consultation with the Ministry of Law and the Ministry of Finance to
implement the aforesaid order of the Supreme Court by re-fixing the pay of the
affected officers of the armed forces without deduction (of) the rank pay as
directed by the Apex Court. The Solicitor General of India has also opined that
the Supreme Court order has to be implemented within the stipulated time frame
of 12 weeks from the date of the order by re-fixing the pay of the affected
officers with effect from 1.1.1986 without deducting rank pay in terms of the
orders passed by the Kerala High Court and the Supreme Court.
7. Although the Ministry of Finance have
agreed “in principle” for implementation of Supreme Court judgment, they have
given certain observations and sought comments from MoD. MoD has prepared
point-wise reply to those observations which can be seen at Flag ‘Y.’ Def (Fin)
has found this reply to be in order as seen from Note 82 ante.
8. With the approval of RM on Note 40,
following actions have been taken:
(i) Govt. letter has been issued on
26.11.2012 conveying the decision of the Government of India to implement the
judgment of the Supreme Court dated 4.9.2012.
(ii) Application has been filed in the
Supreme Court on 27.11.2012 requesting for giving 12 weeks time for
implementation of Supreme Court order dated 4.9.2012.
(iii)
DGL has been obtained from CGDA (Flag ‘Z’) regarding modalities and methodology
of payment to the affected officers of the armed forces and the same has been
vetted by Def (Fin).
9. It is now proposed that we may endorse
the file to Ministry of Finance for concurrence of the DGL submitted by CGDA
(Flag “Z”) and vetted by Def (Fin) with the approval of FA (DS). The salient
features of DGL of CGDA are (i) re-fixation of pay in the integrated pay scale
without deducting rank pay (ii) pay so computed if in excess of the maximum of
revised scale to be allowed as personal pay (iii) minimum pay in integrated
scale will not change (iv) integrated pay scale will not change (v) Grade pay
will not change (vi) method for fixation of pay on 1.1.96 will not change (vii)
interest @ 6% per annum on arrears will be paid from 1.1.2006 (viii) compliance
of Supreme Court order dated 4.9.2012 is consequent to implementation of
recommendations of IV CPC.
10.
Submitted for kind approval of RM.
Sd/-------------------------
11/XII
(Shankar
Aggarwal)
Additional
Secretary (A)
11.12.2012
Defence Secretary
Sd/-------------------------
11/12/12
SHASHI
KANT SHARMA
Defence
Secretary
RM Sd/------------
11/12
Def Secy Sd/---------------
11/12
AS (A) Sd/---------------- 11/XII
JS (E) Sd/-------------------
11/12
JS (Pers) MoF Sd/----------------- 11/12
Deptt of Exp Sd/---------------11.12.12
DS (E.III A) Sd/--------11.12.12
US (III.A)
Received at 6.25 pm Pl put up
today
Sd/----------------------
11/12
Note
84 Received
Note-85
Note 84A of
MoF was received in MoD on 17/12/12/A/N and copy of the same was endorsed to
MoD (Fin).
2) MoD (Fin) have given their
views on the note of MoF which is flagged as BBB.
3) Views of LA (Def) are required
urgently on the view furnished by MoD (Fin).
4) The file has to be endorsed to
MoF on 18/12/12.
5) Hence LA (Def) may kindly give
his legal opinion in the matter by 18/12/12/, 11 a.m. positively.
Sd/_________________
17/12/12
Dir
(AG-I)
MoD
JS/E Sd/--------------------- 17/12/12
LA (Def)
Urgent received at 6 pm. Pl
diarise and put up to L.O. (RS)
Sd/----------------
17/12/12
LO (RS)
-86-
Dy.
No. 2561/XII/LA (Def)
Ministry
of Law & Justice
Department
of Legal Affairs
The matter relates to implementation
of the Hon’ble Apex Court’s order dated 04.09-2012 in I.A. No. 9 of 2010 in
Transfer Petition (C) No. 56 of 2007 titles UoI & Ors Vs. N.K.Nair &
Ors.
2. It may be relevant to mention here that
the administrative Ministry had earlier felt some administrative difficulties
in implementing the said order and sought opinion of Ld. Solicitor General
(SG). The Ld. SG vide his opinion dated 17.10.2012 advised inter-alia that the
order passed by the Hon’ble Supreme Court is final and binding. According to
Ld. SG, the order of the Apex Court is to be implemented by the administrative
Ministry in the same manner as the order has been implemented in the case of
Major A.K. Dhanapalan.
3. With regard to the implementation of
the order, a number of meetings held in the administrative Ministry. Last such
meeting was held on 07.12.2011 under the Chairmanship of the Defence Secretary
in which the Addl. Secy. (Sh. M.K. Sharma) was also present amongst
others.
4. A draft sanction letter (F/Z) proposing
to implement the Apex Court’s order was forwarded vide note 83-84/ante with the
approval of Hon’ble Raksha Mantri (RM) to the Department of Expenditure
(Ministry of Finance) for their concurrence. The salient features of the draft
sanction letter as per para 9 of the said note are: (i) re-fixation of pay in
the integrated pay scale without deducting rank pay (ii) pay so computed if in
excess of the maximum of revised scale to be allowed as personal pay (iii)
minimum pay in integrated scale will not change (iv) integrated pay scale will
not change (v) Grade pay will not change (vi) method for fixation of pay on
1.1.96 will not change (vii) interest @ 6% per annum on arrears will be paid
from 1.1.2006 (viii) compliance of Supreme Court order dated 4.9.2012 is
consequent to implementation of recommendations of IV CPC.
5. The draft sanction letter forwarded by
the administrative Ministry was considered in the Department of Expenditure
(Ministry of Finance) vide MoF, DoE ID No. 187654/E-IIIA/2012 dated 17.12.2012
(F/ZZ). One of the significant observations of the Department of Expenditure
relates to the inability of the Ministry of Defence to provide a copy of the
Government sanction issued by them for implementation of the order in the case
of Major A.K. Dhanapalan and the consequent inability of the Department of
Expenditure to see as to how the sanction was constructed to implement the
Court’s order in the case of Major A.K. Dhanapalan. Besides, the department of
Expenditure has also expressed their reservation with regard to grant of
personal pay as proposed by the Ministry of Defence. In addition, the
Department of Expenditure has considered that the Government sanction has to
ensure the pith and substance of the judicial pronouncement, hence it is
necessary to clearly mention as also the action taken by the Government to
follow the same completely in the draft sanction letter, so that there is no
dispute or ambiguity as to the proper implementation of the Court’s order.
Keeping this in view, they have suggested a fresh construction in place of para
1 to 2 (e) of the draft sanction letter proposed by Ministry of Defence which
is placed at F/ZZZ. They have further suggested to consider the suggested
modifications in consultation with CGDA, Defence (Finance) and also LA
(Defence). The draft construction suggested by Department of Expenditure has
also been forwarded to MoD (Finance) which in turn agreed vide their UO dated
17.12.2012 (F/BBB) with the same and suggested the administrative Ministry that
after firming up the views as advised by Ministry of Finance, the matter may be
sent to them for forwarding to Ministry of Finance again.
6. We have perused the matter. It is not
clear from the referring note as to what extent the suggestions of the
Department of Expenditure as contained in its ID note dated 17.12.2012 (F/ZZ)
and the fresh construction provided by them to substitute para 1 to 2 (e) of
the draft letter, are acceptable to the Ministry of Defence. Further, it is also for consideration as to
how the interest of officers who became Captain subsequent to 01.01.1986 and
their equivalents in Air Force and Navy, and thei pay fixed after deducting
rank pay, is to be protected. (marked
“‘A” by Addl Secy. Please see note 87 below)
7. In view of the above, though in the absence of the sanction
issued by the administrative Ministry to implement Kerala High Court’s order
dated 05.10.1998 in the case of Major A.K. Dhanapalan, it may not be possible
to ensure that the proposed implementation of the order dated 04.09.2012 is
strictly in accordance with the principles adopted in implementation of the
Court’s order in the case of Major A. K. Dhanapalan. However, taking into
consideration the urgency involved in the matter particularly apprehension of
probable contempt, we do not see any legal or constitutional objection in
general to the observations/suggestions of the Department of Expenditure as
also agreed to by Defence (Finance). Further, the said observations may also be
independently considered by the administrative Ministry and if found
acceptable, may be incorporated in the revised draft sanction letter. The
draft sanction letter so revised may, thereafter, be forwarded to Defence
(Finance) for onward submission to the Ministry of Finance. Before we conclude,
it is considered necessary to suggest the administrative Ministry to ensure
that the implementation of the Apex Court’s order dated 04.09.2012 in the
matter is strictly in the same manner it was done in the case of Major A.K.
Dhanapalan.
Sd/-----------------
(Col.
Rajiv Sachan)
Legal
Officer
18.12.2012
L.A. (Defence)
sd/-----------------------
18/12/12
Addl. Secy. (Sh. M.K. Sharma)
-87-
I
agree. ‘A’ above needs consideration.
The M/O Defence must ensure that
the manner applied in the case of Maj AK Dhanapalan is strictly followed in
this instant case
Sd/---------------------------
18/12/12
LA (Def) Sd/-----------------
18/12/12
LO (RS) Sd/-----------------
18.12.2012
1400 hrs
-88-
The matter under consideration in
this file is regarding implementation of the Hon’ble Supreme Court order dated
04.09.2012 in the matter of Rank Pay. The matter was considered in MoD in
consultation with Defence (Finance) and CGDA and a proposal alongwith a DGL
duly concurred by FA (DS) and approved by RM was referred to MoF for their
concurrence vide Note 83 ante.
2. On examination of the aforesaid proposal and the DGL, the
MoF, vide their ID Note dated 17.12.2012 (Encl/84A) have raised certain
observations as under: -
(a) Non-submission of Govt. sanction letter
for implementation
i. MoD has not been able to provide a
copy of the Govt sanction issued by them for implementation of the order dated
5.10.1998 of the Hon’ble Kerala High Court in the case of Major A.K.
Dhanapalan.
(b) DGL
i. The order of the Hon’ble Kerala High
Court is for re-fixation of pay as on 1.1.1986 without deduction of rank pay as
admissible to an officer as on 1.1.1986. This particular provision of the
Special Army Instructions of 1987 which provides for such a deduction is
contained in para 6 (a) (ii) thereof. Therefore, in essence, the judicial
pronouncement is to modify this provision so as not to deduct the rank (word ‘pay’ is missing). Accordingly, the
order to be issued by the Government in compliance of the Hon’ble Supreme Court
order dated 4.9.2012 needs to provide for modification of the provision, in so
far as fixation of pay as on 1.1.1986 is concerned.
ii.
The judgment is for fixation of
pay in the revised scale (integrated scale of pay) as on 1.1.1986 without
deduction of the rank pay and if after non-deduction of rank (word ‘Pay’ is missing), the pay exceeds
the maximum of the integrated scale, no Personal Pay could be allowed because
no such provision flows from the judgment of the Hon’ble Supreme Court dated
04.09.2012 read with their earlier dated 08.03.2010 and the order dated
5.10.1998 passed by the Hon’ble Kerala High Court. In fact, para 6 (c) of the
Special Army Instructions of 1987 clearly provides that in such cases the pay
will be fixed at the maximum of the revised scale. Therefore, no deviation from
this provision, especially because the same does not follow the court order,
may be allowed, lest there be repercussions for complete relaxation of the said
para 6 (c) of the Special Army Instructions from other quarters.
iii.
Considering that the Govt. sanction has to
ensure the pith and substance of the judicial pronouncement, it is necessary to
clearly mention as also the action taken by the Government to follow the same
completely in the Draft Govt. letter so that there is no dispute or ambiguity
as to the proper implementation of the court order.
MoF
have advised MoD that in place of para 1 to 2 (e) of the draft proposed by MoD,
a fresh construction has been suggested. MoD may like to consider the suggested
modifications in consultation with CGDA, Defence (Finance) and also legal
Adviser (Defence). The factual veracity of the highlighted portion of the para
3 of the suggested draft may be particularly ensured by the MoD as the MoD has
not been able to provide a copy of the Govt. sanction issued by them to
implement the court order in case of Major AK Dhanapalan. MoD may revise the
draft based on their consultations and thereafter, they may send the same to
MoF for putting up the matter before the Hon’ble FM.
3. It is clarified that MoD has not issued
any Govt sanction for the implementation of the order of the Hon’ble Kerala
High Court dated 5.10.1998 in case of Major AK Dhanapalan. The requisite
sanction order was issued by AG Branch of AHQ vide their letter dated 26.8.2005
after the proposal of AHQ was approved by MoD and concurred by Defence
(Finance). The relevant file in the matter is enclosed herewith [F. No.
B/25511/AKD/PS-3(A)].
4. As advised by MoF, views of Defence
(Finance), CGDA and LA (Defence) have been obtained on the observations of MoF
and these are available at Encl 86/B, F/87A, and Note 86 ante respectively.
Defence (Finance), CGDA and LA (Defence) have concurred with the views of MoF
regarding the modifications in the DGL including that relating to Personal Pay.
5. Regarding the factual veracity of the
highlighted portion of para 3 of the draft suggested by MoF, CGDA has confirmed
vide UO dated 18.12.2012 (Encl 87/A) that payment was made by PCDA (O) Pune as
per the sanction for the charged expenditure for Rs. 28,031/- issued by AHQ/AG
Branch vide their letter No. B/25511/AKD/AG/DV-5/PS-3 (a) dated 26.8.2005 to
implement the court order in case of Major AK Dhanapalan.
6. Keeping in view the opinion of Defence (Finance), CGDA and
LA (Defence) and the urgency involved in the matter particularly apprehension
of probable contempt, it is proposed
a. The observations of MoF may be
incorporated in the DGL now proposed by MoD to MoF. The revised DGL
incorporating these observations is placed opposite.
b. The protection of pay by way of
Personal pay beyond the maximum on the integrated scale of pay in respect of
the affected officers, who will be senior Brigadiers and their equivalents in
the Air Force and Navy, may be reconsidered by MoF separately to preclude
any possibility of contempt in the matter.
- The proposals given in para 6 above are put up for kind approval of RM after which the matter would be referred back to MoF for their concurrence of the revised DGL (F/DRAFT DGL) (88/B).
Sd/-------------------------------
(Praveen
Kumar)
Director
(AG.I)
18.12.2012
JS (E) Sd/----------------
18/12/12
AS (A) Sd/------------------------
18/XII
Defence Secretary Sd/-----------------------
18/12/12
RM Sd/------------------
18/12
-89-
May
like to endorse to Min of Finance.
Sd/---------------------
JS (E)
18/12/12
JS & Addl FA (M)
No comments/initials or signature
-90-
Ministry of Finance
Department of Expenditure
Subject: Implementation
of the Order of 4.9.2012 passed by the Hon’ble Supreme Court – IA No. 9 of 2010
– Union of India Vs N.K. Nair & Others – Rank Pay Case
Ministry of Defence may please refer
to their Notes 88/N recorded on their F. No. 34(6)/2012 – D (Pay/Services),
seeking concurrence of this Ministry on the draft Government letter (sanction
letter) for implementation of the aforesaid order of the Hon’ble Supreme Court.
2. The Note received from the Ministry of Defence (Finance)
recorded on page 14 dated 18.12.2102 of their file n. 8 (13)/2012-AG/PA also
refers.
3. This Ministry concurs in the draft
sanction as revised by the Ministry of Defence, based on the suggestion made by
this Ministry, which has also been vetted by LA (Defence) vide Note 86 and 87
of the file of the Ministry of Defence ibid. However, LA )Defence) also made a point,
as made by this Ministry, in regard to the non-availability of the sanction
issued by the Ministry of Defence to implement the order dated 5.10.1998 in
case of Mj. Dhanapalan. Therefore, Ministry of Defence may ensure the
factual accuracy of para 3 of the proposed draft sanction, as advised by this
Ministry earlier also as per the ID note of even no. dated 17.12.2012.
4. The estimated financial implications as
worked by the Ministry of Defence are to the tune of Rs 861 crore. However, as
advised by this Ministry in para 3 (b) (iii) of ID note of even no. dated
9.11.2012, the Ministry of Defence have not indicated as to how far they are in
a position to meet the additional cost from their existing budget. Ministry of
Defence is advised to make all efforts to locate savings from their existing
budget to meet the coast to keep additionality as low as possible.
5. This issues
with the approval of the Finance Minister.
Sd/-----------------------------
(Amar
Nath Singh)
DS
(E-IIIA)
Ministry of Defence (Shri
Sameer Kumar Khare, Joint Secretary)
MoF, DoE ID No.
187654/E-IIIA/2012 dated 24.12.2012
Copy to: Ministry of Defence
(Finance) (JS & Addl FA (M)
Part
III Concluded
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