The Concluding White Paper on the Rank Pay Matter
Introduction
1.
The
implementation orders issued by MoD on 27 Dec 12 in the Rank Pay matter,
consequent to the Hon’ble Supreme Court’s order dated 04 Sep 12 had a few
glaring anomalies. Chairman COSC & CAS had written a DO letter to Hon’ble
Raksha Mantri on 18 Jan 2013 highlighting four of these anomalies. When no
progress was visible, and with a lot of information available through the RTI
Act 2005, the Chairman COSC & CAS wrote again to the Hon’ble Raksha Mantri
on 27 May 13. Hon’ble Raksha Mantri then took a meeting RM with Service Chiefs
and representatives of the Ministries of Defence, Finance, Law and CGDA on 14
Jun 2013 to resolve the anomalies in the Govt letter issued by MoD on 27 Dec
2012. Armed Forces Veterans, represented in the Hon’ble Supreme Court by different
petitioners/respondents and RDOA as an intervener, were not participants in
this meeting.
2.
Hon’ble
RM directed MoD and the Services HQ to obtain the opinion of Ld Attorney General for India (Ld AGI) on their respective interpretations of
the Court’s order. He also ordered the Service HQ to separately, and
independently, project its case with Ld AGI.
3. The
Service HQ had earlier submitted a case explaining the four anomalies to
MoD (on 02 Apr 2013). This case appears to have been forwarded by MoD to AG by MoD through LA (Def). A second, and even more elaborate case with justification
and case studies, was sent by Chairman COSC & CAS to the Ld AGI in prompt
compliance of the Hon’ble Raksha Mantri’s order of 14 Jun 13. As events
unfolded, it appears that MoD did not project its own interpretation to the Ld
AGI even by 03 Sep 13.
4. Ld
AGI returned the second case of the Armed Forces advising that it should be
routed through the Ministry of Law. This SOC was then forwarded by MoD - D (Pay/Services),
on 13 Sep 2013, to LA (Def) after obtaining afresh comments from CGDA, MoD (Fin)
and MoF. The SOC has since been withdrawn by MoD on 16 Sep 2013, reportedly on
the directions of the JS (E).
5. Prior to this, a meeting was taken by JS (E) in the first
week of August where he reportedly assured Service HQ that he will ensure that Ld
AGI gives his opinion on the issues raised only after the second SOC forwarded
by Armed Forces is made available to Ld AGI alongwith the MoD’s statement.
Opinion of Ld AGI on Case dated 02 Apr 13
6. However, the opinion of Ld AGI dated 03 Sep 13 has now been
received after the Hon’ble Raksha Mantri told the Chairman COSC and CAS about
the opinion (this was revealed at an Air Force Association meeting on 15 Sep
13). It appears to have been based on the letter that Chairman CoSC wrote to
the Hon’ble RM on 18 Jan 13. This is evident from the facts stated by Ld AGI at
Para 18 of his opinion.
7. MoD
had forwarded the opinion of Ld AGI dated 03 Sep 13 to MoF for their comments. MoD
has reportedly withdrawn the first case, after Ld AGI has given his opinion, to
send the both cases (MoD and Service HQ) together to Ld AGI for his opinion. Elsewhere,
it had been commented that MoD appears to love farce and nothing else can explain sending the Ld AGI's legal opinion to the MoF for comments!
8. Ld AGI’s opinion dated 03 Sep 2013 is on the first set of four anomalies
raised by the Service HQ. Minor observations on the opinion are:-
(a) LD AGI has addressed only four queries. Service HQ had raised
six queries in their second and independent statement of case after the
dispensation of the Hon’ble RM on 14 Jun 13. The latter must either be in the MoD or sent belatedly.
(b) Out of four anomalies, two i.e. anomaly relating to “with
effect from” and anomaly on extension of the ratio of the judgment to subsequent Pay Commissions have been accepted by Ld AGI i.e. the opinion is in favour
of the interpretation of Service HQ.
(e) Two other anomalies (minimum of pay of each rank and raising the ceiling of the integrated scale by the amount of Rank Pay) have not been accepted, based on the
information provided by CGDA, supported by MoD (Fin) and MoF i.e. the opinion
is not in favour of the interpretation of Service HQ but the opinion appears to be conditional.
Spirit of the Hon’ble Supreme Court’s Order dated 04 Sep 12
10.
The
spirit in which the Hon’ble Supreme Court order is to be interpreted is elucidated at para 21 of the Ld AGI’s opinion. It states: -
“Before I answer the queries raised, it is
important to state that the Government must implement the Supreme Court’s order
of granting the same benefit to similarly situated officers both in letter and
in spirit. The Government cannot take a
restrictive view of who is similarly situated, and must grant benefit on the
basis of the underlying principle affirmed by the Supreme Court, i.e, wherever
rank pay has been deducted at the time of fixation of pay, the deduction must
be undone (emphasis supplied) and pay fixed accordingly. The approach that
the benefit would only apply to those who are directly covered by orders of the
court would force members of the armed forces to approach the Court for each
individual claim when the same has already been granted to all similarly,
situated officers by the Hon’ble Supreme Court. This would be unfortunate (emphasis supplied).
The Anomalies, the Opinion and the Consequences
10. All
issues are discussed in detail by Ld AGI. Comments on each issue are given in
succeeding paragraphs.
With Effect from 1.1.1986 vis-à-vis As on 1.1.1986
11. The Anomaly. Services HQ had objected to the use of substitute
words ‘as on 1.1.86’ in the MoD orders dated 27 Dec 12. Services HQ were of the
opinion that the words ‘with effect from 1.1.86’ used in the judgments and orders
of the respective Hon’ble Courts’ to give effect to the court order in letter
and spirit must be used in the MoD’s implementation letter dated 27 Dec 12. It
would imply that the benefit would have a continuous effect in the tenure of
the 4th CPC.
12. The
Service HQ interpretation was objected to by CGDA, MoD (Def/Fin), and MoF. The CGDA opined that in this case, the
affected officers are those who were drawing pay in the rank of Captain to
Brigadier and equivalents as per 3rd CPC on 31.12 85 and whose pay
was fixed as per SAI 1/S/87 and corresponding Navy and Air Force instructions
on 01.01.1986 after deducting rank pay. CGDA submitted that the wording “as on
1.1.1986” or “with effect from 1.1.1986” does
not, in effect, make any difference (emphasis supplied). It was also stated
by the CGDA that the pay of officers commissioned after 1.1.1986 and officers
promoted after 1.1.1986 has been fixed with reference to rank and qualifying
service, and that no rank pay has been deducted while carrying out such’
fixation, They have been admitted the rank pay of the rank held, in addition.
13. Ld AGI's Opinion. Ld AGI has opined, “The Government
needs to implement the orders of the Supreme Court in letter and spirit. It cannot confine the benefit of the orders
to those officers whose pay was fixed as on 1.1.1986 after deduction of rank
pay in terms of para 6 (a) (ii). It must grant benefit to all those officers
whose pay has been fixed after deducting rank pay whether as on 1.1.1986, or
after 1.1.1986. This must be done after properly verifying the facts”
(emphasis supplied).
14. The views of the Service HQ on the issue stand
vindicated by the Ld AGI who has struck down the interpretation of CGDA.
15. It
is a moot point whether the CGDA and MoF will continue to prevail on MoD, which
appears to be unable to either check the CGDA’s misinformation for authenticity
or search of existing documents that negate CGDA’s recalcitrance to scuttle
benefits accruing after setting right this anomaly by going against the spirit
of the court judgment and legal opinion again. The only way to give effect to
this interpretation is to change minimum for each rank, the issue not expressly
accepted by Ld AGI.
Change of Minimum of Pay for Each Rank
16. The Anomaly.
The provision of deduction of rank pay was contained in para 6 (a) (ii)
of the Special Army Instruction and corresponding instructions for the other
two services. This Para also contains a table which specifies, within the
integrated scale, the minimum pay for each rank. No such table was recommended
by the 4th CPC or published in the Government resolution accepting
the recommendations of the 4th CPC. These have been added in the SAI
1/S/87 by MoD. The minimum pay for each Rank had also been depressed due to
deduction of rank pay.
17. The
CGDA submitted to the Ld AGI that the minimum pay for each rank has NOT been arrived at after
deduction of rank pay. CGDA has
contended that it was in fact a recommendation of 4th CPC (emphasis
supplied).
18. Ld AGI's Opinion. Based on this submission of CGDA, Ld AGI
has conditionally rejected Armed Forces interpretation as brought out in
the last sentence of his opinion which states, “There is no need to revise the
minimum, if as stated by the CGDA, it has been fixed on another basis.”
19. The Ld AGI is clearly of the opinion that if
the minimum has been fixed by not deducting the Rank Pay and is decided on some
other basis then only the minimum will not be revised. If this
contention of CGDA is proved wrong, which in fact it is, then the minimum pay
for each rank will require revision. The contention of CGDA is proved wrong by
the following facts: -
(c)
The 6th CPC, has
noted at Para 2.3.10 (iv) of its report that:-
“(iv) …. The element
of rank pay was carved out of the pay scales so revised after giving the
edge vis-à-vis civilian group A officers.”
(d) The
simple English of ‘rank pay was carved out of pay scales’ translates in mathematical terms to 'rank pay was
deducted from the pay scales, at all stages, minimum and maximum included'.
(e)
CGDA
has submitted that it is a recommendation of the 4th CPC. A thorough
reading of Chapter 28 of the 4th CPC’s Report on Armed Forces
personnel, Chapter 30 on Fixation of Pay Scales, and the Resolution 9 E of GoI does not reveal
any such table for minimum pay for each rank, let alone make such a
recommendation. Obviosuly CGDA has twisted facts to suit its argument. The 4th CPC does not state anywhere in their report
that a different method ("another basis" is the term that CGDA used) was used to fix the pay scale of Armed Forces
Officers. In the words of Chapter 30 the default pay scale enhancement formula has also
been applied for Armed Forces Officers. The table is obviously a concoction of
the drafters of the SAI No. 1/S/87 with the sole aim of removing the edge
provided by the 4th CPC to the Armed Forces.
(f)
When
the existing pay scales and revised pay scales of the 4th CPC for
commissioned officers and other similarly placed civilian officers are
compared, it becomes clear that rank pay has been deducted from the pay scale
of commissioned officers and minimum for each rank has been arrived in this
manner.
(g)
Before the
rank pay case, the pay of all officers, whether promoted before or after 1.1.86,
was fixed at same stage on their promotion i.e. Captains were fixed at Rs. 2800
in the integrated pay scale. But after the MoD order dated 27 Dec 12 has been
implemented, the deduction only on
1.1.86 has been undone. Those officers who were in the rank of Captain
& equivalent on 1.1.86 will now draw at least Rs 3000 in the integrated
scale. This has resulted in lower pay of Rs 2800 in the integrated scale for
post 1.1.86 promotees to the same rank. The only reason for this is that the
Rank Pay of Rs 200 applicable to the rank continues to be deducted for post
1.1.86 promotees.
(h)
On
promotion to any rank, if there was a parity in the pay of Commissioned Officer
and Gp ‘A’ officer, e.g. Capt and STS, before 1.1.86, this parity has to be
retained for post 1.1.86 officers, disregarding Rank Pay which is an additional
element. In the current situation, this parity has been disturbed and the pay
of post 1.1.86 promotees is decreased as shown below:-
Rank
|
Pay in
III CPC
Jan 1973-Dec 1985
|
Minimum Pay in IV CPC for pre
& Post 1.1.86 offrs
(Prior to Court verdict)
|
Revised Pay for Officers
promoted before 01 Jan 86
|
Pay for Officers who joined/
promoted after
01 Jan 86 |
Capt
|
1,200
|
2800
|
3000
|
2800
|
STS(Civ)
|
1100-1200
|
3000
|
3000
|
3000
|
(i)
The
rank pay for the rank of Capt was Rs 200. This clearly shows that the shortfall
in the pay of Capt has crept in for post 1.1.86 promotees which is of the same
quantum as the rank pay similar case exists for all other affected ranks. This
is the proof of deduction of rank pay. Whereas the rank pay for pre 1.1.86
officers was deduct individually for each officer, for post 1.1.86 promotees it
was deducted by prescribing lower minimum thus deducting it at source.
Change of Top of the Scale of Integrated Pay Scale
20. The Anomaly. The top of the IVth
CPC integrated scale of Rs 5100 has not been amended in the MoD’s
implementation order dated 27 Dec 12 to remove the effects of deduction of rank
pay while formulating the pay scale. Top of the scale of a DIG Police was revised
to Rs. 6150/- in 4th CPC as per table in Chapter 2.3 of the 6th
CPC Report. In order to prescribe the top of the scale for Brigadier/equal, it
is obvious that the Rank Pay of Rs. 1200/- was deducted from the top of the
scale for DIG, and rounded off to Rs. 5,000/-(nearest Rs. 100/-) since there
was no stage of Rs. 4,950/- (Rs 6,150/- minus Rs 1, 200/-) in the integrated
pay scale recommended by 4th CPC. This is how the pay scale of
Brig/equiv was depressed by MoD with the assistance of MoD (Fin).
21. MoD (Finance) had recommended Personal Pay for affected
officers but MoF did not agree even for grant of personal pay to these officers
based on the observations of CGDA.
22. 6th
CPC’s Report at Para 2.3.10 (vi)
states “The edge in the Defence Forces
pay scales for their officers is on account of the Special Disturbance
Allowance. Otherwise, the established relativity of the posts of Major General
and Brigadier is with SAG and DIG pay scales of civilians/police forces
respectively.” Therefore, it is inescapable
to conclude that the CGDA has wrongly stated (again!) that there is no
relativity between DIG and Brigadier/equivalent.
23. Further,
neither CGDA, MoD (Def/Fin) nor MoF has mentioned Office Memorandum No. 1/2/86-Estt.( Pay-I) dated 10 Apr 87 issued by GoI, Ministry of
Personnel, Public Grievances & Pensions, Deptt of Personnel and Training at
Para 2 as follows: -
“2. In supersession of all the various existing orders,
the President is pleased to decide that where a Government servant is promoted
or appointed to another post carrying duties and responsibilities of greater
importance than those attached to the post held by him, the provisions contained in FR. 22-C shall apply without pay limits”
(emphasis supplied.)
24. The Opinion. The only issue decided by the Kerala
High Court and consequently the Supreme Court is whether rank pay is not to be
deducted at the time of fixing pay in the integrated scale in terms of Para
6(a)(ii). Ceiling fixed under Para 6(c) is not a subject matter of these
judgments because as a Major, Dhanapalan could not have reached the top of the
scale.
25. The demand of the Service HQ is not
personal pay. The demand is that the top of the scale, which like the minimum
for each rank has been depressed, has to be enhanced keeping in view equivalent
scales applicable to other services like the IPS.
26. The CGDA has obfuscated the real issue by bringing in
irrelevant factors like personal pay, and regrettably, contrary to facts, the
MoF has agreed to this. All the arguments applicable to the minimum of pay for
each rank are equally applicable to the top of the scale as well.
Application of Hon’ble Supreme Court’s Order to 5th and 6th
CPC
27. The Anomaly. Due to defective
formulation of the integrated pay scale recommended by 4th CPC, and owing to downwardly
adjusting these scale by an amount equal to Rank Pay, the cascading effect
thereof continued in the implementation of 5th CPC recommendations.
Here also the pay scales of officers of the ranks of Captain to Brigadier (and
equivalent) were depressed by an amount equal to revised Rank Pay. This further
caused a consequential effect of continued lesser replacement pay and Grade Pay
for defence officers in the 6th CPC.
28. Despite
the fact that the pay fixation formula and the treatment to ‘Rank Pay’, while
carrying out the fixation of pay of affected officers in 5th CPC,
was similar to that of 4th CPC. Therefore, this ought to have been
modified in view of the Court orders. The implementation orders issued by MoD
on 27 Dec 12 did not amend/delete the provisions relating to deduction of Rank
Pay on fixation of pay of affected officers while transiting from 4th
to 5th CPC on 01 Jan 96. Thus it violated the spirit of the Apex Court's
order and denied the consequent effects of the said Order to the affected
officers. There is therefore, a need to review 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 (i.e. 5th CPC).
29. The views of CGDA, MoD (Fin) and MoF were that the court order
is applicable only to 4th CPC and the issue of subsequent pay
commissions was not the subject matter of the case in the court.
30. Ld AGI's Opinion. In the opinion of Ld AGI, the
Government needs to implement the underlying principle laid down in Major
Dhanapalan’s case, i.e., rank pay cannot be deducted at the time of fixing pay
in the revised scale. It is immaterial that in Major Dhanapalan's case, only
the 4th CPC was involved. The principle of law laid down is that rank pay
cannot be deducted by fixing pay in the integrated scale. Since rank pay has
been deducted at the time of fixing pay in subsequent pay commissions, the same
would definitely have to be corrected. The officers covered by 5th and 6th Pay
Commissions cannot be expected to approach the Courts for orders in the same
terms.
31. The views of the Service HQ on the
issue are upheld by the Ld AGI who has struck down the interpretation of CGDA.
To give effect to this interpretation, even the most restrictive action by MoD
will call for amendments to SAI No. 2/S/98 and corresponding Instructions for
the Air Force and Navy governing 5th Pay Commission pay scales and
extend the benefit to 6th CPC.
The Conclusion
32. The
undue haste of MoD, a trait that was never in evidence till 27 Dec 12, to
obtain the Ld AGI’s opinion dated 03 Sep 13 has only strengthened the case of
“Similarly situated officers.” A review by Ld AGI of the Service HQ statement of case, in
the light of material facts that were not provided and/or concealed by CGDA, MoD (Fin) and MoF, may better meet the ends of justice and the intent of the Apex Court’s order dated 04 Sep 12 in the Rank Pay matter.
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