A CASE SEEKING THE OPINION OF
THE ATTORNEY GENERAL OF INDIA
BY
THE ARMED FORCES OF THE UNION OF INDIA
ON
THE INTERPRETATION OF THE JUDGMENTS OF
THE HON’BLE HIGH COURT OF KERALA IN
O.P.2448 OF 1996 DATED 05 OCT 98, W.A. 518 OF 1999
& SLP (CC) 5908/2005 IN HON’BLE SUPREME COURT
in MAJ (RETD) A K DHANAPALAN Vs. UOI
AND
THE HON’BLE SUPREME COURT OF INDIA IN
TP(C) 56 OF 2007 DATED 08 MARCH 2010 &
IA No. 9 OF 2010 IN TP (C) 56 OF 2007 DATED 04 SEP 12
UOI & OTHERS Vs. N. K. NAIR & OTHERS
RANK PAY CASE
INTRODUCTION
1.
The Rank Pay issue
(also known as Maj Dhanapalan case) refers to extension of the judgment given
in the case of Major AK Dhanapalan by a Ld Single Judge and then a Division
Bench of the Hon’ble High Court of Kerala to correct his pay fixation which was
wrongly carried out under the provisions the pay instructions SAI No. 1/S/87
issued by MoD for implementing the 4th Central Pay Commission (4th
CPC) award. On appeal by UoI in N. K.
Nair & Others, the Hon’ble Supreme Court of India has upheld the judgment
of the Hon’ble High Court while extending it to all officers irrespective of
the fact whether they had approached the court or not along with interest on
arrears.
2.
The government has
decided to implement the order of Hon’ble Supreme Court of India. However, the interpretation of the Order of
the Hon’ble Supreme Court by the Armed Forces and the Ministry of Defence are
different. Hon’ble Raksha Mantri has directed the Ministry and the Armed Forces
to obtain the interpretation of the learned Attorney General of India by
processing their cases separately.
3.
The Hon’ble High
Court of Kerala in the said case had held that the Rank Pay is something which
has been given to Army Officers in addition to the existing pay scales. That is
not an amount which has to be deducted in order to arrive at the total
emoluments which an Army Officer is entitled to get. It directed UoI that the
pay of Maj AK Dhanapalan to be re-fixed from 01.01.86 by paying him the rank
pay over and above the basic pay. It also directed a second re-fixation on his
promotion stating, “The petitioner is also entitled to get his pay re-fixed
in accordance with the pay fixation of 1987”. Based on this judgment other affected officers
also filed petitions in various High Courts which were consolidated by the Hon’ble
Supreme Court based on a request by MoD.
4.
A Bench of the Hon’ble
Supreme Court comprising Justice Markandey Katju (since retired) and Justice R
M Lodha heard these appeals on 08 Mar 10 and upheld the reasoning in the
judgments of the Hon’ble High Court of Kerala.
It directed that relief similar to Maj Dhanapalan be given along with
interest computed @ 6% per annum with retrospective effect from 1.1.1986. The UoI filed an Interlocutory Application No.
9 of 2010 against the Order of the Hon’ble Supreme Court which was finally
disposed of on 04 Sep 12 by Justices R M Lodha, T S Thakur and Anil R Dave of the
Hon’ble Supreme Court. The Hon’ble Court upheld the Hon’ble High Court of
Kerala’s judgment that the Rank Pay which was deducted from the total
emoluments and granted separately is not to be deducted from the emoluments as
was done in the impugned Govt orders.
The Hon’ble High Court of Kerala had also held that Rank Pay is in
addition to the Pay fixed in the integrated pay scale i.e. after the
application of the fixation formula, the pay so arrived at will, in addition,
be enhanced by the rank pay with effect from 01.01.1986. The Hon’ble Supreme Court
also directed payment of interest on arrears so calculated @ 6% which will be
payable to all similarly situated officers with effect from 01 Jan 2006. The
MoD was given a period of 12 weeks to implement the court order. The time was
extended till 31 May 13 by the Hon’ble Supreme Court based on an Interlocutory
Application No. 11 of 2013 filed by UoI.
5.
The matter at hand
pertains to implementation of the Hon’ble Supreme Court’s order for all
similarly situated officers, upholding the reasoning in the judgment of the
Hon’ble High Court of Kerala in the case of Maj A K Dhanapalan. The MoD order
dated 27 Dec 12 hereinafter called implementation
order has been issued to authorise the re-fixation of pay of affected
officers as directed by the Hon’ble Supreme Court. However, the implementation
order issued denies justice to the affected officers, both serving as well as
retired and the NoK of deceased officers. It is contended by Service HQ that
the implementation orders are not in keeping with the letter and spirit of Hon’ble
Supreme Court’s order. Thus, a need has
been felt to put the matter in its correct perspective and to take it to its
logical end. The issue is discussed at length in the succeeding paragraphs.
BACKGROUND
6.
The concept of Rank
Pay was first introduced by the 4th Central Pay Commission
hereinafter referred to as 4th CPC vide Para 28.12 and 28.13 of its
report attached as Annexure-I. The 4th
CPC recommended a running pay scale called the integrated pay scale for
officers’ ranks from 2nd Lieutenant to Brigadier. The relevant
recommendation of 4th CPC is given below: -
“28.12
…. Taking all factors into
account, we recommend the integrated pay scale for all officers upto the rank
of Brigadier and equivalent in the three services : -
Rs.
2300 – 100 – 4200EB – 100 – 5000
28.13. We also recommend that, in addition to pay
in the above integrated scale, the following rank pays may be given to officers
in Army and their equivalent in the other services: -…“
7.
The Government accepted the recommendation of
the 4th CPC vide Gazette of India Extraordinary Resolution no 9-E
dated 18 Mar 87 which is attached as Annexure
II. The decision of the Government was later promulgated for implementation
in the form of Special Army Instructions (for short SAI) 1/S/1987 which is
attached as Annexure-III. Similar
instructions were separately issued for the Navy and Air Force. The important
features of these instructions were: -
(a)
The increased rate
of annual increment of Rs 150 which was applicable to the civilian scales from
Rs 3900 onwards and ignored for Armed Forces pay scales was extended to the integrated
Scale. It also resulted in slight change in the top of scale as the stage of Rs
5000/- was not present in the integrated scale. It further resulted in reducing
the time span of 28 years for promotion from 2nd Lt to Brig as
envisaged by 4th CPC to 23 years. The integrated pay scale for the
ranks of 2nd Lt to Brigadier was, therefore, changed to: -
Rs.
2300 – 100 – 3900 – 150 – 4200 – EB – 150 – 5100
(b)
For fixation of
pay, the following methodology was promulgated vide Para 6 (a) of SAI 1/S/87:-
Para 6 (a) (i). An amount representing 20% of the basic pay
in the existing scale shall be added to the existing emoluments of the officer.
Para 6 (a) (ii). After the existing emoluments have been so
increased, an amount equivalent to the rank pay, if any, appropriate to the
rank held by officer on 01 January 1986 at the rates prescribed in Para 3
(a) (ii) above, will be deducted. Thereafter,
the officer’s pay will be fixed in the revised scale at the stage next above
the amount thus computed. In case the stage of fixation falls below the minimum
pay for the rank held by the officer on 01 January 1986 as prescribed in the
table below, the pay will be stepped up to such minimum provided the officer
has completed the length of reckonable commissioned service indicated in the
same table: -
Rank
|
Minimum Pay in the Integrated Scale
|
Completed years of service
|
|
Lieutenant
|
2500
|
2
|
|
Captain
|
2800
|
5
|
|
Major
|
3400
|
11
|
|
Lt
Col(Selection)
|
3900
|
16
|
|
Colonel
|
4500
|
20
|
|
Brigadier
|
4950
|
23
|
(c)
A minimum pay was
thus introduced, within this integrated pay scale for each rank linked to
length of service required to attain that rank. This was an integral part of
the fixation process as it provided a minimum for each rank linked to the
number of years of service. In case the stage of fixation was below the minimum
pay for the rank held, it was to be raised to the minimum thus specified. No such recommendation was made by the 4th
CPC nor any table as given above. Therefore, the methodology for calculation of
this minimum pay as given in column 2 of the table is not available in the
report of 4th CPC. This methodology can, however, be established
by simple arithmetic as shown subsequently in this document.
(d)
Another relevant
provision of SAI 1/S/87 was the definition of rank pay given in para 2 (d) of
SAI 1/S/87. It was defined as: -
“Rank
Pay” means the pay admissible to an officer appropriate to the rank actually
held, either in acting or substantive capacity, in addition to the pay in
revised scale. Rank pay forms part of basic pay.
THE JUDGMENT OF HON’BLE HIGH COURT OF KERALA
AND
THE HON’BLE SUPREME COURT
8.
Aggrieved by the
provisions of SAI No. 1/S/87, Maj A K Dhanapalan filed O. P. No. 2448 of 1996
in the Hon’ble High Court of Kerala. The case filed by Maj Dhanapalan was
decided by Hon’ble Mr. Justice C. S. Rajan on 05 Oct 98. A copy of the judgment
is attached as Annexure -IV. The Hon’ble
Court held that the deduction of Rank Pay from the amount arrived at by the
fixation formula was incorrect. It directed that the petitioners pay be re-fixed
from 01.01.86 by paying him the rank pay over and above the basic pay. An
appeal against this judgment of learned single judge was filed by UoI in a
Division Bench of the Hon’ble High Court of Kerala vide writ appeal No.
518/1999. The Division Bench of Hon’ble High
Court of Kerala affirmed the judgment of learned single Judge vide its order
dated 04 Jul 2003. A copy of the Division Bench of High Court of Kerala
Judgment is placed as Annexure - V.
After dismissal of appeal in the Supreme Court (No. 5908 (CC) of 2005) in the
case of Maj A K Dhanapalan, arrears amounting to Rs 28,031 were paid in 2006.
9.
Meanwhile a large
number of petitions were filed in several High Courts seeking the benefit of
the judgment of the High Court of Kerala in the case of Maj A K Dhanapalan.
These petitions were transferred to Supreme Court on the request of UOI as
Transfer Petition (Civil) No. 56 of 2007. The combined cases were adjudicated
upon by the Hon’ble Supreme Court with Mr. Justice Markandey Katju and Mr.
Justice R M Lodha in the bench. In Writ Petition (C) No 96 of 2009 tagged with
TP (C) N0 57 of 2007. the Hon’ble Supreme Court agreed with the reasoning given
in the judgment of Hon’ble High Court of
Kerala and upheld the judgment in its order dated 08 Mar 2010. The copy of the Order
is placed as Annexure -VI.
10.
Thereafter, Ministry
of Defence on the advice of the then Solicitor General of India dated 31 Mar
10, constituted a High Powered Committee (HPC) on 05.04.2010 to assess the
financial impact in the implementation of the order of Hon’ble Supreme Court in
the rank pay case in the Writ Petition (c) No. 96/2009- Sunil Kumar Chand and
Ors Vs UOI and Ors dated 08 Mar 2010. The HPC consisted of Def Secy,
Expenditure Secy, and Secy Def (Fin). Based on the Report of the HPC, the
Hon’ble Supreme Court was again approached by UOI by way of Interlocutory
Application (I. A.) No 9 of 2010. UOI, in its submissions before the Hon’ble Supreme
Court on the interpretation and effects of implementations of the Hon’ble High
Court of Kerala’s judgments, submitted Affidavits and Additional Affidavits. Copies
of the Affidavit and Additional Affidavit is placed as Annexure -VII & VIII
respectively. The report of the HPC was also submitted to the Hon’ble Supreme
Court and a copy of the same is placed as Annexure
- IX.
11.
The case, after taking due cognizance of all
submissions, was finally disposed of by a larger Bench of the Hon’ble Supreme
Court vide its order dated 04 Sep 2012. The copy of the Order is placed as Annexure-X.
Developments After Supreme Court Judgment
12.
UOI then sought
the opinion of the then Solicitor General on certain aspects of interpretation
of the Order dated 04 Sep 12 and his opinion was received on 17.10.2012 and is
placed as Annexure XI. UoI then
decided to implement the verdict of the Hon’ble Supreme Court. Government
Orders have been issued vide MoD No. 34(6)2012-D(Pay/Services) Dated 27 Dec 12,
a copy of which is placed as Annexure - XII.
Interpretations of the Order of the Hon’ble Supreme Court
13.
The Chairman COSC
and Chief of Air Staff, Air Chief Marshal N A K Browne PVSM AVSM VM ADC has
written to Hon’ble RM stating that the ibid implementation order is not in
compliance with the Hon’ble Supreme Court’s Order. The DO from Chairman COSC
& CAS is placed as Annexure-XII.
When no action was forthcoming, Chairman COSC & CAS wrote another DO to Hon’ble
Raksha Mantri on 27 May 13 which is placed as Annexure-XIII.
14.
To appreciate the
issue, it is necessary to examine the order of the Hon’ble High Court of
Kerala’s judgment in more detail. The ratio (legal principle) of the judgment
given in their order dated 05 Oct 98 is as follows: -
"Under these circumstances, I am of the view
that respondents 2 and 3 had completely misunderstood the scope of extending
the benefit of the payment of rank pay to the Army Officers. Rank Pay is something which has been given to Army Officers in
addition to the existing pay scales. That is not an amount which has to be
deducted in order to arrive at the total emoluments which an Army Officer is entitled to get.”
15.
Based on the afore stated ratio, the operative part of the Hon’ble High Court of
Kerala’s judgment (Annexure –III) reads as under:-
"Under these circumstances, the respondents 2 and 3 are directed to
re-fix the pay of the petitioner with effect
from 1.1.86 without deducting the Rank Pay of Rs.200/- as has been done by the respondents 2 and 3. The petitioner is also entitled to get his
pay re-fixed in accordance with the pay fixation of 1987 evidenced by Ext.
P1. Respondents 2 and 3 are directed to complete the process of re-fixation of
the pay of the Petitioner as directed above, within three months from the date
of receipt of a copy of this judgment."
ISSUE - 1 : “WITH EFFECT FROM 01.01.86” OR “AS ON 1.1.86”
16.
Issue. The implementation
orders dated 27 Dec 12, at Para 6 and 8 have modified the Special Army
Instructions 1/S/1987 and corresponding Special Navy and Air Force Instructions
in so far as it relates to deduction of Rank Pay and to re-fix the initial pay
of the concerned officers of the three services in the revised scale
(integrated scale) as on 1.1.1986. It is noticeable that the court in its
judgment has used the term with
effect from 1.1.86 which has been changed to as on 1.1.86 in the ibid Govt order. This subtle change in
language narrows down the scope to the extent that it only partially implements
the court’s judgment. The Armed Forces
have objected to the use of words ‘as on 1.1.86’. They are of the opinion that the words ‘with
effect from 1.1.86’ which have been used by the courts should be used in these
orders to give effect to the Court Orders correctly in letter and spirit.
Armed Forces Views
17.
In the implementation orders, only
the first sentence of the court direction has been mentioned ignoring the
remaining part of direction of Hon’ble High Court of Kerala. Whilst, in the order, the Hon’ble Court has
used the words “with effect from 1.1.86”
the implementation order reads “as on 1.1.86”. It is felt by the Services that the term
“with effect from” connotes an ongoing
application where as the term “as on” implies one time application of the
direction of the court. Therefore, “with
effect from” will require re-fixation of pay of all officers on 1.1.86 and
thereafter on promotions as well e.g. an officer promoted on 01 Feb 1886 will
also be entitled to the benefit of the court order like those who were already
in the higher rank on 1.1.86. The term
“as on” on the other hand restricts it only to one time application for those
officers who held the rank of Capt to Brig and equivalent on 1.1.86.
18.
To substantiate the point it is necessary
to examine the second sentence of the directive part of the order. The Services
have pointed out that MoD has inexplicably omitted this sentence from the
judgment quoted in the Govt order. As
per the order of the Hon’ble High Court of Kerala, after having directed to
re-fix the pay of the officer with effect from 1.1.86 in the first sentence, the
directions continued and stated “The
petitioner is also entitled to get his pay re-fixed in accordance with the pay
fixation of 1987 evidenced by Ext. P1”. Clearly the court has directed
re-fixation of the pay for Maj AK Dhanapalan to be done twice. It is conceded that the pay cannot be
re-fixed twice on the same day i.e. 1.1.86.
The occasion to carry out this second re-fixation can be deduced from
the first paragraph of the Hon’ble High Court of Kerala’s judgment which considers
the facts of the case and reads: -
“The Petitioner is a retired Commissioned Officer
(Major) in the Indian Army. As per Ext
P1 resolution issued by the Government of India, Ministry of Defence, in
addition to pay in the integrated scale, rank pay are admissible to the Army
officers. The amount of rank pay for
officers in the Rank of Major and equivalent is Rs 600/-. This is the pay revision of 1987. In an earlier pay revision with which we are
concerned the above amount was Rs 200/-.
But the petitioner was not granted the benefit of the above rank pay…….”
19.
Therefore, the Hon’ble court has mentioned
about two revisions of pay for Maj AK Dhanapalan ie when the rank pay was Rs
200/- and when it became Rs 600/-. During the 4th CPC regime, the rank
pay changed from Rs 200/- to Rs 600/- on promotion from the rank of Captain to
Major. Therefore, the court has directed the second re-fixation on the
promotion of the then Capt AK Dhanapalan to the rank of Major be also carried
out. The MoD order dated 27 Dec 12, however, has not provided for the pay
re-fixation again on promotion. This presumably
is due to the fact the MoD letter mentioned the phase “as on” instead of ‘with
effect from’. The phrase ‘as on’ neither
relates to nor implements the direction of the judgment in its entirety. The
moot issue is that the court order is to be implemented conforming to the
principles of law established by the Apex Court’s verdict to give a treatment
to “Rank Pay” in fixation of pay of officers in 4th CPC.
20.
The fact that now needs
consideration and opinion is whether the language of the Hon’ble Supreme
Court’s Order can be changed by MoD. The consequential effect of replacing the
phrase ‘with effect from’ to ‘as on’ also needs validation from legal point of
view. Further, it also needs to be considered whether the second line of the
judgment of Hon’ble High Court of Kerala as mentioned in Para 18 above needs to
be included in the MoD order.
21.
It is pertinent to
mention that while upholding judgments of the Hon’ble High Court of Kerala,
Hon’ble Supreme Court in its order dated on 04 Sept 2012 has further clarified
that:-
"It is clarified that this order shall govern all similarly situated officers who have not
approached the court and also those who have filed writ petitions which are pending before various High Courts/AFT".
22.
It may be mentioned, in this regard,
that in April 2010, a Committee headed by the Defence Secretary which comprised
Secretary (Department of Expenditure) and Secretary Defence (Fin) as members in
it’s Report had stated that pay fixation needs to be done for Officers on
1.1.86, 1.196 and 1.1.06. This report
was also submitted as a part of the additional affidavit in the Hon’ble Supreme
Court. In the Additional Affidavit, MoD
had further submitted that the instant
court order will entail re-fixation of pay of not only the officers
entitled to Rank Pay, but pay scales of
other personnel above and below such officers will have to be revised with
effect from 1.1.86 firstly, and then from 1.1.1996 and 1.1.2006. i.e. at the
time of subsequent pay revisions. It is for consideration that the Government
interpretation of the court order in its submissions to the Hon’ble Supreme
Court as part of Affidavits and while implementation of the same order needs to
be similar or not. Whether the change in Govt’s stand in the matter as occasioned
above is judicially/legally correct may be clarified and commented upon.
23.
The view of
Controller General of Defence Accounts (for short CGDA) on this matter has been
that whatever was done by Controller of Defence Accounts (Officers) in the case
of Maj AK Dhanapalan is to be done now for implementing the court order for
affected officers. This may not be the
correct stand to adopt. If, in the case
of Maj AK Dhanapalan (Retd), the judgment has been applied incorrectly that
cannot be justifiably extended to all officers.
It may be noted that Maj AK Dhanapalan (Retd) had represented repeatedly
against the manner in which the court order was implemented, but he did not
move the court for the same when the CDA (O) informed him that the impugned
methodology has been incorporated even in the 5th CPC and consequent
SAI No. 2/S/98 dated 19th December 1997, i.e. ten months before the
Hon’ble High Court of Kerala passed its judgment on 5th October 1998. It may be appreciated that a retired soldier
will have his financial and other limitations in moving the courts on each
wrong. Just because Maj Dhanapalan did
not appeal to the Courts cannot mean that he accepted that the Hon’ble High Court’s
order has been implemented correctly in his case also.
24.
Consequential
Effect. The implementation orders issued on 27 Dec 12 has used a
particular interpretation of the court orders which is not in conformity with the many sworn submissions of MoD to
Hon’ble Supreme Court. This deviation would result in the following
inconsistencies in the Govt Order:-
(a)
It will lead to different officers of the same rank drawing
different pay with same years of service in the currency of the same pay
commission thus violating the basic principle that personnel belonging to a
particular rank with equal years of service are remunerated equally in terms of
pay and pension.
(b)
Extending provisions of judgment to the officers who were
in the service as on 1.1.86 in the
rank of Captain to Brigadier only is in violation of judgment and spirit of the
judgments of Hon'ble High Court/ orders of Hon’ble Supreme Court which have
implied that it should be an ongoing process applicable with effect from
1.1.86 to all similarly situated officers and not only to officers in
service as on 01.01.86.
25.
Amendment
Sought by Armed Forces in implementation orders. Re-fixation of pay be done with effect from
01.01.86 in respect of all defence officers who were in service as on
01.01.86 as well as for those who joined/promoted thereafter as per the
documented verdict of Hon'ble Supreme Court.
ISSUE - 2 :
REVISION OF MINIMUM PAY
OF RANKS IN THE INTEGRATED SCALE
26.
Issue. The Govt
order issued for implementing court order has no provision to change the Integrated
Pay Scale (Para 3(a)(i) of SAI/SNI/SAFI 1/S/87) and the minimum pay for each
rank in the Integrated Pay Scale ( Para 6 (a) (ii)of SAI/SNI/SAFI 1/S/87).
This in fact has resulted in two different pay scales for the same rank in the
currency of the 4th CPC. A
large number of officers who were promoted to the rank of Capt and Equivalent
after 01.01.86 as well as those who joined service after that date and became
entitled for Rank Pay subsequently will be adversely affected by the
implementing order and no change in their pay is envisaged and they will
continue to draw the pay as given in the existing SAI/SNI/SAFI relating to 4th
CPC.
Armed Forces Views
27.
As per Armed
Forces, the provision of deduction of rank pay as mentioned in para 6 (a) (ii)
of the Special Army Instruction and corresponding instructions for the other
two services is just one sentence of the ibid para. This sub-sub Para lays down the methodology
of deduction of rank pay from the total emoluments of an officer and the
process to be adopted thereafter. It
also states that in case the stage of fixation falls below the minimum pay for
the rank held by the officer on 01 Jan 1986 as prescribed in the tables below,
the pay will be stepped up to such minimum provided the officer has completed
the length of reckonable commissioned service indicated in the same table. The
ibid Para contains a table which specifies, within the integrated scale, the
minimum pay for each rank. It may be
pertinent to note that neither such table was recommended by the 4th CPC nor was
it published in the Government resolution approving the recommendations of the
4th CPC. These have been added in SAI/SNI/SAFI
No. 1/S/87 by MoD. These minimums for
each rank had also been depressed by an amount equal to the rank pay only due
to deduction of rank pay. This is borne
out by simple arithmetic and comparing equivalent pay scales of civil and
military and also Para 2.3.10 (iv) of
the report of the 6th CPC which while analysing the Rank Pay noted:
-
“(iv) The Fourth CPC had continued this edge in
devising the running pay band for Defence Forces officers up to the rank of
Brigadier and had revised the integrated pay scale taking in account the time
taken for promotion to different pay scales. The element of rank pay was
carved out of the pay scales so revised after giving the edge vis-Ã -vis
civilian group A officers.”
28.
It is imperative
that the rank pay which was carved out of the pay scales by the impugned SAI/SNI/SAFI
No. 1/S/87 is added back. Only this will
implement the Hon’ble Courts’ orders in letter and spirit. The minimum for each rank represents its pay
scale and need to be revised to give effect to re-fixation with effect from
1.1.86. Deletion of only the clause
related to deduction of rank pay without changing the minimum for each rank,
which has also been arrived at by deducting the rank pay, gives rise to a
situation where Officers who were promoted to the rank of Capt and equivalent
or joined service after 1.1.86 and rose to the ranks of Capt/equiv will draw
lesser pay than those who got promoted before that date with same years of
service. This is because the implementation orders has not addressed this
aspect by due modification of para 6 (a)(ii) table and it has resulted in
enhancing the pay of the rank only for those who held the rank as on 01 Jan 86.
29.
The Division Bench
of Hon’ble High Court of Kerala, while dismissing the appeal of UoI against the
judgment of Learned single judge directed: -
“It is clear that for Civilian officers, there is no
rank pay. But for Army Officers, there
is rank pay admittedly as mentioned above.
Necessarily, when the principles as mentioned above applies to Army
Officers, the rank pay shall also be added to substantive pay. That is what has been directed in the
impugned judgment. Therefore, there is
no merit in the appeal. The appeal
fails.”
30.
The implementation
orders dated 27 Dec 12 ignores this judgment and fails to add Rank Pay to the
substantive pay for each rank tabulated in Para 6 (a) (ii) of SAI 1/S/87 which additionally
contains the provisions for deduction of rank pay.
31.
To understand this
anomaly, the pay fixation of officers commissioned in Dec 80 and Jun 81, who
will get different pay is exemplified below :-
|
|
DOC : DEC 80
|
DOC : Jun 81
|
|
Rank on 1.1.86
|
Flt Lt
|
Fg Offr
|
|
Existing Basic Pay (Min of the scale)
|
1200
|
910
|
|
DA, ADA, Ad Hoc DA, IR
|
1640
|
1514
|
|
Existing Emoluments
|
2840
|
2425
|
|
20% of Basic Pay
|
240
|
182
|
|
Total Emoluments
|
3080
|
2607
|
|
Pay Fixation 1.1.86 (Revised Minimum)
|
3100
|
2700
|
|
Pay after 5 yrs of Service As on
01/06/1986
|
3100
|
2800
|
32.
This is also
against the basic principle enunciated by pay commissions which ensures that
officers of the same rank and length of service are remunerated equally. 5th CPC, at Para 147.12 of their report
elucidating this principle have observed: -
“147.12: Armed Forces officers up to the rank of
Brigadier are presently paid on the basis of an integrated pay scale introduced
on the recommendations of the Fourth CPC so as to provide reasonable career
progression to service officers. To compensate for ranks attained, rank pay is
also granted which attracts dearness allowance and is reckoned for pensionary
benefits. The integrated pay scale has a fixed minimum pay for each rank linked
to number of years taken to achieve such rank. The resultant effect is that
personnel belonging to a particular rank with equal number of years of service
are remunerated equally….”
Amount of Minimum of Scale/Rank Pay
33.
The pay commission has not given the arithmetic or the
logic as to how it arrived at the amount (quantum) of Rank Pay. This can be
derived by examining the report in a holistic manner. It is important to know
that all Pay Commissions decide principles for enhancing the pay scales which
may or may not be discussed in detail in their report. These principles are
common to all pay scales irrespective of the cadre save some exceptions which
are explained in the text of the report.
34.
Senior Time Scale
for civil services, before 4th CPC, started at Rs 1100/1200. On the other hand, the pay scale of a Captain
in the Army and his equivalents in other services, started at 1200. The start of the scale recommended by 4th
CPC for STS was Rs 3000. If the Rank Pay
was not introduced by the 4th CPC, the new pay scale recommended by
the 4th CPC would have started at the same level for both, the STS
in the civil and the Captain in the Army i.e Rs 3000/-. The table at Para 6 (a) (ii) of SAI/SNI/SAFI
No. 1/S/87 gives the start of scale of a Capt at Rs 2800/-. This along with the Rank Pay of Rs 200/-
makes it equal to the start of scale of the STS at Rs 3000/. These figures
clearly show that Rank pay element has also been deducted from the start of the
scale of the rank and needs to be added back keeping in mind the Judgment in
Maj Dhanapalan’s Case. It is also
relevant that Para 6 (a) (ii) of SAI/SNI/SAFI No. 1/S/87, which has the table
specifying the minimum pay for each rank deals with the provision of deduction
of rank pay in pay fixation.
35.
Consequential Effect. The genesis of the term minimum pay of
the rank is that It was given as a protection in the pay fixation if the total
emoluments after deduction of rank pay were below the prescribed amount. It was
also identified and notified in pay instructions to ensure that officers with
same years of service and rank draw same pay.
To put the matter in its perspective, it is stated that there has so far
been no instance wherein officers of same rank and length of service had two
different pay scales in the same pay commission. The minimum re-fixed pay in the revised pay scales
for a Capt /equiv promoted on or before 01.01.86 will be fixed at Rs 3000+200
(Rank Pay) as per the Govt order. However, as per the same Govt letter officers
promoted to the same rank after 1.1.86 with corresponding length of service would
get Rs 2800+200 (Rank Pay) only as no minimums have been changed. Provisions of the Govt letter also
effectively means that officers promoted to the rank of Capt and equivalent
after 01 Jan 86 will not be covered by this order. This will lead to officers
with same years of service and rank drawing different pay (lesser pay for those
officers who joined/promoted as Capt/equiv after 01 Jan 86) in the currency of
the same pay commission. Therefore, it violates the basic principle that
personnel holding similar rank with equal years of service are remunerated
equally in terms of pay and pension. It is illustrated through the following example:-
37.
|
Rank
|
Pay in
III CPC
|
Minimum Pay in IV CPC
(Prior to Court verdict)
|
Pay to be Revised for Offrs as on 01 Jan 86
(As per MoD letter)
|
Anomaly in Pay for other offrs who
join/promoted to the rank of Capt/equal after 01 Jan 86)
|
|
Capt
|
1,200
|
2800 + 200
(Rank Pay)
|
3000 +
200(Rank Pay)
|
2800/- +
200/- (Rank Pay)
|
|
STS (Civ)
|
1100-1200
|
3000/-
|
3000/-
|
3000/-
|
|
Maj
|
1500
|
3400+600
|
3700/3950+600
|
3400+600
|
|
Dy Secy
|
1500
|
3700/3950
|
3700/3950
|
3700/3950
|
|
Lt Col
|
1800
|
3900+800
|
4500/4800+800
|
3900+800
|
|
Director
|
1800
|
4500/4800
|
4500/4800
|
4500/4800
|
36.
Amendments Sought by Armed Forces. The Services have stated
that the minimum of pay for each rank in the Integrated Pay Scales of IVth
CPC, which were then arrived at by deducting the Rank Pay, needs to be re-fixed
after adjustment for the Rank Pay to ensure single pay scale for same rank and
length of service. This would also restore the modified parity for pre-1986
retirees.
ISSUE - 3 :
REVISING THE TOP OF
INTEGRATED SCALE
37.
Issue. The top of the 4th CPC integrated
scale of Rs 5100 has not been amended to remove the effects of deduction of
rank pay.
Armed Forces Views
38.
In support of the
issue stated above, the Armed Forces have stated that the Fourth Pay Commission
vide para 28.12 of its report, had recommended the following Integrated Scale
for all officers upto the rank of Brigadier and equivalent in the three
services spanning over a period of 29 years: -
Rs 2300-100-4200 EB-100-5000
39.
Even though all the pay scales on the civilian
side, starting from Rs 3900/- onwards, had an increment of Rs 150, the pay
commission kept the rate of increment for defence officers at Rs 100 throughout
this integrated scale. This aberration was later rectified by the Government
and the following integrated scale was finally approved: -
Rs 2300-100-3900-150-4200 EB-150-5100
40.
The final orders
not only changed the rate of increment but also raised the top of the scale to
Rs 5100 but this resulted in reducing the time-span of the integrated scale
from 29 yrs to 25 yrs.
41.
In view of the
above it has been brought out that similar to the minima for each rank, the
maximum was also depressed to the extent of the Rank Pay. To emphasise the issue it may be seen that the
top of the scale on the civil side for DIG Police, who is considered to be
equivalent to a Brigadier (and equivalent) was Rs 6150/- whilst the Brigadier’s
top of scale was retained at Rs 5000 which is the next stage from Rs 4950/-
which was not present in integrated scale recommended by the 4th
CPC. The Brigadier was given a rank pay
of Rs 1200/- making a total of Rs 6200/- (the nearest possible stage to Rs
6150/-). This is how the pay scale of Brig/equiv was depressed. Now with the Hon’ble
Supreme Court order that RP is to be given over and above the Basic Pay, there
is an imperative to relook at the top of the integrated scale.
42.
It has been also
pointed out that the above stated arrangement did not pose any practical
problem earlier when the Rank Pay was deducted from the emoluments of officers
of the Rank of Brigadier/equivalent. But
now with the re-fixation occasioned by deletion of the clause relating to
deduction of Rank Pay, the re-fixation of pay of all officers who were drawing
top of the scale for Col/equivalent in 3rd CPC and all officers of Brigadier
Rank irrespective of seniority will be restricted at the top of integrated scale
of Rs 5100. Thus Brigadiers/equivalent will be deprived of the fixation benefit
(20% of emoluments of 3rd CPC) given to Defence and Civilian
officers and in effect would be denied the legitimate fixation benefit. A live example of pay fixation of two officers
on top of Brigadier scale is given below: -
Name
& No : Air
Cmde A
Air Cmde B As per SAI As
per Implementation Order
Basic
pay on 31.12.85 : 2400 2400
DA+ADA+IRs : 2572 2572
Existing
Emoluments : 4972 4972
20%
of BP : 480 480
Less:
Rank Pay : 1200 0
Total
Emoluments : 4272 5472
Pay
in Integrated Scale : 4950 5100 (Top of Integrated
Scale)
43.
Further, as per the above example the said officers will not
get any benefit of fixation because as per Para 6 (c) of SAI/SNI/SAFI No.
1/S/1987, if the total emoluments computed for fixation are more than the
maximum of the revised scale, the pay will be fixed at the maximum of the
revised scale. There is no provision of
even personal pay for these officers as per the CGDA. In other words, these officers would get
fixed on the top of the scale but without fixation benefit and stagnate from the day of fixation itself i.e. 1.1.86.
44.
Consequential Effect. This interpretation by MoD defeats the very purpose of
integrated scale which was to provide
reasonable pay progression to officers. There is no parallel of such an
example in AIS or Gp A services where benefit of fixation has not been given to
all officers in a Rank/Post whereas all officers of the rank of Brig and equiv stagnate
from the date of initial fixation. To remedy this unjust disadvantage and also
to rectify the shortened length of integrated scale, the top of scale needs to
be suitably enhanced/extended to restore the original span up to 29 years by
due extrapolation of integrated scale. Further, it may be relevant to bring out
here that resolving the stagnation through grant of personal pay is fraught
with two distinct disadvantages to the effected Officers - firstly, the Stagnation
increment accrues once in two years and secondly personal pay is not considered
for the purpose of determining corresponding replacement scale in subsequent Pay
Commissions, perpetuating the financial loss to concerned officers as long as
they are in the service of the Nation and thereafter in their pensions.
45.
Amendments Sought by Armed Forces. The Armed Forces have
asked that this anomaly can be resolved by enhancing the upper limit of Rs
5100 in the integrated pay scale of IVth CPC, which was arrived at
after making allowance for the Rank, to ensure effective implementation of the
Govt orders.
ISSUE - 4 :
APPLICATION OF COURT
ORDERS TO SUBSEQUENT PAY COMMISSIONS
46.
Issue. During the implementation
of Vth CPC, the pay scales of officers of the rank of Capt to
Brigadier and equivalent, were downwardly adjusted by an amount equal to Rank
Pay (revised), thereby causing a consequential effect on getting lesser replacement
pay for defence officers in Vth CPC as well. This further lead to
obtaining lower replacement scales and Grade Pay in the VIth CPC.
Even the pay fixation formula of Vth CPC, which was similar to that
of IVth CPC, has not been amended by deleting the provisions relating
to deduction of Rank Pay on 01 Jan 96. It is for consideration whether the
adoption of the impugned methodology in SAI/SNI/SAFI No. 2/S/98 before the
Hon’ble High Court delivered its judgment on 5th October 1998 and
UoI not referring to it in its many affidavits in the Hon’ble High Court of the
Hon’ble Supreme Court justifies continuing with that deduction from 01 Jan 96
to 31 Dec 2005. The Govt letter does not address these aspects
and thus violates the spirit of the apex court's judgment. There is thus a need to take a view on the
demand of Services seeking deletion of the provision relating to deduction of
Rank Pay from the total emoluments for re-fixation in revised pay scales as on
1.1.96.
Armed Forces Views
47.
In support of the
above anomaly Armed Forces have stated that it is a well settled position that
the decision of the apex court becomes law of the land which needs to be
applied equally to other similarly placed cases/situations. The ratio of this
case has to be applied to subsequent Pay Commissions in similar situations.
48.
Treatment of Rank Pay in 4th CPC. As per fixation formula
enshrined at Para 6 (a) (i) & (ii) of SAI 1/S/87 {IV CPC}; an amount
representing 20% of the basic pay in the existing scale shall be added to the
‘existing emoluments’ of the officer.
After the existing emoluments have been so increased, an amount
equivalent to the rank pay, if any, appropriate to the rank held by the officer
on 01 January 1986 will be deducted.
49.
Treatment of Rank Pay in 5th CPC. Similarly the fixation
formula of the 5th CPC, as given at Para 5 (a) (i) & (ii) of SAI 2/S/98, enunciated that an amount
representing 40% of the pay including stagnation increments, if any, and rank
pay where applicable, in the pre-revised scale, shall be added to the
‘emoluments’ of the officer. After the
existing emoluments have been so increased, an amount equivalent to the rank
pay prescribed at Para 3 (a) (ii) above shall be deducted…’
50.
It can be seen
that the fixation formula of the SAI 1/S/87 (4th CPC) which was
verbatim adopted in the SAI 2/S/98 (5th CPC) except that the fixation benefit
of 20% given by the 4th CPC was changed to 40%. This change was common to all central
government employees. But the clause for
deducting Rank Pay continued in the 5th CPC also. This deduction of Rank Pay,
held illegal in 4th CPC as per court orders should automatically get struck
down in the 5th CPC as MoD did not disclose this to the Hon’ble High Court of
Kerala in its W.A. No 518 of 1999 or any other case including IA No. 9 of 2010
in TP (C) 56 0f 2007 dealing with Rank Pay.
51.
It is also
relevant to mention here that Maj AK Dhanapalan had filed the case in Kerala
High Court in 1996 which was decided on 05 Oct 98. The SAI on the 5th CPC award was issued on
19 Dec 97. It is pertinent that the case
remained sub judice till it was finally decided by the Supreme Court on 04 Sep
12. Further as the case was filed in
1996 even before the recommendations of the 5th CPC were made,
neither Maj AK Dhanapalan (Retd) could have raised the anomalies of similar
nature in the 5th CPC nor the court could have passed any orders restraining
GoI regarding treatment of Rank Pay in 5th CPC. Till 04 Sep 12 when the Supreme Court finally
settled the issue, the government did not take any cognizance of court direction
whilst issuing orders for implementation of 5th CPC awards, or refer
to it in the Hon’ble Courts. The moot
issue that needs to be noted is that revised scales promulgated for
implementation of a fresh pay commission have their basis in the old pay scales
of the previous pay commission. In no
circumstance, without the reasons explained in the report, can the revised pay
of two employees of the Govt drawing same pre-revised Pay Scale be different.
This cardinal principle has however, been flouted in the case of Armed Forces
Officers, both in the 4th and 5th CPC. An example as
appended here under showing sequential progression of the pay of an Armed
Forces officer and a similarly placed civilian will substantiate this fact:-
|
RANK
|
3rd CPC PAY
|
4th CPC PAY
|
5th CPC PAY
|
GRADE PAY IN 6th CPC
|
|
CAPT
|
1200
|
2800 + 200 (RP) = 3000*
|
9600 + 400 (RP) = 10000*
|
6100
|
|
STS (CIVIL)
|
1100/1200
|
3000
|
10000
|
6600
|
Note. * The Rank Pay has been
carved out of the pay scale and only if it is added back, does the pay become
equal to civilians. In 5th CPC the scale has been lowered to Rs 9,600-11,400
as against Rs 10,000-15,600 to for STS. This deficiency in pay scales and
fixation is rectified by SC judgment and needs to be given effect in this
spirit alone.
52.
Consequential Effect. The implementation order of GoI dated 27 Dec 12 does not
incorporate any change for subsequent pay commissions i.e. 5th and 6th
CPCs. This is despite the fact that the treatment
of Rank Pay at the time of re-fixation of pay for transition from one CPC to
another has been exactly similar and has resulted in depressed replacement pay scale
on both occasions. This will certainly invite unnecessary and avoidable
litigation whose outcome is likely to go against the Government. It is, therefore, imperative that all
consequential effects of the Supreme Court Judgment as brought out above are
carefully analysed and incorporated in the implementation order to give effect
to the verdict in its letter and spirit.
53.
Moot Issue. The Ratio of the judgment needs to be applied
in subsequent pay commissions or not?
QUERIES RAISED
54.
UoI has obtained relaxation in the interest by giving an
interpretation of the court order submitted by its officers in the form of
affidavits. Is it bound to implement
those steps which, it informed the court, would be required to implement the
judgment?
55.
Does the following part of the judgment make it obligatory
for the government to give rank pay in addition to the existing pay scales: -
"Under
these circumstances, I am of the view that respondents 2 and 3 had completely
misunderstood the scope of extending the benefit of the payment of rank pay to
the Army Officers. Rank Pay is something which has been given to Army
Officers in addition to the existing pay scales. That is not an amount which has to be
deducted in order to arrive at the total emoluments which an
Army Officer is entitled to get".
56.
The High Court of Kerala in its judgment dated 05 Oct 98
has used the term “re-fix the pay of the
petitioner with effect from 01 Jan 86”. It has also stated that “The petitioner is also entitled to get his pay re-fixed in accordance with the pay
fixation of 1987”. Does the term ‘with effect from’ denote a
continuum? Does the ibid judgment grant the benefit only on one day ie “as on
01 Jan 1986” or on a subsequent day also?
57.
If the amount of rank pay has also been deducted while
determining the minima for each rank as specified at Para 6 (a) (ii) of SAI
1/S/87, is the rank pay to be added back to these minima?
58.
If the rank pay has been deducted from the top of the
scale, is it be added back to such top of scale?
59.
If the court order has corrected the fixation formula by
striking down deduction of rank pay clause in 4th CPC, is it
obligatory to strike down deduction of rank pay clause in a similar formula in
the subsequent pay commission?
60.
Is there any legality in MoD notifying SAI/SNI/SAFI No.
2/S/98 on 19 Dec 97 when the matter (O.P. No. 2448 of 1996) was still
sub-judice in the Hon’ble High Court of Kerala?
61.
Is there any legality in MoD continuing with the impugned
methodology when MoD did not disclose to the Hon’ble High Court of Kerala in
W.A. No. 518 of 1999 filed after enacting the ibid SAI/SNI/SAFI No. 2/S/98 and
affidavits in year 2000 onwards till the Division Bench passed its judgment on
04 Jul 2003?
62.
If SAI/SNI/SAFI No. 2/S/98 has no legal legs to stand on,
should MoD incorporate the same methodology of restoring the deducted Rank pay
in its implementation order?
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