Sunday, 7 April 2013

Reply to RTI Recd 6-.4.2013 - Opinion of the Ld Solicitor General of India

Reply to RTI Opinion of Solicitor General received on 6.4.2013 vide MoD letter of 3.4.2013

Note: Every attempt has been made to ensure as accurate a transcription of the information received from MoD. Any errors are unintentional and may be attributed to typos or “one-finger’ typing fatigue. Please point out any errors in typos and the correction(s) will be gratefully incorporated.

                                                Encl 13/A


QUERIST          :                       MINISTRY OF DEFENCE

  1. My opinion has been sought as to the further legal recourse available to the Querist before necessary action is taken on the implementation of the order passed by the Hon’ble Supreme Court on 4.9.2012 in I.A. No. 9 of 20101 in Transfer Petition (C) No. 56 of 2007 titled Union of India & Ors v. N.K. Nair & Ors.

2. Brief Background

2.1.                        Vide order dated 5.10.1998, a Learned Single Judge of the Hon’ble Kerala High Court, allowed O.P. No. 2448/1996 filed by one Major A. K. Dhanapalan, and directed as under:   

“Rank pay is something which has been given to the Army Officers in addition to the existing pay scales. That is not an amount which has to be deducted in order to arrive at the total emoluments which an Army Officers is entitled to get. 

Under these circumstances, the respondents 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1-1-1986 without deducting the rank pay of Rs 200/- as has been done by the respondents 2 and 3. The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987 evidenced by Ext P1. Respondents 2 and 3 are directed to complete the process of re-fixation of the pay of the petitioner as directed above, within three months from the date of receipt of copy of this judgment.”       

2.2.                        The Writ Appeal filed by the Querist was dismissed by a Learned Division Bench of the Hon’ble High Court, vide order dated 4.7.2003, and the Special Leave Petition filed against the order of the Division Bench was dismissed in August. 2005.

2.3.                        A  number of Petitions were filed before the Hon’ble Supreme Court and several High Courts for grant of the benefits awarded by the Hon’ble Kerala High Court in O.P. No. 2448/1996, and/or for similar benefits.

2.4.                        The Hon’ble Supreme Court, vide order dated 8 March 2010, transferred to itself the Writ Petitions pending before different High Courts and disposed of the same with the following directions:  

“We have carefully perused the judgment dated 5.10.1998 of the learned Single Judge as well as judgment dated 4.7.2003 of the Division Bench of the High Court of Kerala and we respectfully agree with the reasoning given therein for grant of rank pay retrospectively from 1.1.1986. We also direct interest to be paid thereon at 6% p.a. Accordingly, these writ petitioners as well as the transferred writ petitions are allowed.”  

2.5.            I.A. No. 9 of 2010 was filed by the Querist to seek inter alia the following orders from the Hon’ble Supreme Court:

                                    “(a)      Recall the order dated 8th March 2010;

                                    (b)        Upon notice, re-hear all the cases on merits.”

2.6.            Prima facie, this IA was in the nature of a review, and therefore not maintainable in the form of an “Application for Directions seeking Modification/Directions/Recall of Order dated 8th March 2010.” Be that as it may, the same was heard by the Hon’ble Supreme Court and the following order was passed on 4.9.2012:

2.         On thoughtful consideration of the entire matter, we are satisfied that the order dated March 8,  2010  does  not  require  any modification or variation save and except the interest part.
3.         As regards interest, on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Major A.K. Dhanapalan was dismissed by this Court in August, 2005 and the Kerala High  Court  had not ordered payment of interest on the arrears of pay,  we  direct  that the interest shall be paid by the petitioners to the  respondents  @ 6% p.a. from January 1, 2006 instead of  January  1,  1986. It  is       clarified  that  this  order  shall   govern  all  similarly  situated officers who have not approached the court and  also  those  who  have  filed  Writ  Petitions  which  are   pending  before  various  High  Courts/Armed Forces Tribunal.
4.          We  record  and  accept  the  statement  of  the   learned Solicitor General that arrears of  pay  with  interest,  as   directed above, shall  be  paid  to the concerned officers expeditiously  and positively within  twelve  weeks from today.
5.         I.A. No. 9 of 2010 stands disposed of accordingly.”

3.         The order passed by the Hon’ble Supreme Court is final and binding on the Querist. Since the IA which has been disposed of by the Hon’ble Supreme Court was in the nature of a review petition, a second review petition before the Hon’ble Supreme Court would not lie in this case. Clearly, a Curative Petition would not lie in the present case for the reason that this is not a case where there is bias or no hearing within the meaning of Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388 at para 51]. 

4.         The Querist has expressed the following difficulties in implementing the order of the Hon’ble Supreme Court:

“The initial case of Major Dhanapalan (Retd) only sought to refix his pay. The Hon’ble High Court while allowing his petition directed the department for refixing/revising his pay w.e.f. 01.01.1986 without deducting the rank pay. The Division Bench decision also supported this decision of not deducting rank pay in pay fixation but nowhere including the decisions of the Supreme Court, the Court have directed for refixing/revising the pay scales (integrated pay scale) of the concerned personnel. Now when the deduction of Rank Pay is not to be done as per Court directions the revised pay of Col & Brig/eq might be fixed in the last stages of the integrated scale. Therefore the court order is not clear as to whether the pay scales also are to be revised for implementing these orders.     

Similarly if the revised pay on the basis of the Court Order takes the pay beyond the pay scales those recommended by 5th CPC and 6th CPC, are these pay scales to be revised once again? No clarity has been provided in the matter.

In the integrated pay scales for each rank there was minimum pay fixed for separate ranks. This minimum pay was arrived at after deduction of rank pay. Now after deduction step has been removed would it also require refixing the minimum pay for each rank once again. It has not been made clearing the Court Order.

Again in the matter of minimum pay fixation in the integrated scale, the illustrations in the case of major and Brig show while fixing their pay in the integrated scale Rank Pay has been deducted and their pays have been thereafter upgraded to the minimum for that particular rank Rs.3400/- for major and Rs 4600/- for Brig. With improvement in integrated pay scale by the Govt, the latter figure was fixed at Rs 4950/-. So it cannot be said that for all officers the Rank Pay was deducted in full and this deduction has financially harmed all officers. As such, a question arises as to whether the ratio of the Court order should also be applied/extended to these senior officers also. This has not been clarified anywhere in the Court Order.

The rank pay has been paid since 1986 and is being taken into account for payment of several allowances/benefits including retirement benefits. Are all these benefits t be revised once again?

Calculations of income-tax and apportioning the arrears over the years would also be difficult for the pay accounting authorities before the actual payment is made. The Court order is silent on these issues.

Revision of retirement benefits after 01.01.1986 is also going to be a long process involving a number of agencies and as such it is very difficult to complete it within twelve weeks as directed. In some cases the payments might have to be made to legal heirs of the deceased retired officers, for whom it may be difficult to give details of pay particulars as they existed at the time of revision in 1986.”  

5.         I am of the opinion that the aforestated difficulties do not obtain in implementing the order dated 4.9.2012 passed by the Hon’ble Supreme Court for the following reasons:

5.1.            The Hon’ble Supreme Court, vide its order dated 4.9.2010 has declined to modify or vary its order dated 8 March 2010, except the interest part thereof. The order dated 4.9.2012 is to be implemented by the Querist in respect of persons referred to in the order, in the same manner as the Court’s order was implemented in the case of major Dhanapalan (the Petitioner before the Kerala High Court.)

5.2.            Whether or not the implementation of the order of the Hon’ble Supreme Court requires revising the integrated pay scale, the same would be for the Querist to consider. In any case, the order of the Hon’ble Supreme Court should be implemented by re-fixing the pay of the officers with effect from 1.01.1986 without deducting rank pay in terms of the orders passed by the Kerala High Court and the Hon’ble Supreme Court.   

5.3.            The application of the order dated 4.09.2012 is not excluded in respect of officers in respect of whom the rank pay deduction was only in part and not full. Such persons would also be covered by the order dated 4.09.2012. The additional benefit would obviously be restricted to the amount of rank pay actually deducted.

5.4.            Once the revised pay is determined, the legal consequences thereof vis-à-vis payment of benefits which are determined on the basis of pay including rank pay, would naturally follow.

5.5.            The requirement of making difficult calculations would not constitute a sufficient ground for delaying compliance with an order of the Hon’ble Supreme Court.

5.6.            In so far as legal heirs of the deceased retired officers are concerned, the Querist should issue an advertisement in the newspapers so that such persons can come forward and approach the Querist on their own in this regard.

6.                  Therefore, I am of the Opinion that the Querist should comply with the order dated 4.09.2012 passed by the Hon’ble Supreme Court within the time period stipulated in that order.


New Delhi

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