Thursday, 22 August 2013

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




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


Shri Praveen Kumar, Director (AG-I) & First Appellate Authority,
Ministry of Defence, Govt of India,
Room No. 103, Sena Bhawan,
New Delhi - 110011


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 19th  July 2013 and received by me on 26th 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:

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: -

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 5th 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: -

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

(ii)       Date of CPIO’s Decision:                             19th 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 4th 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 14th 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 5th 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 5th 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 5th 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 5th 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 5th 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 19th 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 18th 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
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
5th CPC submitted its Report and Recommendations to Govt of India
30. 09.1997
GoI approved 5th CPC Report vide MoF Notification No. 50 (I)/IC/97
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

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
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.
Supreme Court dismisses UoI’s Special Leave to Appeal 5908 of 2005
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
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 27th December 2012 states in Para 8 to the Recommendations of 5th 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 5th  ….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:   12th August 2013                  Signature of appellant
P.S. Format as per office memorandum dated 09-07-2007 issued by DoPT, Govt. of India.]

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