No good thing could grow out of bad, and truth is indivisible.
Therefore, good ends could only ever result from good means. Good means might
not always succeed quickly or completely, but this is not sufficient reason to
embrace evil or stray from the truth.
Roderick Matthews quoting Mahatma Gandhi in
Jinnah Vs. Gandhi
(page 16)
-----------
1. Note 8 (hereinafter referred to as The Note) of the file 34 (6)/2012 – D (Pay/Services) in which
confusion is taken to a higher plane and in the process, MoD & MoF and the Def/Fin and CGDA, have tied themselves in knot stating repeatedly that the Hon'ble Courts have not addressed certain points.So here is an attempt, thanks to what little information MoD has parted with so far (3 more RTI requests are pending and 2 First Appeals are in the post.)
2. Paras 2, 3 and 4 of
the Note deal with the origin of Rank Pay, the illustrations and also the
improvements made by the Govt vide its Resolution 9E of 18.3.1987. At no stage
does the MoD enlighten us why, when the 4th CPC (and every
subsequent CPC) has encouraged interaction by Ministries/departments (Concluding
Observations and Acknowledgements, page 324) by stating “We are grateful to …….
Secretaries of Ministries and Departments…… for their suggestions,” no
clarifications were sought.
3. At Para 2 of the Note,
quoting Para 28.113 of the 4th CPC Report, were given the
illustrations. But what was written in hand by some one in the MoD is not there
in the actual Para 28.113: -
What is factually in
Para 28.113 of the 4th CPC
|
What is written in
Para 2 of Note 8
|
Illustration No.
1
1. Rank -
Captain
2. Existing basic pay -
Rs 1300.00
3. DP/DA on basic pay
at index average - Rs 1650.00
608 and Interim relief
4. Existing emoluments -
Rs 2950.00
5. Add 20% of basic pay -
Rs 260.00
-------------------------
Total - Rs 3210.00
6. Pay to be fixed in integrated scale - Rs 3100 + Rank pay Rs 200 (faintly legible
Illustration No.
2
1. Rank -
Major
2. Existing basic pay -
Rs 1600.00
3. DP/DA on basic pay at
index average - Rs 1740.00
608 and Interim relief
4. Existing emoluments -
Rs 3340.00
5. Add 20% of basic pay -
Rs 320.00
-------------------------
Total -Rs
3660.00
6. Pay to be fixed in integrated scale - Rs 3400 + Rank pay Rs 400 (faintly legible
Illustration No.
3
1. Rank -
Lt Col (Time scale)
2. Existing basic pay -
Rs 1900.00
3. DP/DA on basic pay at
index average - Rs 2037.00
608 and Interim relief
4. Existing emoluments -
Rs 3937.00
5. Add 20% of basic pay -
Rs 380.00
-------------------------
Total -Rs 4317.00
6. Pay to be fixed
in integrated scale - Rs 4400
+ Rank pay Rs 400 for rank of Major
Illustration No.
4
1. Rank -
Brigadier
2. Existing basic pay -
Rs 2200.00
3. DP/DA on basic pay at
index average - Rs 2346.00
608 and Interim relief
4. Existing emoluments -
Rs 4546.00
5. Add 20% of basic pay -
Rs 440.00
-------------------------
Total -Rs 4986.00
6. Pay to be fixed in
integrated scale - Rs 4600 + Rank pay Rs
1200 (as the maximum pay admissible for the rank of Brigadier is Rs 4600/- in
integrated scale)
|
Illustration No.
1
1. Rank - Captain
2. Existing basic pay - Rs 1300.00
3. DP/DA on basic pay
at index average - Rs 1650.00
608 and Interim relief
4. Existing emoluments
- Rs 2950.00
5. Add 20% of basic pay-
Rs 260.00
-------------------------
Total - Rs 3210.00 (faintly
legible) + 200 = 3410 or 3210-200= 3010
6. Pay to be fixed in integrated scale - Rs 3100 + Rank pay Rs 200 (faintly legible (insertion by hand) = 3400
Illustration No.
2
1. Rank -
Major
2. Existing basic pay -
Rs 1600.00
3. DP/DA on basic pay at
index average - Rs 1740.00
608 and Interim relief
4. Existing emoluments -
Rs 3340.00
5. Add 20% of basic pay -
Rs 320.00
-------------------------
Total -Rs 3660.00 (faintly
legible) + 400 = 4060 -400
(inserted by hand)
6. Pay to be fixed in integrated scale - Rs 3400 + Rank pay Rs 400 (faintly legible insertion by hand) = 3800
Illustration No.
3
1. Rank -
Lt Col (Time scale)
2. Existing basic pay -
Rs 1900.00
3. DP/DA on basic pay at
index average - Rs 2037.00
608 and Interim relief
4. Existing emoluments -
Rs 3937.00
5. Add 20% of basic pay -
Rs 380.00
-------------------------
Total -Rs 4317.00
6. Pay to be fixed
in integrated scale - Rs 4400
+ Rank pay Rs 400 for rank of Major
Illustration No.
4
1. Rank -
Brigadier
2. Existing basic pay -
Rs 2200.00
3. DP/DA on basic pay at
index average - Rs 2346.00
608 and Interim relief
4. Existing emoluments -
Rs 4546.00
5. Add 20% of basic pay -
Rs 440.00
-------------------------
Total -Rs 4986.00
6. Pay to be
fixed in integrated scale - Rs 4600 +
Rank pay Rs 1200 (as the maximum pay admissible for the rank of Brigadier is
Rs 4600/- in integrated scale)
|
4. At Para 4 of the note Chapter 30 of the
4th CPC on the methodology for fixation of pay is quoted to justify
the inclusion of impugned Para 6 (a) (ii). The following are the facts as
available from the 4th CPC Report: -
Chapter 30, Para
30.2 for Pay Fixation
|
Fixation as per Para
6 (a) (ii) of the SAI 1/S/1987
|
30.2. “We have given careful consideration to all these
suggestions. Taking all the factors into account we recommend that pay of
employees may be fixed in the proposed scales in the following manner: -
(i) For
all employees, an amount representing 20 per cent of basic pay in the exiting
scale subject to a minimum amount of Rs 50/- may be added to the “existing
emoluments.” Pay thereafter may be fixed in the proposed scale at the stage
next above the emoluments thus computed. If the minimum of the proposed
scale. For this purpose the term “existing emoluments” will include the
following: -
(a) basic
pay in existing scale;
(b)
dearness pay, additional dearness allowance,
and ad hoc dearness allowance appropriate to basic pay admissible at index
average 608 (1960=100); and
(c)
amounts of first and second instalments of
interim relief admissible on basic pay referred to in (a) above.
(ii)
In case of employees who are in receipt of
special pay in addition to pay in existing scale and where the existing scale
of pay with special pay has been replaced by a scale without any special pay,
pay may be fixed in the proposed scale in accordance with provisions of
paragraph 30.2 (i) except ….. (c) DP/ADA/Ad hoc DA and special pay ……
(iii)
In case of employees who are in receipt of
special pay in addition to pay in existing scale and where the existing scale
of pay with special pay continues in the proposed scale in accordance with
provisions of paragraph 30.2 (i) above after excluding the existing special
pay and the amounts admissible thereon such as DP/ADA/Ad hoc DA…….
(iv)
In case of medical officers who are in receipt
of non-practising allowance, pay may be fixed in the proposed scale in
accordance with provisions of paragraph 30.2 (i) above except that in such
cases the terms “existing emoluments” will not include NPA as existing rates
and will comprise ……
In such cases, NPA at the new
rates may be drawn in addition to pay in the proposed scale.
|
4.
The Service Instructions issued in this regard
were based on the GoI Resolutions and the portion there from relevant to the
instant case read as under: -
“6. Fixation of initial pay in
the revised scales will be regulated as follows: -
a (i)
An amount representing 20 percent of the basic pay in the existing scale
shall be added to the existing emoluments of the officer.
(ii) After the existing emoluments have been so increased, an amount
equivalent to the rank pay, if any appropriate to the rank held by
the officer on 01 January, 1986 as the rates prescribed in para 3 (a) (ii)
above, will be deducted. Thereafter, the officer’s pay will be fixed
in the revised scale at the stage next above the amount thus computed.”
|
At no stage has the 4th CPC suggested/recommended/hinted that Rank Pay should be deducted. It
may be seen from illustrations No. 3, 4 and 5 of Para 30.5 in the case of
Special pay and for NPA for medical officers, Special pay/ NPA is not taken
into consideration for working out existing emoluments but is reckoned for
calculating DP/ADA/Ad hoc DA.
5. Paras 7 of the Note
reads, inter alia “………….The Hon’ble
Court heard the Law Officer (Ld SG)
who explained the issue in a very lucid manner. After going through the matter
for a long time, the Hon’ble Court ordered that they are satisfied that the
order dated 8.3.2010 does not require any modification or variation save and
except the interest part. “
6. And in Para 8 of the
Note the MoD states “In the instant order also, the Hon’ble Court has not
made any remarks against individual points/grounds raised by the Union of India
in its appeal and subsequent affidavits.”
7. Logically, UoI must have given, in its affidavits filed in
support of IA No. 9 of 2010 settled by no less a Law Officer than the Ld SG,
details of the individual points/grounds for recall/modification/re-hearing of
the Hon’ble Supreme Court’s order dated 8.3.2010. Logically too, if the Hon’ble
Supreme Court has not stated that the said order does not require modification
or variation, one would understand that those individual points/grounds have no
validity.
8. Further, the Ld SG opined that IA No. 9 of 2010 could be
filed for Recall/review on grounds of “serious
financial implications” and not on any other point/ground (Note 207 dated
31.3.2010 refers). Nowhere in the notes preceding the opinion of the Ld SG or
after the opinion was given, is there any mention of what those “individual
points/grounds” were and whether the Ld Law Officer had argued them or not and
also if they were already considered by the Hon’ble Supreme Court’s order which
resulted in the Order dated 8.3.2010.
9. Para 8 (i), (ii),
(iii), (vi) of the Note 8 – MoD states “there is no ambiguity in Para
28.113.” MoD is correct because there wasn’t/isn’t any ambiguity because Rank pay should
not be deducted.
To substantiate my argument, here is a reproduction of
Para 28.113 “In Chapter 30 we
have recommended the method for fixation of pay in proposed scales for civilian
employees, we recommend the same method may be adopted for fixation of pay of
armed forces personnel also. Since Rank Pay is a separate element for officers
upto the rank of Brigadier and equivalent, the same may be taken into account
while fixing pay in the integrated scale of pay recommended by us.”
And a re-cap of Para 30.2.
“We have given careful consideration to all these suggestions. Taking all the
factors into account we recommend that pay of employees may be fixed in the
proposed scales in the following manner: -
(i) For all
employees, an amount representing 20 per cent of basic pay in the exiting scale
subject to a minimum amount of Rs 50/- may be added to the “existing
emoluments.” Pay thereafter may be fixed in the proposed scale at the stage
next above the emoluments thus computed. If the minimum of the proposed scale.
For this purpose the term “existing emoluments” will include the following: -
(a) basic
pay in existing scale;
(b)
dearness pay, additional dearness allowance, and
ad hoc dearness allowance appropriate to basic pay admissible at index average
608 (1960=100); and
(c)
amounts of first and second instalments of
interim relief admissible on basic pay referred to in (a) above.
Para 30.2. (ii) “where special pay in the existing scale has
been replaced with a scale without special pay, special pay is taken into
account for “existing emoluments”, with illustration Bo. 3 not showing any
deduction of special pay from the pay to be fixed in proposed scale;
Para 30.2. (iii) where special pay continues in proposed
scales, states “after excluding the existing special pay and the amounts admissible
thereon such as DP, ADA, and ad hoc DA. In such cases special pay at the new
rate may be drawn in addition to pay in proposed scale, with no deductions
being shown in the proposed scale of pay in illustration No. 4: and
Para 30. 2 (iv) “In case of medical officers who are in
receipt of non-practising allowance, pay may be fixed in the proposed scale in
accordance with provisions of paragraph 30.2 (i) above except that in such
cases the term “existing emoluments” will not include non-practising allowance
as existing rates and will comprise only the following: -
(a) basic
pay in existing scale,
(b) dearness
pay, additional dearness allowance and ad hoc dearness allowance appropriate to
the basic pay and non-practising allowance admissible at index average 608
under the relevant orders, and
(c) amounts
of first and second instalments of interim relief admissible on the basic pay
and NPA under the relevant orders.
In such cases, NPA at the new rates may be drawn in addition
to pay in the proposed scale.”
And
illustration 5 from Para 30.5: -
1. Existing
scale of pay Rs
1100-50-1600
2. Proposed
scale of pay Rs
3000-100-3500-125-4000
3. Existing
basic pay Rs
1450/-
4. DA/ADA/Ad
hoc DA at index average 608 + NPA Rs 1720.50
5. Existing
amount of NPA Rs 400.00
6. Two
instalments of interim relief
(Rs 80 + Rs 185) Rs 265.00
7. Existing emoluments (excluding
NPA of Rs 400) Rs 3435.00
8. Add 20% of basic pay Rs 290.00
Total Rs 3725.50
Pay to be fixed in proposed scale
of pay Rs 3750/-
Revised amount of NPA Rs 400/-
10. Para 8 (v) and (x) of
The Note does not state that truth that the determination and consequent
definition of Rank Pay was made on 29th February 2000 as part of the
anomaly resolution of the 5th CPC. This is so stated by CPIO, MoD
(Pay/Services) in the reply to RTI of 21.1.2013. Determination of Rank Pay was
not after the 4th CPC.
11. Para 8 (vii) and (viii)
of the Note sum up, in the usual manner of being economical with the truth,
the Special Disturbance Allowance in the
3rd CPC and Rank Pay in the 4th CPC. MoD stretches that by
an odious comparison of the pay drawn by Captains, Majors, Lt Cols and Brigs
vis-à-vis their civilian counter parts and justifying why MoD and MoF decided
that the benefit/edge of Rank Pay was “unintended” contrary to no such
recommendation by the 4th CPC nor such notation in the Govt’s
Resolution approving the 4th CPC Recommendations.
12. Para 8 (x) of the Note
states, that Rank Pay being added for calculations of DA etc and retirement
benefits….. “has not put the concerned officers to any financial loss as
brought out in the petitions before the courts.” My abacus disagrees with the
calculating device used by MoD. My abacus arrives at that conclusion that Rs
3100 as Basic Pay + Rs 200 Rank pay = Rs 3300 which is more than Basic Pay Rs
3100 minus Rank Pay Rs 200 = Rs 2900 + Rank Pay = Rs 3100. So there is a loss
of Rank Pay Rs 200 plus + reduced DA, HRA etc (on Rs 3100) per month for the
duration that an officer remains a Capt and the loss increases as the officer
goes up the ladder to Brig (Rs 5100+ 1200 = Rs 6300). If MoD does not believe
me, they should check the calculation sheets provided to the HPC, unless the
figures were inflated for “shock & awe” effect.
13. Para 8 (xii) and (xiii)
of the Note exposes the confused thought process of the MoD. At (xii) the
MoD stresses that “….. as such Commissions
recommendations are binding on the Government as well as the employees” and
then does the U-turn of convenience stating in (xiii) “Pay Commissions are only recommendatory authorities…..etc”
14. Then the MoD returns to the oft-repeated statements of the
additional issues in Para 9 of the Note
without being truthful that all these were placed before the Court in the 31
paragraphs in the additional affidavit, including quoting the HPC report
consequent to the Hon’ble Court’s order of 8.3.2010. MoD had then submitted
that pay & pension revisions will need to take place on 1.1.1986, 1.1.1996,
and 1.1.2006.
15. The Hon’ble Judges must have and they state so in the order,
considered these submissions and might not have found the need to give
decisions on 4.9.2012 because the MoD had submitted what upholding the Hon’ble
Court’s order of 8.3.2010 would entail. Therefore, the Hon’ble Judges must have
given due consideration. So, it is disingenuous for MoD to complain about lack
of clarity because Ld SG would have had the complete attention of the Bench, as
stated in Para 7 of the Note.
16. MoD does itself little credit by asserting that it “…. Cannot
be said that for all officers the Rank pay was deducted in full and this
deduction has financially harmed all officers.” Refutation of this statement,
if one was ever needed, is provided by the calculation sheets of the CGDA
provided to the HPC, wherein Cols and Brigs receive NIL arrears for a
considerable period of time between 1.1.1986 and 31.12.1995. These calculation
sheets were provided by MoD in reply to an earlier RTI and are available on
this blog.
17. Now, attention is drawn to Note 18 (c) of the MoF/Dept of Expenditure, a classical piece of a
thought process that confirms what the Mahatma said. The signatory of the note,
a Deputy Secretary and no less, avers “…… that all the petitions that were
tagged along were filed by Army officers….. It, thus, appears so far the
petitioners and the litigations have been Army-centric. This being so, the
whole implication of the phrase “similarly situated/placed person” may confine
to similarly placed persons from Army alone.
18. Finally, for this post, consider Note 63, Part III, Para 6.
MoD, signed by Dir (AG), who in all innocence, states, “CGDA and Defence Finance were of the opinion that the aforesaid Kerala
High Court Judgment dated 5.10.1998 in the case of Major A.K. Dhanapalan and
the Supreme Court Judgments dated 8th March, 2010 and 4.9.2012 are
silent on two issues.
(i)
Revision
of Pay Fixation formula as per V CPC for not deducting Rank Pay.
(ii)
Need
for making changes in the allowances subsequent to re-fixation of pay as per
the case of Major A.K. Dhanapalan.
19. Dir (AG),
after that exhaustive note, might have been sanguine that all loose ends have
been tied up in knots. For him, the CGDA and of course Def/Fin, things would be
crystal clear if they considered the following facts
(a) 6th February 1996 is
the date that Maj Dhanapalan filed his case (OP 2448/1996 N). In simple words
the matter of whether the methodology of deducting Rank Pay from revised
emoluments before re-fixing pay is wrong as Maj Dhanapalan stated or correct as
MoD & MoF assert is to be determined by the Hon’ble High Court of Kerala.
Since the Secretary in the MoD is Respondent No. 1 it is more than certain that
MoD knew about this case.
(b) 30th
January 1997 is the date V CPC submitted its Report to the Government i.e. when
the matter was still sub-judice.
(i) The V CPC
report states, inter alia, in Part I,
Para 1.35 Memoranda of Ministries “All the Ministries/Departments of the
Central Government were requested to send us memoranda on the subjects covered
by our terms of reference. We also issued a detailed Proforma to all the
Ministries/Departments ……………..”
(ii) Further
ibid report states at Para 1.37 (i) “Whenever factual information was called
for, there should be no hesitation to furnish all necessary factual information.
The reason for arriving at a particular decision taken by the Government or the
circumstances in which a decision was taken might also be explained so as to
help the Commission in understanding the policy of the Government.”
(c) 19th
December 1997 is the date MoD, with concurrence of MoF promulgated SAI/SNI/SAFI
of 2/S/1997, when the matter was still
sub-judice, and included the impugned methodology.
20. It is hoped the MoD, Def/Fin and CGDA will find answers to the ensuing questions so
that things would be as clear and then inform the Ministries of Law &
Justice and MoF : -
(a) Did MoD inform the Kerala
High Court or the Petitioner between 30th January 1997 and 5.10.1998
that the impugned deduction of Rank Pay had been included in the V CPC?
(b) If it did,
and the Hon’ble High Court received it and conveyed some decision, why has MoD
NEVER mentioned that in the profuse notes, the affidavits or even mentioned
that the Ld Law officers were informed? Especially when MoD repeatedly mentions
Para 28.113 and also V CPC recommendations on the impugned methodology incorporated
in the Special Instructions of 1997?
(c) If the
MoD, the administrative Ministry, and Respondent No. 1 in OP 2448/1998 N, filed
an interim application or approach the Hon’ble High Court and obtain any
judicial order/stay etc to go ahead with including the impugned methodology in
Special Instructions of 1997, why isn’t that order being quoted whenever Maj
Dhanapalan’s case is mentioned?
(d) If MoD
mentioned this material fact in its affidavits, counter-affidavits, additional
affidavits in the Hon’ble High Court of Kerala and subsequently in the Hon’ble Supreme
Court, why isn’t it bringing that out in the notes and references to the
Ministry of Law & Justice?
(e) Are there
some important reason(s) why MoD did
not inform the Hon’ble High Court and risk committing criminal contempt of
Court by lowering the dignity of the Court or taking a decision before the
Court decided the matter?
(f) If MoD did not file/include what
it did between 6th February 1996 and 17th December 1997
in its averments and prayers in the Hon’ble Supreme Court, why were material
facts hidden from the Hon’ble Supreme Court?, and
21. MoD, MoF, CGDA, Def/Fin do
not have to look to the Courts to ascertain replies to the two issues in the
many hearings after filing I.A No 9 of 2010. They should expect clarity only when
all facts were placed before the Hon’ble High Court and the repeated in the
Hon’ble Supreme Court would have enabled the Courts issue clear and explicit
orders.
Saytam ev Jayate is the national motto. And the MoD and the
MoF and also Def/Fin and CGDA are part of the Nation, but are they ?
Jai Hind
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