Tuesday 7 May 2013

Reply from First Appellate Authority MoF, DoE, E.III-A dated 2/5/2013




REPLY TO FIRST APPEAL DATED 12th APRIL 2013 RECEIVED ON 6th MAY 2013

* * * * *
PART – I

RIGHT TO INFORMATION ACT, 2005

FIRST APPEAL FOR CENTRAL GOVERNMENT

I.D. No_________ Date: _________ [For office use]

To,

Shri Amar Nath Singh, Deputy Secretary & The First Appellate Authority,
Branch E.III-A, Dept of Expenditure,
Ministry of Finance, Govt of India,
Room No. 74-C, North Block,
New Delhi - 110011

Sir,

1.        
As I am aggrieved by decision of Under Secretary & Central Public Information Officer, Branch E.III-A, Department of Expenditure, Ministry of Finance, North Block,  New Delhi – 110 011 dated 26th March 2013 and received by me via speed post on 1st April 2013. I hereby file this appeal for your kind decision.

2. Details of appellant

2.1 Full Name: Sharad Yeshwant Savur

2.2. Full Address: 141, Jal Vayu Towers, Beniganahalli, Indira Nagar (PO), Bangalore-560038

2.3 Phone/Cell No: +91 9449676278

2.4 Email ID: sysavur@gmail.com

3. Details of CPIO: -

3.1 Name/Designation:  Shri Manab Ray, Under Secretary & CPIO

3.2 Full Address: Branch E.III.A, Department of Expenditure,
Ministry of Finance, Govt of India, North Block, New Delhi - 110011

3.3 Name of Public Authority: Ministry of Finance

4
. Details of RTI application to CPIO: -

4.1.
Date of Application: 28th February 2013

4.2.
Mailed on: 27.02.2013

4.3. By registered post No. A RU1808776981 IN

4.4. Date of receipt by CPIO: through DS (RTI Cell of MoF) on 07.03. 2013.

5
. Particulars of payment of filing fee: -

5.1
Paid Rs.10/- by IPO No. 16F 452257 Dated 18.02.2013 of INDIRA NAGAR Post office

6. Details of information sought: -

Vide Section 4 (2) (c) and (d) of the RTI Act 2005, I request photocopies

(a) Of the file notings, deliberations, discussions, and related information with dates, provided to the 4th CPC based on which the Commission recommended as follows: - 

“ 28.13. We also recommend that in addition to pay in the above integrated scale, the following rank pays may be given to officers in the Army and their equivalents in the other services…..”

And  

“Chapter 30. We have recommended the method of fixation of pay in proposed scales for civilian employees, we recommend the same method may be adopted for fixation of pay of armed force 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.”

(b) Of file notings, deliberations, discussions and related to information with dates that Ministry of Finance, Dept of Expenditure, Branch E.III.A provided to MoD as part of its concurrence culminating in promulgating the methodology para 6 (a) (ii) Special Army Instructions 1/S/1987 and similar instructions for the Navy and Air Force  

(c) Of the file notings, deliberations, discussions, illustrations and related information, with dates provided to the 5th CPC based on which it made the recommendation in Part VII, Section II, Para 148.1 as follows: -

“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…”
           
(c) Of the file notings, deliberations, discussions and related information, with dates provided to the 5th CPC to enable it to arrive at the recommendation made in Part VII, Section II, Para 148.2 for deducting rank pay, specifically: -

“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 may be taken into account but pay in revised scales be fixed after deducting the revised amount of rank pay.”

7. Particulars of Decision of CPIO: -

7.1
Letter reference No: F. No. 7/1/2013 – E.III (A)/ RTI

7.2.
Date of CPIO’s Decision: 26th March 2013

7.3
Date of receipt of decision by the appellant: 1st April 2013

8. Brief facts of the case: -

Of the file notings, deliberations, discussions, and related information with dates, provided to the 4th CPC based on which the Commission recommended as follows: - 

(a)        “ 28.13. We also recommend that in addition to pay in the above integrated scale, the following rank pays may be given to officers in the Army and their equivalents in the other services…..”

And  

“Chapter 30. We have recommended the method of fixation of pay in proposed scales for civilian employees, we recommend the same method may be adopted for fixation of pay of armed force 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.”

(b) Of file notings, deliberations, discussions and related to information with dates that Ministry of Finance, Dept of Expenditure, Branch E.III.A provided to MoD as part of its concurrence culminating in promulgating the methodology para 6 (a) (ii) Special Army Instructions 1/S/1987 and similar instructions for the Navy and Air Force  

(c) Of the file notings, deliberations, discussions, illustrations and related information, with dates provided to the 5th CPC based on which it made the recommendation in Part VII, Section II, Para 148.1 as follows: -

“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…”
           
(d) Of the file notings, deliberations, discussions and related information, with dates provided to the 5th CPC to enable it to arrive at the recommendation made in Part VII, Section II, Para 148.2 for deducting rank pay, specifically: -

“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 may be taken into account but pay in revised scales be fixed after deducting the revised amount of rank pay.”

9. Reasons/grounds for this appeal: -

Under Secretary and CPIO of E.III- A branch of the Department of Expenditure, Ministry of Finance, Govt of India vide impugned letter dated 26th March 2013 (copy attached and marked Annexure ‘A’) states in: -

S No. 1 (Relevant to Para 7 (a) above). The Pay Commission is an independent body constituted by Ministry of Finance, Department of Expenditure and this Department did not provide the Commission with the input mentioned in the RTI application

S No. 2 (Relevant to Para 7 (b) above). The Department of Expenditure follows single file system and comments/views/concurrence of this Department are recorded in the file of the administrative Department. However, the photocopies of the relevant Army, Navy and Air Force Instructions wherein this Department’s ID note and date was mentioned may please be provided so as to enable us to trace the relevant documents based on which the MoD had issued instructions in respect of Army/Navy/Air Forces.

S No. 3 (Refers to Para 7 (c) above). The Pay Commission is an independent body constituted by Ministry of Finance, Department of Expenditure and this Department did not provide the Commission with the input mentioned in the RTI application
           
S No. 4 (Refers to Para 7 (d) above). The Pay Commission is an independent body constituted by Ministry of Finance, Department of Expenditure and this Department did not provide the Commission with the input mentioned in the RTI application

The above statement of the US & CPIO, E.III.A branch is incorrect and not in consonance with facts as available from Govt documents i.e. reports of IV CPC and V CPC etc: -

S No. 1: - The 4th Pay Commission Report states in Concluding Observations and Acknowledgments (Page 324)  as follows “……….. We are grateful to……..Secretaries of Ministries and Departments ….. for their suggestions.” This being a financial matter, it is impossible that MoF, Dept of Expenditure, E.IIIA or any appropriate Branch did not officer any suggestions.

The Fifth Central Pay Commission 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 ……………..”

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.”  

S. No. 2: - (i) The CPIO is aware that Special Instructions for Army, Navy and Air Force No.1/S/1987 is a “RESTRICTED” document. An ordinary citizen of India cannot be in possession of a “RESTRICTED” document, make photocopies or send it unless one wants to risk prosecution. 

(ii) Therefore, the CPIO being a Govt officer, asking for a photocopy amounts to obfuscation, procrastination, even instigating a law abiding citizen to obtain illegally a copy of a RESTRICTED Ministry of Defence document with the legal consequences thereof.

(iii) CPIO could have asked for or utilised the resources and the library/archives of the MoF or asked CPIO MoD to obtain the same to enable him to provide the information requested.

(iv) CPIO could also have obtained the reply vide Section 6 (3) of the RTI Act 2005.

(v) MoF has commented on the ibid SAI/SNI/SAFI in reference to notes on MoD File No. 34 (6) 2012 – D (Pay/Services) vide MoF/DoE ID No. 187654/E-IIIA/2012 dated 24.12.2012

(vi) Finally, in the reply provided vide MoF vide F. No. 7/1/2-13-E.III (A)/AA/12 dated 4th April 2013 to RTI application dated 14.2.2013 Notes on MoF file No. 2458/JS (Per)/09 Vol III there is reference to the ibid SAI 1/S/1987.


S. Nos. 3 & 4: - The 5th CPC provided a questionnaire to all Ministries. MoF, being the most Nodal Ministry, will have offered its suggestions/views pre- and post the Report. Therefore, the reply of the CPIO amounts to not intending to provide a correct and truthful reply.
                                   
10
. Any other information in support of appeal:  Nil

11. Prayer/relief sought for:

US & CPIO (E.III.A) branch provide me with information as requested without any further delay or I may be informed that I could appeal to the CIC for necessary action.

12. Grounds for prayer/relief sought for:

US & CPIO (E.III. A) has once again peremptorily dismissed my request for information. He had done so earlier vide F No. 7/1/2013-E.III.A/65 dated 6th February against which I had sent a First Appeal dated 14th February 2013. I received a reply supplying me information vide MoF F. No. 7/1/2-13-E.III (A)/AA/12 dated 4th April dated 4th April 2013.

13. Personal Presence at hearing: - No

14. Enclosures: -  Photocopies

14.1. Original RTI application with its enclosures: - Annexure ‘A’

            14.2. Postal proof of mailing: -                                   Page 2 of Annexure ‘A’

14.3. Acknowledgement of CPIO: -                             Annexure ‘B’

14.4. Decision letter of CPIO: -                                   Annexure ‘C’

15. Declaration:

I hereby state that the information and particulars given above are true to the best of my knowledge and belief. I also declare that this matter is not previously filed with any information commission nor is pending with any Court or tribunal or authority.
Place: Bangalore                     Date:   12th April 2013                         Signature of appellant
P.S. Format as per office memorandum dated 09-07-2007 issued by DoPT, Govt. of India.

PART-II: REPLY FROM MoF

No.7/1/2012 E-III (A)/RTI Appeal
Ministry of Finance
Department of Expenditure
(E-III (A) Branch)
North Block, New Delhi
Dated: 2nd May, 2013
CASE No.                                                        AA/25/2013

NAME OF APPELLANT                                   SHRI SHARAD YESHWANT SAVUR

Sub: Appeal under Section 19(1) of RTI Act 2005

The appellant has filed an appeal, dated 12th April, 2013 under Section 19(1) of RTI Act 2005 against reply furnished by Shri Manoj Kumar, Under Secretary and CPIO vide his letter No. 7/1/2013-E-III (A)/RTI dated 26th March 2013 in response to RTI application dated 28/02/2013. The appeal was received by the undersigned on 16/04/2013.

2. The undersigned has gone thorough the RTI application, dated 28/02/2013, which seeks photocopies of the file notings, deliberations, discussions and related information with dates provided by the Ministry of Finance to 4th and 5th CPC based on which the Pay Commission had made recommendations of rank pay and method of fixation of pay of armed forces personnel up to the rank of Brigadier and also photocopies of the file noting, deliberations, discussions and related information with dates provided by Ministry of Finance to MoD as concurrence to promulgation of methodology in para 6 (a) (ii) Special Army Instructions 1/S/87 and similar instructions for the Navy and Air Force.    

3. The Under Secretary and CPIO, Shri Manoj Kumar, in his reply dated 26th March, 2013 had conveyed that this Department did not provide the Commission with the input mentioned in the RTI application. In reply to Point No. 2, the CPIO has requested the appellant to provide the photocopy of the relevant Army/Navy/Air Force Instructons so as to enable us to trace the relevant documents.

4. The appellant has not sought any personal hearing. Hence, the following order is passed. 

ORDER

5. I have gone through the appeal, dated 12/04/2013 preferred by the appellant and also the RTI application dated 28/02/2013 and the reply dt 26th March, 2013 from the CPIO.

6. The reply of the CPIO dt 26th March 2013 does not bring out whether the information sought by the appellant is available in the Branch or not. The CPIO is, therefore, directed to look into whether the information/documents sought by the appellant is available and if so, the information as available should be immediately provided.

The appeal is accordingly disposed off.

Sd/---------------------------
(Amar Nath Singh)
Deputy Secretary (E-III(A) and 1st Appellate Authority

To

  1. Shri Manoj Kumar, CPIO and US (E-III B) for appropriate action

  1. Shri Y. S. Savur
       141, Jal Vayu Towers
       NGEF Layout
       Indira Nagar (PO)
       Bangalore-560038

Copy to: DS (RTI Cell), Department of Expenditure, North Block, New Delhi alongwith a copy of the appeal dated 12/04/2013 by Shri Y S Savur                                                                                                                                                                                                                                                                                           


                                                                                                                                                             
















                                                                                                                                                                                                                                                                                                                                                   

Monday 6 May 2013

Preamble, Gamble, Scramble - II



Often the masses are plundered and they do not know it
- Frederic Bastiat  

* * * * *
“When I see noble, moral and modest persons harassed in this way, and the evil and ignoble flourishing and happy, I stagger with wonder. I can only condemn the Placer, who allows such outrage.”

                                                            - Draupadi to Yudishthira, Mahabharata III.31.37-39
                                    Quoted by Gurcharan Das in his book “The Difficulty of being Good”

* * * * * * *
Many years ago, I had written for my cousin Shiv Aroor (now Deputy Editor with Headlines Today) & blogger (Livefist), a piece on the treatment meted out to the Defence Forces after the 6th CPC. It was titled ‘Preamble, Gamble, and Scramble.’

I wrote the White Papers a few days before I received the first of the many replies to my RTI applications. The White Papers were based on a detailed reading, much deliberations and cross-checking of facts as were known to me then. But the MoD, CGDA, and MoF have vindicated my analysis starting with the disclosure dated 13.2.2013. Every word, punctuation mark and line has been reproduced on this blog and may be referred to.

Suffice it to write that “History appears to have repeated itself.” So here is ‘Preamble, Gamble, and Scramble –  II.”

           
* * * * *
SECTION I: PREAMBLE

1.         Maj A. K. Dhanapalan (then Captain) had filed, on 6th February 1996, Original Petition (OP) No. 2448 of 1996N in the Hon’ble High Court of Kerala contesting the deduction of an amount equal to the Rank Pay from his revised emoluments consequent to transition from pay scales of the 3rd Central Pay Commission (CPC) to the pay scales to the 4th CPC made effective from 1st January 1986 as promulgated in Special Army Instruction (SAI) 1/S/87 which stated, inter alia: -

“Para 6 (a) (i) An amount representing 20% 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 at rates prescribed in Para 3 (a) (ii) above will be deducted. Thereafter the officer’s pay will be fixed in the revised scale……”  

2.         On 19th December 1997, though O.P. No. 2448 of 1996N was still sub-judice, MoD promulgated SAI 2/S/98 incorporating the recommendations of the 5th CPC that included the impugned methodology of pay fixation challenged by Maj (retd) Dhanapalan.

3.         A learned Single Judge of the Hon’ble High Court upheld Maj (retd) Dhanapalan’s petition on 5th October 1998 and directed the respondents 2 and 3 to re-fix his pay without deducting an amount equal to the Rank Pay.

4.         Union of India/Ministry of Defence (UoI) challenged this judgment by filing a Writ Appeal (W.A) No. 518 of 1999B, which was heard by a Division Bench of the Hon’ble High Court of Kerala. In its judgment, the Division Bench, on 4th July 2003, upheld the judgement of the learned Single Judge and directed re-fixation as directed by the Learned Single Judge. UoI’s Special Leave to Appeal No. (CC) 5908 of 2005, was dismissed by the Hon’ble Supreme Court on 12th July 2005.

5.         MoD re-fixed Major (retd) A.K. Dhanapalan’s pay after restoring the Rank Pay and paid the arrears. Subsequently many officers appealed to MoD for the same benefits but their appeals were rejected on the grounds that the judgment was only applicable to Maj (retd) Dhanapalan and all others wishing the same benefits must knock at the doors of the Courts.        

6.         The Rank Pay matter hereinafter refers to the Writ Petitions for extension of benefits to all similarly placed Defence Forces officers as were granted to Maj (retd) A. K. Dhanapalan consequent to the judgments of the Hon’ble High Court of Kerala and orders of the Hon’ble Supreme Court in his case.

7.         Many other similarly placed officers filed separate Writ Petitions in various High Courts. UoI requested the Hon’ble Supreme Court to transfer the Writ Petitions which the Hon’ble Court did as Transfer Petition (Civil) No. 56 of 2007 (UoI & Ors Vs N. K. Nair & Ors) and also tagged two other Writ Petitions (96 of 2009 and 34 of 2009) filed directly in the Hon’ble Court.

8.         On 8th March 2010, the Hon’ble Supreme Court Bench of Hon’ble Justices Mr. Markandey Katju and Mr. R. M. Lodha ordered as below:

O R D E R
 
Heard learned counsel for the petitioners and Mr. Mohan Jain, learned Addl. Solicitor General appearing for the Union of India.
            
Application for intervention in T.P. (C) No. 56/2007 is allowed.
 
Since the issue involved in the writ petitions pending before the various High Courts is the same as in Writ Petition(C) Nos. 96/2009 and 34/2009 pending before this Court, this transfer petition is allowed. Writ petition Nos. 11056/2006, 11128/2006, 10810/2006, 13508/2006, 13497/2006 and 18176/2006 pending before the High Court of Kerala, Writ Petition No. 13904/2006 pending before the High Court of Andhra Pradesh and Writ Petition Nos. 1935/2006, 1934/2006, 1957/2006 and 47909/2006 pending before the High Court of Allahabad are directed to be transferred to this Court and taken on Board.
 
The prayer in these writ petitions under Article 32 of the Constitution is for grant of benefits awarded by a learned Single Judge of the Kerala High Court vide his judgment dated 5.10.1998 in O.P. 2448/1996 which has been affirmed by the Division Bench of the High Court in Writ Appeal No. 518/1999 by judgment dated 4.7.2003.
 
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 petitions as well as the transferred writ petitions are allowed. 

9.         Thereafter, on the advice of the learned Solicitor General of India vide Note 207 dated 31st March 2010, on MoD F. No. 34 (1)/2006-D(Pay/Services), a High Power Committee (HPC) comprising Defence Secretary, Secretary, Expenditure in MoF and Secretary, Defence Finance deliberated over the financial implications computed by the Office of the Controller General Defence Accounts (CGDA) on payment of arrears of rank pay and retirement benefits with interest amounting to Rs 1623.71 crore and filed a Report [Enclosure 215/A of MoD F. No. 34(1)/2006-D (Pay/Services) dated 7th April 2010].

10.       Then an Interlocutory Application (I.A.) No. 9 of 2010, settled by the learned Solicitor General of India, was filed in the Hon’ble Supreme Court for modification, recall, re-hearing all cases based on the “extraordinary financial burden” and the Report of the HPC was submitted in the affidavit. The additional affidavit, quoting the HPC report, inter alia, averred that the expenditure would be due to following reasons: -

Paragraph 30. In these circumstances it is most respectfully submitted that Government of India is fully concerned with the grievances of the Defence Forces personnel however the order dated 8-3-2010 passed by this Hon’ble Court if implemented would lead to the following practical difficulties:

(a)               In the present matter, implementing the Hon’ble Court order dated 8-3-2010 would mean re-fixation of pay of not only the officers entitled to Rank Pay, but pay scales of other personnel above and below such officers would have to be revised w.e.f. 1.1.1986 firstly, and then from 1.1.1996 and 1.1.2006, i.e. at the time of subsequent pay revisions. Similar process would be carried out for revision of pension of the retired personnel. Any changes at one place will inevitably have impact on horizontal and vertical parities thereby changing the overall pay structure by the 4th CPC.
   
(b)               Grant of this unintended benefit would place a heavy burden on exchequer. Para 9 and 10 of the Report of the  High Powered Committee constituted to assess the financial impact is reproduced below for ready reference: -

“9. Apart from the enormous financial implications, actual implementation of the Hon’ble Court’s order would involve the following stages: -

§         Revision of pay of officers on 1.1.1986, 1.1.1996, and 1.1.2006 with simultaneous revision of all pay linked allowances/benefits. Enormous efforts are required to extract data from all backed up resources, including information relating to promotion, annual increment, stagnation increment, details of forfeiture, admissibility, discontinuation of relevant allowances, calculation of Income tax and apportioning the same over the years;

§         Calculation of DA on slab basis from 1.1.1986 to 31.12.1995 is time consuming;

§         Revision of retirement benefits (gratuity, leave encashment) of officers retiring after 1.1.1986;

§         Revision of pension on 1.1.1986, 1.1.1996 and 1.1.2006;

§         In several cases, family pensions would have to be revised on the basis of revised pay/pension of the officer;

§         In some cases, payments may have to be made to legal heirs of the deceased retired officers; and

§         Interest at the rate of 6% per annum for upto 24 years in each case will have to be calculated and paid.

This would be a protracted exercise taking a lot of time and involving huge manpower as each case will have to be examined/calculated individually.

10. Financial implications of around 1623.71 crores arising out of implementation of the Hon’ble Supreme Court   order dated 8-3-2010 would create a substantial impact on the public exchequer. This impact in only one time. In addition, it would also lead to enhanced recurring expenditure from 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 above facts and in the present matter may be submitted to the Hon’ble Supreme Court  for considerations.”

11.       MoD also stated incorrectly, in its submissions in another affidavit that if Rs 1623.71 crore was paid to the Defence Forces officers, civilian employees would make also demands. MoD estimated these demands would cost the Public exchequer another Rs 6000 crore (Additional Affidavit dated 14th November 2011, page 16, Para 18). The speciousness becomes apparent because civilian employees were not entitled to Rank Pay, so there was no deduction, hence no restoration and therefore no arrears, ergo no additional burden to the State. Seven months have elapsed since September 2012 and no Union/Association/Organisation of civilian employees have raised any demands!
          
12.       A Three Judge Bench of the Hon’ble Supreme Court heard the Learned Solicitor General of India who personally represented UoI & Others, as well as Senior Advocate and Advocates on Record for the respondents and on 4th September 2012 pronounced the following orders: -
                        
O R D E R

      I.A. No. 9 in T.P. (C) No. 56 of 2007:
           
We have heard Mr. R.F. Nariman, learned Solicitor General   of India, and Mr. Mahabir Singh, learned senior counsel for the     respondents.
     
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/Defence 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.

W.P. (C) Nos. 268/2010, 192/2012, and I.A. No. 1 of 2011  in W.P. (C) 34/2009 and T.C. C) Nos. 11/2010, 14-19/2010, 31/2010,  32/2010, 33/2010 and 35/2010:

The above matters and pending I.As. therein, if any, stand  disposed of in terms of the above order passed in  I.A. No. 9 of  2010 in T.P. (C)  No. 56 of 2007.

13.       MoD then commenced a series of consultations for the possibility of instituting further legal proceedings. MoD was advised by then Solicitor General, on 17.10.2012, as follows: -

                                                Encl 13/A (of MoD F. No. 34 (6)/2012-D (Pay/Services)

SOLICITOR GENERAL OF INDIA
17.10.2012
OPINION

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 2010 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 (blog author’s note: actually 12.07.2005).

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/Defence 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 (retd) 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

SECTION II: GAMBLE

MoD’s Interpretation & Implementation of the Hon’ble Supreme Court’s Order

14.       Subsequent to the advice of the learned Solicitor General of India, the MoD commenced another series of meetings with MoF, MOD (Def/Fin) and requests for information and calculations on the financial implications and CGDA but kept the Defence Forces HQ out of the loop as revealed by the request for information under RTI Act 2005.

15.       The Defence Forces HQ were brought into the loop when TRIPAS was requested on 26th November 2012 to forward a Draft Government Letter (DGL) for implementation of the Hon’ble Supreme Court’s order dated 4th September 2012.

16.       As per information provided, in reply to a RTI applications, the DGL forwarded by Defence Forces HQ was sent to MoD (Def/Fin) and CGDA for vetting and comments. The information provided under RTI Act 2005 does not indicate whether and when any of the objections/observations of the MoD (Def/Fin) and/or CGDA were sent to Defence Forces HQ for seeking clarifications or making amendments in the DGL sent by the Defence Forces HQ.

17.       Concurrently, MoD filed an application in the Hon’ble Supreme Court for extension of time limit by another twelve weeks on 27th November 2012 citing the following reasons: -

“3.        That compliance of this Hon’ble Courts order the Ministry of Defence in consultation with Ministry of Law & Justice and Ministry of Finance has decided to implement the order dated 04.09.2012 passed by this Hon’ble Court and for which necessary orders have been issued vide letter No. 34(6) 2012-D(Pay/Services) dated 26.11.2012. A copy of the said order is annexed herewith and marked….. That vide these orders Government has agreed to implement part (i), (ii), and (iii) of the order dated 04.09.2012 passed by this Hon’ble Court. However, Ministry of Defence is not able to implement till date part (iv) of the order i.e. payment of the dues within 12 weeks from the date of order because of the following reasons: -          

(i)                 Implementing the judgment involves three successive Pay Commissions and most of the data of prior period is not available in computer and has to be compiled manually.

(ii)               In case of pre-1986 retired personnel, in addition to arrears, LPC, Leave encashment, gratuity, and corrigendum PPO is required to be worked out which will again take some time.

(iii)             The exact financial implication of the judgment will be known only after each and every data is available. However, based on available data inputs request for budgetary provision is being made to the Ministry of Finance to arrange funds of this extraordinary magnitude.” 

18.       While requesting TRIPAS for a DGL, the MoD also requested CGDA to make available a DGL, which after minor changes by E.III A branch of the Deptt of Expenditure, Ministry of Finance has been promulgated as the implementation order No. F 34(6)2012 – D (Pay/Services) dated 27th December 2012.

19.       It is alarming to note that E.III A Branch even suggested limiting the implementation to Army officers because “It, thus, appears that so far the petitioners and litigations have been Army-centric. This being so, the whole implication of the phrase ‘similarly situated person’ may confine to similarly placed persons from the Army alone…..” (Note 18 of MoF, DOE ID Note No. 187654/E.III (A)/2012 dated 09/11/12). But it would mock anyone’s common sense if the MoD thought that it could bring the shutters down.     

The Anomalies

20.       MoD on the plea that there is no clarity in the Hon’ble Supreme Court’s orders of 8th March 2010 and 4th September 2012 did not prevent it from creating fresh anomalies by its letter dated 27th December 2012. Details are given in subsequent paragraphs.

Anomaly No. 1: Change of Terminology by MoD

21.       By selectively using only the first sentence of the Hon’ble High Court of Kerala’s judgement dated 5th October 1998, the MoD narrowed the scope of eligibility. For a clearer understanding of the anomaly, the complete paragraph of the Hon’ble High Court’s judgement is reproduced below: -

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… as has been done by 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.”    

22.       As would be evident from the orders of the Hon’ble Supreme Court dated 8th March 2010, the effectiveness of the orders is from “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.”

23.       The Hon’ble Supreme Court’s order dated 4th September 2013 states “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.”

24.       It is evident that the Hon’ble Supreme Court has confirmed the grant of the benefit of Rank Pay “retrospectively from 1.1.1986.”

25.       It is unmistakable from the use of the terms “with effect from 1.1 1986” by the Hon’ble High Court and “retrospectively from 1.1.1986” by the Hon’ble Supreme Court, that the learned Judges made it clear that it is an ongoing or a continuous process and not a restricted process which MoD intends by using the phrase “as on 01.01.1986.”  

26.       MoD in its letter dated has changed the terminology used by the Hon’ble Courts, without any admitted permission, to “as on 01.01.1986” thereby limiting implementation to a “one time” measure, again misunderstanding the order of the Hon’ble Court as it had done in deducting rank pay as was pointed out by the Hon’ble High of Kerala on 5th October 1998 and upheld by the Hon’ble Court on 4th July 2003.

Anomaly No. 2: Revision of Minimum Pay in the Rank

27.       The MoD order dated 27.12.201 states that there will no change either in the integrated scale indicated in Para 3 (a) (i) or in the minimum pay for each rank (Para 6 (a) (ii) of the SAI (SNI/SAFI) 1/S/87.

28.       With this one fell stroke, the MoD has created two different scales of pay for the same rank during the period 1986-1995 i.e. currency of the recommendations of the 4th CPC. There will be one scale for those who held the rank of Captain to Brigadier on 01.01.1986 and therefore are eligible to have their pay re-fixed and there will be a second scale, those who joined or were promoted as Captain after 01.01.1986. This difference will be perpetuated in the case of the later category of officers. An illustration is provided below to indicate this anomaly:

Particulars
Date of Commissioning : December 1980
Date of Commissioning:
June 1981
Rank as on 01.01.1986
Flt Lt in Air Force (Captain in Army or Lieutenant in Navy)
Flying Officer in Air Force (Lieutenant in Army or Sub-Lieutenant in Navy)
Existing basic pay (minimum of scale)
1200
910
DA, ADA, Ad hoc DA, IR
1640
1514
Existing emoluments
2840
2425
20% of basic pay
240
182
Total emoluments
3080
2607
Pay fixation on 1.1.86
3100
2700
Pay after 5 years of service on 01.06.1986
3100
2800

29.       A perusal of the Reports of the 4th, 5th, and 6th CPC will indicate that the Pay Commissions have sought to provide an edge to the Defence Forces. Para 2.3.10 (iv) of the 6th CPC is quoted below: -         

“(iv) The Fourth CPC had continued this edge in devising the running pay band for Defence Forces Officers upto the rank of Brigadier and had revised the integrated pay scale taking into account the time taken for promotion to different pay scales. The element of rank pay was carved out of the pay scales so revised after giving the edge vis-à-vis civilian group A officers.” 
      
30.       Therefore, if the compliance of the Hon’ble Supreme Court’s order is to be truthful, serious, and sincere, then rank pay will have to be added back to the pay scales. The minimum for each rank would then need to be revised to give effect to re-fixation with retrospective effect from 01.01.1986.

31.       By only restoring the deduction of rank pay and not revising the minimum pay for each rank stipulated in Para 2 (d) of the SAI (SNI/SAFI) 1/S/1987, the MoD has maintained status quo of actually deducting rank pay in arriving at the minimum pay for each rank. As shown in the table above, MoD has created a situation wherein officers promoted to the rank of Captain or equivalent or joined the Defence Forces after 1.1.1986 will suffer. The onus of this creation of two pay scales for the same rank rests only with the MoD not modifying Para 6 (a) (ii) either out of ignorance or because it is being misguided by certain “specialists.”       

32.       The MoD order of 27.12.2012 ignores yet again another aspect of the judgment of Division bench of the Hon’ble High Court of Kerala i.e. “It is clear that for Civilian officers, there is no rank pay. But for Army Officers, there is rank pay admittedly as mentioned above. Necessarily, the rank pay should be added to substantive pay. That is what has been directed in the impugned judgment. Therefore, there is no merit in the appeal. The appeal fails; dismissed.”    

33.       Before the 4th CPC, the Senior Time Scale (STS) for Civil Services started at Rs 1100 or Rs 1200. On the other hand, the pay scale started at Rs 1200 for an Defence Forces officer of the of Captain in the Army and his equivalents, because of the edge provided by the recommendations of the successive CPCs and accepted and gazetted by the Government of India.

34.       The 4th CPC recommended the start of the pay scale for STS at Rs 3000/-. If the Rank Pay was not introduced by the 4th CPC, then the new pay scale for Civilian as well as Defence Forces officers would have been the same i.e. STS in Civil and Captain in the Army would have started at the same level of Rs 3000/-. The table at Para 6 (a) (ii) of the SAI (and SNI/SAFI), which also propounds the fixation methodology, places the start of the pay scale for a Captain at Rs 2800/-. This with rank pay of Rs 200/- added is equal to the start of the STS scale of Rs 3000/- It clearly shows not only that the edge provided by the 4th CPC, approved in the Resolution of the Government has been nullified by deducting the amount of rank pay and making a new pay scale for Defence Forces officers.        

35.       The MoD is now embarking upon a new principle by its order of 27.12.2012 – that officers with the same rank and length of service will have different pay scales in the 4th CPC. The minimum re-fixed pay of officers in the revised pay scale for officers who are already in the rank of Captain on 1.1.1986 will be fixed at Rs 3000/- + Rs 200 Rank pay. Those promoted to rank of Captain with the same length of service will be fixed at Rs 2800/- + Rs 200/- as rank pay. This violates Fundamental Rules that officers holding the same rank and having the same length of service should be remunerated equally in pay and pension. The following illustration will show the truthfulness of the statement: -  

Rank or Scale
Pay in 3rd CPC
Minimum  Pay in 4th CPC (prior to Court verdict)
Pay to be revised for officers as on 01.01.86 in terms of MoD order
Differential for officers joining/promoted after 01.01.86
Captain
1200
2800 + 200/*-
3000 + 200/*-
2800 +200/’*
STS (Civil)
1100-1200
3000/-
3000/-
3000/-
Major
1500
3400 + 600/*-
3700/3950 + 600*
3400+600*
Dy Secy
1500
3700/3950
3700/3950
3700/3950
Lt Col
1800
3900+800*
4500/4800+800*
3900+800*
Director
1800
4500/4800
4500/4800
4500/4800
* indicates Rank Pay

The minimum of pay in each rank in the integrated scales of pay of the 4th CPC was arrived at after deducting Rank Pay. This need to be revised and re-fixed to ensure a single pay scale for the same rank and the same length of service. This would also ensure the modified parity for pre-1986 retirees. 

Anomaly No. 3 – Ceiling of the Integrated Scale of Pay

36.       The MoD letter of 27.12.2012 has not increased the ceiling of the integrated pay scale consequent to the restoration of Rank pay deducted for pay fixation. Working sheets provided by PCDA (O) prove that many Colonels and equivalents (rank pay Rs 1000/- per month) and a majority of Brigadiers and equivalents (Rank pay Rs 1200/- per month) get next to nothing as arrears even in the period 1986-1995 (4th CPC). This gives a lie to the statement that arrears of Rank Pay are being paid in compliance with the judicial pronouncements of the Hon’ble Courts.

37.       The 4th CPC recommended an integrated pay scale of Rs 2300-100-4200-EB-100-5100 for officers upto the rank of Brigadier and equivalents and stated that this covers a span of 28 years (Para 28.15 refers).

38.       The Government, vide Resolution 9-E improved the integrated pay scale to Rs 2300-100-3900-150-4200-EB-150-5100 thereby decreasing the span to 23 years i.e. Rs 2300 in the 1st year and Rs 5100 in the 24th year. If the logic of the 4th CPC i.e. span of 28 years was to be maintained the top of the pay scale of Rs 5100 falls considerably short. Logically, and mathematically, the top of the pay scale should be Rs 6150.

39.       This problem did not arise as long as MoD/CGDA/PCDA deducted Rank Pay from the emoluments of the officers of the rank of Brigadier and equivalents. With restoration of rank pay as a separate element, the re-fixation of pay of all Colonels/equivalents in 3rd CPC and Brigadiers irrespective of seniority will be restricted/confined at the top of the integrated scale of pay of Rs 5100/-. Therefore, MoD’s letter of 27.12.2012 ensures that Brigadiers and their equivalents will not get any benefit (20% of emoluments from 3rd CPC) given to other officers and MoD is now over-ruling the Government of India by depriving Brigadiers and equivalents of the approved benefit of re-fixation in transition from 3rd to 4th CPC. Here is one illustration (names omitted): -

Illustration of Nil Arrears though Rank Pay is Restored
                
Particulars
As per SAI (SNI/SAFI) 1/S/1987
As per MoD letter of 27.12.2012

Air Cmde 1
Air Cmde 2
Basic pay as on 31.12.1985
2400
2400
DA+ADA+IR
2572
2572`
Existing emoluments
4972
4972
20% of Basic Pay
480
480
Less Rank Pay
1200
0 #
Total emoluments
4272
5472
Pay in integrated scale
4950
5100 (top of integrated scale

# Nil restoration of Rank Pay, hence Nil arrears

40.       Further, the officers such as those in the illustration below (source: PCDA (O) calculation sheets provided to HPC), will be deprived of any benefit of re-fixation for as per the unchanged Para 6 (c) of SAI 1/S/1987 (and corresponding SNI/SAFI), for if the total emoluments computed for re-fixation are more than the maximum of the revised scale, the pay will be fixed at the maximum of the revised scale. The possibility of personal pay for these officers has been ruled out by CGDA quoting FRs “unless the Competent Authority” i.e. MoD “rules otherwise…” (CGDA UO No. AT/I/1483-Army/X (PC)/III dated 10th December 2012 on Encl 78A of MoD F No. 34(6)2012-D (Pay/Services) refers). Therefore, these officers would be fixed (no pun intended) at the top of the scale without even the benefit of the 20% fixation as per 4th CPC and stagnate from day One i.e. 01.01.1986 itself. 

Illustration Of Stagnation

Details of pay
Brig A
Brig B
Existing emoluments as on 1/1/86
2200
2300
Total emoluments
5006
5229
Less rank pay
1200
1200
Total
3806
4029
Pay fixed in integrated scale
4950+RP
1200
4950+RP
1200
Basic pay w.e.f 1/7/87
5100*
5100* w.e.f from 1/9/86

* Both stagnate at Rs 5100/- after one increment.

41.       Deletion of clause in Para 6 (a) (i) and (ii) of deducting Rank pay from the amount computed after adding 20% of the existing emoluments for it to reflect truthfully what should have been the scales for Defence Forces officers as illustrated below: -

Rank/
(Reckonable
Years of
Service for
Pay)
Rank Pay
As per IV CPC
Existing Initial Pay as per SAI 1/S/87
Revised as per
Drawn/Due
Statement after
SC Verdict by
PCDA (O) Pune
Revised Initial Pay with out  deduction of rank pay as
Per para 6(a) (ii) after  SC
Order
Total pay
Including
Rank pay
(Rs Pm)

Captain
(5)
200
2800
3000 + RP
3100
3300
Major (11)
600
3400
3600 + RP
4050
4650
Lt Colonel (16)
800
3900
4200 + RP
4800
5600
Colonel
(20)
1000
4500
4800 + RP
5550
6550
Brigadier(23)
1200
4950
4950/5100 + RP
6150
7350

(a)                   Increasing the upper limit/ceiling of the integrated pay scale so that Rank pay is paid in full to Colonels and Brigadiers and equivalents.

Anomaly No. 4: - Confining implementation to 4th CPC

42.       Information obtained under RTI reveals that MoD (Def/Fin) and CGDA have sought to confine the benefits of the judgments of the Hon’ble High Court of Kerala and orders of the Hon’ble Supreme Court to what Maj (retd) A. K. Dhanapalan received.

43.       Significantly, in none of the statements made in the Hon’ble High Court of Kerala or the Hon’ble Supreme Court or on files, has MoD, while referring to the 5th CPC recommendations stated how the impugned methodology was promulgated while the Rank Pay deduction was still under the consideration of the Hon’ble High Court of Kerala.

44.       It is for consideration if this was a matter of Contempt of the Hon’ble High Court of Kerala. It is also a matter for serious consideration that in each and every affidavit submitted to the Hon’ble Courts after 5th October 1998, MoD has sworn that “nothing material has been concealed.”   

45.       As stated at the very beginning, in all sworn affidavits, cleared by learned Law officers, the MoD’s authorised deponents, have sworn/affirmed that “nothing material has been concealed.” But affidavits, notes, legal advice sought from the Ministry of Law & Justice nowhere mention how SAI (and SNI/SAFI) 2/S/98 was promulgated on 19th December 1997 with the impugned methodology of deducting rank pay from existing emoluments in and after the 5th CPC  when the matter was still sub-judice. It may be recalled that the learned Single Judge delivered his judgment on 5th October 1998 and the matter was sub-judice till 12th July 2005 when the Hon’ble Supreme Court dismissed UoI’s SLP.

46.       Be that as it may, none of the affidavits, counter-affidavits, the copious notes, references for legal opinion(s) have mentioned this aspect while justifying that the 5th CPC included the impugned methodology. It may not be out of place that the Hon’ble Speaker of the Lok Sabha has often refused to permit discussion of a matter that was sub-judice (records available in public domain). And here we have the MoD committing Contempt of Court and using the recommendations of the 5th CPC to justify and prolong the wrong committed in interpreting the recommendations of the 4th CPC.

47.       The 5th CPC vide Para 148.2 formally committed to the downward adjustment of pay scales by the quantum of rank pay that remained unclear in the 4th CPC recommendations. Though this methodology was still sub-judice, it led to Defence Forces officers being placed at a lower pay scale than their contemporaries in the Civil services. This adversely affected the transition to the 6th CPC scales.

48.       It is relevant to place on record that the first judgment in Major (retd) Dhanapalan’s OP No. 2448 of 1996N was delivered by the learned Single Judge of the Hon’ble High Court of Kerala on 5th October 1998. However, MoD, may be without any permission of the Hon’ble Court promulgated the SAI (and SNI/SAFI) 2/S/98 on 19th December 1997 i.e. when the matter of the impugned deduction of Rank pay was still sub-judice.

49.       When Maj (retd) Dhanapalan corresponded with then CDA (O) Pune, in 2006-7, (appendix to Encl 31/A of MoD file 34(6)2012-D(Pay/Services) vide that the pay fixation formula as directed by the judgment of the Hon’ble High Court of Kerala, he was informed “the court judgment of Kerala High Court given on the petition filed by you is for not deducting Rank Pay at the time of the pay fixation as on 01/01/1986 i.e. 4th CPC. Further it is not applicable for pay fixation as on 01/01/1996 consequent on 5th Pay Commission.”

50.       As the matter continued to be sub-judice till 12th July 2005, when the Hon’ble Supreme Court dismissed UoI’s SLP, Maj Dhanapalan could not have raised the matter. He did so on 6th November 2006, 2nd December 2006, and 20th December 2006 and received the replies on 24th November 2006 and 12th February 2007, quoting the 5th CPC’s recommendations and SAI 2/S/98 to deny him the arrears.      

51.       Information obtained under the RTI from MoD states that “The information does not exist in D (Pay/Services) records” in respect of whether MoD obtained the approval or any legal sanction of the Hon’ble High Court of Kerala or intimated the Court that MoD was promulgating SAI/SNI/SAFI No. 2/S/98 and including the impugned methodology that stood challenged in then sub-judice O.P. No. 2448 of 1996N i.e. SAI 2/S/98 has been promulgated in Contempt of the Hon’ble High Court of Kerala.

Effect on 5th and 6th CPC

52.             Unless remedial steps of  (a) Restoring the deduction of rank pay for fixation of pay in the 5th CPC and revise the pay scales, and (b) Implementing the enhanced pay scale for re-fixation in the 6th CPC is done, Defence Forces officers will continue to suffer losses, illustrated below: -

Rank/Scale
3rd CPC
4th CPC
5th CPC
Grade pay in 6th CPC
Captain
1200
2800+200*
9600+400*
6100
STS (Civil)
1100/1200
3000
10000
6600

*Rank Pay has been deducted from the Basic Pay and only if this deduction is reversed will the pay of Defence Forces officers achieve equivalence with civilian officers. In the 5th CPC, the scale has been lowered to Rs 9600-11400 as against Rs 10000-15600 for STS (Civil) leading to a lesser Grade Pay for Captains.

SECTION III: SCRAMBLE

53.       From the aforestated, it becomes clear to any discerning reader that MoD has been less than economical with the facts or has placed facts selectively before the Hon’ble Courts, even risking Contempt, only to buttress its intention of denying the Defence Forces officers of legitimate dues ordered by the Hon’ble Courts by implementing the impugned methodology through other means.

54.       MoD letter of 27.12.2012 appears to formalise its Contempt of Court of the Hon’ble High Court of Kerala for promulgating SAI 2/S/98 not approaching it for judicial order(s), and further committing Contempt of the Hon’ble Supreme Court by maintaining that “no material information has been concealed” in its affidavits.

55.       It has been repeated often, in the numerous notes on MoD’s files, that the Hon’ble Supreme Court’s orders do not clarify certain the points/grounds. This is specious, for the Solicitor General’s opinion of 17.10.2012 cannot be more explicit and would MoD answer why it did not approach the Hon’ble Court for clarity by way of an I.A in the twelve weeks from 4th September 2012 or even in the application for extension of time state the need for clarifications, instead of issuing letter of 27.12.2012 that clearly falls short of its avowed aim of complying with judicial pronouncements?

56.       Would MoD prepare to defend the Defence Secretary, the Secretary Defence/Finance, Secretary – Expenditure in MoF, and the Controller General of Defence Accounts for inevitable legal proceedings

(a)       For committing Contempt of Court, amongst other aspects including denigrating the Hon’ble High Court of Kerala, when it promulgated SAI 2/S/98 and included Rank pay deduction while the Hon’ble Court was seized of the matter,

(b)       Committing perjury in the Hon’ble Supreme Court by declaring that nothing material has been concealed but concealing the process of promulgating SAI 2/S/98 when the matter was sub-judice and using that SAI 2/S/98 to give legitimacy to its arguments,

(c)        By not seeking clarifications on its points/grounds through the Solicitor General who was on his legs before the Hon’ble Supreme Court announced its orders on 4th September 2012 or subsequently in any I.A. including the one for extension of time to implement the order,

(d)       Interpreting the Hon’ble Court’s order to sustain its own impugned/illegal stand, even after obtaining the learned Solicitor General’s opinion dated 17th October 2012.

* * * * *
Governments never learn. Only people learn.

- Abraham Lincoln