Monday, 15 April 2013
Truth For Free - Part III -MOD reply dated 8.4.2013 to RTI Application of 26.3.2013:
26th March 2013
REQUEST FOR INFORMATION: RANK PAY MATTER
1. From information made available by MoD, the following chronology of events took place in the Rank Pay matter: -
(a) Year 1996: Maj A.K. Dhanapalan filed the Original Petition (O.P.) No. 2448 of 1996 in the Hon’ble High Court of Kerala contending that Rank Pay should not be deducted from revised pay before re-fixation on transition to 4th CPC integrated pay scales.
(b) 30th January 1997: -5th CPC submitted its Report and Recommendations including Rank Pay deduction etc for fixation of pay scale for Armed Forces Officers & personnel [date of submission mentioned in Resolution No. 50 (I)/IC/97) of the Govt of India]. The 5th CPC Report included Para 148.1 and Para 148.2 for re-fixation of pay scales of Armed Forces officers of the ranks of Captain to Brigadiers as follows: -
“Part VII Section II – Pay Scales Armed Forces
148.1 Background. We have made recommendations with regard to fixation of pay in the proposed scales in respect of civilian employees in the relevant chapter The method of pay fixation on revision of pay adopted by earlier Pay Commissions for civilians and service personnel was more or less identical. The Fourth CPC while following a similar dispensation for civilian and Service Personnel had given specific illustrations of the manner in which pay for service personnel should be fixed especially in the context of the introduction of integrated pay scales for Service Officers,
148.2. Our recommendations. We have deliberated over the manner in which service pays should be fixed and in order to ensure equality of treatment suggest that the method of fixation of pay on revision recommended for civilian employees may also be adopted for service personnel. For Service Officers upto the rank of Brigadier who are to be brought on to regular scales of pay from the existing integrated scale, we suggest that for fixation of pay the existing rank pay maybe be taken into account but pay in revised scales be fixed after deducting the revised amount of rank pay.”
(c) Govt of India vide Resolution No. 50 (I)/IC/97) accorded approval to the Report of 5th CPC.
(d) On 19th December 1997: - Ministry of Defence (MoD), with the concurrence of Ministry of Finance (MoF), promulgated Special Instructions for Army, Navy, and Air Force No. 1/S/97 for implementation of the 5th CPC’s recommendations.
(e) On 5th October 1998: -The Single Judge of the Hon’ble High Court of Kerala delivered his judgment in favour of the Petitioner Maj Dhanapalan and ordered Respondents to re-fix his emoluments on transition to the 4th CPC without deducting rank pay from the amount so computed.
(f) On 4th July 2003: -The Union of India & Ors Writ Appeal No.518 of 1999 before a Division Bench of the Hon’ble High Court of Kerala. The Division Bench upheld the judgment of the Learned Single Judge and dismissed the UoI’s WA.
(g) On 12th July 2005: - The Special Leave to Appeal (Civil) No. CC 5908 of 2005 filed by UoI & Ors against the WA is dismissed by the Hon’ble Supreme Court of India.
2. While enclosing a copy of GoI/MoD order No. 34 (6) 2012 – D (Pay/Services) dated 27th December 2012, with F. No. 35 (1)/2013 – D (Pay/Services) dated 9th January 2013, vide Para it was stated that all decisions “… taken by Ministry of Finance/Defence (Finance) with the knowledge of Ld. Law Officers.”
3. Para 8 of the GoI/MoD letter dated 27th December 2012 states inter alia “………and as this sanction is in compliance with judicial pronouncements, it is clarified there shall be no change in respect of Special Instructions of Army, Navy and Air Force issued on 19.12.1997………..”.
3. Please provide copies of information comprising of Records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, reports, papers, judicial pronouncements, interim of absolute orders of the Hon’ble High Court of Kerala etc on the following:-
(a) Intimation by MoD to any other Department of the Government of India including the 5th CPC and the Cabinet Committee, on receiving notice of filing of O.P. No.2448/1996 and till 19th December 1997 or subsequently, on likely impact if Maj Dhanapalan’s case was decided in his favour,
(b) Reference by MoD and advice from Ld Law Officers that notification of the impugned deduction of Rank Pay in SAI/SNI/SAFI 1/S/1998 was legally correct,
(c) Legal opinion from Ld Law Officers, for proceedings to be initiated by MoD in the Hon’ble High Court of Kerala for seeking judicial pronouncement to allow impugned deduction of Rank pay in re-fixing pay of Armed Forces officers in SAI/SNI/SAFI 1/S/1997 as O.P. No. 2448/1996 was still sub-judice,
(d) Details of Judicial order(s)/dispensation(s) obtained by MoD from the Hon’ble High Court of Kerala, including copies of such order(s) from filing of O.P. No. 2448 of 1996 till 19th December 1997 when the SAI/SNI/SAFI 1/S/1997 was promulgated,
(d) Copies of information connected to legal advice and status of O.P. No. 2448 of 1996 to
(i) 5th CPC, for formulating its Report and Recommendations
(ii) 5th CPC, with particulars of judicial authorisation, if any, for inclusion of impugned Paras 148.1 and 148.2 and the methodology for determining pay re-fixation as it specifically related to deduction of Rank Pay to eligible Armed Forces officers,
(iii) Cabinet Secretariat to assist in preparing Cabinet Notes for the perusal of the Government of India when considering the Report & Recommendations of 5th CPC, particularly in the Rank Pay matter,
(d) Decisions taken before promulgating the methodology and deduction of Rank Pay in the impugned SAI/SNI/SAFI 1/S/1997 dated 19.12.1997, with specific mention to the pending O.P. No. 2448 of 1996
(e) The complete, unedited, legal opinion dated 17.10.2012 of the Ld Solicitor General of India consequent to the Hon’ble Supreme Court order dated 4th September 2012 in IA No. 9 of 2010 in TP (Civil) No. 56 of 2007 case of UoI & Ors Vs. N.K. Nair & Ors,
(f) The complete DGL prepared by CGDA with remarks by MoD, Def (Fin) and MoF thereon.
4. Please dispense with a request for my presence to inspect documents/files. I may be intimated the additional cost of being provided the information I have applied for.
5. It is also requested that Registry/Dispatch Section may be directed to ensure that ACK due forms are properly stamped, date of receipt endorsed and mailed to sender for maintaining a proper record in case an Appeal has to be preferred.
6. Indian Postal Order Number 16F 452260 for Rs.10/- (Ten only) endorsed to Accounts Officer (DAD), Ministry of Defence (Civil) payable at New Delhi is attached.
Encl: as stated
The Reply from MoD received at 1320 hours on 15.04.2013
By Speed Post
F. No. 35 (1) 2013 – D (Pay/Services)
Government of India
Ministry of Defence
Subject: Your application No. SYS/RTI/MoD/2013 dated 26.3.2013 received on 02.04.2013
This is with reference to your applications No. SYS/RTI/MoD/2013 dated 26.3.2013 received on 02.04.2013.
2. The part-wise information as sought in para 3 (it should be para 4) of the above-mentioned application is given as under:
(a) Intimation to MoD (Finance), responses from Ministry of Finance and DOP&T enclosed herewith.
(b) No such information exists in MoD [D (Pay/Services)] Files.
(c) No such information exists in MoD [D (Pay/Services)] Files.
(d) No such information exists in MoD [D (Pay/Services)] Files.
(e) (i) to (iii). This sub-para has been wrongly numbered as (d). Recommendations of the Pay Commissions are considered by Ministry of Finance.
(f) This sub-para has been wrongly numbered as (d). No such information exists in MoD [D (Pay/Services)] Files.
(g) This sub-para has been wrongly numbered as (e). A complete copy of advice dated 17.10.2012 given by Ld Solicitor General of India is sent herewith.
(h) This sub-para has been wrongly numbered as (f). The information sought is enclosed herewith.
3. In respect of the information supplied above, you may send requisite cost @ Rs 2/- [er page in favour of AO (DAD) Ministry of Defence (Civil).
4. In case you are not satisfied with the reply you may appeal to Shri Praveen Kumar, Director (AG-I), Ministry of Defence, Room No. 103, Sena Bhawan, New Delhi within 30 days of receipt of this letter.
(P. S. Walia)
Under Secretary & CPIO
Encl. As above