Reply dated 3.4.2013
to RTI – TRIPAS, CGDA, Def (Fin)
Part III
********
Encl 62/A
MOST IMMEDIATE
MEETING NOTICE
Ministry of
Defence
D (Pay/Services)
Subject: Implementation of Hon’ble Supreme Court order dated
4.9.2012 given in IA No. 9 of 2010 in Transfer Petition
No. 56 of 2007 filed by UoI v/s N.K. Nair & Ors: Rank Pay.
******
Additional
Secretary (A) will take a meeting on 4.12.2102 at 1000 hours in his Chamber
(Room No. 199-B, South Block) to discuss the above subject.
2.
The addressees are requested to kindly make it
convenient to attend the meeting.
Sd/---------------------
(Praveen Kumar)
Director (AG.I)
2301 1593
1. Jt CGDA IAT.I) Shri Mohinder Singh
2. JS & Addl FA (M)
MoD ID No. PC. 34 (6)/2012-D(Pay/Services) dt. 3.12.2102
Copy to: PPS to AS (A)
PPS to JS (E)
*****
Encl 66/A
Most Immediate
Court Case
Ministry of Defence
D (Pay/Services)
Sub: Implementation
of Supreme Court order dated 4.9.2012 in the rank pay case.
With
reference to the discussions held in the office of the AS (A) on 4.12.2102 on
the subject, it is requested that a revised DGL may be furnished regarding the
modalities and methodology of payment in the Supreme Court Rank Pay Judgment
dated 4.9.2012, which should address the following issues:
(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 even 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.
2.
The revised DGL duly concurred by Def (Fin)
should reach MoD by 6.12.2012 positively.
Sd/--------------------------
(Praveen Kumar)
Director (AG.I)
Jt CDGA (AT.I) Shri Mohinder Singh
MoD ID No. 34(6)2012-D (Pay/Services) dated 6.12.2012
Copy for necessary action to: Def (Fin)/AG-PA
*****
Encl 66/B
IV CPC
Integrated Pay
Scale, Rank Pay & Minimum Pay in the Integrated Scale
Existing as well
as proposed in the DGLs of TRIPAS and CGDA/Def (Fin)
|
Rank
|
Existing Integrated Pay Scale /(Rank Pay)
(Before Order)
|
Existing Minimum Pay in the Integrated
Scale
(Before Order)
|
Integrated Pay scale/(Rank Pay) proposed
by TRIPAS
(after order)
|
Minimum pay in the integrated scale
proposed by TRIPAS
(after order)
|
Integrated pay scale/Rank pay/Minimum pay
in the integrated scale proposed by CGDA in ther DGL and agreed by Def (Fin)
|
|
Lt
|
2300-100-3900-4200-150-5100
(-)
|
2500
|
2300-100-3900-150-5850-200-6450
(-)
|
2500
|
*
|
|
Capt
|
2300-100-3900-4200-150-5100
(200)
|
2800
|
2300-100-3900-150-5850-200-6450
(200)
|
3000
|
*
|
|
Major
|
2300-100-3900-4200-150-5100
(600)
|
3400
|
2300-100-3900-150-5850-200-6450
(600)
|
4050
|
|
|
Lt Col
|
2300-100-3900-4200-150-5100
(800)
|
3900
|
2300-100-3900-150-5850-200-6450
(800)
|
4800
|
*
|
|
Col
|
2300-100-3900-4200-150-5100
(1000)
|
4500
|
2300-100-3900-150-5850-200-6450
(1000)
|
5550
|
*
|
|
Brig
|
2300-100-3900-4200-150-5100
(1200)
|
4950
|
2300-100-3900-150-5850-200-6450
(1200)
|
6250
|
*
|
*CGDA’s Views: (a) The Court
judgment does not have any mention about revision of Integrated pay scale
adding Rank Pay to it. Hence, revision of Integrated pay scale with change rate
of increments is not covered. If it is done, the pay scale fixed for the rank
of Major General and above may get burst.
(b) No change to minimum pay fixed for each rank is required
because the Integrated pay scale has been devised considering the total service
span of twenty three years from the rank of Lt to Brig.
V CPC
Pay scale & Rank Pay: Existing as well as proposed in the DGLs
of TRIPAS and CGDA/Def (Fin)
|
Rank
|
Existing Pay Scale (Rank Pay) Before
Orders
|
Pay Scale/(Rank Pay) proposed by TRIPAS
After Orders
|
Pay Scale /(Rank Pay) proposed by CGDA in
DGL and agreed by Def (Fin)
|
|
Capt
|
9600-300-11400
(400)
|
10000-325-11950
(400)
|
*
|
|
Major
|
11600-325-14850
(1200)
|
12800-375-16550
(1200)
|
*
|
|
Lt Col
|
13500-400-17100
(1600)
|
15100-400-18700
(1600)
|
*
|
|
Col
|
15100-450-17350
(2000)
|
17100-450-19350
(2000)
|
*
|
|
Brig
|
16700-450-18050
(2400)
|
19100-500-20600
(2400)
|
*
|
* CGDA views: -
(a) The pay of
the affected officers as on 1.1.1996 will be revised considering the pay in the
Integrated scale as on 31.12.1995 consequent upon the revision carried out as
on 1.1.86 without deducting Rank Pay. Hence no amendment to SAI 2/S/98 issued
after V CPC is required.
(b) The provisions
of SAI 2/S/98 stand correct for officers in service as on 1.1.96 and
commissioned thereafter. Therefore the revision of pay scales as proposed by
TRIPAS becomes irrelevant.
(c) The Rank
Pay element was introduced in IV Pay Commission which has very much gone into
the pay fixation formula while implementing V CPC.
Defence Finance views: -
The
Supreme Court order pertains specifically to amendment in the formula of pay
fixation based on IV CPC recommendations for addition of Rank Pay, the implementation
should be restricted to requisite amendment in the pay fixation formula of IV
CPC only. The pay scales/pay bands recommended by V and VI CPC need not be
altered.
VI CPC
Pay Scale/(Pay
band) & Grade Pay: Existing as well proposed in the DGLs of TRIPAS and
CGDA/Def (Fin)
|
Rank
|
Existing Pay scale/(Pay Band)
|
Existing Grade Pay
|
Pay Scale/(Pay Band) proposed by
TRIPAS
|
Grade Pay proposed by TRIPAS
|
Pay Scale/(Pay Band) Grade Pay proposed
by CGDA in the DGL and agreed by Def (Fin)
|
|
Capt
|
15600-39100
(PB-3)
|
6100
|
15600-39100
(PB-3)
|
6600
|
*
|
|
Major
|
15600-39100
(PB-3)
|
6600
|
15600-39100
(PB-3)
|
7600
|
*
|
|
Lt Col
|
37400-67000
(PB-4)
|
8000
|
37400-67000
(PB-4)
|
8700
|
*
|
|
Col
|
37400-67000
(PB-4)
|
8700
|
37400-67000
(PB-4)
|
9000
|
*
|
|
Brig
|
37400-67000
(PB-4)
|
8900
|
37400-67000
(PB-4)
|
10000
|
*
|
*CGDA’s views: In
case the pay being drawn by the officers as on 31.12.05 gets affected due to
the revision carried out as on 1.1.86 as per Court order, the pay as on
1.1.2006 will be revised w.r.t. to the instructions laid down in SAI 2/S/08 issued
after VI CPC. Hence the changes proposed in the pay band and grade pay are
irrelevant.
*****
Encl 68/A
MOST IMMEDIATE
MEETING NOTICE
Ministry of
Defence
D (Pay/Services)
Subject: Implementation of Hon’ble Supreme Court order dated
4.9.2012 given in IA No. 9 of 2010 in Transfer Petition
No. 56 of 2007 filed by UoI v/s N.K. Nair & Ors: Rank Pay.
******
Additional
Secretary (A) will take a meeting on 6.12.2102 at 1230 hours in his Chamber
(Room No. 199-B, South Block) to discuss the above subject.
2. The
addressees are requested to kindly make it convenient to attend the meeting.
Sd/---------------------
(Praveen Kumar)
Director (AG.I)
2301 1593
1. JS & Addl FA (M)
2. LA (Defence)
3. JT CGDA (AT.I) (Shri Mohinder Singh)
MoD ID No. PC. 34 (6)/2012-D(Pay/Services) dt. 6.12.2102
Copy to: PPS to AS (A)
PPS to JS (E)
*****
Encl 69/A
Most Immediate
Court case
Subject: Implementation of Hon’ble Supreme Court order dated
4.9.2012 in Rank Pay case
With reference to the discussions
held in the office of AS (A) on 6.12.2012 on the subject and in continuation of
letter of even number dated 6.12.2012, it is requested that a revised DGL may
be furnished regarding the modalities and methodology of payment in the Supreme
Court Rank Pay Judgment dated 4.9.2012, which should also address the following
issue:
(i) The principle for re-fixation
of pay without deduction of Rank Pay in case of the affected officers will be
adopted for IV CPC and the same principle will be followed for the V CPC.
2.
The revised DGL should be submitted to Def (Fin)
and LA (Defence) for vetting and copy of the same should be endorsed to MoD on
6.12.2012 positively.
3. CGDA should
also make rank-wise calculations of the minimum and the maximum pay scales
based on the proposed revised DGL and submit the same to MoD duly vetted by
Defence Finance on 6.12.2012 positively
Sd/---------------------
(Praveen Kumar)
Director (AG.I)
2301 1593
Jt CGDA IAT.I) Shri Mohinder Singh
MoD ID No. PC. 34 (6)/2012-D(Pay/Services) dt. 6.12.2102
Copy for necessary action to: (i) Def (Fin)/AG-PA
(ii)
LA (Defence)
*****
Encl 70/A
MOST IMMEDIATE
MEETING NOTICE
Ministry of
Defence
D (Pay/Services)
Subject: Implementation of Hon’ble Supreme Court order dated
4.9.2012 given in IA No. 9 of 2010 in Transfer Petition
No. 56 of 2007 filed by UoI v/s N.K. Nair & Ors: Rank Pay.
******
Defence
Secretary will take a meeting on
7.12.2102 at 1530 hours in Room No. 203, South Block to discuss the above
subject.
2.
The addressees are requested to kindly make it convenient
to attend the meeting.
Sd/---------------------
(Praveen Kumar)
Director (AG.I)
2301 1593
1. FA (DS)
2. JS & Addl FA (M)
3. CGDA
4. D/O Legal Affairs, Shri M.K. Sharma, Addl Secretary
5. D/O Expenditure, Mrs Sudha Krishnan JS (Pers)
6. LA (Defence)
7. JT CGDA (AT.I) (Shri Mohinder Singh)
8. D/o Expenditure (Shri A.N. Singh, Dy Secretary)
MoD ID No. PC. 34 (6)/2012-D(Pay/Services) dt. 6.12.2102
Copy to: SO to Defence Secretary
PPS to AS (A)
PPS
to JS (E)
US
(Estt.2)/Genl. I
*****
Encl 71/A
Urgent/Court case
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt-10
Subject: Implementation of
Hon’ble Supreme Court order dated 4/9/2012
in IA No. 9 of 2010 in Transfer Petition No. 56 of 2007
filed by UoI v/s N.K. Nair & Ors on the matter of Rank Pay.
Reference:
MoD, D (Pay/Services) two IDs both bearing No. 34 (6)/2012 – D(Pay/Services)
dated 06/12/2012 addressed to this HQ office and copy to your office.
*****
As
desired in MoD Ids cited above, the revised DGL addressing the issues regarding
minimum pay for each rank, integrated scale, method of fixation of pay from
01/01/1996 and admissibility of Grade Pay is forwarded herewith for
consideration.
2.
Regarding Dearness Allowance, Interim Relief and
Dearness Pay and Non-Practising Allowance in r/o AMC/ADC/RVC there is already
provision in Para 2 (e) of the DGL.
3.
Following is submitted for consideration
regarding method/procedures if the pay crosses the maximum of the pay scale
after requisite fixation and whether the excess amount should be treated as
personal pay or otherwise in Para 1(iv) of MoD ID dated 06/12/2012.
a)
Para 6 (c) of SAI 1/S/1987 stipulates that if
the amount computed as per sub-para a(ii) of the ibid SAI is more than the
maximum of the revised scale, the pay will be fixed at the maximum of the
revised scale. There is no provision in this clause to allow the excess amount
as personal pay to be absorbed in future increases in pay.
b)
However, as per para 6 (j) of the ibid SAI where
the existing emoluments as calculated in accordance with sub-para (e) or (g) of
the ibid SAI exceed the revised emoluments so fixed in the case of any officer,
the difference shall be allowed as personal pay to be absorbed in future
increases in pay. It may be stated that in this clause there is comparison
between “existing emoluments” and “revised emoluments.” Therefore, this clause
is not applicable for protecting the pay in subject cases.
c)
In view of the above, if any protection is to be
given, suitable amendments in the provisions of para 6 (c) of SAI 1/S/1987 and
corresponding provisions of SNI and SAFI would be required.
4.
The DGL has been prepared by this HQ office as
per the Hon’ble Supreme Court order dated 04/09/2012. The DGL caters for the
affidavit filed by the Committee of Three Secretaries in Supreme Court.
However, Secretary Defence (Finance) being one of the signatories, views of MoD
(Finance) may be obtained in this regard.
5. The details of rank-wise calculations of the minimum and the
maximum of the pay scales as per proposed revised DGL have been called for from
the PCDA (O) Pune. The same will follow shortly.
Sd/-------------
(K L Mound)
ACGDA (AT-I)
Phone No.011-25665581
Sh. B. K. Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi
---------------------------
UO No. AT/I/1483-Army/X (PC) III dated 07/12/2012
Copy to:
Shri Praveen Kumar
Director (AG-I)
MoD, D (Pay/Services)
Sena Bhawan
New Delhi
: For
information. A copy of the revised DGL is enclosed herewith.
Sd/-------------
(K L Mound)
ACGDA (AT-I)
Phone No.011-25665581
**********
Encl 75/A
Telephone: 23011257
PC-C/7026/6th CPC/Vol-III 04
Dec 2012
ADJUTANT GENERAL’S BRANCH
(Tri Service Pay Staff)
IMPLEMENTATION OF HON’BLE SUPREME COURT ORDER DATED 4.9.2012
IA No. 9 of 2010 in TRANSFER PETITION (C) No. 56/2007
UOI v/s N.K. NAIR & Ors ON THE RANK PAY CASE
1.
Please refer MoD Note ID No. 34
(6)/2012-D(Pay/Services) dt 26 Nov 12.
2.
In order to finalise and revise the DGL of the
Armed Forces as directed by MoD note ibid, a meeting was scheduled in the office
of Chairman PARC on 04 Dec 12 with representatives from CGDA and MoD (Finance).
3.
CGDA vide their letter UO No. AT/I/1483-Army/X
(PC) III dated 03 Dec 12 have informed that the DGL has already been revised
and submitted to MoD and therefore have stated that attending the meeting for
the purpose is not considered necessary at this stage.
4.
In view of the above, it is requested that a
copy of the DGL submitted by CGDA be forwarded to this office at the earliest
to finalise consultative DGL in accordance with Para 2 of GoI, MoD letter No.
34 (6)/2012-D (Pay/Services) dt 26 Nov 12.
Sd/--------------------
(RS Chowdhury)
Captain (IN)
Director TRIPAS
MoD D(Pay/Services
Sena Bhawan
Copy to:
Office of the CGDA, Ulan Bator Road, Palam Delhi Cantt
-10
SAPCS
Army HQs Sena Bhawan
PDPA
Naval HQ, Sena Bhawan
AFPIC
Air HQ RK Puram
*****
Encl 76/A
Telephone: 23011257
PC-C/7026/6th CPC/Vol-III 06
Dec 2012
ADJUTANT GENERAL’S BRANCH
(Tri Service Pay Staff)
IMPLEMENTATION OF HON’BLE SUPREME COURT ORDER DATED 4.9.2012
IA No. 9 of 2010 in TRANSFER PETITION (C) No. 56/2007
UOI v/s N.K. NAIR & Ors ON THE RANK PAY CASE
1. Refer to MoD
Note ID No. 34(6)/2012-D (Pay/Services) dated 26 Nov 12.
2.
The requisite clarifications/comments from the
Armed Forces on the observations of the following correspondence are placed as
Annexure as indicated below:
(a) CGDA
UO No. AT/I/1483-Army/X (PC)/III dated 22 Nov 12 – Annexure 1
(b) MoD
(Fin) ID No. 8 (13)/2012-AG/PA dated 20 Nov 12 -
Annexure 2
(c) MoD
(Fin) ID No. 8 (13)/2012-AG/PA dated 21 Nov 12 -
Annexure 3
Sd/--------------------
(RS Chowdhury)
Captain (IN)
Director TRIPAS
Director (AG.I)
MoD D(Pay/Services
Sena Bhawan
Annexure 1
CGDA OBSERVATIONS ON IMPLEMENTATION OF
HON’BLE SUPREME COURT ORDER
DATED 04/09/2012 IN IA No. 9 OF 2010 IN
TRANSFER PETITION (C) 56 OF 2007 FILED
ON BEHALF OF UoI v/s N.K. NAIR & Ors
ON THE MATTER OF RANK PAY:
VETTING OF DGL REGARDING
|
OBSERVATION BY CGDA
|
TRI-SERVICES COMMENTS
|
||||||||||||||||||||
|
Para 2
The Hon’ble
Supreme Court in its judgment dated 08/03/2010 have upheld the judgment dated
05/10/1998 of Kerala High Court. Upon further hearing the Hon’ble Apex Court
in its final judgment dated 04/09/2012 has affirmed its earlier judgment
dated 08/03/2010 that “…this order shall govern all similarly situated
officers”… with modification of the interest part. As such, the Apex Court
judgment dated 04/09/2012 may be implemented in the same way as was done in
the case of Maj (retd) AK Dhanapalan. In this regard views of MoF, vide
Para(b)(iv) of MoD, D (Pay/Services) ID dated 12/11/2012 on the subject also
refer. If extended benefits are
allowed, it may not stand in audit.
|
The words
“similarly situated officers” is being quoted out of context. The court
ruling is not about paying arrears as was done in the case of Maj Dhanapalan
which is partially quoted by CGDA. The
entire line of the order reads “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.” Accordingly the order is to apply to all
the officers who have not prayed to various courts and have been affected by
no-inclusion of rank pay without quoting the precedence set in Dhanapalan’s
case. The contention of CGDA that if extended benefits are allowed, may
not stand in audit is also misplaced as audit is required to comply with Govt
order issued in compliance of Court order.
|
||||||||||||||||||||
|
Para 3 (2)
High Court
of Kerala and Hon’ble Supreme Court judgment have made no mention about
admitting consequential benefits due to revision of pay during the service.
Besides, the pay of the officers who joined the service after 01/01/1986 has
been correctly fixed in the minimum of the Integrated Pay Scale as per the
rank held. There was no deduction of rank Pay while fixing the Pay of such
officers in the Integrated Pay Scale. Hence they may not be covered for
revision of Pay as per Supreme Court order.
|
The Court
order has laid down the guiding principle. The principle needs to be applied
in the manner as directed by the Court. The RATIO has been settled and the
Law is that Rank Pay, which was wrongly deducted has to be added back to the
revised pay. The contention that no mention has been made for consequential benefits
is not correct. If the pay of an officer is revised wef 01/01/1986 then all
such benefits related to pay such as HRA during service and gratuity,
commutation etc on retirement will automatically get revised.
The
contention that officers who joined service after 01.01.86 have been
correctly fixed is also incorrect. The edifice of Maj Dhanapalan case lies on
the minimum pay of each rank as laid down in pay instruction, was incorrect
as it was arrived at after deducting relevant Tank Pay to the particular
rank. In 5th CPC Report at
Para 147.12 it is clearly stated that “to
compensate for ranks attained. Rank pay is also granted which attracts DA and
is reckoned for pensionary benefits. The Integrated Pay Scale has a fixed minimum pay for each rank linked to
number of years taken to achieve such rank. The resultant effect is that personnel belonging to a particular rank
with equal number of years of service are remunerated equally.” The
revised 4th CPC was based on pay drawn as per 3rd CPC
scales on 01.01.86. To understand the issue the following example is
relevant:
** Pay to be
fixed as per relevant Civilian scale and Rank Pay to be paid in addition.
The pay
scale of all Captains in III CPC was starting at Rs 1200, the incorrect
replacement was Rs 2800+200 which now stands corrected to Rs 3000+200. There
is no instance of same rank officers having two different pay scales in the
same commission. The Capt/eqvt replacement pay in the new minimum pay for a
Capt/eqvt promoted any date after 01.01.86 will have to be based on the above
principle at Rs 3000+200.
|
||||||||||||||||||||
|
Section I Para 4
The
justification given by Service HQ does not seem to be as per court order. The
court judgment does not have any mention about revision of Integrated pay
scale adding Rank Pay to it. Hence, revision of integrated pay scale with
changed rates of increments is not covered as per Court order. If it is done, the Pay scale fixed for
Maj Gen & above may get burst.
|
The
justification given in the DGL is derived from the order of the Supreme
Court. The moot issue is that Rank Pay was wrongly deducted at all ranks
which is now to be added back. The Kerala High Court acknowledged in its judgment that RANK PAY was in
addition to pay scales. Thus RANK PAY has to be added to the minimum of
each rank worked out after applying the fixation formula of 4th
CPC to the pre-revised minimum (3rd CPC) of the particular rank.
Another example of Maj in support is shown below:
The low
fixation for the minimum pay of the rank in the case of Defence Officers
vis-à-vis similarly placed civilian officers resulted in disparity which has
now been rectified by the order of the Hon’ble Supreme Court. This inaccuracy
is the bedrock of the judgment and if not corrected will be seen as disregard
of court order. The pay scale of Maj Gen/eqvt getting burst may have to be
tackled separately, if required and cannot form the reason for denying legitimate
dues to other officers in the rank of Capt to Brig and equivalent.
|
||||||||||||||||||||
|
Para 5 (a) (iii)
No change is
required to minimum pay fixed for each rank because integrated pay scale from
Rs 2300-100-3900-150-4200-EB-150-5100 has been devised considering the total
service span of 23 years from rank of Lt to Brig. Since there are no
directives from Hon’ble Supreme Court for revision of the scale as per 4th
CPC, the change in minimum pay for each rank has no relevance.
|
As explained
above the minimum has to undergo a change for it was wrongly determined by
deducting rank pay.
The minimum
as shown above for Capt/eqvt should have been Rs 3000, but by deducting Rs
200, the same has been reduced to Rs 2800. Hon’ble SC has stated it is to be
restored to Rs 3000 and Rank Pay to be paid in addition.
|
||||||||||||||||||||
|
Para 5 (c)
Since
officers commissioned after 01/01/86 are not affected by the Court order, the
provisions for revision of pay as per the order may not be made applicable to
these officers.
|
This
conclusion seems unilateral and may be misplaced. The fact is that two officers holding the same rank within currency
of the same Pay Commission cannot have two different start of pay. The
formula settled for 01.01.86 for Capt/eqvt and above has to be necessarily
applied to all Capts/eqvt and above promoted any day after 01.01.86. In 5th
CPC Report at Para 147.12 it is clearly stated “to compensate for ranks attained. Rank pay is also granted which
attracts DA and is reckoned for pensionary benefits. The Integrated Pay Scale has a fixed minimum
pay for each rank linked to number of years taken to achieve such rank. The resultant effect is that personnel
belonging to a particular rank with equal number of years of service are
remunerated equally.”
|
||||||||||||||||||||
|
Para 5 (d) & (e)
On
completion of qualifying service for the rank and on promotion, the officers
will be entitled to get the minimum pay of the rank as per SAI 01/S/87, pay
proposed in DGL vide para 5 (a) (iii) may not ben applicable in such cases.
The comments against para 5 (a) (iii) may also be referred in this regard.
|
They are
entitled to minimum pay which now stands revised in light of the SC Judgment.
The view taken by CGDA is in complete disregard to pay fixation formula and
there is contravention of all laid down rules of pay. The very fact that as
per CGDA there have to be two types of pay scales i.e. one applicable to
Capts to Brigs who held the rank as on 01.01.86 and another set of (lower)
pay scales to those promoted after 01.01.86 is faulty and unimplementable.
There is no such precedence and rule to support this view (of the CGDA).
|
||||||||||||||||||||
|
Section II
Para 6 (a)
The pay of
affected officers as on 01/01/1996 will be revised considering the pay in the
integrated scale being drawn as on 31/12/1995 consequent upon the revision
carried out as on 01/01/1986 without deducting rank pay in compliance of
subject Apex Court order. Hence, no amendments to SAI 02/S/1998 are required
for implementation of the court order.
|
Again the
view of CGDA appears to disregard Fundamental Pay Rules. The pay scale of V
CPC are a replacement of minimum Pay + Rank Pay of the rank as per 4th
CPC. Now as per Court order the 4th CPC pay is revised to minimum
shown in SAI/SNI/SAFI by adding the relevant Rank Pay. If this minimum
undergoes a change, the replacement pay as per 5th CPC has to
undergo change. To illustrate:
The pay has
to be revised now, as the 5th CPC carried forward the wrong
formula by taking a lower minimum as shown above. Therefore, the pay of 5th
CPC has to be accordingly revised. It is pertinent to emphasise that HPC as
well as the Affidavit/Additional Affidavit submitted by MoD has clearly given
that pay as on 01.01.96 and 01.01.06 will have to be revised with
simultaneous revision of all pay linked allowances/benefits.
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Para 7
Since the
provisions of SAI 02/S/98 stand correct for officers in service as on
01/01/1996 & commissioned thereafter, the pay scales as mentioned at Para
6 of DGL become irrelevant.
|
This view is
not corroborated by facts. As per para
148.2 of 5th CPC it is stated that “For Service Officer upto the
rank of Brigadier who are brought on to regular scales of pay from the
existing integrated scale, we suggest that for fixation of pay, the existing
Rank Pay may be taken into account but pay in revised scales be fixed after
deducting the revised amount of Rank Pay.” As it is the SC order clearly
states that Rank Pay is not to be deducted. It is evident from the para
above, in the 5th CPC Report, rank pay was deducted in determining
pay scales and pay fixation in 5th CPC as well. Thus, both the pay fixation and scales
will necessarily have to be re-drawn.
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Para 8 (b): Fixation of Initial pay in the revised scale as on
01/01/96
Neither High
Court of Kerala nor the Hon’ble Supreme Court has issued any directives for
revision of pay fixation formula as per Fifth Pay Commission orders for not
deducting the rank pay. In this regard it is worth noting that, while
implementing the judgment in the case of Maj (retd) Dhanapalan his pay was
revised in the rank of Capt on 01/01/86 by re-fixing it without deducting
rank pay. This change in pay continued till 31/12/1995. After 5th
CPC his pay was fixed as on 01/01/96 as per 5th CPC orders only.
On representation from Maj (retd) Dhanapalan for revision of his pay as on 01/01/96
consequent on 5th CPC recommendations without deducting Rank Pay, he was informed by the PCDA (O) that High Court
order was for “not deducting Rank Pay” as on 01/01/1986 and not on 01/01/1996. No further communications was received
thereafter either from the officer or any directive from High Court to
justify the above claim of the
Officer.
It is
further stated that as per 4th CPC orders, Rank Pay was introduced
for the first time which was in addition to Integrated Pay Scale. But at the
time of pay revision on 5th Pay Commission orders, officers were
in receipt of Rank Pay which was treated as part of Basic Pay for all
purposes including pension, retirement & Pensionary benefits. For
revision of Pay as on 01/01/96, 40% fitment was allowed to be added to
existing emoluments before deducting Rank Pay at pre-revised rates while
fixing pay in the revised pay scale for that rank. It is also felt that 5th
Pay Commission’s recommendation may be looked at as independent and distinct
from 4th Pay Commission. Moreover, the Rank Pay element introduced
in 4th Pay Commission has very much gone into Pay fixation while
implementing 5th Pay Commission, as also mentioned above.
In view of
the above, it is felt that the Apex Court order does not affect the method of
pay fixation adopted while implementing the 5th Pay Commission recommendations.
The estimated financial implications
were also, in fact, worked out accordingly. However, the MoD may take a
final view in this regard after obtaining legal advice, if needed.
|
The fact that 5th CPC also
deducted new Rank Pay while arriving at the revised pay for different ranks
is well documented at Para 148.2 of 5th CPC report as already
stated above. CGDA/CDA(O) seem to have ignored this. The Govt decision
accepting the recommended pay scales mean the wrong done in 4th
CPC continued to be the rule even in 5th CPC. This needs to be
corrected as per the orders of the Court.
It is also
important to note that the Kerala High Court judgment on Maj AK Dhanapalan’s
case was delivered on 05 Oct 98.
The Govt decisions on 5th CPC recommendations were promulgated
vide SAI/SNI/SAFI in Dec 98. (blog
author comment – the actual date is 19th December 1997. TRIPAS has
been informed on 10/4/13). The
Court could not have, therefore, included 5th CPC dispensation in
its order dated 05 Oct 98. Nonetheless the RATIO of this judgment for all
similar circumstances, irrespective of any pay commission has to be applied.
It is
correct that the Rank Pay has gone into pay fixation because it is part of
Basic Pay. The CGDA comments are again only half truth. The Rank Pay
(pre-revised) was added to Pay of the rank for fixation in the new scale but
what does not find mention is that firstly, the new scale where fitment was
done was depressed by an amount equal to the new Rank Pay (double the old
Rank Pay) and secondly, the revised Rank Pay (at double the rate) was reduced
from the total to fix in the relevant scale. The fixation example at Para
148.2 of 5th CPC Report is relevant.
No comments,
since the details are not known to Services. The earlier interpretation and
consequent financial outgo calculations were the sole view of the CGDA
wherein the Services were not consulted. In fact in the total financial
implications worked out by CGDA (Rs 1623.71 crore), it has been mentioned in
the Report of the High Power Committee (submitted to Hon’ble SC) that the
repercussions on similar situation in subsequent pay fixation will have
additional financial implications. The
current observations of CGDA is in contradiction of its earlier stand on the
issue.
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Para 8 (e)
All the
provisions of SAI 01/S/87 are applicable for pay revision to be carried out
as on 01/01/1986 except the clause of “deducting Rank Pay” before fixation of
pay in the integrated scale. Comments against Para 5 (a) (iii) of DGL also
refer.
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Comments at
Para 5 (a) (iii) are reiterated.
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Section III
Para 9
In case the
pay being drawn by the officers as on 31/12/2005 gets affected due to pay
revision carried out as on 01/01/1986 as per the Court Order, the pay as on
01/01/06 will be revised with reference to the instructions laid down in SAI
02/S/08. Hence, the changes proposed at Paras 9, 10, & 11 of the DGL are
irrelevant.
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The changed
pay from the 4th CPC onwards will necessitate a change in the
consequent pay fixations in 5th and 6th CPC. Further, the depressed pay has been used
by CPC in 5th and 6th CPC as base figure. Once
these figures undergo a change, as a consequence, all subsequent revisions
will also have to be effected.
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Para 13
The Court
order is applicable only to those officers in the rank of Capt to Brig who
were in Service as on 01/01/1986 and whose pay was fixed in the integrated
pay scale after deducting Rank Pay. Hence, no revision may be carried out for
officers commissioned thereafter.
Regarding
payment of interest, the method of calculation need to be mentioned in the
DGL i.e. whether it will be simple or compound interest. Interest on pension
arrears also needs to be specified as Para 13 of the DGL is silent about the
same.
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The main
issue is that had the pay been correctly fixed in the 4th CPC, the
consequent pay revisions in 5th and 6th CPC would have
been higher which are presently artificially depressed due to incorrect 4th
CPC pay being considered for revision in 5th CPC and subsequently
this wrong pay having been used to deny benefits such as equal Grade Pay and
correct fixation in the 6th CPC. The Services have been repeatedly
apprising the MoD that SAI/SNI/SAFI 2/S/08 has been depressed artificially by
granting lower Grade Pay.
Further, there is no instance of same
Rank officers having two different pay scales in the same Pay Commission.
As suggested by CGDA, the replacement pay of Capt/eqvt in the new minimum pay
is higher for a Capt/eqvt promoted any date after 01.01.86. A contrary view
to this is against all tenets of all Py Commissions. The pay of officers holding the same rank cannot be different for
different dates of promotion. The insistence of making (applicable) the Supreme Court judgment
only to those who were in Service as on 01.01.86 goes against the Pay Rules
in vogue, is not only for the Armed Forces but also for civilians. There cannot be two pay scales for
similar rank officers in the currency of the same Pay Commission (Para
147.12.of 5th CPC refers).
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Para 14, 15, & 16: Exercising Option
In this
regard it has been specifically mentioned by PCDA (O) that deciding the most
beneficial manner/option for fixation of pay in such cases is not feasible
due to various reasons such as non-availability of date related to pay drawn
and other elements affecting pay entitlements due to destruction of time
expired records in huge number of cases, the time span involved in each case
for scrutiny and analysis of pay data with reference of different dates (i.e.
increment, promotion etc) as three occasions of pay commissions and
subsequent multiple promotions. Therefore, pay revision based on such options
is not feasible.
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Administrative
reasons such as non-availability of records can be looked into and
reconstructed, where required and cannot be reason to deny legitimate pay
fixation mechanisms following the
directions given by the Court. The
normal pay revision rules have to be given to the Armed Forces as part of
natural justice. In any case the records of a case which were
sub-judice if destroyed are in contravention of laid down Govt rules in such
matters.
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Para 18
Hon’ble
Supreme Court decision has not mentioned about revision of all pay-linked
allowances simultaneously.
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Consequential
benefits are a corollary and natural fallout, once pay is revised. Any
element which is a percentage of the Basic Pay has ton necessarily be revised
once the Basic Pay itself is changed. Any contrary view may not stand to any
logic.
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General Points for Consideration
(a)
Certain pay based allowances like HRA etc
admissible to only eligible officers, subject to fulfilment of specific
conditions for a particular period, are not revised even during pay
commission orders from retrospective dates. Hence question of revision of
such allowances from retrospective dates may not arise.
(b)
The
DGL does not have any mention about the procedure to be followed for revision
of pay and calculations of arrears. Where pay details and other information
affecting pay entitlements is not available due to destruction of records
being time expired.
|
Pay is now
being revised as per court order. Once pay is revised, HRA being a percentage
of Basic Pay inevitably also has to be revised. This fact has been clearly
brought out in the affidavit filed by MoD. Also the HPC setup for this
purpose with Def Secy. Secy (Exp) and Secy (Def/Fin) as members also accepted
this and recommended the same. In the recommendations of the Committee it has
been clearly spelt out that effect of this fixation will have consequential
effect on 5th and 6th CPC as well as consequential
benefits related to pay and also pension. Any contrary view at this stage can
be seen as a breach of trust and easy grounds for filing contempt
proceedings.
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Annexure
2
COMMENTS ON OBSERVATIONS BY MoD
(FINANCE) ON IMPLEMENTATION OF RANK PAY CASE
BY AFA (AG/PA) VIDE MoD (Fin) ID No.
8(13)/2012-AG/PA DATED 20 NOV 12
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S No.
|
OBSERVATION BY MoD (Fin)
|
TRI-SERVICES COMMENTS
|
|
1
|
Para 3 (a). It is apparent
that implementation of Supreme Court order dated 04.09.2012 will have
repercussions/impact of the formula adopted from 01.01.1996 based on the 5th
CPC recommendations. However, since the ibid Supreme Court order dated
04.09.2012 is in respect of formula of pay fixation based on 4th
CPC recommendations only, it is advisable that at this stage, its
implementation may be restricted to pay fixation adopted in pursuance of 4th
CPC recommendations only. As regards the query of MoF whether MoD have
received any representations or notices for litigations in the context of 5th
CPC recommendations, this issue needs to be clarified by MoD/D
(Pay/Services).
|
The judgment
by Hon’ble Supreme Court lays down the guiding principles. These principles
are to be applied into all cases, wherever Rank Pay was drawn or affected and
a similar principle/treatment of fixation of Rank Pay was accorded. As
similar methodology of fixation of Pay Scales and Rank Pay was accorded in 5th
CPC, the principle enshrined by the Hon’ble Supreme Court is required to be
extended to 5th CPC as well. Also, the new pay so fixed while
transiting to 6th CPC will have cascading effect for fixation in 6th
CPC pay bands and so also for determination of Grade Pay as was done for
similarly placed persons on the civil side.
This view
was also endorsed by the Rep of LA (Defence) during the meeting chaired by
Addl Secy (A)/MoD on 27 Nov 12
|
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2
|
Para 3 (b) (i): Exact
financial implications will have to be worked out by office of CGDA in
consultation with the three Services HQ.
|
No Comments.
|
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3
|
Para 3 (b) (ii): One of the
reasons for variation between the initial figure of Rs 1623.71 crore and
figure now being projected by CGDA may be due to the fact that earlier the
interest component was calculated by CGDA w.e.f. 01.01.1986 whereas now, as
per ibid Supreme Court order dated 04.09.2012, the interest has to be
calculated from 01.01.2006. However, as stated above, exact financial
implications will have to be worked out by the office of CGDA in consultation
with the three Service HQ.
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No comments
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4
|
Para 3 (b) (iii): Financial
Planning Dte of the three Service HQ may furnish comments on the suggestions
of MoF for locating funds internally to meet the instant extra-ordinary
requirement. MoD (Budget) may also be requested to locate savings.
|
This being
the outcome of Supreme Court judgment, the expenditure would be incurred as
Charged Expenditure.
|
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5
|
Para 3 (b) (iv): Office of the
CGDA may clarify the query made by MoF regarding variation of amount of
arrears paid to Major Dhanapalan and the amount projected by CGDA for arrears
to one Major on implementation of ibid Supreme Court order dated 04.09.2012.
It could be due to payment of interest w.e.f. 01.01.2006 which was not
applicable to Major Dhanapalan.
|
No comments.
|
Annexure 3
COMMENTS ON OBSERVATIONS BY MoD
(Finance) ON IMPLEMENTATION OF RANK PAY CASE
BY JS & Addl FA (M) vide MoD (Fin)
ID No. 8 (13)/2012- AG/PA DATED 21 Nov 12
|
S No
|
OBSERVATION BY MoD (Fin)
|
TRI-SERVICES COMMENTS
|
|
1
|
Para 2 (i): The new integrated
pay scale (Rs 2300-100-3900-150-5850-200-6450) proposed for the 4th
CPC dispensation is not in conformity with the existing Government
instructions in respect of 4th CPC since it seeks to raise the
upper limit of the existing integrated pay scale substantially. Instead of
raising upper limit, it will be appropriate that the amount above Rs 5100/-
(existing upper (sic) ceiling may
be treated as Personal Pay. It is also seen that the minimum pay in the new
integrated pay scale for the various ranks has also been proposed to be (e.g.
for Brigadier/equivalent, it is proposed to be enhanced from Rs 4950 to Rs
6250). This does not seem to be justified.
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Para 2 of
the High Court (of Kerala) judgment
states
“Under these
circumstances, I am of the view that respondents 2 and 3 had completely
misunderstood the scope of extending the benefit of the payment of Rank Pay
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 total emoluments which an Army officer is
entitled to get. It means that the rank pay is required to be paid in
addition to the existing Pay
scales.”
Hence, pay
scales are required to be amended and appended with the amount of Rank Pay,
which was so deducted. The Courts of law have contended that the rank pay has
to be paid in addition to existing pay scales. Therefore, what has been
granted legally and legitimately to a Service personnel by the Court of law,
need not be tinkered /twisted further. Hence the question of personal pay
does not arise. Also, if the pay scale under such circumstances is breached,
it has been upheld by the Courts of Law.
e.g. if the rank pay is required to
be paid (added?) to existing pay
scales, the fixation of Brig/equivalent is required to be appended by the
amount of the Rank Pay (Rs 1200/-) to the existing pay scale (Brig started at
Rs 4950/-). Hence the amount would be Rs 4950+ Rs 1200 = Rs 6150, which
breaches the Rs 5100 top end pay scale. Further there being no stage at Rs
6150, it would be rounded off to the next higher stage of Rs 6250/-.
|
|
2
|
Para 2 (ii): The new pay
scales/grade pay proposed in the 5th CPC as well as 6th
CPC dispensations, for different ranks (Lt/equivalent to Brigadier) also do
not appear acceptable as the same will be over and above the recommendations
made by the 4th CPC as well as the 5th CPC.
|
Para 10 of
HPC (comprising def Secy, Secy (Exp) and Secy (Def/Fin) report filed by UoI
as an additional affidavit in the Hon’ble Supreme Court has stated
“Financial
implications of around Rs 1623.71 crore arising out of implementation of the
Hon’ble Supreme Court order dated 08 Mar 10 would create a substantial impact
on the public exchequer. This impact is only one time. In addition, it would
also lead to the enhanced recurring expenditure from the Consolidated Fund of
India. It would further nullify the
recommendation of the Pay Commission as well as the decision of the
Government thereon. The Committee, therefore, is of the view that the
financial implications and the above facts in the present matter may be
submitted to the Hon’ble Supreme Court for consideration.” Further, Para 9 of
the aforesaid HPC report also states that “Apart from the enormous financial
implications, actual implementation of the Hon’ble Court order would involve
the following stages: -
“Revision of
pay of officers on 01.01.1986, 01.01.1996, and 01.01.2006 with simultaneous
revisions of all pay linked allowances/benefits…”
It can be
seen that the above submissions have been made by the UoI to the Hon’ble
Supreme Court as a sworn affidavit, which was duly considered by the Hon’ble
Court and the Order followed thereafter. Hence, the contention of MoD (Fin)
at this stage, wherein the senior-most officers
from the same departments have been members of the HPC, is not in order.
Notwithstanding
the above, at the stage of pay fixation in 4th CPC, there is bound
to be cascading/ripple effect in the 5th and 6th CPCs,
since the pay already being drawn cannot be reduced and have to be fixed
appropriately.
|
|
3
|
Para 2 (iii): However in the 5th
CPC dispensation, the formula of pay fixation may be amended in the same way;
rank pay should not be deducted first for calculating the pay in the same way
as done in the case of 4th CPC as per Supreme Court order dated
04.09.2012.
|
This will
have to be done as per the Hon’ble Supreme Court order, as Rank Pay was also
deducted in 5th CPC prior to fixing the pay and had the same
fixation formula as 4th CPC.
|
*****
Encl
78/A
MoD
(Finance)
Office
of JS & Addl FA (M)
***
Sub:
Implementation of Supreme Court order dated 04.09.2012 in
Rank
Pay matter in IA No. 9 of 2010 in Transfer Petition (C) No. 56/2007
Filed
on behalf of UoI v/s N. K. Nair & Ors on Rank Pay case – vetting of
DGL
Reg
*****
MoD may please refer to
the meeting taken by the Defence Secretary on 07.12.2012 (AN) and telecon with
the undersigned by Director (AG) and JS (E) on 10.12.2012.
2.
This Division agrees with the revised DGL,
furnished by the Office of CGDA vide their UO No. AT/I/1483-Army/X (PC-III)
dated 10.12.2012 and their comments on the applicability of the personal pay,
as mentioned therein (copy enclosed).
Sd/--------------------------
10/12/2012
(B. K. Mukhopadhyay)
JS & Addl FA (M)
Joint Secretary (E), MoD
MoD (Fin) ID No. 8(13)/2012-AG/PA dated 10th
December 2012
Urgent/Court case
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt-10
Sub:
Implementation of Supreme Court order dated 04.09.2012 in
Rank
Pay matter in IA No. 9 of 2010 in Transfer Petition (C) No. 56/2007
Filed
on behalf of UoI v/s N. K. Nair & Ors on Rank Pay case – on the matter of
Rank Pay
Reference: MoD (Finance) UO Note
No. MoD (Fin) 8(13)/2012-AG/PA dated 10/12/2012
*****
It is mentioned that the term
personal pay has been defined in the FR 9 (23) as under:
“Personal pay means additional pay granted
to a Government servant (a) to save him from a loss of substantive pay in
respect of a permanent post or other than a tenure post due to a revision of
pay or to any reduction of such substantive pay otherwise than as a
disciplinary measure; or (b) in exceptional circumstances, on other personal
considerations.”
2. Further, FR 37 stipulates that “Except when the authority sanctioning it orders otherwise, personal
pay shall be reduced by any amounts by which the recipient’s pay may be
increased, and shall cease as soon as his pay is increased by an amount equal
to his personal pay.” The condition of future absorption of Personal pay also
exists in Para 6 (j) of SAI 1/S/1987.
3.
Thus, usually, the personal pay is to be
absorbed in future increases of pay unless it
is decided otherwise by the competent authority.
4.
Keeping in view the above aspects, this HQ
office, vide Para 3 (c) of UO Note dated 07/12/2012 had suggested for
consideration if any protection is to be given, suitable amendment in the
provisions of Para 6 (c) of SAI 1/S/1987 and corresponding provisions of SNI and SAFI would be required. However, as
directed in the MoD (Fin) UO Note referred above ad MoD ID dated 10/12/2102
[copy of which has been endorsed to Defence (Finance)] a revised DGL
incorporating element of ‘personal pay’ at Para 2 (c) is forwarded herewith for
examination and consideration, please.
Addl CGDA (VS) has seen. Sd/---------------------
J.P.Kukade
Sr Accounts Officer
(AT-I)
Phone No. 011-25665580
Sh. B. K. Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi
______________
UO No. AT/I/1483-Army/X (PC)III dated 10/12/2012
(Concluded)
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