- 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.
- 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.
Friday, 22 March 2013
Reply to RTI dated 21.1.2013 - Part Two
Part II – RTI
5. The next part, commencing with Note 67 of MoD File No. 34 (6) /2012 – D (Pay/Services) is the final part of this series.
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 & Ors – Rank Pay Case
Ministry of defence may please refer to their note on pp 16-19/N recorded on their F. No. 34(6)/2012-D (Pay/Services), having approval of RM, seeking concurrence of this Ministry for implementation of the aforesaid order of the Hon’ble Supreme Court.
2. The matter has been considered in this Ministry having regard to the opinion of the Learned SG tendered by him on 17.10.2012, as approved by the Minister for Law & Justice on 22.10.2012 (Note 14 recorded on the file of MoD cited above), and other records made available by the Ministry of Defence.
3. At the outset, considering the legal opinion of the Learned SG, as approved by the Minister for Law & Justice, as also having regard to the judicial pronouncements made by the Hon’ble Supreme Court in the matter, this Ministry “in principle” agrees at this stage to implement the order dt 4.9.2012 of the Hon’ble Supreme Court. However, before this Ministry conveys its final concurrence in the matter, the Ministry of Defence is requested to take the following action/furnish the following on an urgent basis:
a. The 5th Central Pay Commission, whose recommendations were implemented from 1.1.1996, also recommended for the similar formula for fixation of pay pertaining to Rank Pay. It is not clear if the implementation of the instant Court order pertaining to the fixation of pay from 1.1.1986 based on the 4th CPC recommendations, may have any impact on the formula adopted from 1.1.1996 based on the 5th CPC recommendations. It is also not clear from the file of the MoD if they have received any representations or notices for litigation in this regard and if so, what the stand of MoD has been to defend this. MoD may clarify the position in this regard, also clarifying how the fixation of pay pertaining to rank pay based on 5th CPC could be distinguished from that based on the 4th CPC.
b. (i) The Ministry of Defence has not indicated the extent of financial implications involved on implementation of the Order dt. 4.9.2012 in question. Nowhere in their notes on 9 to 18/N of their aforesaid File is there any mention about financial implications. However, it is seen that the CGDA in their note dt. 12.10.2012 have made a rough estimation of Rs 861 crore, covering Army, IAF and the Navy. However, it is also seen from the Annexure of this Note that various Field Level PCDAs have expressed their inability to exactly calculate the financial implications in view mainly of non-availability of accurate data and practical difficulty in timely collection and collation of material to do so.
(ii) The financial implications indicated before the Supreme Court based on the report of the High Powered Committee was Rs 1623.71 crore. Thus, there is a wide variation between this figure and the figure being indicated by the CGDA now. This will require reconciliation by the Ministry of Defence.
(iii) The fact remains that the financial implications will be huge – as it falls somewhere between Rs 861 crore and Rs 1623.71 crore. Ministry of Defence have not indicated as to how it proposes to meet such a substantial liability – whether it has scope for re-appropriation from its large overall budget. This is in an extraordinary situation, putting the Govt. to an unforeseen spectre of too large a financial outgo. This, thus, requires extraordinary efforts by the administrative Ministry of Defence as best as it can do to locate funds internally to meet this extraordinary funds requirement. The Ministry of defence may make this point clear.
(iv) It is seen from para 5 of MoD Note 8/N of their aforesaid file that arrears paid to Major Dhanapalan was Rs 28, 031 from 1.1.1986. This was paid after the SLP filed in the Supreme Court against the Order dt. 5.10.1998 of the Kerala High Court in his favour was dismissed in 2005. However, CGDA is now computing arrears to the tune of Rs 65, 578 in case of one Major. This is too wide a variation. Since the present order of the Supreme Court dt. 4.9.2012 is for following the principle of the Kerala High Court order of 5.10.1998, the MoD must ensure that re-fixation of pay from 1.1.1986 is done on the same basis as allowed in case of Major Dhanapalan. A copy of the order issued by the Ministry of Defence for implementation of the order dt. 5.10.1998 passed by the Hon’ble Kerala High Court in case of Major Dhanapalan, may be provided, along with the draft of the proposed order being prepared by the Ministry of Defence to implement the Order dt. 4.9.2012 in question.
(c) It is seen from the Order of the Hon’ble Supreme Court dt. 4.9.2012 that all the petitions that were tagged along were filed by the Army officers. It is also seen that the Pay Rules of 1987, which have been challenged and quoted by the MoD in its affidavit before the Supreme Court, are Special Army Instructions dt. 23.6.2007. It, thus, appears that so far the petitioners and the litigations have been Army-centric. This being so, the whole implication of the phrase “similarly situated/placed person” may confine to similarly placed persons from Army alone. However, MoD will have to check the details from the list of petitioners and if all are Army men, then Ministry of Defence may consult Law Ministry on an urgent basis if the implementation could be made only in case of similarly placed officers of Army, keeping in view that the petitioners are/were from the Army. This consultation with the Law Ministry may be made urgently and concurrently with the other action, as per (a) and (b) above.
4. Ministry of Defence is requested to do the needful as above and refer the case back to this Ministry at least by 20.11.2012 for final concurrence of this Ministry, so that there is adequate time for completing the process by 4.12.2012.
5. This has the approval of Finance Secretary.
(Amar Nath Singh)
Deputy Secretary (EIII A)
Ministry of Defence (Shri Shankar Agarwal, Additional Secretary)
MOF. DOE ID Note No. 187654/E.III (A)/2012, dt 09/11/12
Receipts Encls 19-A to 31-A
Ministry of Defence
Reference preceding notes.
2. After obtaining approval of the Hon’ble RM in principle for implementation of the order dated 4.9.2012 (Flag ‘A” Encl 1-A) of the Supreme Court in the rank pay matter (Note 16/ante), the file was referred to MoF for their concurrence through Def (Fin) regarding implementation of the aforesaid Supreme Court order. MoF vide their note dated 9.11.2012 (Note 18/ante) has stated that they “in principle” agree at this stage to implement the Court order. However, before conveying its final concurrence, they have made some observations and requested to take action/furnish the information.
3. The observations of MoF were sent to TRIPAS, CGDA (Encl 24/A) and Defence (Finance) (Encl 28-A) for furnishing clarifications/comments. The information from TRIPAS and CGDA has been received and is placed at Encl 30-A and Encl 31-A respectively. The information from Defence (Finance) is awaited.
4. In the meantime, TRIPAS was requested on 5.11.2012 (Encl 17/A) to furnish a DGL to be issued by Govt. in compliance of the Court judgement dated 4.9.2012. TRIPAS has furnished the DGL vide their note dated 7.11.2012 which may be seen at Encl 23-A (note) and 23-B (DGL). The DGL alongwith their note has been sent on 14.11.2012 to CGDA and Defence Finance for comments/vetting. The reply from CHGA and Defence (Finance) is awaited.
5. We have also received an ID Note dated 7.11.2012 from MoD (Fin/Budget-I) (Encl 19-A) in which they have requested CGDA, JS (E), JS (G/Air) and JS (O/N) to intimate likely cash outgo as well as period during this outgo will take place to enable them to project the budget provision accordingly. CGDA and TRIPAS were requested to furnish the requisite information. CGDA vide their letter dated 9.11.2012 (Encl-22A) has intimated that likely cash outgo has already been intimated vide their UO Note dated 12.10.2012 (Encl 22-B) (Rs 861 crore). However, they have stated that it is very difficult to workout the exact financial implication at this stage owing to the complexity and constraints in calculating the financial implications as highlighted in Annexure-C of their ibid UO Note. Further, MoD letter/instructions have not been issued as yet in this regard. The payment of dues within twelve weeks period may not be practically feasible and therefore some more time, say 6 months is required to be sought for proper implementation. Further, the expenditure which will be incurred would be a charged expenditure.
6. Submitted for further directions please.
US (P/S) – on training
Before furnishing a final reply to MoF, we may have
meeting with CGDA, Def (Fin) and LA (Def) at the level of AS (A).
I have already taken two meetings on the issue since last meeting taken by AS (A).
2. AS (A) may like to review the status with stakeholders, sometimes in the next week to expedite the response.
Tomorrow at 4.30 PM
Issue: Encl: 35-A
Receipt: Encl: 36-A
Receipt: Encl: 37-A
Receipt (CHRONOLOGY of EVENTS) Encl: 38-A
Ministry of Defence
Reference preceding notes.
2. Approval of Hon’ble RM was obtained on the following points of note 16/ante: -
(i) In principle approval for implementation of the order dated 4.9.2012 (Flag ‘A’) of the Supreme Court in the rank pay matter.
(ii) Refer the case to MoF for their concurrence through Def (Fin).
(iii) 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 the 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.
3. Accordingly, the file was referred to Ministry of Finance, who vide their note dated 9.11.2012 (Note 18/ante) has stated that they “in principle” agree at this stage to implement the Court order. However, before conveying its final concurrence, they have made the following observations and requested to take action/furnish the information:
(a) The 5th CPC whose recommendations were implemented from 1.1.1996, also recommended for the similar formula for fixation of pay pertaining to Rank Pay. It is not clear if the implementation of the instant Court order pertaining to fixation of pay from 1.1.1986 based on the 4th CPC recommendations, may have any impact on the formula adopted from 1.1.1996based on the 5th CPC recommendations. It is also not clear if any representations or notices for litigation in this regard have been received, and if so, what has been the stand to defend this. It may also be clarified how the fixation of pay pertaining to rank pay based on 5th CPC could be distinguished from that based on 4th CPC.
(b) It has not been indicated the extent of financial implications involved on implementation of the Order dated 4.9.2012 in question.
(c) The financial implications as indicated before the Supreme Court based on the report of the High Powered Committee was Rs 1623.71 crore. There is a wide variation between this figure and the figure (Rs 861 crore) being indicated by CGDA now.
(d) It has not been indicated as to how it proposes to meet such a substantial liability – whether it has scope for re-appropriation from its large overall budget. This required extraordinary efforts by the administrative Ministry of Defence as best as it can to locate funds internally to meet this extraordinary funds requirement.
(e) The arrears paid to Major Dhanapalan was Rs 28,031 from 1.1.86. However, the CGDA is now computing arrears to the tune of Rs 65,578 in case of one major. This is too wide a variation.
(f) It is seen from the order of the Hon’ble Supreme Court dt 4.9.2012 that all the petitions that were tagged along were filed by Army officers. It is also seen that Pay Rules of 1987, which have been challenged and quoted by MoD in its affidavit before the Supreme Court, are Special Army Instructions dt 23.6.1987. It, thus, appears that so far the petitioners and the litigations have been Army-centric. This being so, the whole implication of the phrase “similarly situated/placed person” may confine to similarly placed persons from Army alone. However, details from the list of petitioners may be checked and if all are Army men, then the Ministry of Defence may consult the Law Ministry on an urgent basis if the implementation could be made only in case of similarly placed officers of Army, keeping in view that the petitioners are/were from the Army.
4. The observations raised by Ministry of Finance have been examined in MoD in consultation with o/o CGDA, Defence (Finance), LA (Def) and Service HQrs and the position is as under: -
(i) MoF observations mentioned at 3(a): CGDA (Encl 31A) is of the view that the officers were not in receipt of Rank Pay prior to fixation of pay as on 1.1.86 whereas Rank Pay was being admitted to the officers on 31.12.95 based on which pay was revised as on 1.1.96 taking into account the element of Rank Pay as per V CPC orders. The court judgement of Kerala High Court given on the petition filed by Major (Retd.) AK Dhanapalan is for deducting Rank Pay at the time of pay fixation as on 1.1.86 i.e IV CPC. Further, it is not applicable for pay fixation as on 1.1.96 consequent on V CPC. Def (Fin) (Encl – 37A) is of the view that implementation of the Supreme Court order will have repercussion/impact on the formula adopted from 1.1.96 based on V CPC recommendations. However, since the ibid order is in respect of formula of pay fixation based on IV CPC recommendations only, it is advisable that at this stage, its implementation may be restricted to pay fixation adopted in pursuance of IV CPC recommendations only. Services (Encl- 30A) are, however, of the view that the application of the legal principles laid down by the Court extend to all Pay Commissions where Rank Pay was either drawn or affected while carrying out fixation of pay. So far as representations or notices on this particular issue are concerned, various notices have been received in which they have demanded re-fixation of pay from 1.1.1986 and payment of arrears till date.
(ii) MoF observations mentioned at 3(b): The exact financial implications is not feasible at this stage and can be estimated only after the decision about the applicability of Court judgement on V and VI CPC is taken.
(iii) MoF observations mentioned at 3 (c): The major factor for variation between estimations is due to the cut off date for calculation of interest on accrued arrears. During 2010, the interest was calculated wef 1.1.1986 whereas in the present estimation, the interest has been calculated wef 1.1.2006 as per direction contained in the Hon’ble Supreme Court judgement dated 4.9.2012.
(iv) MoF observations mentioned at 3 (d): It is not possible for MoD to meet the requirement of funds internally from allocated funds for such as huge amount. The possibility of making interim payment/payment in phased manner/deposit in their Provident Fund needs to be worked out in consultation with Service HQrs/CGDA/Defence (Finance) and MoF.
(v) MoF observations mentioned at 3 (e): A sum of Rs 28,031 (Flag ‘XX’) was paid to Major (Retd.) A.K. Dhanapalan on account of arrears to the revision of pay wef 1.1.86 to 31.12.95 as per the judgment of High Court of Kerala. Interest was not paid on his arrears. It may, however, be mentioned that the amount of arrears to a particular officer may vary due to the factors such as length of service after 1.1.86 (for which arrears are payable), promotion to the next higher ranks, pay fixation on promotion at the same stage as fixed earlier, officers reaching to maximum of scale, admittance of stagnation increments and pay earlier fixed and considered for revision consequent on V and VI CPC.
(vi) MoF observations mentioned at 3 (f): Treatment with Rank Pay in fixation of pay for Air Force and Navy is also the same as in the case of Army. Moreover, the petitioners are from all three Services who filed the Writ Petitions in the various High Courts which were subsequently transferred to Supreme Court. Defence (Finance) is also of the view that this order will be applicable to all officers of three Services who were given Rank Pay. The apex court in its order dated 4.9.12 has specifically mentioned that this order shall govern all “similarly situated officers.” Accordingly, it will be applicable to all the three Service officers.
5. Initially one DGL (Encl 23-B) has been prepared by Service HQrs (file linked below) and has been sent for comments/vetting to CGDA (Encl 26-A) and Def(Fin) (Encl 27-A). While Def (Fin) has furnished comments, the same is awaited from CGDA.
6. A meeting was held in the office of JS (E) in which Service officers were directed to get in touch with the CGDA and provide them the requisite data inputs in respect of retired officers so that pay fixation and related arrears of pay alongwith interest could be worked out expeditiously. The Service officers agreed for the same.
7. A chronology of the case is placed in the file (Encl 38-A) for kind perusal.
8. A meeting was taken by Additional Secretary (A) on 20.11.12 with the representatives of Service HQrs, CGDA, LA (Defence) and Defence (Finance to chalk out further course of action. In the meeting, following course of action has been finalised: -
(i) To approach the Hon’ble Supreme Court through Ld. SG to inform that the Government in consultation with Ministry of Law & Justice and Ministry of Finance “in principle” agrees at this stage to implement the order dated 4.9.12 of the Hon’ble Supreme Court. For this, the following course of action is proposed: -
(a) Approval of Hon’ble RM of two DGLs placed in the file for implementation of Hon’ble Supreme Court order dt 4.9.12.
(b) To make available the funds from the General Budget of Govt. of India under “Charged expenditure” for payment of dues.
(c) To decide about stages of payment whether in one go or in phases subject to availability of funds.
(ii) MoD (Finance) in consultation with MoF should immediately examine the availability of funds and suggest the modalities of payment so that the same can be incorporated in the final DGL regarding the principles, modalities and the amount of payment to be made to the concerned officers.
(iii) After completion of action proposed at (i) and (ii) above, the file will be endorsed to Ministry of Finance for concurrence of final DGL regarding the principles and modalities of payment to be made to the affected officers and the provisioning of funds which will be prepared by Service HQrs and vetted by CGDA and Def (Fin).
9. It is proposed to have a review meeting in the instant court case in the office of AS (A) on 23.11.2012.
10. The line of action enumerated in para 8 is submitted for kind approval of Hon’ble RM.
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 versus 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 was fixed in the revised scale at the stage next above the amount thus computed.
4. The re-fixation of pay after 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 judgement 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 judgement 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 Forces Tribunals.
(iv) Arrears of pay with interst 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 refixing the pay of the affected officers of the armed forces without deduction (of) 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 order by refixing 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” – words inserted by hand) for the implantation of Supreme Court, they have given certain observations and sought comments from MoD. MoD has sent the observations to Service Hqrs, CGDA, and def (Fin) for comments which have been received now.
8. Two meetings were held in the office of the undersigned to examine the modalities of the implementation of the Supreme Court judgement dated 4.9.2012. The following course of action was decided: -
(i) Issue a Government letter conveying the decision of the Government of India to implement the judgment of the Supreme Court dated 4.9.2012 and intimate the Solicitor General so that he can inform the Apex Court and contempt of court can be precluded. Draft is placed in file for approval (DGL.I).
(ii) Instructions regarding modalities and methodology of payment to the affected officers of the armed forces and the provisioning of funds be issued separately and expeditiously in consultation with Service Hqrs, CGDA, Def (Fin) and Ministry of Finance. For this, issue a letter to Director, TRIPAS, draft of which is placed in the file for approval (DGL.II).
(iii) Make available funds from the General Budget of the Government under “Charged Expenditure” for payment of dues to the affected officers of the armed forces.
9. The course of action spelt out in Para 8 is submitted for kind approval of RM.
Additional Secretary (A)
FA (DS) – (on tour)
Addl FA (M) & ???
I had a telephonic conversation with FA (DS), who is on tour, explained the case. As advised by her, we may have no objection from the Def (Fin) perspective on the above proposals. The case is apparently going to be time barred for implementation within 12 weeks w.e.f. 04/9/2012 i.e. on 27-11-2012.
2. MoF, who has to take a final call on this issue has approved in principle on this issue vide para 3 of 18/N ante.
As proposed by AS vide para 8 of Note 40/above. In addition, a petition before the Hon’ble Supreme Court be filed under advice of SGI, seeking further time, say for 12 weeks.
SHASHI KANT SHARMA
Def Secy - in meeting
Sd/---------- SO to Def Secy
AS (A) – on tour
JS (E) Urgent action please
As desired, application may please be prepared for seeking three months extension for implementing the Hon’ble Supreme Court judgement.
Shri Balram Das, Central Agency Section
Receipt Encl 44A
(CGDA letter dt 22.11.12 furnishing comments on DGL submitted by TRIPAS)
Receipt Encl 45A
(Defence (Finance) ID note dt. 21.11.2012)
Issue Encl 46A
(MoD ID Note dt 26.11.12 to TRIPAS)
Receipt Encl 47A
(MoD (Fin) ID Note dt 23.11.12)
Receipt Encl 48 A
(MoD ID Note dt. 26.11.12 to TRIPAS)
Issue Encl 49A
(MoD ID note dt 26.11.12 to CGDA seeking DGL)
Issue Encl 50A
(MoD ID Note dt 26.11.12 for Defence (Fin) seeking DGL)
Issue Encl 51A
(MoD letter dt. 26.11.12 conveying decision to
Implement the judgment dt. 4.9.2012 of Supreme Court)
Issue Encl 52A
(MoD ID Note dt 26.11.12 to TRIPAS asking for DGL
regarding modalities and methodology for payment)
Receipt Encl 53A
(Draft application for extension of time sent to Asst. Govt advocate
(Shri B.V. Balram Das) by Shri Farookh Rasheed, Advocate
Receipt Encl 54A
(Application for extension of time filed in Supreme Court on 27.11.12)
Receipt Encl 55A
(Air HQ letter dt. 27.11.12 addressed to MoD)
Issue Encl 56A
(MoD ID Note dt 27.11.12 to MIC for uploading MoD letter
Receipt Encl 57A
(TRIPAS letter dt 27.11.12)
Receipt Encl 58A
(Defence (Finance) ID Note dt. 26.11.12 to CGDA with copy to this section for furnishing DGL)
Receipt Encl 59A
Receipt Encl 60A
Receipt Encl 61A
Issue Encl 62A
Ministry of Defence
Reference preceding notes.
2. After obtaining approval of the Hon’ble RM on Note 40 ante, the following actions have been taken:
(i) Government letter conveying the decision of the Government of India to implement the judgment dated 4.9.2012 of Supreme Court has been issued on 26.11.2012 (Encl 51/A).
(ii) An application has been filed on 27.11.2012 in the Supreme Court informing the decision of the Government of India to implement the judgement of the Apex Court dated 4.9.2012 and seeking further twelve weeks time to implement the said order (Encl 54/A).
(iii) DGL regarding modalities and methodology for implementation of the Supreme Court order dated 4.9.2012 has been obtained from CGDA (Encl 59/A) and the same has been vetted by Def (Fin) alongwith comments thereon (Encl 60/A). On the basis of this, DGL has been prepared by MoD and placed at Encl 61/A.
3. A meeting was held in the o/o AS (A) on 4.12.12 alongwith officers of Defence (Finance) and CGDA to finalise the DGL regarding modalities and methodology of payment to the affected officers in the Rank Pay case.
4. In the meeting it was decided that CGDA and Defence Finance will confirm categorically to MoD in the light of the Supreme Court Judgement dated 4/9/2012 on the following points:
(i) Whether minimum of basic pay will not change consequent upon re-fixation of pay as Rank Pay is not part of Basic Pay.
(ii) Whether Integrated Pay Scale will also not change consequent upon re-fixation of pay.
(iii) Whether only pay related allowances (Dearness Allowance, Interim relief, Dearness Pay) and also (Non-practising Allowance in respect of AMC/ADC/RVC) will change consequent upon re-fixation of pay.
(iv) How the pay over and above the maximum pay scale will be treated consequent upon re-fixation of pay and whether it is in consonance with the existing procedure being followed in such cases.
(v) Whether Grade Pay will also change consequent upon re-fixation of pay after 1.1.2006.
(vi) Whether the Affidavit filed by the Committee of Three Secretaries in the Supreme Court will have any impact on the re-fixation of pay in the Rank Pay case.
CGDA will submit revised DGL keeping in view the above confirmation duly vetted by Defence Finance to MoD by 6.12.2012 positively. A draft letter to CGDA with copy endorsed to Defence Finance is placed opposite for kind approval before issue.
5. During the meeting, the officers of CGDA as well as Defence Finance have cited the following judgements in the Rank Pay case which are quoted below:
I. Judgement dated 5.10.1998 of Single judge of the Kerala High Court in the case of Major A.K. Dhanapalan.
“Rank Pay is something which has been given to 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, 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.”
II. Supreme Court Division Bench Judgement dated 8th March 2010
“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.”
III. Supreme Court Division Bench Judgment dated 4.9.2012
“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……………..We direct that the interest shall be paid by the 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.”
CGDA and Defence Finance were of the opinion that the aforesaid Kerala High Court judgment dated 5.10.1998 in the case of Major A.K. Dhanapalan and the Supreme Court judgments dated 8th March 2010 and 4.9.2012 are silent on two issues. (underlined in original).
(i) Revision of Pay Fixation Formula as per V CPC Orders for not deducting the Rank Pay. (underlined in original)
(ii) Need for making changes in allowances subsequent to re-fixation of pay as per the case of Major A.K. Dhanapalan.
6. After the receipt of the Supreme Court judgment dated 4.9.2012, when the file was referred to the Solicitor General of India seeking his legal opinion, he rendered the following legal opinion: -
(i) 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 in the Kerala High Court).
(ii) Once the revised rates is determined, the legal consequences thereof vis-à-vis payment of arrears which are determined on basis of pay including Rank Pay would naturally follow.
It is opined that the two issues raised by CGDA and Defence Finance as enumerated in Para 6 above are already covered by the legal opinion rendered by the Solicitor General as given above. It is clear from the legal opinion that the principle of re-fixation of pay of the affected officers has to be on the lines of the Major A. K. Dhanapalan case Judgment and the pay related allowances will have to be determined accordingly. However, during the meeting on 4.12.2012, AS (A) has desired that legal opinion may be obtained expeditiously on the twin issues raised by CGDA and Defence Finance. However, it would be pertinent to mention here that when the matter was referred for legal opinion in the past, even after repeated chasing, legal opinion was rendered after being routed through the various channels of the Ministry of Law in about 40 days. JS(E) stated that Defence Secretary has desired that the DGL regarding the modalities and methodology of payment to the affected officers must be issued within this week, positively.
7. Submitted for kind perusal and directions of AS (A).
8. We may apprise above position to the Defence Secretary.
Matter discussed with AS (A) & Defence Secretary today i.e. 5/12/2012. We may kindly hold meeting with reps of CGDA, Def (Fin), Min of Fin and Min of Law & Justice at 12.00 noon on 6.12.2012 with AS (A) and at 3.30 pm on 7.12.2012 with Defence Secretary.
Dir (AG-I) JS (E)
Action proposed at Para 4 of note 63 ante is approved.
? AS (A)
JS (E) – seen
Issue Encl 66/A
This Part concluded due upload restriction