RTI to CGDA

To,                                                                                         

(1) CPIO (Audit Wing),
Shri S Murali Krishnan IDAS

Senior ACGDA (IT), Office of the CGDA,                                                

Ulan Bator Road, Palam, New Delhi – 110 010

REQUEST FOR INFORMATION

Sir,

1.         The following chronology in Maj Dhanapalan Vs UoI & Others  and UoI Vs N.K. Nair & Others is placed below for perusal: -

(a)       Maj (Retd) A K Dhanapalan Vs UoI & Others (OP No 2448/1996, W.A. No. 518/1999 & SLP (CC) No. 5908/2005)

           

(i)        6^th February 1996: Maj A.K. Dhanapalan filed the Original Petition (O.P.) No. 2448 of 1996 in the Hon’ble High Court of Kerala challenging deduction of Rank Pay from revised pay.

(ii)       30^th January 1997: 5^th CPC submitted its Report and Recommendations to Govt of India.

(iii)      31^st August 1997: Maj Dhanapalan retires prematurely from the Army.

(iv)      30^th September 1997: GoI approved 5^th CPC Report vide MoF Notification No. 50 (I)/IC/97.

(v)       19^th December 1997: MoD issues SAI/SNI/SAFI 2/S/1998 including the impugned methodology recommended by 5^th CPC for fixation of pay of Defence Services Officers.

(vi)      5^th October 1998: Learned Single Judge of Hon’ble High Court of Kerala passes judgment upholding Maj Dhanapalan’s O.P. and directs Respondents (UoI & Ors) to make corrections from 01.01.86.

(vii)     23^rd February 1999: UoI files Writ Appeal No. 518 of 1999 against judgment of the Single Judge in OP No. 2448 of 1996; UoI does not mention either the 5^th CPC Report or issue of SAI No. 2/S/1998 nor seek any approval/views/directions from the Court (please see attached photocopies of MoD letters).

(viii)    December 2000: UoI files additional affidavit (WA 510 of 2000) in WA 518 of 1999 providing clarifications but again there is no mention of 5^th CPC or SAI No. 2/S/98.

(ix)      4^th July 2003: Division Bench of the Hon’ble High Court of Kerala dismisses UoI’s Writ Appeal No. 518 of 1998 against judgment of Learned Single Judge.

(x)       12^th July 2005: Supreme Court dismisses UoI’s Special Leave to Appeal 5908 of 2005.

           

(xi)      2005-2006: Correspondence between CDA (O) and Maj Dhanapalan wherein CDA (O) informs Maj Dhanapalan that the Kerala High Court judgment does not mention 5^th CPC. (Para 5 of Note 10 dated 21/11/12 of O/o CGDA provided under RTI refers).

(b) UoI & Others Vs N. K. Nair & Others ((TP (C) No. 56/2007, IA No. 9/2010 in TP (C) No. 56/2007 & IA No. 11/2013 in IA No. 9/2010) Please also refer to pages 137 to 141 of reply to RTI ibid dated 25.6.2013): -

(i)        2006-2009: Several officers approach High Courts (W.P. No 11056/2006, 11128/2006 etc) and two Petitioners (WP 96/2009 in Sunil Kumar & Ors Vs UoI and 34/2009 in K.K. Rohatgi & Ors Vs UoI) approached the Hon’ble Supreme Court directly for same benefit (not deducting Rank Pay for re-fixation) of the judgment in the Maj (Retd) Dhanapalan Vs UoI case;

(ii)       All Writ Petitions transferred as UoI Vs N.K. Nair & Ors in TP (C) No. 56 of 2007; Maj (Retd) Dhanapalan is not a litigant.         

(iii)      8^th March 2010: Hon’ble Supreme Court heard TP (C) 56 of 2007 and tagged Writ Petitions in UoI Vs N.K. Nair & Others; agrees with the reasoning of the Learned Single Judge in OP 2448/1996 & the Division Bench of the Hon’ble High Court of Kerala in W.A. 518/1999 and orders re-fixation of pay scale without deducting rank pay and payment of arrears with 6% interest p.a. with retrospective effect from 1.1.1986

(iv)      4^th September 2012: Hon’ble Supreme Court hears all parties (UoI Vs N K Nair & Others)  in UoI’s IA No. 9 of 2010 in TP (C) 56 of 2007 confirms the Order of 8.3.2010 with one change i.e. interest on arrears to be paid from 1.1.2006;

(v)       21^st November 2012: PCDA (O) in No. Tech/0321/4CPC/Court case dated 21 Nov 2012 extensively asserts non-applicability of Judgment/Orders to 5^th CPC and 6^th CPC, whereas views of PCDA (N) and CDA (AF) are different.

2.         A bare reading of the above facts show that SAI No.2/S/98 was promulgated on 19.12.1997 i.e. when the matter was still being heard by the Ld Single Judge of the Hon’ble High Court of Kerala. In other words, the matter was sub-judice. This is substantiated by MoD (D-Pay/Services) No. 35 (1)/2013/D (Pay/Services)  that (i) MoD does not have any record of having informed Hon’ble High Court of Kerala nor mentioned in Writ Appeal of Additional Affidavit (26.4.13), (ii) MoD not taken up the matter with the Hon’ble High Court while issuing the Special Army Instructions in Dec 1997 (18.6.2013) and (iii) while referring the file through LA (Defence) to the Ld Attorney General ‘it is stated that it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 when the case was sub-judice” (19.7.13). Photocopies of the three letters are attached to this application for easy reference. 

3.         As O/o CGDA is aware, the ibid SAI contained the impugned deduction of Rank Pay for re-fixation after 5^th CPC. PCDA (O), in their letter of even reference dated 21 Nov 2012, has relied on SAI No. 2/S/98 in making observations/views negating applicability of Hon’ble Supreme Court’s Orders to period 1.1.96 to 31.12.2005 included in the Services HQ DGL.

4.         PCDA (O)’s views on non-applicability to 5^th and 6^th CPC is in minority and contrary to the majority view expressed by two Field Controllers viz. PCDA (N) and CDA (AF). In Parliament and in Courts, a majority decision prevails over the decision of the minority. 

5.         Please provide the following information by way of photocopies of letters, directives, emails, FAX, memos, ID Nos., UO Nos. Note(s) of Action, Noting and any other data: -    

(a)       Correspondence from PCDA (O) [or then CDA (O)] to Maj Dhanapalan who retired on 31.9.1997, informing him about SAI No. 2/S/98 being issued on 19.12.1997 (3 months after he retired from Army).

(b)       Correspondence with MoD/Competent Authority based on which PCDA (O) has justified not re-fixing Maj (retd) Dhanapalan’s pay from 1.1.1996 and/or asking him to obtain directions from the Hon’ble High Court of Kerala. 

(c)       Correspondence between O/o CGDA and MoD, the Competent Authority, on the legal status of SAI No. 2/S/98 when O/o CGDA was requested to make comments/observations on the DGL provided by Services HQ,

(d)       Correspondence on request for clarity by O/o CGDA, the Implementing Authority, on legal status of SAI No. 2/S/98 from MoD, the Competent Authority, when O/o CGDA was preparing and furnishing the DGL based on observations of PCDA (O),

(e)       Any intimation by O/o CGDA to the PCDA (O), PCDA (N), CDA (AF) to bear in mind the legality or otherwise of SAI No. 2/S/98 to assist them in making fair, just and objective comments/observations on the DGL provided by Services HQ,

(f)        Correspondence between O/o CGDA and PCDA (N) w.r.t Para 5 (i) as well as CDA (AF) w.r.t. Para 6 (a) that their observations is incorrect/not acceptable.   

6.         Indian Postal Order Number 19F 704634 issued by Indira Nagar PO on 21.6.13 payable to CGDA at New Delhi is attached as application fee. It is requested that the need for this applicant to visit the O/o CGDA to search of information may be dispensed with for reasons stated in an earlier request.

Does MoD Love Farce

MoD loves Farces?

M J Akbar wrote in his column in the Deccan Herald (Bangalore) a few Mondays ago about a joke doing the rounds on the ether. It went something like this - “Pakistan has two deadly weapons – AK-47 and A K Antony.” The famed columnist, or the author of the joke perhaps, forgot the deadliest weapon - the MoD, which prepared the brief for the Hon’ble Raksha Mantri, which eventually led to all that embarrassment in Parliament and in the media.

This is the sort of travesty of facts and truth that seems to be a deadly addiction in the MoD. What else can anyone expect from, “the generalist MoD, manned at critical decision making levels by itinerant and ill-informed civil servants…” (Rahul Bedi, The Hindu, 05/04/12, in article ‘Bury the Me-First Doctrines.’)     

For the Hon’ble RM to direct the MoD to refer the letter of 27.12.2012 to the Attorney General for an objective opinion, he must have been convinced that the omnipotent bureaucracy that is famous for vacillating in decision making (how else can MoD answer for surrendering Rs 32,000 crores as “unused” when the Army, Navy, and Air Force are desperate for modern weaponry) was relying on half-truths while ignoring the facts that stared everyone else in the face.

It has been clearly stated by MoD in letter No. 35 (1)/2013-D (Pay/Services) on different dates that (i) MoD does not have any record of having informed Hon’ble High Court of Kerala nor mentioned in Writ Appeal of Additional Affidavit (letter of even reference dated 26.4.13) of SAI No. 2/S/98, and that (ii) MoD not taken up the matter with the Hon’ble High Court while issuing the Special Army Instructions in Dec 1997 (letter of even reference dated 18.6.2013).

Now, MoD, while referring the file through LA (Defence) to the Ld Attorney General avers “it is stated that it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 when the case was sub-judice” (Reply to RTI vide No. 35 (1)/2013 – D (Pay/Services) dated 19.07.2013).

Is the MoD re-enacting a farce or has it been emboldened by any lack of conscience and penalty for concealing material facts, from 1997 to 2005 from the Hon’ble High Court of Kerala and Hon’ble Supreme Court in the case of Maj (Retd) A K Dhanapalan Vs UoI & Others, and from the Hon’ble Supreme Court in the subsequent case of UoI Vs N K Nair & Others?

PCDA (O) places the first hurdle – it has destroyed documents in fulfilment of the Rules. But, it was one of the original respondents in the Maj (Retd) Dhanapalan case way back in 1996, so how can it destroy documents? ‘Record Retention Schedule in Respect of Records Common to All Ministries/Departments issued in 1963 and updated in 1994 states in Annexure to Appendix 13 S. No. 3. Arbitration and litigation cases – 3 years – Subject to (a) the file not being closed until the award/judgment becomes final in all respects by limitation or final decision in appeal/revision; and (b) cases involving important issues or containing material of a high precedence/reference value being retained for an appropriately longer period either initially or at the time of review.’ Obviously the PCDA (O) should have maintained the records of all officers eligible to be paid Rank Pay till the matter achieved closure.    

O/o CGDA, MoD's main adviser in the Rank Pay matter, enacts another farce that should have the other pillars of the State reconsider whether the opinion of the majority is less important than that of the minority. PCDA (N) and CDA (AF) opinions/observations have been overruled by the minority opinion/observation of the  PCDA(O). Can anyone with a modicum of intelligence imagine a farcical situation where Parliament passes a Bill is passed because the minority professes to have the experience over the opinion of the majority? Or the Courts pass orders based on the opinion of the minority in a Bench, over-ruling the opinion of the majority?

PCDA (O) also convinced the O/0 CGDA that its argument has more strength because it dealt with the Maj Dhanapalan case [Note dated 21.11.2012 of the O/o CGDA marked a N8 to N-11 in reply to RTI]. So what ever applied to Maj (retd) Dhanapalan should apply to 44000 similarly situated officers [PCDA (O) Observations on Services HQ DGL at Para C (xv) of No. Tech/321/4CPC/Court case dated 21.11.2012].

The above stand is like stating that since a certain Tribunal or a Court decided in a motor vehicle accident involving a two wheeler,  that the victim/appellant be paid Rs 2000 as damages/compensation, the same Tribunal, or Court will set down the same amount as damages/compensation in an accident involving a motor car. Wouldn’t that be a travesty of justice?

The farce is compounded by concealment of facts with what appears to be just one aim – deny the dues to similarly situated officers. In the humungous amount of material disclosed by MoD and the O/o CGDA in replies to RTI,

(a) Nowhere is it mentioned that either Maj (retd) Dhanapalan was told or MoD appealed to ask whether the applicability of the judgment of the Hon’ble High Court of Kerala is limited to the 4^th CPC.

(b) Nowhere in the copies of the correspondence between then CDA (O) and Maj (Retd) Dhanapalan is there mention that he has been informed of the enactment of SAI No. 2/S/98 on 19.12.1997 (while the matter was sub-judice).

(c) Nowhere, in the information provided has MoD mentioned this fact i.e. enactment of SAI No. 2/S/98 been mentioned when it filed a Memorandum of Writ Application No. 518 of 1999B in February 1999 and an additional affidavit WA Non. 510 of 2000, that it has enacted the ibid SAI while the matter was pending before the Division Bench of the Hon'ble High Court of Kerala.

(d) Nowhere did the then CDA (O) mention, in its replies to Maj Dhanapalan in 2006 that it asked/wanted Maj Dhanapalan to get certain queries/doubts cleared from the Hon’ble High Court. But the CDA (O) dismissed Maj Dhanapalan’s appeals perfunctorily with this reason – “No directions from the Hon’ble Court” [PCDA (O) letter of even number dated 21.11.2012 at Para B (d)].

(e) Nowhere has MoD issued any implementation order for payment of dues to Maj (retd) Dhanapalan. In fact, MoD has replied to MoF and DOP&T that the decision was taken by MoD (Def/Fin) and payment made through Army's AG/PS-3.

Distinct from the Maj (Retd) Dhanapalan Vs UoI case, N K Nair & Others filed cases in High Courts in 2006 onwards and those cases were transferred to the Hon’ble Supreme Court in 2007 (TP (C) 56 of 2007. In upholding the judgments of the Hon’ble High Court of Kerala, the Hon’ble Supreme Court’s order dated 8.3.2010 clearly stated that

"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." 

Nowhere did the Hon’ble Supreme Court direct that its order should be implemented in the same and exact manner as it was done in the case of Maj (Retd) Dhanapalan. As this is the interpretation of the PCDA (O),  concurred by O/o CGDA, why did the MoD process the file through MoF etc and issue the impugned implantation order dated 27.12.2012? Why didn’t the MoD just issue an administrative order or ask the AG’s Branch to pay all Army officers (and inform the Naval and Air Force HQ to do so for their respective officers)?

What was the reasoning of the Hon’ble High Court of Kerala in Maj (Retd) Dhanapalan Vs UoI?

That 4^th CPC recommended maintaining the edge for the Armed Forces officers over their civilian counterparts as espoused by the 3^rd CPC,

That an additional amount, over and above the re-fixed Basic Pay, may be paid as Rank Pay to officers of the ranks from Captain to Brigadier,

That Rank Pay should not be deducted from the re-fixed pay,

That Respondents 2 (Army HQ) and 3 (CDA(O) had misunderstood the intent of the 4^th CPC and deducted Rank Pay when re-fixing the new pay,

That ibid Respondents restore the Rank pay so deducted and pay arrears w.e.f 1.1.1986

That pay be re-fixed again after the issue of orders in 1987.

MoD, in pursuit of its goals, referred the matter again to Shri Rohinton Nariman, then the Ld Solicitor General after the order of the Hon’ble Supreme Court of 4.9.2012. Perhaps, the MoD and worse, the O/o CGDA either were unable to comprehend what the then Solicitor General's opinion dated 17.10.2012 was for them to decide that they would interpret it in a manner that would deny similarly situated officers of part if not all of their dues. That is clear in the MoD letter dated 27.12.2012 and was the matter taken up with Hon'ble RM and on his directions, referred to the Ld Attorney General.

Now, MoD has decided not to “specifically mention” to the LA (Defence) (for the opinion of Ld Attorney general) that SAI No. 2/S/98 was enacted when the Maj (retd) Dhanapalan Vs UoI case was being heard. That line of lack of reference is misplaced in law and is misconceived on facts.

If this is not farcical, then what is it?                                                    

First Appeal to MoD dated 12/08/2013 - Informing the Ld Attorney General for an Objective Opinion

SPEED POST – ACK DUE

RIGHT TO INFORMATION ACT, 2005

FIRST APPEAL FOR CENTRAL GOVERNMENT

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

To,

Shri Praveen Kumar, Director (AG-I) & First Appellate Authority,

Ministry of Defence, Govt of India,

Room No. 103, Sena Bhawan,

New Delhi - 110011

Sir,

As I am aggrieved by decision of Under Secretary & Central Public Information Officer, Pay/Service, Ministry of Defence, Sena Bhawan,  New Delhi – 110 011 letter dated F. No. 35 (1) 2013 – D (Pay/Services) dated 19^th  July 2013 and received by me on 26^th July 2013, I hereby file this appeal for your kind decision.

1. Details of appellant:

(i)        Full Name: Sharad Yeshwant Savur

(ii)                Full Address: 141, Jal Vayu Towers, NGEF Layout, Indira Nagar (PO), Bangalore-560038

(iii)              Phone/Cell No: +91 9449676278

(iv)              Email ID: sysavur@gmail.com

2. Details of CPIO: -

(i)        Name/Designation:  Under Secretary (Pay/Services) & CPIO

(ii)       Full Address: Sena Bhawan, Ministry of Defence, Govt of India, New Delhi - 110011

(iii)      Name of Public Authority: Ministry of Defence

3. Details of RTI application to CPIO: -

(i)        Date of Application: 24.06.2013               

(ii)       Mailed on: 24.06.2013

(iii)      By Speed Post No. EK 29706084IN         

(iv)      Date of receipt by CPIO:  Not Indicated

4. Particulars of payment of filing fee: - Paid Rs.10/- by IPO No 19 F 704632 /- issued by INDIRA NAGAR Post office on 21.06.2013

5. Details of information sought (Annexure ‘A’): -

5. 1.     Please refer to the orders of the Hon’ble Raksha Mantri in the meeting taken by him on 14.6.2013 to resolve the differences between MoD and Service HQ on the anomalies in MoD letter F. No. 34(6)/2012-D (Pay/Services) dated 27.12.2012 for implementing the orders of the Hon’ble Supreme Court dated 04.09.2012. It is understood that Hon’ble RM has asked MoD and Service HQ to refer the matter to the Learned Attorney General of India for legal clarity of respective interpretations.

5.2.      Please provide information of         Record(s) of discussions, deliberations, notes, notings, U.Os, opinions, advices, circulars, orders specifically related to the instant referral to the Ld Attorney General of India.

5.3. In light of reply to First Appeal vide MoD F. No. 35(1)/2013-D (Pay/Services) dated 18.6.2013 (photocopy on page 2), please provide information whether MOD, in its referral, has apprised the Ld Attorney General that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 (subsequent to 5^th CPC Report) when the case was sub-judice so as to seek clarity on the legality of ibid SAI/SNI/SAFI.

5.4. I enclose crossed Indian Postal Order Number 19F 704632 issued by the Indira Nagar PO on 21.6.2013 for Rs 10/- (Rupees Ten only), endorsed to Accounts Officer (DAD), Ministry of Defence (Civil), payable at New Delhi, as application fee for this application. 

5.5. I request in advance that I may not be asked to visit MoD to inspect and search for the documents/information. I shall remit any additional amount, so indicated by MoD, for the photocopies of documents mentioned in para 2 above. 

6. Particulars of Decision of CPIO: -

(i)        Letter reference No:                                    35 (1) /2013/ D (Pay/Services)   

(ii)       Date of CPIO’s Decision:                             19^th July 2013

(iii)      Date of receipt of decision by the appellant: 26.07.2013

7. Brief facts of the case: -

7. 1. Subsequent to the order dated 4^th September 2012 of the Hon’ble Supreme Court in I.A No 9 of 2010 in TP (C) No 56 of 2007 in UoI & Ors Vs N.K. Nair & Ors, the MoD held extensive consultations with O/o CGDA, MoF (Deptt of Expenditure) and also requested TRIPAS, Service HQ for furnishing a Draft Government Letter to implement the ibid order of the Hon’ble Supreme Court.

7.2. MoD issued Letter No. F 34(6)/2012 – D (Pay/Services) dated 27.12.2012 for implementation of the ibid order of the Hon’ble Supreme Court.

7.3. Service HQ expressed dissatisfaction with contents, substance, and percieved intent of the MoD vis-à-vis the intention of the MoD letter dated 27.12.2012. The Chairman, CoSC & CAS met the Hon’ble RM, after writing two DO letters to him explaining the areas of disagreement. Finally, the Hon’ble RM called a meeting and on 14^th June 2013, directed the Service HQ and MoD to send separate Statements of case to the Ld Attorney General for his advice/opinion.

7.4. From the documents available on record and supported by information provided in response to numerous RTI applications of this appellant, the following incontrovertible facts emerge: -

(a) SAI/SNI/SAFI No. 2/S/98 was promulgated by MoD on 19.12.1997.

(b) The ibid SAI/SNI/SAFI included the impugned methodology of deduction of Rank Pay challenged in the Hon’ble High Court of Kerala in O.P. No 2448 of 1996 in the case of Maj (Retd) A K Dhanapalan Vs UoI & Others.   

(c)       The Ld Single Judge asked MoD to file an additional affidavit to clarify certain averments made by UoI & Ors in OP No. 2448/1996. Issues of 5^th CPC methodology or promulgation of ibid SAI/SNI/SAFI were not mentioned in the additional affidavit.

(d)       The Learned Single Judge pronounced his judgment in Op 2448/1996 finally on 5.10.1998 that Maj (Retd) Dhanapalan’s pay be re-fixed without deducting Rank Pay.

(d)       UoI/MoD challenged the judgment of the Ld Single Judge before a Division Bench of the Hon’ble High Court by filing in UoI’s W. A. No 518/1999 in February 1999. MoD did not mention nor sought any legal position from the Hon’ble High Court of Kerala on SAI No. 2/S/98 in the ibid W.A. or a subsequent W.A. No. 510/2000.

(e)       The Division Bench sought clarifications and MoD filed additional affidavit W.A. 510 of 2000 (both supplied by U/S (D-Pay /Services) & CPIO). MoD did not mention 5^th CPC recommendations of the SAI No. 2/S/98 nor sought any legal position from the Division Bench of the Hon’ble High Court of Kerala.

(f) In all the affidavits filed by MoD, the deponent at the level of Under Secretary and even Director (Shri Brahma) have solemnly sworn that nothing material has been concealed.

(g) The foregoing clearly indicates that MoD issued the SAI/SNI/SAFI No. 2/S/98 while the matter of deduction of Rank Pay for re-fixation was sub-judice.

(h) PCDA (O) and O/o CGDA have relied extensively on 5^th CPC recommendations and SAI 2/S/98 for justifying not extending the benefit of the judgment/orders of the High Court and Apex Court beyond 31.12.1995.

(j)        In seeking the information vide application dated 24.6.2013, this appellant is trying to understand whether O/o CGDA’s as well as MoF (Deptt of Exp) interpretations might have been different if they had been informed that the SAI/SNI/SAFI No. 2/S/98 had been promulgated when the matter of Maj Dhanapalan Vs UOI was sub-judice and no record exists with MoD about having obtained any decision from the Hon’ble High Court of Kerala.   

(k) None of the affidavits filed in the Hon’ble Supreme Court by MoD while mentioning 5^th CPC recommendations state that the SAI/SNI/SAFI No. 2/S/98 was promulgated when the matter was still being heard and yet to be decided by the Hon’ble High Court of Kerala.

(l)        Nowhere in any of the affidavits provided MoD to this appellant (including the one filed for extension of time limit by 12 weeks, sworn and signed by Director AG (I) in IA No. 11 of 2013 in IA No. 9 of 2010 in TP (C) No. 56 of 2007) has MoD disclosed to the Hon’ble Supreme Court, the promulgation of SAI/SNI/SAFI No. 2/S/98 while the Rank Pay matter was being heard by the Hon’ble High Court of Kerala. All affidavits and additional affidavits filed in the Hon’ble Supreme Court by MoD are silent on the aspects of SAI No. 2/S/98 and corresponding SNI and SAFI.

 

(m) MoD has justified its arguments citing 5^th CPC and the methodology for deduction of Rank Pay in the many notes placed before the Defence Secretary and the Hon’ble RM for obtaining their concurrence/app for the impugned MoD letter of implementation dated 27.12.2012.

8. Reasons/grounds for this appeal: -

8.1.      Reasons for this appeal: -        If indeed a truly objective opinion of the Ld Attorney General has to be obtained then he should be provided information of the circumstances under which SAI/SNI/SAFI No. 2/S/98 has been promulgated. Its legality or otherwise would be material in his final decision. Therefore, this appellant requested for information, if this matter i.e. of the promulgation of SAI/SNI/SAFI No. 2/S/1998 dated 19.12.1997 before even the first judgment was pronounced on 5.10.1998, was mentioned in the reference for placing before the Ld Attorney General.     

8.2.      Under Secretary (Pay/Services) & CPIO reply vide MoD F No. 35 (1) 2013 – D (Pay/Services) dated 19^th July 2013 (Annexure ‘B’) has provided an incomplete reply/information. The reply does not provide information if the matter of the promulgation of SAI/SNI/SAFI No. 2/S/98 but merely states in Para 3 that “Regarding information sought vide Para 3, it is stated that it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 when the case was sub-judice.”

8.3.      Director (AG-I) and First Appellate Authority has confirmed that no record exists of any mention of issue of SAI No 2/S/98 vide Para 2 of GoI/MoD Order Ref No. 35(1)/2013-D (Pay/Services) dated 18^th June 2013.

8.3.      As both the U/S (D-Pay/Services) and Director (AG-I) are aware of the facts of SAI No.2/S/98, it is a fact in the cause of justice and for a fair consideration by the Ld Attorney General.

8.4. The reply by the CPIO does not provide any information on the circumstances and manner/methodology the decision was taken, and if so at what level, “it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No.2/S/98 when the case was sub-judice” to the attention of the Ld Attorney General.

8.5.      Grounds for this Appeal:  Unless the Ld Attorney General is provided complete facts, including the matter of SAI/SNI/SAFI No. 2/S/98 and its promulgation, the ends of justice may not be served. In fact it would again be a concealment of material facts.

The appellant requests copy of complete information given to the Ld Attorney General through LA (Defence) of all the facts of the Rank Pay matter as requested in Para 3 dated 24.6.2013.  

9. Any other information in support of appeal:

(a)       Chronology of events in the Rank Pay matter constructed from information provided by MoD in reply to previous RTI applications is as follows: -

S No	Date	Subject
1	06.02 1996	Maj A.K. Dhanapalan filed the Original Petition (O.P.) No. 2448 of 1996 in the Hon’ble High Court of Kerala challenging deduction of Rank Pay from revised pay
2	30.01.1997	5th CPC submitted its Report and Recommendations to Govt of India
3	30. 09.1997	GoI approved 5th CPC Report vide MoF Notification No. 50 (I)/IC/97
4	19. 12. 1997	MoD issues SAI/SNI/SAFI 2/S/1998 including the methodology recommended by 5th CPC for fixation of pay of Defence Services Officers Vide (a)         MoD F. No. 1(21)/97/D(Pay/Services) dated 19th December 1997 and (b)           M of D (Finance) U.O. No. 1244-PA 97 dated 19th December 1997
5	5.10.1998	Learned Single Judge of Hon’ble High Court of Kerala passes judgment upholding Maj Dhanapalan’s O.P. and directs Respondents (UoI & Ors) to make corrections from 01.01.86
6	04.07.2003	Division Bench of the Hon’ble High Court of Kerala dismisses UoI’s Writ Appeal No. 518 of 1998 against judgment of Learned Single Judge.
7	12.07.2005	Supreme Court dismisses UoI’s Special Leave to Appeal 5908 of 2005
8	08.03.2010	Hon’ble Supreme Court hears TP (C) 56 of 2007 and tagged Writ Petitions; agrees with the reasoning of the Learned Single Judge & the Division Bench of the Hon’ble High Court of Kerala and orders re-fixation of pay scale without deducting rank pay and payment of arrears with 6% interest p.a. with retrospective effect  from 1.1.1986
9	04.09.2012	Hon’ble Supreme Court hears both parties in UoI’s IA No. 9 of 2010 in TP (C) 56 of 2007 confirms the Order of 8.3.2010 with one change i.e. interest on arrears to be paid from 1.1.2006

(b)       MoD letter No. 34(6) 2012-D (Pay/Services) dated 27^th December 2012 states in Para 8 to the Recommendations of 5^th CPC and SAI/SNI/SAFI No. 2/S/1998 as follows: -

“…..As the aforesaid Order of the Hon’ble Supreme Court passed on 4.9.2012 read with their earlier order dt. 8.3.2010, has upheld the Order of the Hon’ble Kerala High Court passed on 5.10.1998 in case of Major A. K. Dhanapalan and as the said order of the Hon’ble Kerala High Court dt. 5.10.1998 is for re-fixation of pay as on 1.1.1986, and as this sanction is in compliance with these judicial pronouncements, it is clarified there shall be no change in respect of Special Instructions of Army, Navy and Air Force issued on 19.12.1997…….for implementation of the recommendations of the 5^th  ….Central Pay Commission …..”                

10. Prayer/relief sought for: - US & CPIO (Pay/Services) to provide me with copy of the complete information given to LA (Defence) for placing before the Ld Attorney General.

11. Grounds for prayer/relief sought for: - US & CPIO (Pay/Services) has not provided the information thereby placing hurdles in clearing my perception of the deficiencies and understanding the logical and legal background leading to the issue of MoD’s letter 34(6)/2012-D(Pay/Services) dated 27.12.2012.

12. Personal Presence at hearing: - No

13. Enclosures: - Photocopies of

(i) Original RTI application with its enclosures: -           attached (Annexure A-1)

           

(ii)       Postal proof of mailing: -                                        attached (Annexure A-2)

(iii)      Acknowledgement of CPIO: -                                Not received

(iv)      Decision letter of CPIO: -                                       attached (Annexure B)

14. 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:   12^th August 2013                  Signature of appellant
[P.S. Format as per office memorandum dated 09-07-2007 issued by DoPT, Govt. of India.]

Request for Additional Information from O/o CGDA

16th August 2013

 

REQUEST FOR INFORMATION

Sir,

1.         The following chronology in separate cases of Maj Dhanapalan Vs UoI & Others  and of UoI Vs N.K. Nair & Others is placed below for perusal: -

(a)       Maj (Retd) A K Dhanapalan Vs UoI & Others (OP No 2448/1996, W.A. No. 518/1999 & SLP (CC) No. 5908/2005)

           

(i)        6^th February 1996: Maj A.K. Dhanapalan filed the Original Petition (O.P.) No. 2448 of 1996 in the Hon’ble High Court of Kerala challenging deduction of Rank Pay from revised pay.

(ii)       30^th January 1997: 5^th CPC submitted its Report and Recommendations to Govt of India.

(iii)      31^st August 1997: Maj Dhanapalan retires prematurely from the Army.

(iv)      30^th September 1997: GoI approved 5^th CPC Report vide MoF Notification No. 50 (I)/IC/97.

(v)       19^th December 1997: MoD issues SAI/SNI/SAFI 2/S/1998 including the impugned methodology recommended by 5^th CPC for fixation of pay of Defence Services Officers.

(vi)      5^th October 1998: Learned Single Judge of Hon’ble High Court of Kerala passes judgment upholding Maj Dhanapalan’s O.P. and directs Respondents (UoI & Ors) to make corrections from 01.01.86.

(vii)     23^rd February 1999: UoI files Writ Appeal No. 518 of 1999 against judgment of the Single Judge in OP No. 2448 of 1996; UoI does not mention either the 5^th CPC Report of issue of SAI No. 2/S/1998 nor seek any approval/views/directions from the Court (please see attached photocopies of MoD letters).

(viii)    December 2000: UoI files additional affidavit (WA 510 of 2000) in WA 518 of 1999 providing clarifications but again there is no mention of 5^th CPC or SAI No. 2/S/98.

(ix)      4^th July 2003: Division Bench of the Hon’ble High Court of Kerala dismisses UoI’s Writ Appeal No. 518 of 1998 against judgment of Learned Single Judge.

(x)       12^th July 2005: Supreme Court dismisses UoI’s Special Leave to Appeal 5908 of 2005.

           

(xi)      2005-2006: Correspondence between CDA (O) and Maj Dhanapalan wherein CDA (O) informs Maj Dhanapalan that the Kerala High Court judgment does not mention 5^th CPC. (Para 5 of Note 10 dated 21/11/12 of O/o CGDA provided under RTI refers).

(b) UoI & Others Vs N. K. Nair & Others ((TP (C) No. 56/2007, IA No. 9/2010 in TP (C) No. 56/2007 & IA No. 11/2013 in IA No. 9/2010) Please also refer to pages 137 to 141 of reply to RTI ibid dated 25.6.2013): -

(i)        2006-2009: Several officers approach High Courts (W.P. No 11056/2006, 11128/2006 etc) and two Petitioners (WP 96/2009 Sunil Kumar & Ors Vs UoI and 34/2009 K.K. Rohatgi & Ors Vs UoI) approached the Hon’ble Supreme Court directly for same benefit (not deducting Rank Pay for re-fixation) of the judgment in the Maj (Retd) Dhanapalan Vs UoI case;

(ii)       All Writ Petitions transferred as UoI Vs N.K. Nair & Ors in TP (C) No. 56 of 2007; Maj (Retd) Dhanapalan is not a litigant.         

(iii)      8^th March 2010: Hon’ble Supreme Court heard TP (C) 56 of 2007 and tagged Writ Petitions in UoI Vs N.K. Nair & Others; agrees with the reasoning of the Learned Single Judge in OP 2448/1996 & the Division Bench of the Hon’ble High Court of Kerala in W.A. 518/1999 and orders re-fixation of pay scale without deducting rank pay and payment of arrears with 6% interest p.a. with retrospective effect from 1.1.1986

(iv)      4^th September 2012: Hon’ble Supreme Court hears all parties (UoI Vs N K Nair & Others)  in UoI’s IA No. 9 of 2010 in TP (C) 56 of 2007 confirms the Order of 8.3.2010 with one change i.e. interest on arrears to be paid from 1.1.2006;

(v)       21^st November 2012: PCDA (O) in No. Tech/0321/4CPC/Court case dated 21 Nov 2012 extensively asserts non-applicability of Judgment/Orders to 5^th CPC and 6^th CPC, whereas views of PCDA (N) and CDA (AF) are different.

2.         A bare reading of the above facts show that SAI No.2/S/98 was promulgated on 19.12.1997 i.e. when the matter was still being heard by the Ld Single Judge of the Hon’ble High Court of Kerala. In other words, the matter was sub-judice. This is substantiated by MoD (D-Pay/Services) No. 35 (1)/2013/D (Pay/Services)  that (i) MoD does not have any record of having informed Hon’ble High Court of Kerala nor mentioned in Writ Appeal of Additional Affidavit (26.4.13), (ii) MoD not taken up the matter with the Hon’ble High Court while issuing the Special Army Instructions in Dec 1997 (18.6.2013) and (iii) while referring the file through LA (Defence) to the Ld Attorney General ‘it is stated that it has not been specifically mentioned in the file that MoD had issued SAI/SNI/SAFI No. 2/S/98 dated 19.12.1997 when the case was sub-judice” (19.7.13). Photocopies of the three letters are attached to this application for easy reference. 

3.         As O/o CGDA is aware, the ibid SAI contained the impugned deduction of Rank Pay for re-fixation after 5^th CPC. PCDA (O), in their letter of even reference dated 21 Nov 2012, has relied on SAI No. 2/S/98 in making observations/views negating applicability of Hon’ble Supreme Court’s Orders to period 1.1.96 to 31.12.2005 included in the Services HQ DGL.

4.         PCDA (O)’s views on non-applicability to 5^th and 6^th CPC is in minority and contrary to the majority view expressed by two Field Controllers viz. PCDA (N) and CDA (AF). In Parliament and in Courts, a majority decision prevails over the decision of the minority. 

5.         Please provide the following information by way of photocopies of letters, directives, emails, FAX, memos, ID Nos., UO Nos. Note(s) of Action, Noting and any other data: -    

(a)       Correspondence from PCDA (O) [or then CDA (O)] to Maj Dhanapalan who retired on 31.9.1997, informing him about SAI No. 2/S/98 being issued on 19.12.1997 (3 months after he retired from Army).

(b)       Correspondence with MoD/Competent Authority based on which PCDA (O) has justified not re-fixing Maj (retd) Dhanapalan’s pay from 1.1.1996 and/or asking him to obtain directions from the Hon’ble High Court of Kerala. 

(c)       Correspondence between O/o CGDA and MoD, the Competent Authority, on the legal status of SAI No. 2/S/98 when O/o CGDA was requested to make comments/observations on the DGL provided by Services HQ,

(d)       Correspondence on request for clarity by O/o CGDA, the Implementing Authority, on legal status of SAI No. 2/S/98 from MoD, the Competent Authority, when O/o CGDA was preparing and furnishing the DGL based on observations of PCDA (O),

(e)       Any intimation by O/o CGDA to the PCDA (O), PCDA (N), CDA (AF) to bear in mind the legality or otherwise of SAI No. 2/S/98 to assist them in making fair, just and objective comments/observations on the DGL provided by Services HQ,

(f)        Correspondence between O/o CGDA and PCDA (N) w.r.t Para 5 (i) as well as CDA (AF) w.r.t. Para 6 (a) that their observations is incorrect/not acceptable.   

6.         Indian Postal Order Number 19F 704634 issued by Indira Nagar PO on 21.6.13 payable to CGDA at New Delhi is attached as application fee. It is requested that the need for this applicant to visit the O/o CGDA to search of information may be dispensed with for reasons stated in an earlier request.