16th August 2013
REQUEST FOR INFORMATION
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) 6th 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) 30th January 1997: 5th CPC submitted its Report and Recommendations to Govt of India.
(iii) 31st August 1997: Maj Dhanapalan retires prematurely from the Army.
(iv) 30th September 1997: GoI approved 5th CPC Report vide MoF Notification No. 50 (I)/IC/97.
(v) 19th December 1997: MoD issues SAI/SNI/SAFI 2/S/1998 including the impugned methodology recommended by 5th CPC for fixation of pay of Defence Services Officers.
(vi) 5th 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) 23rd 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 5th 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 5th CPC or SAI No. 2/S/98.
(ix) 4th 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) 12th 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 5th 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) 8th 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) 4th 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) 21st November 2012: PCDA (O) in No. Tech/0321/4CPC/Court case dated 21 Nov 2012 extensively asserts non-applicability of Judgment/Orders to 5th CPC and 6th 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 5th 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 5th and 6th 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.