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.
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Encl 13/A
1
SOLICITOR GENERAL OF
INDIA
17.10.2012
OPINION
QUERIST : MINISTRY
OF DEFENCE
- 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.
Signed
[ROHINTON F. NARIMAN]
New Delhi
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