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
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