Without Comment – A
Faithful Re-production in Word Format
Of Attachment with
GoI/MoD Letter F. No. 35 (1) 2013 – D (Pay/Services) dated 13th
February in response to RTI application
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Marginal Notes
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The text from the letter
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Encl 198A
Flag A
Flag B
Flag C
Flag D
Flag E
Flag F
Encl 198/A
Flag G
Urgent
Sd/-
16/3
US (P/S)
2909/AS(M)
1/4
Diary No 3534
05/04/10
Diary No 4246
3/4/10
Office of R.M
Diary 1791-F
Date 3/4/2010
Dairy No. 3745
Date: 09/4/10
Dairy no. 4246
Date: 09 APR 2010
Dairy no. 1901-F
Date: 9/4/2010
Office of Director (AG)
Dairy no. 1314
Date; 9/4/10
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-200-
This is regarding order dated 8.3.2010 (please refer to margin) of the
Hon’ble Supreme Court in Writ Petition (c) No. 96/2009, Writ Petition (c) No.
34/2009 both filed against Union of India and Transfer Petition (c) No. 56 of
2007 filed by Union of India in the Hon’ble Supreme Court on the issue of
Rank Pay.
2. Briefly, the issue dates back to 1987 when the
recommendations of the Fourth Central Pay Commission were implemented for all
Central Government employees, including those in the Armed Forces. Going with
the specific recommendations of the Pay Commission (Flag A), it was decided in consultation with Ministry
of Finance that while calculating revised pay of the officer up to the rank
of Brigadier, Rank Pay of the officer as on 1.1.1986 would be deducted from
existing emoluments and after the revised pay is fixed in the revised pay
scale, Rank Pay as per the rank of officer would be added. In one case
involving an officers Major Dhanapalan, the Hon’ble Kerala High Court, vide
its order dated 5.10.1998 (flag B),
decided that no deduction of Rank Pay would be made while calculating revised
pay. The appeal of the Government in the Hon’ble High Court was also
dismissed vide Division Bench order dated 4.7.2003 (Flag C). Subsequent S.L.P filed in the Hon’ble Supreme
Court against the decision of Kerala High Court was dismissed on 12.7.2005 (Flag D) on account of delay alone.
In light of this, the decision of the Kerala High Court was implemented in
favour of the officer vide AHQ letter dated 26.8.2005 (Flag E).
3. After the matter was decided by Kerala High Court in
favour of the applicant officer, a number of officers started filing writ
petitions on this count in different High Courts. Accordingly, the matter was
discussed at the highest level in the Ministry in consultation with Ministry
of Finance and it was decided to file a Transfer Petition in the Hon’ble
Supreme Court. Therefore, TP (C) No. 56 of 2007 was filed in the Hon’ble
Supreme Court seeking transfer of 11 cases from High Courts. The then
Additional Solicitor General, Shri Gopal Subramanium had intervened and
obtained stay order on 5.2.2007 (Flag
F) from the Hon’ble Supreme Court. This Transfer Petition and two more
Writ Petitions on the same subject filed by groups of officers directly in
the Hon’ble Supreme Court were tagged together.
4. These matters were atekn up for hearing in the Hon’ble
Supreme Court on 8.3.2010 (Encl 198A).
Shri Mohan Jain, Additional Solicitor General appeared for Union of India,
alongwith some other Advocates. The Hon’ble Supreme Court, after hearing the
arguments from both sides agreed with the reasoning given by the Kerala High
Court in the matter. Accordingly, the Hon’ble Supreme Court vide its order
dated 8.3.2010 has allowed two Writ Petitions (filed in the Hon’ble Supreme
Court) as well as Writ Petitions covered in the Transfer Petition filed by
the Union of India. The Hon’ble Court also directed for payment of interest @
6% p.a.
5. As stated above, Ministry of Finance have been
consulted in the matter at the time of filing of Transfer Petition and also
when counter affidavit was filed against Writ Petition in the Hon’ble Supreme
Court. All grounds, reasons in support of Government stand were put forth
before the Hon’ble Court. But having considered all these reasons, the
Hon’ble Court has held that the decision of the Kerala High Court should be
made applicable to the officers in all Writ Petitions which have been allowed
on 8.3.2010, Additionally, interest @ 6% per annum has also been ordered to
be paid. While preparing counter reply, MoD called for the financial
implications in the matter from CGDA. As per their note dated 22.12. 2009 (Flag G) financial implications were
estimated to be Rs 433 crores, without taking into account financial
implications on pensionary benefits in respect of Army and Navy officers.
Apart from the financial implications, pay and pensionary benefits would have
to be re-calculated from 1.1.1986 itself. This gigantic exercise would also
entail further revision of pay and pension from 1.1.1996 and 1.1.2006 i.e.,
after Fifth CPC and Sixth CPC with additional interest thereon. Further,
after this specific issue has been finally decided by the Hon’ble Supreme
Court, the benefit would have to be allowed to al similarly placed
officers.
6. In light of the above, it is strongly recommended that
the matter may be placed before Legal Adviser (Defence) for his advice for
filing a review Petition in the Hon’ble Supreme Court against its order dated
8.3.2010. It is also requested that advice of Shri Gopal Subramanium,
Solicitor General may also be obtained in the matter as he was associated
with the case when Transfer Petition was filed in the Hon’ble Court in 2007.
Submitted please.
Sd/--------------
(P. S. Walia)
Under
Secretary
10.3.2010
-201-
JS (E) Para 6 may kindly be approved.
Sd/-
10/3/10
AS (M)
-202-
As proposed,
Finance Ministry
shall be kept in
the picture.
Sd/-
11/3
Defence Secretary
Pl discuss early
Sd/
13/3
-203-
Discussed. This case
may have
wide ranging
financial implications.
We may take action
as indicated in para 6 above.
Sd/-
15/3
PRADEEP
KUMAR
Defence Secretary
R.M.
Sd/-
Def Secy 16/3
AS (M)
sd/- 16/3
-204-
Notes 200-203 would recall the issue.
2. As approved by RM, Legal Advisee (Defence) is requested
to take action as per para 6 of nore 200. A copy of the advice dated
12.9.2006 given by Shri Gopal Subramanium, the then Additional Solicitor
general is also placed in file as F/X.
Sd/-
(P.S.
Walia)
Under Secretary
17.3.2010
Legal Adviser (Defence)
-205-
Diary No. 0584/X/LA (Def)
Ministry of Law & Justice
Department of Legal Affairs
OFFICE of LA (DEF)
Refer preceding notes.
2. The reference under consideration is as o whether the
Review Petition under Article 137 of the Constitution of India may be filed
against order dated 08.03.2010 in WP (C) No.96/2009 between Sunil Kumar Chand
& Ors Vs UoI & Ors passed by Hon’ble Supreme Court (Flag Y).
3. The brief facts of the case
may be perused in the referring note. This is regarding implementation of the
recommendations of the Furth Central Pay Commission. It was decided in
consultation with the Ministry of Finance that while calculating revised pay
of the officers upto the rank of Brigadier, rank pay of the officer as on
1.1.1986 would be deducted from existing emoluments and after revised pay is
fixed in the revised pay scale, rank pay as per the rank of the officer would
be added. In case of major Dhanapalan, Single Judge of Kerala High Court vide
order dated 05.10.1998 (Flag B) in
OP 2448/1996 directed the Deptt to re-fix the pay w.e.f. 01.01.1098 without
deducting the rank pay of Rs 200/-. Deptt challenged the order of Single
Judge before Division Bench. The Division Bench of the Kerala High Court vide
order dare 04.07-2003 (Flag C)
dismissed the appeal. The SLP filed by the Deptt was dismissed on 12.07.2005
on the ground of delay.
4. After the Kerala High Court judgment, the number of
officers started filing writ petitions in different High Courts. Later on,
the cases pending before High Court were got transferred to Apex Court.
Hon’ble Apex Court vide order dated 08.03.2010 held 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 petitions
as well as the transferred writ petitions
Are allowed.”
5. We have carefully examined the matter. The review under
Article 137 of the Constitution of India before the Hon’ble Supreme Court of
India is exercisable in accordance with the rules made under Article 145 of
the Constitution of India. The rules permits the review on three grounds
mentioned in Order 47 Rule 1 of CPC viz.
a. Discovery of new facts;
b. Mistake or error apparent on
face of record, and
c. Any other sufficient
reason.
In the note of
reference for opinion, Deptt has stated that the financial implications were
estimated to be Rs 433 crores, without taking into account financial
implications on pensionary benefits in respect of the Armed Forces Officers.
Apart from the financial implications, pay and pensionary benefits would have
to be re-calculated from 01.01.1986 itself. This gigantic exercise would also
entail further revision of pay and pension from 01.01.1996 and 01.01.2006
i.e. after Fifth CPC and Sixth CPC with additional interest thereon and the
benefit would have to be allowed to all similarly placed officers. The matter
is within limitation period of 30 days. Deptt has already obtained the
approval of Hon’ble Raksha Mantri in the matter and suggested that the
opinion of Ld. Solicitor General may be obtained.
6. However, we may request the Central Agency Section to
place the matter before Ld. Solicitor General for seeking his considered
opinion to file a Review Petition under Article 137 of the Constitution of
India.
May kindly see.
Sd/--
(B. K. Kulshreshtha)
Asst Legal Adviser (Defence)
22.03.2010
Legal Adviser
(Defence)
(Shri Inder
Kumar)
Sd/- 22-3-10
Additional
Secretary
(Shri R.L. Koli) Sd/- 23/3
CAS -206-
May kindly
give the opinion
regarding
the feasibility of
filing the
Review petition in
the instant
case. Sd/-
T. N. Tiwari
JS & LA
26-03-2010
Ld S G
(Sh Gopal
Subramanium)
-207-
In view of the
serious
Financial
implications, a
high powered
committee headed
by Defence
Secretary may be
constituted to
asses the financial
impact. Certified in
public interest
as fit for
Review/Recall.
Sd/-
31.3.10
Gopal Subramanium
Solicitor General
of India
Shri T. N. Tiwari, JS & LA, CAS
Sd/- 01-4-10
Addl Secy (Shri R.L.Koli) Sd/- 1.4.10
LA (Def) sd/- 1-4-10
-208-
May
kindly peruse Note 207 of learned Solicitor General of India with reference
to approval of Raksha Mantri at Minute 203/ante.
2. Solicitor General has opined that in view of the
serious financial implications, a High Powered Committee headed by Defence
Secretary may be constituted to assess the financial impact. He has further
certified in public interest that the case is fit for Review/Recall.
3. Hence, it is necessary to constitute a High Powered
Committee to assess the financial implications which are involved in the
implementation of the order of Hon’ble Supreme Court dated 8.3.10 (placed
opposite – flag ‘Y’.)
4. In view of the huge financial implications and
importance of the case, it is proposed that following High Powered Committee
may be constituted: -
(i) Defence Secretary
(ii) Secretary, Department of
Expenditure
(iii) Secretary (Defence
Finance)
5. Defence Secretary may kindly approve. A draft O.O. is
also placed opposite for approval.
Sd/------------------
(Anand Misra)
Joint Secretary (E)
1.4.2010
AS (M)
-209-
View of MoF are at
note 138 ante. Defence Secretary
and RM had seen
this file with note 203 ante.
Para 4 of note above
for kind approval
Sd/-
¼
Defence Secretary
-210-
I have spoken to
Secty Dept of Exp
and Secty Def.
Finance, who have consented
to be part of this
committee.
R.M. may kindly
approve.
Sd/-
Pradeep kumar
Defence Secretary
3 /4
R.M. sd/-
3 /
4
Def Secy
3
/4
AS (M) Sd/- 5/4
JS (E) Sd/- 5/4
US (P/S)
-211-
Issue
------------------------------------------------------ Encl 211/A
-212-
Receipt
--------------------------------------------------- Encl 212/A
(certified copy of
order
Dated 8.3.2010)
-213-
Issue -------------------------------------------- Encl
213/A
(Meeting notice)
Receipt -----------------------------------------------
Encl 214/A
Receipt -------------------------------------------------
Encl 215/A
-216-
High Powered
Committee met on 7/4/2010. Copy of Report of the Committee is placed o Encl
215/A. (Original Report has been left with Dir (AG) to kept in safe custody)
Sd/- P.S. Walia
8/4/2010
-217-
Notes from 208-210/ante may kindly be perused. As approved by R.M
(Note 210/ante), a High Powered Committee comprising of Defence Secretary,
Secretary (Deptt. of Expenditure) and Secretary (Defence Finance) was
constituted on 5.4.2010. The Committee met on 7.4.2010 and took note of the
financial implications as worked out by Controller General of Defence Accounts
(CGDA). The Report of the Committee is placed opposite at Flag ‘AA’. Arrears
on account of pay and pension were assessed to be around Rs 426 crores and Rs
83 crores respectively. Interest @ 6% per annum on these arrears as ordered
by the Hon’ble Supreme Court has been found to be Rs 1114.71 crores
approximately. Thus total financial liability come to around Rs 1623.71
crores.
2. Taking note of the above mentioned one-time financial
implications and enhanced recurring implications, the Committee has taken a
view that these facts may be submitted to the Hon’ble Supreme Court for
consideration.
3. Report of the High Powered Committee is submitted for
perusal of RM.
Sd/- 9/4/2010
(P. S. Walia)
Under Secretary
JS(E)
-218-
May kindly
be submitted to RM for perusal.
2. Further action in the matter will be taken in
consultation with Solicitor General of India.
Sd/- A Misra
9/4.2010
Defence Secretary
Sd/-
9/4
PRADEEP KUMAR
Defence Secretary
R.M
Sd/-- 9/4
Def Secy
sd/- 9/4
JS (E)
sd/- 9/4
Dir (AG)
sd/- 9/4/10
Under Secretary (P/S)
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