CGDA Reply dated
25062013 to RTI of 13032013 – Part 2 of 3 parts
Please Note:
1. That MoD, as the nodal Ministry and principal respondent and
/or appellant in UoI vs Maj Dhanapalan did not inform the Hon’ble High Court of
Kerala of the issue of SAI (and SNI/SAFI) No. 2/S/98 on 19.12.1997 in the OP,
the WA or even the SLP.
2. That MoD also has not mentioned about promulgation of SAI
02/S/98 to the Hon’ble Supreme Court in its several affidavits in UoI & Ors
Vs N K Nair & Ors even though the Hon’ble High Court of Kerala was still
hearing the matter in Maj Dhanapalan Vs UoI & Ors.
3. That the above fact appear has not to have been intimated by
MoD to MoF, CGDA or anyone else any time subsequent to 17 Dec 1997 [date of
impugned SAI (SNI & SAFI) 02/S/98).
4. Information on page numbers indicated in this post is
available on the blog in replies provided by MoD/MoF etc. Please refer to those
posts.
5. However, to those with a lot of curiosity, where entire
pages have not been re-produced, the page numbers and the subject matter has
been indicated like example below: -
Page Nos 85 to 99 – Note sheets and Draft DGL by Service HQ
vide Air HQ/99141/7/AFPCC (Ty BM)
* * * * *
Page 100
Most Immediate
RANK PAY CASE
Ministry of
Defence
D (Pay/Services)
Subject:
Implementation of Supreme Court order dated 4.9.2012 in Rank Pay given in IA
No. 9 of 2010 in Transfer Petition (C) No. 56/2007 – UoI Vs N.K. Nair on Rank
Pay case
A copy of DGL
received from Service HQrs (TRIPAS) on the above subject is forwarded herewith
for comments/vetting by 19.11.2012 forenoon positively. In this connection, a
copy of Note dated 7.11.2012 recorded by Service HQrs is also enclosed.
Sd/---------------
Naveen Kumar
Director (AG)
Te’FAX – 2301 4036
Jt CGDA (AT-I) (Shri Mohinder Singh)
MOD ID No. PC-34 (6)/2012/D(Pay/Services) dated 14.11.2012
Imp
Urgent action pl Sd/-------------- 16/11/12
SAO/AAO (AT-I)
Page 101
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt - 10
FAX Message
No. AT/I/1483-Army/X(PC)/III Dated:
16/11/2012
To
1. Smt Manjula Mathur, IDAS
Principal
Controller
O/o
the PCDA (O)
Pune
2. Shri Savitur Prasad, IDAS
Principal
Controller
O/o
the PCDA (Navy)
Mumbai
3. Shri A N Das, IDAS
Controller
O/o the CDA
(AF)
New
delhi
Subject: Implementation of Supreme Court order dated
4.9.2012 in Rank Pay given in IA No. 9 of 2010 in Transfer Petition (C) No.
56/2007 – UoI Vs N.K. Nair on Rank Pay case
Please
find enclosed herewith a copy of MoD D (Pay/Services) ID bearing No. PC-34(6)/2012-D(Pay/Services)
dated 14/11/2012 forwarding DGL on the subject alongwith copy of Note dated
07/11/12 of Service HQrs for your examination and offering comments/views of
your office by return fax.
Encls: (As above) Sd/---------
Jt
CGDA (AT-I)
16/11
* * * * *
Page No. 102 – Draft of Interim reply from ACGDA (AT-I)
dated 19/11 to MoD D(Pay/Services
Page No. 103 – MoD D (Pay/Services) intimation to JS &
Addl FA (M), LA (Def), Jt CGDA (AT.I) and Director (TRIPAS) of meeting to be
taken by AS (A) on 20.11.2012 vide MoD
ID No. PC. 34(6)/2012 – D (Pay/services) dt 20.11.2012 with copies to PPS to AS
(A) and PPS to JS (E)
Page No. 104 – MoD D
(Pay/Services) ID No. 34 (6)/2012 – D (Pay/Services) dated 12.11.2012 to
Director TRIPAS and Jt CGDA (AT.I) requesting for clarifications/comments on
the MoF/DoE ’s observations about
applicability to 5th CPC, extent of financial implications, copy of
order of payment of arrears to Maj (Retd) Dhanapalan and whether the payment
can be only in case of similarly placed officers of the Army etc
* * * * *
Pages 105 & 106
FAX
Office of the JCDA (AF), Subrato Park, New Delhi – 110010
No. DCA/O-III/Misc- III/Vol III Dated 20 November
2012
To
CGDA
(Audit –I
Section)
Palam, Delhi
Cantt – 10
Sub: Implementation of Hon’ble Supreme Court order dated 04/09/2012 in
IA No. 9 of 2010 in Transfer Petition I No. 56/2007 filed on
behalf of
UoI Vs N K Nair & others on the matter of “Rank Pay”
Ref: HQrs office letter No. AT/I/1483-Army.X/PC/III dated 12/11/2012
and
16/11/2012
The
subject Draft DGL on the above subject has been examined and the following
comments are offered: -
(1) Hon’ble Supreme court have delivered a judgment vide TP I No.
56/2007 dt 4/9/2012 for implementation of judgment passed by Hon’ble High Court
of Kerala, Ernakulam in case of Maj Dhanapalan which provides that:
·
The Rank Pay which was deducted from the
integrated pay scale and granted separately is not to be deducted from the
basic pay as was done in Govt orders. The Rank Pay will be in addition to the
Pay Fixed in the integrated pay scale i.e. after application of the fixation
formula, the pay so arrived will be, in addition, enhanced by the rank pay with
effect from 01.01.1986.
(ii) Hon’ble Court have also ordered to pay
interest @ 6% PA from 1/1/2006.
(iii) It will also result in re-calculation of
pension of post 1986 retirees, as well as revision modified parity for each
rank.
(2) The DGL
received from Service HQ on the subject contains the following proposals:
a. Re-fixing the pay with effect from
1.1.1986 without deducting the rank pay.
b. Revision of pay on 1.1.86, 1.1.96 and
1.1.2006 and payment of consequential benefits during service and post
retirement benefits.
c. Change/modification to the pay scale
structure on Ivth CPC and Vth CPC.
d. Change/modification in the grade pay in
Vith CPC.
(3) Recommendations of Ivth CPC: As per Ivth CPC pay in the
revised scale is to be fixed by adding 20% of basic pay to the emoluments of
the officer and an amount equivalent to the rank pay appropriate to the rank
held by the officer as on 1.1.1986 shall be deducted.
(4) Recommendation of the Vth CPC: Under Vth CPC 40% of the Basic
pay including stagnation increments and rank pay in the pre-revised scale has
been added to the emoluments and again the rank pay appropriate to the rank
held by the officer on 1.1.1996 shall be deducted.
(5) In Vith CPC, no element of rank pay was provided and new
elements of Military Service pay/Grade pay has been introduced.
(6) Views of this
office:
(a) After analysing the court judgment
vis-à-vis proposed DGL with reference to the Orders of the Ivth CPC, Vth CPC
and Vith CPC the proposal made at Para 2 (c) & (d) above are not in
conformity to the Court order. Court order is only restricted to re-fix the pay
by adding to Rank Pay.
(b) Also, as per the Court order only Rank Pay element w.e.f.
01.01.1986 (Fourth CPC), 01.01.1996 (Fifth CPC is to be admitted, instead
of modifying the scale of pay. Any anomaly arising out of such pay fixation
have to be delat with on case to case basis.
·
IFurther Para 12 (d), (e) and (f) recorded by
Service Hrs in note dated 7/11/2012 are not in consonance with the Court
judgment.
CDA (AF) has seen.
Sd/-------------------
DCDA (AF)
Imp
Please
examine & put up
Sd/-------------
20/11/12
SAO/ACGDA (AT-I)
* * * * *
Pages 107 to 109
FAX/SPEED
POST
No: IRLA/0/260
Office of the PCDA
(N)
IRLA Sn. S B S Road
Mumbai – 400023
Dtd: 21/11/12
To
The CGDA
Ulan Batar Road, Palam
Delhi Cantt - 10
Sub: Implementation of Honourable Supreme Court
Order dated 04-09-2012 in IA
No. 9 of 2010 in
Transfer Petition (C) No. 56/2007 – UoI Vs N K Nair and others
regarding Rank Pay
Ref: HQrs No. AT/I/1483-Army/C (PC) dated
16/11/2012
Copy of MoD D
(Pay/Services) ID bearing No. PC-34 (6)/2012 – D (Pay/Services) dated
14-11-2012 forwarding DGL on the subject along with copy of Services HQrs Note
dated 07-11-2012 received vide HQrs letter quoted above has been examined and
the following comments are offered.
1. The entire subject issue is regarding
fixation of pay under IVth CPC with regard to the inclusion or non-inclusion of RANK Pay only.
2. The fixation formula is as per Para 6
of Special Navy Instruction 1/S/87 dated 14.07.87 which is in pursuance of the
recommendation of IVth CPC and government decision thereon. The fixation
formula with regard to Rank Pay
as enjoined in para 6 of the special navy instruction 1/S/87 ibid has been
contested and operative part of judgment in Maj A. K. Dhanapalan case is as
follows: -
“The
respondents no 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 respondents 2 & 3. The petitioner is also entitled to get his pay
re-fixed in accordance with the pay fixation of 1987 evidence by Ext. P1.”
3. It is very clear and unambiguous that
the judgment in the instant case relates to the modus operandi for taking into
account the element of rank pay in the formula for fixation of pay beginning
from 1.1.1986. At no stage in the operative part of the judgment, the Hon High
Court of Kerala have decreed on the need for revision of pay scale.
4. In the light of the judgment above
referred to, DGL has been examined and the following further comments are
offered.
a) Para 6 of the Note dated 7.11.12 recorded by the Service
HQrs reads as follows:
“Clearly,
the court has held that ……….. civilian pay scale.”
The statement
made in said Para 6 of the Note that “Therefore the pay scales have to be
amended and enhanced by the amount of rank pay” is not tenable as it is not as
per court verdict.
As such
proposing revised integrated pay scale vide Para 4 of DGL is not in order, as
it is out of the ambit and against the acceptance of recommendations of the IVth CPC and promulgated under special
navy instructions of 1/S/87.
b) In our view separate government sanction is required for
revision of integrated pay scales as the same does not form part of the
implementation of court judgment under consideration.
c) Similarly, the proposal for revision of
minimum pay in integrated pay scale vide Para 5 (3) of DGL does not arise and
not in order. The same view are applicable mutatis
mutandis on all aspects of revision proposed under section II and section
III of DGL.
5. To sum up
i) The DGL should only be confined to
implementation directive on the mode of taking into account the element of rank
pay in fixation formula of IVth, Vth and VI CPC respectively. In other words,
Para 6 (a) (ii) of SNI 1/S/87 and Para 5 (a) (ii) of SNI 2/S/98 are only to be
modified and amended in consonance with HIGH COURT judgment dated 5.10.1998 and
no other provision in any of the SNI needs modification unless it is the
intention of the Govt to revise upwards the pay scales for giving enhanced
benefit which is more than that entails from the implementation of the Court
judgment.
ii) Proposal for revision of pay scales and
other allied matters are not in order and it is not the logical extension of the
judicial order as stated in Para 12 (f) of Note dated 7.11.12 being out of the
scope of the High Court judgment unless it is the express intention of the
Government to give enhanced benefit.
This has the approval of CDA.
Sd/-------------------
Dy Controller of
Defence Accounts (N)
* * * * *
Pages 110 to 115
BY FAX – 011-25675488
(Kind attention: Shri
Mohinder Singh IDAS
Jt CGDA, AT-I)
No: Tech/321/4CPC/Court
case
Office of the PCDA (O)
Golibar Maidan,
Pune 411001
Date: 21 Nov 2012
To,
The CGDA
Audit I Section, O/O CGDA,
Ulan Batar Road, Palam,
Delhi Cantt 110011
Sub: Implementation of Honourable Supreme Court
Order dated 04-09-2012 in IA
No. 9 of 2010 in
Transfer Petition (C) No. 56/2007 – UoI Vs N K Nair and others
on Rank Pay case:
Ref: HQrs No. AT/I/1483-Army/C (PC) dated 16/11/2012 & MoD ID No.
PC-34(6)/2012/D(Pay/Services) dated 14/11/12 received vide letter ibid.
Contents of
the Note dated 7/11/12 recorded by service HQrs and DGL submitted alongwith the
same have been examined and the following is stated: -
(A) The Hon’ble Supreme Court Order dated
04/09/12 is to refix the pay of all similarly situated officers w.e.f. 01/01/86
without deducting Rank Pay, where pay was earlier fixed in integrated pay scale
after deducting Rank Pay as per SAI 01/S/87. This involves pay revision as on
01/01/86 and thereafter based on the pay so revised , further increment(s),
stagnation increment(s), pay revision on subsequent promotions/demotions, pay
revision on Fifth & Sixth Pay Commission etc will be carried out.
(B) (a) While implementing the High Court of Kerala verdict in
case of Maj (Retd) Dhanapalan, this office has revised his pay in the rank of
Capt as on 01/01/86 by re-fixing without deducting Rank Pay. The change in pay
continued till 31/12/95. His pay as on 01/01/96 was fixed at the same stage, as
per earlier revision on Fifth Pay Commission Orders.
(b) The High Court order was silent about
revision of pay based allowances. Maj
Dhanapalan was admitted arrears of DA and IR II only amongst the pay-based
allowances with reference to revised basic pay fixed as per Court order.
(c) The officer has retired pre-maturely on
01/09/07. Since there was no change in last pay drawn at the time of pre-mature
retirement, no arrears on account of leave encashment were due to him. Also, no
amendment to LPC-cum-Data Sheet was issued by PCDA (P), Allahabad for revision
of pension and pensionary benefits.
(d) Maj (Retd) Dhanapalan claimed the
revision of pay as on 01/01/96 consequent on Fifth pay Commission, without
deducting Rank pay. He was informed that the High Court judgment was for not deducting Rank pay as on 01/0186 ad not
as on 01/01/96. No further communication was received thereafter from him
and also no directives/orders were received from High Court to justify the
claim of the officer.
(C) Service HQrs have stated in their Note
that DGL proposed is based on the import of the Hon’ble Supreme Court judgment.
However, the following points
incorporated in the DGL are not in the scope of Hon’ble Supreme Court judgment.
(i) Para 2: High Court of Kerala and Hon’ble
Supreme Court judgments have made no
mention about admitting consequential benefits due to revision of pay
during the service.
(ii) Para 2: Pay of the officers who joined
service after 01/01/86 has been correctly fixed in the minimum of Integrated
Pay scale as per the rank held. There
was no deduction of Rank Pay while fixing of pay in integrated pay scale. Hence
they will not be covered under revision of Pay as SC Order.
Section I: Modifications effective from 01/01/86 to 31/12/95
to SAI 01/S/87: -
(iii) Para 4: High Court of Kerala judgment is
to re-fix the pay in integrated pay scale without deducting Rank pay. Further,
Rank pay is to be paid additionally. It means after adding 20% of Existing
Basic Pay as fitment to the total emoluments the officer was drawing in the
pre-revised scale, the revised pay si to be fixed in the Integrated Pay
scale.
Note of
Service HQrs states about revision of Integrated Pay Scale justifying it with
essential features to be borne in mind is “the
incorrect deduction of Rank pay will have to be rectified. The Rank pay
accordingly will have to be added back into the pay scale to determine new
pay.” THIS IS INCORRECT AND NOT AS PER COURT ORDER.
The Court
judgment does not have any mention about revision of Integrated Pay scale after
adding Rank Pay to it. Hence revision of
integrated pay scale with changed rates of increments, as Rs
2300-100-3900-150-150-5850-200-6450 is not covered as per Court orders. Further,
if it is done, the pay scale fixed for
the rank of Maj Generals & above will get burst (sic) (pay scale for
Major Generals: Rs 5900-200-6700; Lt Generals: Rs 7300-100-7600, Army
Commanders & VCOAS: Rs 8000/- Fixed, and COAS : Rs 9000/- Fixed). These
officers will also ask for revision of pay scales.
(iv) Para 5 (a) (iii): No change is required to minimum pay fixed
for each rank because integrated pay scale from Rs
2300-100-3900-150-EB-4200-150-5100 has been devised considering 23 years from
the rank of Lt to Brig. Since Hon’ble
Supreme Court has not issued any directives for revision of Integrated Pay
scales as per Fourth Pay Commission Orders, the change in minimum pay for each
rank has no relevance.
(Comment by Aerial View: 4th CPC mentions 28 years in Para
28.15 and is illustrated in table at Annex 28.1 to Para 28.113.)
(v) Para 5 (c) : Since officers commissioned after 01/01/86 are not affected by the Court
order, the provisions for revision of
pay as per court order cannot be made applicable to these officers.
(vi) Para 5 (d) & (e): The officers will be
entitled to get minimum pay of rank as per SAI 01/S/87 on completion of qualifying service for the
rank and on promotion. Pay proposed in DGL vide Para 5 (a) (iii) will not be
applicable in such cases.
Section II: Modifications
effective from 01/01/96 to 31/12/05 to SAI 01/S/98
(Comment by Aerial View: Since
the matter was not decided in Court i.e. it was sub-judice till 04 Jul 2005,
but SAI 02/S/98 was promulgated on 19.12.1997 and MoD has admitted that there
is no record that either Hon’ble High Court of Kerala informed or any judicial
order was sought, the foundations of the subsequent portion of PCDA (O)
contentions may be viewed in that light.)
(vii) Para 6 (a): High Court of Kerala has not issued any
directives for Change in Pay Scales as per Fifth Pay Commission Orders. The pay
of affected officers as on 01/01/96 will be revised, considering the pay in the
Integrated scale being drawn as on 31/12/95, consequent upon the revision
carried out as on 01/01/86 without deducting Rank Pay. Hence, no amendment to SAI 02/S/98 are required
for implementation of Court Order. Captains of AMC on completion of one
year will draw Rs 9600/- as per SAI 02/S/98.
Further
provisions mentioned at subsequent para 8 (c) & (d) regarding fixation of
pay at maximum and minimum of such changed pays scales become irrelevant.
(vii) Para 7: Since the provisions of SAI 02/S/98 stand correct for officers in service as on
01/01/96 & commissioned thereafter, the pay scales mentioned at Para 6 of
DGL becomes irrelevant.
(ix) Para 8 (b): Fixation of initial pay in
revised scales as on 01/01/96:
(Notation by hand
by some official of O/O CGDA at the top of page 112 – “Each Pay Commission
is separate entity. Moreover the Rank Pay of V CPC allowed not to be deducted
by the Hon’ble Supreme Court is in any case would be included while fixing ch
pay in V CPC.” Notation ends).
Neither High
Court of Kerala nor the Hon’ble Supreme Court has issued any directives for
revision of Pay Fixation Formula as per Fifth Pay Commission Orders for not
deducting Rank Pay. As per Fourth pay Commission Orders Rank Pay was introduced
for the first time which was in addition to integrated Pay Scale.
But at the
time of Pay revision on Fifth Pay Commission orders, officers were in receipt
of Rank pay which was treated as part of Basic Pay for all purposes including
pension & retirement and pensionary benefits. For revision of Pay as on
01/01/96, 40% fitment was allowed to be added to existing emoluments before
deducting Rank Pay at pre-revised rates while fixing pay in the revised scale
for that rank.
(x) Minimum Pay for bunching of increments:
All the provisions of SAI 01/S/87 regarding pay scale, minimum qualifying
service and minimum pay for each rank etc are applicable for pay revision to be
carried out on 01/01/1996, except the
clause of deducting Rank pay before fixation of pay in the integrated scale.
As such, revision of Pay scales for the rank of Lt to Brig as mentioned at
Section II, para 6 (a) and minimum stage of pay for bunching of increments for
each rank mentioned at para 8 (e) becomes irrelevant.
Section III: Para 9:
Modifications effective 01/01/06: -
(xi) As mentioned in earlier paras, in case the
pay being drawn by the officer as on 31/12/05 gets affected, due to the pay
revision carried out as on 01/01/86 as per Court Order, the pay as on 01/01/06
will be revised w.r.t. the instructions laid down vide SAI 01/S/08 in the
respective Pay Band with Grade Pay of that rank as mentioned in Fitment Tables,
attached thereto. Court order does not
have any mention to revise either the pay scales & rates of increments
mentioned as per Fifth Pay Commission or Grade pas as per Sixth Pay Commission,
as given at Col 3 & 7 respectively at Table under para 9. Comparison with
pay scales & rates of increments of similarly placed civilians is also
beyond the scope of court order. Hence the changes proposed at para 9, 10
& 11 are irrelevant.
(xii) Para 13: The Court order is applicable to
only those officers in the rank of Capt to Brig, who were in service as on
01/01/86 and their pay was fixed in integrated pays scale after deducting Rank
Pay from the total emoluments. Hence no
revision is to be carried out for officers commissioned thereafter.
(xiii) Para 13: The method of calculation of 6%
interest i.e. simple or compound needs to be explained in the DGL since in
certain cases arrears may work out after 01/01/06 also.
(xiv) Paras 14,15, & 16: Exercising of Option:
Considering the non-availability of date related to pay drawn and other
elements affecting pay entitlements in huge number of cases, due to destruction
of time expired records and also the time span involved in each case for
scrutiny and analysis of pay data with reference to different dates i.e.
increment, promotion etc at three occasions of Pay Commissions and subsequent
multiple promotions, to ascertain/decide the manner/option for pay fixation by
PCDA (O) which is most beneficial to officer if not exercised by him/her and
also pay revision with reference to fresh options if exercised by the officers
on each occasion will not be possible.
(xv) Para 18: Hon’ble Supreme Court’s verdict has no mention about revision of all
pay linked allowances simultaneously. Further, Maj Dhanapalan was paid only DA
& IR II amongst pay based allowances.
In a nutshell,
This office has implemented the judgment of
Hon’ble High Court of Kerala in case of Maj (Retd) Dhanapalan as mentioned at
para (B) ante. Going by the method followed in implementation of that order,
the revision of following is not at all covered under the scope of Court
Orders
a. Integrated
Pay Scales, rates of increment, minimum pay for each rank for IVth Pay Commission orders,
b. Pay
scales for each rank & rates of increment for Vth Pay Commission orders,
c. Grade
pay as per Sixth Pay Commission.
Certain pay based allowances like HRA etc admitted to only eligible
officers, subject to fulfilment of specific conditions for a particular period,
are not revised even during pay commission orders from retrospective dates.
Hence, question of revision of such allowances from retrospective dates does
not arise.
(D) The DGL does not have
mention about the procedure to be followed for revision of pay and calculations
or arrears where pay details and other information affecting pay entitlements
is not available due to destruction of records being time expired.
PCDA has seen Sd/----------------
S
P Singh
Dy
Controller
* * * * *
Page Nos. 116 to 128 – Drafts of CGDA reply to MoD
D(Pay/Services) ID No. PC-34(6)/2012 D (Pay/Services dated 14/11/2012
* * * * *
Page No. 129 – FAX Confirmation sheet dated 22/11/12 on the
Final Reply from CGDA to MoD on Services HQ DGL
* * * * *
Page 130 to 134
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt - 10
Subject:
Implementation of Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in
Transfer Petition No. 56 of 2007 filed on behalf of
UoI Vs N K Nair &
Ors on the matter of Rank Pay: vetting of DGL regarding
Reference: MoD, D (Pay/Services) ID No. PC-34 (6)/2012
D (Pay/ Services) dated 14/11/2012
MoD may refer
to their ID quoted under reference under which DGL on the subject issue has
been forwarded to this HQrs for comments/vetting. The following comments are
offered in consultation with the concerned field Controllers for consideration
before final decision by the MoD.
2. The Hon’ble Supreme Court in its judgment dated 08/03/2012
have upheld the judgment dated 05/10/1998 of Kerala High Court. Upon further
hearing the Hon’ble Apex Court in its final judgment dated 04/09/2012 has
affirmed its earlier judgment dated 08/03/2010 clarifying that “….this order shall govern all similarly
situated officers…” with modification in the interest part. As such, the
Apex Court judgment dated 04/09/2012 may be implemented in the same way as was
done in the case of Maj (Retd) A K Dhanapalan. In this regard views of MoF vide
Para (b) (iv) of MoD, D (Pay/Services) ID dated 12/11/2012 on the subject also
refer. If extended benefits are allowed,
it may not stand in audit.
3. Keeping in view the above facts, para-wise comments as follows are offered on the DGL.
Para 2. High Court of
Kerala and Hon’ble Supreme Court judgment have made no mention about admitting
consequential benefits due to revision of pay during the service. Besides, the
pay of the officers who joined the service after 01/01/1986 has been correctly
fixed in the minimum of the Integrated Pay Scale as per the rank held. There
was no deduction of Rank Pay while fixing the pay of such officers in the
integrated pay scale. Hence they may not be covered for revision of Pay as per
Supreme Court order.
Section I
Para 4. The justification given by service HQrs does not seem to be
as per court order. The Court judgment does not have any mention about revision
of Integrated Pay Scale adding Rank Pay to it. Hence, revision of integrated
pay scale with changed rates of increments is not covered as per Court order. If it is done, the pay scale fixed for the
rank of Maj General & above may get burst (sic).
Para 5 (a) (iii). No
change is required to minimum pay fixed for each rank because the integrated
pay scale from Rs 2300-100-3900-150-4200-EB-150-5100 has been devised
considering the total span of 23 years from the rank of Lt to Brig. Since there
are no directives from Hon’ble Supreme Court for revision of the scale as per
fourth CPC, the change in minimum pay for each rank has no relevance.
Para 5 (c). Since Officers
commissioned after 01/01/86 are not affected by the Court Order, the provisions
for revision of pay as per court order may not be made applicable to these
officers.
Para 5 (d) & (e). On
completion of qualifying service for the rank and on promotion, the officers
will be entitled to get the maximum pay of the rank as per SAI 01/S/87. Pay
proposed in DGL vide Para 5 (a) (iii) may not be applicable in such cases. The
comments against para 5 (a) (iii) may also be referred in this regard.
Section II
Para 6 (a). The pay of
affected officers as on 01/01/1996 will be revised considering the pay in the
Integrated scale being drawn as on 31/12/1995 consequent upon the revision
carried out as on 01/01/1986 without deducting Rank Pay in compliance of
subject Apex Court order. Hence, no amendments to SAI 02/S/98 are required for
implementation of the Court order.
Para 7: Since the provisions of SAI 02/S/98 stand correct for
officers in service as on 01/01/1996 & commissioned thereafter, the pay
scales as mentioned at Para 6 of DGL become irrelevant.
Para 8 (b): Fixation of initial pay in the revised scale as on
01/01/96: Neither High Court of Kerala nor the Hon’ble Supreme Court has
issued any directives for revision of Pay Fixation Formula as per Fifth Pay
Commission orders for not deducting the Rank Pay. In this regard it is worth
noting that while implementing the judgment in the case of Maj (Retd)
Dhanapalan his pay was revised in the rank of Capt as on 01/01/1986 by
re-fixing it without deducting Rank Pay. This change of pay continued till
31/12/1995. After fifth CPC his pay was fixed as on 01/01/1996 as per fifth CPC
orders only. On representation from Maj (Retd) Dhanapalan for revision of his
pay as on 01/01/1996 consequent on 5th CPC recommendations without deducting Rank Pay, he was informed by the PCDA (O) that High Court order was
for “not deducting Rank Pay” as on 01/01/1986 and not as on 01/01/1996. No
further communication was received thereafter either from the officer or any
directive from High Court to justify the above claim of the officer.
It
is further stated that as per Fourth Pay Commission Orders, Rank Pay was
introduced for the first time which was in addition to Integrated Pay Scale.
But at the time of pay revision on Fifth Pay Commission orders, officers were
in receipt of Rank Pay which was treated as part of Basic Pay for all purposes
including pension, retirement & pensionary benefits. For revision of pay as
on 01/01/1996, 40% fitment was allowed
to be added to existing emoluments before deducting Rank Pay at pre-revised
rates while fixing pay in the revised pay scale for that rank. It is also felt
that Fifth Pay Commission’s recommendation may be looked at as independent and
distinct from Fourth Pay Commission. Moreover, the Rank Pay element introduced
in 4th Pay Commission has very much gone into the Pay fixation while
implementing 5th Pay Commission, as also mentioned above.
In
view of the above it is felt that the Apex Court order does not affect the
method of pay fixation adopted while implementing the Fifth CPC
recommendations. The estimated financial
implications were also, in fact worked out accordingly. However, the MoD
may take a final view in this regard after obtaining legal advice, if
needed.
Para 8 (e): All the provisions of SAI 01/S/87 are applicable for
pay revision to be carried out as on 01/01/1986 except the clause of “deducting
Rank Pay” before fixation of pay in the Integrated scale. Comments against Para
5 (a) (iii) of the DGL also refer.
Section III
Para 9: In case the
pay being drawn by the officers as on 31/12/2005 get affected due to the pay
revision carried out as on 01/01/1986 as per the Court order, the pay as on
01/01/06 will be revised with reference to the instructions laid down in SAI
01/S/08. Hence, changes proposed at Para 9, 10 & 11 of the DGL are
irrelevant.
Para 13: The court order
is applicable only to those officers in the rank of Capt to Brig who were in
service as on 01/01/86 and those whose pay was fixed in integrated pay scale
after deducting Rank Pay. Hence, no revision may be carried out for officers
commissioned thereafter.
Regarding
payment of interest, the method of calculation need to be mentioned in the DGL
i.e. whether it will be simple or compound interest. Interest on pension
arrears also needs to be specified as Para 13 of the DGL is silent about the
same.
Para 14, 15 & 16: Exercising of Option: In this regard it has
been specifically mentioned by PCDA (O) that deciding the most beneficial
manner/option for fixation of pay in such cases is not feasible due to various
reasons such as non-availability of date related to pay drawn and other
elements affecting pay entitlements due to destruction of time expired records
in huge number of cases, the time span involved in each case for scrutiny and
analysis of pay data with reference to different dates (i.e. increment,
promotion etc) at three occasions of pay
commissions and subsequent multiple promotions. Therefore, pay revision based
on such options is not feasible.
Para 18: Hon’ble Supreme Court decision has not mentioned about
revision of all pay linked allowances simultaneously.
4. General Points for
Consideration:
(a) Certain pay based allowances like HRA etc
admissible to only eligible officers, subject to fulfilment of specific
conditions for a particular period, are not revised even during pay commission
orders from retrospective dates. Hence, question of revision of such allowances
from retrospective dates may not arise.
(b) The DGL does not have any mention about
the procedure to be followed for revision of pay and calculations of arrears
where pay details and other information affecting pay entitlements is not
available due to destruction of records being time expired.
Addl CGDA (VS) has seen.
Sd/---------------------
(K L Mound)
ACGDA (AT-I)
Phone No. 011-25665581
Shri Naveen Kumar
Director (AG)
MoD, D (Pay/Services), Sena
Bhawan,
New Delhi
UO No. AT/I/1483-Army/X (PC)/III Dated: 22/11/2012
* * * * *
Page No. 135 - MOD ID No. PC
34(6)/2012-D (Pay/Services) dt 22.11.2012 intimating AS (A) will take a meeting
on 23.11.2012 at 1130 hours and requested JS & Addl FA (M), LA (Def), Jt
CGDA (AT.I), Dy Secy Deptt of Expenditure, MoF and Director, TRIPAS to attend.
* * * * *
Page Nos. 136 to 141 – Hon’ble
Supreme Court Order dt 04/09/2012 in IA No. 9 of 2010 in TP (C) No. 56 of 2007
in UoI & Ors Vs N.K. Nair & Ors
* * * * *
Page Nos .142 to 146 – Budgetary
provisions of Army
* * * * *
Page Nos. 147 to 153 –
Correspondence between PCDA (O) and Maj (Retd) A. K. Dhanapalan
* * * * *
Page No. 154 - No: Tech/0321/4th
CPC/Court Case, Office of the PCDA (O), Golibar Maidan, Pune – 411001, Dated:
14.11. 2012 to The CGDA, AT-I, Ulan Batar Road, Palam, Delhi Cantt - 10 Parawise
comments on the MoD ID No. 34 (6)/2012 – D (Pay/Services) dated 12.11.2012
addressed to the Director TRIPAS and the CGDA on quantum of payment to Maj
(Retd) Dhanapalan and also for random sample of 27 officers of major rank as on
01.01.1986.
* * * * *
Page Nos. 155 & 156 – Post
copy of observations dated 20.11.2012 by JCDA (AF) on DGL of Service HQrs
* * * * *
Page No. 157 – MoD ID No. 34
(6)/2012-D (Pay/Services) dated 26.11.2012 requesting a DGL by 27.11.2012 from
CGDA as it has not agreed with the DGL prepared by Service HQ.
* * * * *
Page Nos. 158 to 160 – Copy of
Note 16 dated 30.10.2012 of MoD file No. 34 (6)/2012-D(Pay/Services)
* * * * *
Page Nos. 161 & 162 – Copy of
MoF Dept of Expenditure Note 18 dated 9.11.2012 seeking clarifications vide
MoF. DoE. ID Note No. 187654/E III (A)/2012 dt 09/11/12
* * * * *
Page No. 163 – JS & Addl FA
(M) requesting CGDA to prepare DGL as it has not agreed to DGL prepared by
Service HQ
* * * * *
Page Nos. 164 to 176 – DGL dated
27.11.2012 prepared by CGDA and certain amendments incorporated with forwarding
letter to MoD (Def/Fin), copy to MoD, D (Pay/Services)
* * * * *
Page Nos. 177 to 182 – Request to
PCDA (O), ADGPS, ADG MP (P&P), Dy MS (B) to attend meeting on 06.12.2012
chaired by CGDA
* * * * *
Page Nos. 183, 184 & 185 –
MoD letter No. 34 (6)/2012-D(Pay/Services) dated 26.11.2012 about
implementation of Hon’ble Supreme Court order and request to TRIPAS to prepare
DGL.
* * * * *
Page No. 186 – Reply by TRIPAS
that DGL was forwarded vide Air HQ/99141/7/AFPCC (Ty BM) on 07.11.2012
* * * * *
Page Nos. 187 & 188 –
Intimation by TRIPAS about meeting chaired by Chairman PARC on 04.12.2012 to
finalise DGL and response from O/o CGDA that such a meeting is not considered
necessary at this stage.
Page No. 189 – FAX confirmation
of O/o CGDA
* * * * *
Page Nos. 190 to 195 - Financial implications by NPO and PCDA
(N) Mumbai
* * * * *
Page Nos. 196 to 198 – Postal
copies of observations/comments of PCDA (N) dated 21.11.12 on DGL of Service HQ
* * * * *
Page 199
Ministry of Defence (Fin)
AG (PA)
URGENT/COURT CASE
Subject : Implementation of Hon’ble Supreme Court order dated
04/09/2012 in IA No. 9 of 2010…………..UoI Vs NK Nair and Ors in the matter Rank
Pay
CGDA
may please refer to their UO No. AT/I/1483-Army/X (PC)/III dated 29/11/2012 on
the subject noted above. Observations of MoD (Finance) on that basis, has been
sent to JS (E) MoD on 29/11/2012 with kind concurrence of FA (DS)
2. JS (E) MoD rang me at 11.40 AM today intimating that Defence
Secretary desires the remarks of MoD (Fin) on the following: -
“Since there
is apparently no change in pay scales after implementation of Hon’ble Supreme (Court) Orders, methods/procedures should
be suggested if the pay crosses the maximum pay scale after requisite fixation.
Whether that excess amount should be treated as personal pay or otherwise with
requisite consequential financial implementation (implication?), may also be indicated.”
3.
Since the matter has to be sent to MoF for
approval, urgent feedback on war footing, preferably by 3rd December
2012 (afternoon) is solicited.
Sd/----------------------
(BK Mukhopadhyay)
JS & Addl FA (M)
3rd December
2012
Tele (Fax) - 23792076
Shri M Singh
Jt CGDA
UO No. MoD (Fin) 8
(13)/2012-AG/PA dated 3rd December 2012
* * * * *
Page Nos 200 to 203 – Draft
replies to the above
* * * * *
Page 204
Office of the CGDA,
Ulan Batar Road, Palam, Delhi Cantt -10
Subject: Implementation of
Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in
Transfer Petition No. 56 of 2007 filed on behalf of
UoI Vs N K Nair &
Ors on the matter of Rank Pay
Reference: MoD (Finance) UO Note No. MoD (Fin) 8 (13).
2012 – AG/PA dated 03/12/2012
DGL
was prepared by this office as per the directions of MoD (Finance) and the same
was forwarded vide this HQrs office UO Note of even No dated 29/11/2012. Now,
it has been desired to suggest methods/procedures if the pay crosses the
maximum of the pay scale after requisite fixation and whether the excess amount
should be treated as personal pay or otherwise. The issue has been examined in
consultation with concerned field Controllers office and following is stated.
a) Para 6 (c) of SAI 1/S/87 stipulates
that if the amount computed as per sub-para a (ii) of the ibid SAI is more than
the maximum of the revised scale, the pay will be fixed at the maximum of the
revised scale. There is no provision in this clause to allow the excess as
personal pay to be absorbed in future increases in pay.
b) However, as per Para 6 (j) of the ibid
SAI where existing emoluments as calculated in accordance with sub-para (e) or
(g) of ibid SAI exceed the revised emoluments so fixed in the case of any
officer, the difference shall be allowed as personal pay to be absorbed in
future increases in pay. However, it may be stated that in this clause there is
comparison between existing emoluments and revised emoluments. Therefore, this
clause is not applicable for protecting the pay in subject cases.
In
view of the above, if any protection is to be given, suitable amendment in the
provisions of para 6 (c) of SAI 1/S/87 and corresponding provisions of SNI
& SAFI would be required.
Sd/-----------------
(K L Mound)
ACGDA (AT-I)
Phone No. 011-25665581
Sh. B K Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi
UO No. AT/I/1483-Army/X (PC) III
dated 06/12/2012
* * * * *
Page Nos. 205 to 214 – Report of
the High Powered Committee
* * * * *
Page No. 215 – MoD ID No. 34 (6)
2012 – D (Pay/Services) dated 6.12.2012 seeking clarifications from O/O CGDA on
several issues including whether “the affidavit filed by the Committee of Three
Secretaries in the Supreme Court will have any impact on the refixation of pay
in the Rank Pay case.”
* * * * *
Page No. 216 – MOD ID of even No
dated 6.12.2012 requesting Jt CGDA to make rank-wise calculations of the
minimum and maximum of the pay scales based on proposed revised DGL
* * * * *
Page Nos. 217 to 225 – Drafts of
revised DGL prepared by CGDA
* * * * *
Page Nos. 227 & 228 –
Photocopy of Swamy’s Fundamental Rules pages 16, 17, 140 and 141
* * * * *
Page No. 229 - Director (AG), MoD D (Pay/Services)
requesting immediate follow up on meeting taken by Defence Secretary on
7.12.2012
* * * * *
Page 230
Ministry of Defence (Fin)
AG (PA)
URGENT/COURT CASE
Subject : Implementation of Hon’ble Supreme Court order dated
04/9/2010 in IA No. 9 of 2010………UOI Vs N K Nair & Ors in the matter
of Rank Pay
O/O CGDA may
please refer to the meeting taken by the Defence Secretary on 7th
December 2012 (AN) on the subject noted above and to say that as desired by the
Chairman of the meeting, a revised DGL, incorporating element of ‘personal
pay,’ if any, when the pay, fixed as per Supreme Court Order, crosses the
maximum of the pay scale, may kindly be sent by return Fax.
Sd/-----------------
10/12
B K Mukhopadhyay
JS & Addl FA (M)
10th
December 2012
Ms Vandana Srivastava
Addl CGDA
UO No MoD (Fin) 8 (13) /2012-AG/PA dated 10th
December 2012
n.a.pl
Sd/--- 10/12/12
SAO (AT-I)
* * * * *
Page Nos. 231 to 236 – Revised DGL prepared by O/O CGDA
* * * * *
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt-10
Subject:
Implementation of Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in
Transfer Petition No 56 of 2007 filed on behalf of
UoI Vs N K Nair &
Ors in the matter of Rank Pay
Reference: MOD
(Finance) UO Note No. MoD (Fin) 8 (13)/2012-AG/PA dated 10/12/2012
It is
mentioned that the term personal pay has been defined in the FR 9 (23) as
under:
“Personal Pay means additional pay granted
to a Government servant – (a) to save him from a loss of substantive pay in
respect of a permanent post other than a tenure post due to a revision of pay
or to any reduction of such substantive pay otherwise than as a disciplinary
measure: or (b) in exceptional circumstances, on other personal considerations.”
2. Further, FR 37 stipulates that “Except when the authority sanctioning it orders otherwise, personal pay
shall be reduced by any amounts by which the recipient’s pay may be increased,
and shall cease as soon as his pay is increased by an amount equal to his
personal pay.” The condition of future absorption of Personal pay exists in
Para 6 (j) of SAI 1/S/87.
3. Thus, usually, the personal pay is to be absorbed in future
increases of pay unless it is decided
otherwise by the competent authority.
4. Keeping in view the above aspects, this HQrs office, vide
Para 3 (c) of UO Note dated 07/12/2012 had suggested for consideration that if
any protection is to be given, suitable amendment in the provisions of para 6
(c) of SAI 1/S/87 and corresponding provisions
of SNI & SAFI would be required. However, as directed in MoD (Fin)
UO Note referred above and MoD ID dated 10/12/2012 [copy of which has been
endorsed to Defence (Fin)] a revised DGL incorporating element of ‘personal
pay’ at para 2 (c) is forwarded herewith for examination and consideration
please.
Addl CGDA (VS) has seen.
Sd/-------------------
(J P Kukade)
Sr Accounts Officer
(AT-I)
Phone no 011 -25665580
Shri B K Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi
UO No. AT/I/1483-Army/X (PC)/III dated 10/12/2012
* * * * *
Page No. 238 – FAX transmission sheet
* * * * *
Page No. 239 – MoD ID No
PC-34(6)/2012-D (Pay/Services) dated 9th November 2012 to O/O CGDA
requesting likely cash outgo
* * * * *
Page Nos. 240 to 246 – Postal
copy of PCDA (O) observation dated 21.11.2012 on DGL prepared by Services HQ
* * * * *
Page Nos. 247 & 248, 252 & 253 (duplicate copies) –
ADGPS IHQ of MoD (Army) letter dated 05.11.2012 requesting PCDA (O) of contact
for providing details of officers affected in Rank Pay case
Page Nos. 249 to 251 – Response of PCDA (O) to O/o CGDA on
the above
* * * * *
Page Nos. 254 to 311 -
in Part 3 of 3
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