Friday, 23 August 2013

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

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