S Y Savur 141,
Jal Vayu Towers,
Cell: +91 9449676278 NGEF
Layout,
+91 9688782227 Indira
Nagar (PO),
SYS/RTI/MoF/DoE/E.IIIA/2013 25
Oct 2013
To,
Under
Secretary & CPIO,
Branch
E.III.A, Department of Expenditure,
Ministry
of Finance, Govt of India,
North
Block, New Delhi - 110001
REQUEST FOR INFORMATION: RANK PAY
CASE
OPINION OF Ld ATTORNEY GENERAL for
INDIA – reg: views of MoF
Sir,
1. Please refer to the Opinion of the Attorney General of India letter No. MLJ No.
AG 16/2013-ADV ‘C’ dated 14.8.2013 and AG DY No. 325/AG/OPIN dated 14.8.2013 on
the subject of Implementation of Supreme Court order dated 4.9.2012 – Rank Pay
Case (Major A. K. Dhanapalan Retd - reg and CGDA Note No.
AT/I/1483/RB/X(PC)/V dated 23.5.2013 and agreement of MoF mentioned therein.
2. At
Para 37, of the ibid letter of Opinion of the Ld Attorney General, in
reply to Query (III) “Whether the Basic Pay ceiling of integrated
Scale in IV CPC for officers up to Brig/equivalent, which is Rs 5100/- also
needs to be modified to give effect to the Court orders?” The Ld Attorney
General states, quoting note No. AT/1/1483/RB/X (PC)/V dated 23.5.2013 and
agreement of MoF thereon, the following: -
“MoF views. This Ministry agrees with the view of the office of CGDA on this
issue as contained in their note No. AT/1/1483/RB/X (PC)/V dated 23.5.2013
(Annexure XVII).
However, it has been mentioned in the said
Note of the CGDA that in cases where emoluments (revised pay) computed without
deducting rank pay crosses the maximum of the revised integrated scale, the
Ministry of Defence has proposed that the difference by which the revised pay
of the integrated pay scale may be protected by way of Personal Pay to be
absorbed in stagnation increments or pay on promotion, but the same was not
agreed to by the Ministry of Finance. The
Ministry of Finance did not agree to the same for the following reasons:
-
(i) At
the outset, this issue was neither prayed for by Major Dhanapalan in his
petition nor was it considered by the Hon’ble Kerala High Court nor is it
covered in the order passed by the Hon’ble Court dt 5.10.1998.
(ii) Para
6 (o) of Section II of the Special Army Instructions dated 26.5.1987 (Annexure
XX) already provided that if the amount so computed as at pata 6 (a) (ii) is
more than the maximum of the revised scale, the pay shall be fixed at the
maximum of the revised scale. In other words, if the initial pay fixed in the
revised integrated scale exceeds the maximum thereof, pay cannot be more than
the said maximum. Thus now that the …. Pertaining to deduction of rank pay part
at para 6 (a) (ii) from existing emoluments (or revised emoluments) as on
1.1.1986 has been removed, the amount computed without deduction for the
fixation of initial pay/fitment in the revised pay scale as on 1.1.1986 also
cannot exceed the maximum of the revised integrated scale effective from
1.1.1986 as the principle laid down in said para 6 (c) is not part of judicial
pronouncement based on which the order of 27.12.2102 has been issued.
Apart from the above, the proposal of the
Ministry of Defence for Personal Pay, in such a case is not justified on merits
also as brought out below: -
(i) A
person drawing pay in a particular scale of pay attached to the post held by
him, cannot draw pay in excess of the maximum of the connected scale of pay.
This is the concept of a Specific pay scale. Of course since the rank pay is a
separate element, the total pay (Pay in the integrated scale + rank pay) can
very well exceed the maximum of the integrated pay scale and that is exactly
what is happening here. It is being …. that Rank Pay is a separate element in
addition in the pay in the integrated scale and as such Pay + rank pay is not
restricted to the maximum of the integrated scale. It is only the pay in the
integrated scale that is not to exceed the maximum thereof.
(ii) A similar provision exists in proviso (b)
to Rule 7 (1) (A) of the CCS (RP) Rules 1968 relating to fixation/fitment of
initial pay of civilian Government servants in the revised pay scales as on
1.1.1986 (emphasis supplied). A copy of the relevant extract from the said
Rules is at Annexure XXII. Therefore, no special dispensation can be allowed in
this case now that the pay to be fixed in the integrated pay scale as on and
w.e.f 1.1.1986 exceeds the maximum of the integrated scale.”
3. Maj Dhanapalan could not have prayed
for an increase in the maximum/ceiling
nor could the Hon’ble High Court of Kerala consider the matter because
(i) he was a Major and nowhere near the ceiling of the integrated scale, (b) he
retired on 01 Sep 97, (extract placed at Annexure
A) (c) the 5th CPC report was approved by MoF on 30 Sep 97, (d)
the SAI No. 2/S/98 quoted extensively was issued on 19 Dec 97, (e) the Hon’ble
High Court of Kerala’s Single Judge’s judgment was on 5 Oct 98 and (f) MoD in
its Writ Petitions never mentioned this fact to the Hon’ble High Court to
consider (Annexure B). MoF is aware
that any Hon’ble Court can only consider facts presented to it.
4. While MoF quotes SAI 1/S/87 about the ceiling, to justify
compliance with Rule 7 (1), the ibid Rule also states “……shall, unless in any case the President by special order otherwise
directs….” Such a direction of the
President is in Govt of India, Ministry of Personnel, Public Grievances
& Pension, Department of Personnel, New Delhi, Office Memorandum No.
1/1/86-Estt. (Pay-I) dated 10th April 1987 (please see Annexure ‘C’). It may be noted that SAI
No. 1/S/87 was issued on 26 May 1987.
5. A table of the relevant contents of
Rule 7 (1) (A) of the CCS (RP) Rules 1968 and OM No. 1/1/86.Estt (Pay-I) dated
10th April 1987 is given below: -
|
Rule 7 (1) (A) of the CCS (RP)
Rules 1968
|
Govt of India, Ministry of
Personnel, Public Grievances & Pension, Department of Personnel, New
Delhi, Office Memorandum No. 1/1/86-Estt. (Pay-I) dated 10th April
1987
|
|
7.
Fixation of initial pay in the revised scale: -
(1)
The initial pay of a Government servant who elects, or is deemed to have
elected under sub-rule (3) of Rule 6 to be governed by the revised scale on
and from the 1st day of January 1986, shall unless in any case the
President by special order otherwise directs, be fixed separately in respect
of his substantive pay in the permanent post on which he holds a lien or
would have held a lien if it had not been suspended, and in respect of his
pay in the officiating post held by him…….…..
|
The undersigned is
directed to refer to the recommendations of the Fourth Central Pay
Commission, as contained in paras 23.15 and 9.25 of their Report, relating to
fixation of pay of Central Government employees on promotion/appointment from
one post to another. After careful consideration, the Government have decided
to accept the recommendation contained in para 23.15 subject to the
modification that there shall be no minimum benefit. The Government have not
accepted the recommendation contained in para 9.25 and decided that in case
of promotion of Central Secretariat Service Officers from Under Secretary
level to Deputy Secretary level also pay should be fixed under FR. 22-C as in
all other promotions.
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.
|
6. It is a fact and on record that Lt
Colonels are promoted to Colonels and, Colonels are promoted to Brigadiers to
carry out higher duties and hold higher responsibilities. Therefore a special
dispensation is available for increasing the ceiling.
7. In view of the above, please provide
information as per Section 2(f) of the RTI Act 2005 on the non-applicability of
provisions Para 2 of ibid OM dated 10th
April 1987, to officers who are promoted or appointed to another post carrying
duties and responsibilities of greater importance as Colonels and Brigadiers
and equivalent, and who will exceed the maximum of the integrated scale
consequent to striking down of the deduction of Rank Pay for re-fixation as
ordered by the Hon’ble Supreme Court on 04 Sep 2012.
8. Indian Postal Order No. 19F 707666 for
Rs 10/- payable to DDO, Dept of Expenditure, Ministry of Finance, North Block
at New Delhi is enclosed as application fee. It is requested that the
undersigned may not be requested to visit the offices of MoF to search for the
information for reasons stated in earlier applications for information.
Yours truly,
(S Y Savur)
Enclosures: as stated above
ANNEXURE ‘A’
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……….”
/////TRUE TYPED EXTRACT//////
ANNEXURE ‘B’
By Speed Post
F. No. 35(1) 2013 – D
(Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 26th
April, 2013
To
Shri S. Y.
Savur
141, Jal Vayu Towers
NGEF Layout,
Indira Nagar (PO),
Bangalore – 560038
Subject: Your letter No.
SYS/RTI/MoD/2013 dt. 15.04.2013
Sir,
This is
with reference to your request for information No. SYS/RTI/MoD/2013 dt.
15.4.2013 received in this office on 18.4.2013.
2.
The parawise information as sought by you is as
under: -
(i) The information sought does not exist in D (Pay/Services)
records.
(ii) The information sought does not exist in
D (Pay/Services) records.
(iii) The reasons which are not available on record have been sought
and as such they cannot be supplied.
(iv) Not applicable in view of (i) above.
(v) The information sought does not exist in D (Pay/Services)
records.
(vi) Not applicable in view of (v) above.
(vii) The information sought does not exist in D
(Pay/Services) records.
(viii) The information sought does not exist in D
(Pay/Services) records.
(ix) No reference was made to SAI/SNI/SAFI No.
2/S/1998 of 19th December 1997 in Memorandum of Writ Appeal and
Additional Affidavit filed therein. Copies of these documents are enclosed
herewith. Information on the background of the decision not to inform the High
Court cannot be given as it is not available on records of D (Pay/Services).
(x) No other information apart from what has
already been provided to you exists in this matter.
The Service HQ also submit their demands to the Pay
Commissions. You may also like to take up the matter with them to seek relevant
information from their side/records.
3. In case you
are not satisfied with the reply you may appeal to Shri Praveen Kumar, Director
(AG-I), Ministry of Defence, Room No. 103, Sena Bhawan, New Delhi within 30
days of receipt of this letter…….
Sd/-------------------
/////TRUE
TYPED COPY/////
ANNEXURE ‘C’
MOST IMMEDIATE
No.1
/2/86-Estt.( Pay-I)
GOVERNMENT OF INDIA
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS
(DEPARTMENT OF PERSONNEL
& TRAINING)
New
Delhi, the 10th April, 1987
OFFICE MEMORANDUM
Subject: Recommendation of the Fourth Central
Pay Commission - Decisions relating to fixation of pay on promotion/appointment
from one post to another carrying duties and responsibilities of greater
importance.
The undersigned is
directed to refer to the recommendations of the Fourth Central Pay Commission,
as contained in paras 23.15 and 9.25 of their Report, relating to fixation of
pay of Central Government employees on promotion/appointment from one post to
another. After careful consideration, the Government have decided to accept the
recommendation contained in para 23.15 subject to the modification that there
shall be no minimum benefit. The Government have not accepted the
recommendation contained in para 9.25 and decided that in case of promotion of
Central Secretariat Service Officers from Under Secretary level to Deputy
Secretary level also pay should be fixed under FR. 22-C as in all other
promotions.
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.
3. Action is being taken separately to amend the
rule.
4. In so far as the
persons serving in the Indian Audit and Accounts Department are concerned,
these orders are being issued after consultation with the Comptroller and
Auditor General of India.
Sd/------------------------
(SeethepalIi S.Rao)
Director
Tel. No. 3015272
All Ministries/Departments of Government of India
etc. etc.
No.1/2/86-Estt.(Pay
- I) dated the 10th April, 1987
Copies also forwarded to:-
1. The
Comptroller &
Auditor General of India and all
States under his control
2. Controller
General of Accounts/Controller of Accounts, Ministry of Finance
3. Secretaries
to Union Public Service Commission/Supreme Court of India/Election
Commission/Lok Sabha Secretariat/Rajya Sabha Secretariat/Cabinet
Secretariat/Central Vigilance Commission/President’s Secretariat/Vice
President's Secretariat/Prime Minister's Office/Planning Commission/Fourth
Central Pay Commission.
4. Department
of Personnel &
Training (AIS Division)/JCM Admn.
Section.
5. Additional
Secretary (Union Territories), Ministry of Home Affairs.
6. All
State Governments and Union Territories.
7. Governors
of all States/Lt. Governors of Union Territories.
8. Secretary,
National Council (Staff Side), 13-C, Feroze Shah Road, New Delhi.
9. All
Members of the Staff Side of the National Council of JCM/Departmental Council.
10. All
Officers/Sections of the Department of Personnel and Training/Department of
Administrative Reforms and Public Grievances/Department of Pension and
Pensioners Welfare.
11. Ministry
of Finance, Department of Expenditure.
12. 3000
Spare Sets.
/////TYPED TRUE COPY////
* * * * * * * * * *
PHOTOCOPY OF PROOF OF APPLICATION
FEE PAID
&
MAILING OF RTI APPLICATION
F. No. 7/1/2013-E.III-A/534
Government of India
Ministry of Finance
Department of Expenditure
North Block, New Delhi
Dated 5th November 2013.
To
Sh S. Y. Savur,
141 Jal Vayu Towers,
Beniganahalli,
Indira Nagar (PO),
Bangalore – 560038
Sub: Application seeking
information under RTI Act, 2005 – reg.
Sir,
Please refer your RTI application,
dated 25.10.2013 received in this Branch on 1.11.2013 through RTI Cell of this
Department vide their O.M. No. 11/699/2013-RTI dated 30.10.2013 on the subject
mentioned above.
2. The information available with this
Department on the subject matter has already been furnished to you vide this
Branch’s letter dated 5.11.2013. No
further information is available in this Branch. However, since Ministry of
Defence is the administrative Ministry in this case and the O.M dated 10.4.1987
referred by you in your RTI application relates to DOPT, the RTI application is
transferred under Section 6(3) of the RTI Act, 2005 to Ministry of Defence and
DOPT.
3. The Appellate Authority is Sh. Amar
Nath Singh, Deputy Secretary, Room No. 74-C, North Block, New Delhi. Appeal, if
any, may be preferred within 30 days of the receipt of this letter.
Yours faithfully,
Sd/-----------------
(S.K. Biswas)
Under Secretary & CPIO
Copy to: - (1) CPIO, D(Pay/Services), Min of
Defence, Sena Bhawan, New Delhi.
(2) CPIO, Deptt of Personnel & Training,
North Block, New Delhi
(3)
US (RTI), Department of Exp w.r.t. U.O. No. 11 (699)/2013-RTI dated 30.10.2013
* * * * * *
The Right to
Information Act, 2005
First Appeal for
Central Government/State Government
I.D. No_________ Date:
_________
[For office use]
-------------------------------------------------------------------------------------------------------
To,
Shri Amar Nath Singh,
Deputy Secretary & First
Appellate Authority under RTI Act, 2005,
E.III-A Branch, Department
of Expenditure,
Ministry of Finance,
Room No. 74-C, North
Block,
New Delhi – 110 001
Sir,
As
I am aggrieved by the decision of Under Secretary & Central Public
Information Officer, E.III-A Branch, Deptt of Expenditure, Ministry of Finance,
Government of India, I hereby file this appeal for your kind decision.
1. Details
of appellant
1.1.
Name: S. Y. Savur
1.2. Address: 141,
Jal Vayu Towers, NGEF Layout, Indira Nagar (PO), Bangalore- 560038
1.3. Phone/Cell No.: - +91
9449676278 or +91 9688782227
1.4. Email ID: - sysavur@gmail.com
2. Details
of Central Public Information Officer
2.1. Name/Designation: - Sh S. K. Biswas, Under Secretary &
CPIO
2.2. Full Address: - E.III-A Branch,
Department of Expenditure
2.3. Name of Public Authority: - Ministry of
Finance, Government of India
3. Details
of RTI application to CPIO
3.1. Reference Number: SYS/RTI/MoF/DoE/E.IIIA/2013 dated 25 Oct 2013 through RTI Cell of the Department vide O.M. No.
11/699/2013-RTI dated 30.10.2013
3.2. Date of Application: - 25.10.2013
3.3. Mailed on: - 25.10.2013 by Speed Post No. EK420266547IN
3.4. Date of receipt by CPIO: - 01. 11. 2013
4. Particulars of payment of filing fee: Paid Rs.10/- by IPO No. 19F 707666 dated: -
25.10.2013 of Indira Nagar Post office.
5. Details of information sought (Also please see attached photocopy of application):
5.1. While MoF quotes SAI 1/S/87 about the
ceiling, to justify compliance with proviso (b) Rule 7 (1) (A), the ibid Rule
also states “……shall, unless in any case
the President by special order otherwise directs….” Such a direction of the President is in Govt of India, Ministry of
Personnel, Public Grievances & Pension, Department of Personnel, New Delhi,
Office Memorandum No. 1/1/86-Estt. (Pay-I) dated 10th April 1987. It
may be noted that SAI No. 1/S/87 was issued on 26 May 1987.
5.2. Rule
7 (1) (A) of the CCS (RP) Rules 1968 states, inter alia: -
“…..7.
Fixation of initial pay in the revised scale: -
(1) The
initial pay of a Government servant who elects, or is deemed to have elected
under sub-rule (3) of Rule 6 to be governed by the revised scale on and from
the 1st day of January 1986, shall unless in any case the President
by special order otherwise directs, be fixed separately in respect of his
substantive pay in the permanent post on which he holds a lien or would have
held a lien if it had not been suspended, and in respect of his pay in the
officiating post held by him…….…..
5.3. Govt
of India, Ministry of Personnel, Public Grievances & Pension, Department of
Personnel, New Delhi, Office Memorandum No. 1/1/86.Estt (Pay-I) dated 10th
April 1987 states, inter alia: -
…..The undersigned is directed to refer to the
recommendations of the Fourth Central Pay Commission, as contained in paras
23.15 and 9.25 of their Report, relating to fixation of pay of Central
Government employees on promotion/appointment from one post to another. After
careful consideration, the Government have decided to accept the recommendation
contained in para 23.15 subject to the modification that there shall be no
minimum benefit. The Government have not accepted the recommendation contained
in para 9.25 and decided that in case of promotion of Central Secretariat
Service Officers from Under Secretary level to Deputy Secretary level also pay
should be fixed under FR. 22-C as in all other promotions.
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……
5.4. It is a fact and on record that Lt
Colonels are promoted to Colonels and, Colonels are promoted to Brigadiers to carry out higher duties and hold higher
responsibilities. Therefore a special dispensation is available for increasing
the ceiling.
5.5. In view of the above, CPIO was requested to provide information as per Section 2(f) of the
RTI Act 2005 on the non-applicability of Para 2 of ibid OM dated 10th April 1987, to officers who are
promoted or appointed to another post carrying duties and responsibilities of
greater importance as Colonels and Brigadiers and equivalent, and who will
exceed the maximum of the integrated scale consequent to striking down of the
deduction of Rank Pay for re-fixation as ordered by the Hon’ble Supreme Court
on 04 Sep 2012.
6. Particulars of Decision of CPIO:
6.1. Letter reference No: - F. No. 7/1/2013-E.III-A/534
6.2. Date of CPIO’s Decision: - 5th
November, 2013
6.3. Date of receipt of decision by the
appellant: - 8th November 2013
7. Brief
facts of the case:
7.1. The Ld Attorney General for India in
letter No. MLJ No. AG 16/2013-ADV ‘C’ dated 14.8.2013 and AG DY No. 325/AG/OPIN
dated 14.8.2013 on the subject of Implementation of Supreme Court order dated
4.9.2012 – Rank Pay Case (Major A. K. Dhanapalan Retd – reg, the Ld Attorney General referred to O/o
CGDA Note No. AT/I/1483/RB/X(PC)/V dated 23.5.2013 and agreement of MoF
mentioned therein vide MoF, DoE. ID Note No. 187654/E.III-A/2012 dated
5.7.2013.
7.2. At
Para 37, of the ibid Opinion of the Ld Attorney General, in reply
to Query
(III) “Whether the Basic Pay ceiling of integrated Scale in IV CPC for
officers up to Brig/equivalent, which is Rs 5100/- also needs to be modified to
give effect to the Court orders?” The Ld Attorney General states, quoting
note No. AT/1/1483/RB/X (PC)/V dated 23.5.2013 and agreement of MoF (vide MoF,
DoE, ID Note No. 187654/E-IIIA/2012 dated 5.7.2013) thereon, the following: -
“MoF views. This Ministry agrees with the view of the office of CGDA on this
issue as contained in their note No. AT/1/1483/RB/X (PC)/V dated 23.5.2013
(Annexure XVII).
However, it has been mentioned in the said
Note of the CGDA that in cases where emoluments (revised pay) computed without
deducting rank pay crosses the maximum of the revised integrated scale, the
Ministry of Defence has proposed that the difference by which the revised pay
of the integrated pay scale may be protected by way of Personal Pay to be
absorbed in stagnation increments or pay on promotion, but the same was not
agreed to by the Ministry of Finance. The
Ministry of Finance did not agree to the same for the following reasons:
-
(i) At
the outset, this issue was neither prayed for by Major Dhanapalan in his
petition nor was it considered by the Hon’ble Kerala High Court nor is it
covered in the order passed by the Hon’ble Court dt 5.10.1998.
(ii) Para
6 (c) of Section II of the Special Army Instructions dated 26.5.1987 (Annexure
XX) already provided that if the amount so computed as at pata 6 (a) (ii) is
more than the maximum of the revised scale, the pay shall be fixed at the
maximum of the revised scale. In other words, if the initial pay fixed in the
revised integrated scale exceeds the maximum thereof, pay cannot be more than
the said maximum. Thus now that the …. Pertaining to deduction of rank pay part
at para 6 (a) (ii) from existing emoluments (or revised emoluments) as on
1.1.1986 has been removed, the amount computed without deduction for the
fixation of initial pay/fitment in the revised pay scale as on 1.1.1986 also
cannot exceed the maximum of the revised integrated scale effective from
1.1.1986 as the principle laid down in said para 6 (c) is not part of judicial
pronouncement based on which the order of 27.12.2102 has been issued.
Apart from the above, the proposal of the
Ministry of Defence for Personal Pay, in such a case is not justified on merits
also as brought out below: -
(i) A
person drawing pay in a particular scale of pay attached to the post held by
him, cannot draw pay in excess of the maximum of the connected scale of pay.
This is the concept of a Specific pay scale. Of course since the rank pay is a
separate element, the total pay (Pay in the integrated scale + rank pay) can
very well exceed the maximum of the integrated pay scale and that is exactly
what is happening here. It is being …. that Rank Pay is a separate element in
addition in the pay in the integrated scale and as such Pay + rank pay is not
restricted to the maximum of the integrated scale. It is only the pay in the
integrated scale that is not to exceed the maximum thereof.
(ii) A similar provision exists in proviso (b)
to Rule 7 (1) (A) of the CCS (RP) Rules 1968 relating to fixation/fitment of
initial pay of civilian Government servants in the revised pay scales as on
1.1.1986 (emphasis supplied). A copy of the relevant extract from the said
Rules is at Annexure XXII. Therefore, no special dispensation can be allowed in
this case now that the pay to be fixed in the integrated pay scale as on and
w.e.f 1.1.1986 exceeds the maximum of the integrated scale.”
7.3. A copy of MoF, DoE, ID Note No.
187654/E-IIIA/2012 dated 5.7.2013 referred to in the CPIO’s decision dated
05.11.2013 (attached at page 16), was received earlier in response to another
request. Therefore, this applicant/appellant requested for information on
applicability of Rule 7 (1) (A) of the CCS (RP) Rules 1986 vis-à-vis Para 2 of
the DoPT OM dated 10 Apr 1987, the operative part of which stated: -
“…..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).
8. Reasons/grounds for this appeal: -
8.1. Under Secretary and CPIO of E.III-A
Branch, Deptt of Expenditure, MoF has transferred the application dated
25.10.2013 under Section 6 (3) of the RTI Act, for reasons stated to MoD as Administrative
Ministry, and to DOP&T because it issued Govt of India, Ministry of
Personnel, Public Grievances & Pension, Department of Personnel, New Delhi,
Office Memorandum No. 1/1/86-Estt. (Pay-I) dated 10th April 1987 which
over-rules FR-22 in situations described therein.
8.2. Duties of Deptt of Expenditure, as stated
at sub-para 9.3 below, include the administration of the Financial Rules /
Regulations / Orders. These are neither the charter of the MoD or the
DOP&T as available on their respective websites.
8.3. Further, extensive correspondence
concerning financial aspects relating to the Rank Pay case have always been
forwarded by MoD to the MoF, Deptt of Expenditure, E.III-A Branch. Opinions,
comments, amendments which MoF has conveyed vide many ID Notes No.
187654/E-IIIA/2012 on MoD Files No. 34(6)/2012-D (Pay/Services) bear the
signatures of the Deputy Secretary leading to the incorporation of amendments
directed in the issue of ibid MoD letter dated 27.12.2012. At no stage was the
opinion or comments of the DOP&T sought in the Rank Pay matter either in
Maj (retd) Dhanapalan’s case or in the TP (C) No. 56 of 2007 or I.A No. 9 of
2010.
8.4. CPIO, E.III-A Branch, DoE, MoF makes it
even more difficult for this applicant/appellant to comprehend reasons for referring
the request for information to MoD or DOP&T in respect of the OM dated 10
Apr 1987 because
(i) SAI
No. 1/S/1987 was issued without concurrence of then MoF (Exp). Please see the
references indicated at the end of SAI No. 1/S/1987 i.e. Case No. PC to MF
B/04780/5/AG/PC Cell (A)/3115/D(Pay/Services) and MoD (Finance) U.O. No.
2038/Addl FA(J) dated 26 May 1987.
(ii) MoF
(Exp) U.O. No. C-57 (over-written as 67)/E-III(A)/2004 dated 15.4.2004, and
MoF, DoE ID Note No. 7(16)/E.III/2004 dated 6.8.2004 may be referred to for
confirmation, if necessary.
(iii) MoF,
DOE, ID No. 187654/E-IIIA/2012 dated 05.07.2013, an entire Statement of Case
has been prepared by DoE, E.III-A instead/on behalf of MoD, the Administrative
Ministry, which appears to have forwarded the same without any
comments/opinions.
8.5. Any fixation without pay limits, as it
involved financial aspects, would mandate that DOP&T refers even issue of the
ibid OM for concurrence and/or approval of MoF/DoE/E.III-A.
8.6. Further, other Ministries/Departments
would have sought the concurrence of MoF for applying provisions of Govt of India, Ministry of Personnel, Public
Grievances & Pension, Department of Personnel, New Delhi, Office Memorandum
No. 1/1/86-Estt. (Pay-I) dated 10th April 1987 for civilian officers of the concerned
Ministries appointed to or promoted to such posts that attract the provisions
of the ibid OM dated 10 Apr 1987.
8.7. Therefore, extensive discussions and/or deliberations
must be on record with attendant notings, and approval of the then Finance Minister
negating the averment of CPIO vide Para 2 of his reply dated 5.11.2013 that “No
further information is available in this Branch.”
8.8. Therefore, sending the ibid application
for information amounts to either a refusal to provide information, or delaying
the provision of information for reasons best known to the CPIO, thereby
necessitating this First Appeal under Section 19 of the RTI Act, 2005.
9. Any other information in support of appeal: -
9.1. From the detailed exposition of the author
of the MoF, DoE ID note dated 05 July 2013, it becomes obvious that MoF has not
been apprised by O/o CGDA that Maj
Dhanapalan retired as a Major on 31.08.1997 and so he could not have prayed for
an increase in the maximum/ceiling nor could the Hon’ble High Court of Kerala
consider the matter for the following reasons [Paras 8 to 12 of MoF, DoE, ID
Note No. 187654/E.III-A/2012 dated 5.7.2013 may also be referred to]. Disclosure
-
(a) He was a Major and nowhere near the ceiling of
the integrated scale,
(b) He retired, pre-maturely on his own request, on
01 Sep 97,
(c) The 5th CPC report was approved by
MoF on 30 Sep 97,
(d) The SAI No. 2/S/98 quoted extensively was
issued on 19 Dec 97,
(e) The Hon’ble High Court of Kerala’s Single
Judge’s judgment was delivered on 5 Oct 98, and
(f) MoD in its Writ Petitions never mentioned this
fact to the Hon’ble High Court to consider. MoF is aware that any Hon’ble Court
can only consider facts presented to it.
9.2. While MoF ID Note dated 5.7.2013 (Paras 18
and 19) quotes sub-paras of SAI 1/S/87 about the ceiling of the integrated pay
scale and O/o CGDA seeks to justify compliance with proviso (b) of Rule 7 (1)
(A), the ibid Rule also states “……shall,
unless in any case the President by special order otherwise directs….” Such a direction of the President is in
Govt of India, Ministry of Personnel, Public Grievances & Pension,
Department of Personnel, New Delhi, Office
Memorandum No. 1/1/86-Estt. (Pay-I) dated 10th April 1987. It may be noted that SAI No. 1/S/87 was
issued on 26 May 1987.
9.3. The MOF website describes, inter alia, the functions of the
Department of Expenditure (source: http://finmin.nic.in/the_ministry/dept_expenditure/Department
of Expenditure) as follows: -
“The
Department of Expenditure is the nodal Department for overseeing the public
financial management system in the Central Government and matters connected
with State finances. The principal activities of the Department include
pre-sanction appraisal of major schemes/projects (both Plan and non-Plan
expenditure), handling the bulk of the Central budgetary resources transferred
to States, implementation of the
recommendations of the Finance and Central Pay Commissions, overseeing the
expenditure management in the Central Ministries/Departments through the
interface with the Financial Advisors and
the administration of the Financial Rules / Regulations / Orders through
monitoring of Audit comments/observations….” (Emphasis supplied).
9.4. The administrative Ministry, i.e. MoD, always sought/seeks
opinions/concurrence on financial aspects of implementation of the order of the
Hon’ble High Court of Kerala (in the Maj Dhanapalan Vs UoI case) and Hon’ble Supreme
Court (in UoI Vs Lt Col N. K. Nair & Others case), from MoF/DoE/E.III-A. MoD
has been compliant with MoF/DoE/E.III-A observations, views, opinions and
concurrence as evidenced, inter alia, from MoF ID/UO Notes referred to below: -
(a) In the case Maj (retd) Dhanapalan Vs UoI
& others: -
(i) MoF (Exp) U.O. No.
C-57 (over-written as 67)/E-III(A)/2004 dated 15.4.2004, and
(ii) MoF, DoE ID Note
No. 7(16)/E.III/2004 dated 6.8.2004.
(b) In the case of Sunil Kumar Chand &
Others Vs UoI (WP (C) 96/2009): -
(i) Endorsement Number
1702/SE/2010 dated 31.3.2010 of MoF (Exp),
(ii) MoF (Exp) No.
2548/JS (Per)/2009 dated 12.4.2010,
(iii) MoD PC No. 34
(1).2006 –D(Pay/Services) dated 13.4.2010 to JS (Pers), MoF, DoE, requesting a
representative of MoF, DoE, to be deputed to brief the Solicitor General of
India, and
(iv) MoF (Exp) No.
2548/JS (Per)/2009 dated 16.4.2010
(b) In the case of IA No. 9 of 2010 in UoI &
Others Vs Lt Col N.K. Nair & Others: -
(i) Ministry of Finance, Department of Expenditure, U.O
No. 871832/JS (Pers)/10 dated 03.11.2010,
(ii) MoD ID F No. 34 (6)/2012 – D
(Pay/Services) dated 5.11.2012 forwarding file to MoF, DoE, (Shri A. N. Singh,
Deputy Secretary) for “concurrence regarding implementation of the Hon’ble
Supreme Court order dated 4.9.2012,
(iii) MOF. DOE ID Note No. 187654/E.III (A)/2012
dated 09. 11. 2012,
(iii) MoF, DoE ID No. 187654/E-IIIA/2012 dated
24.12.2012, and
(iv) MoF, DOE, ID No. 187654/E-IIIA/2012 dated
05.07.2013.
9.5. The Department of Personnel & Training
(source: http://persmin.gov.in/DOPT_AboutUS.asp) is the coordinating agency of the
Central Government in personnel matters, specially in respect of issues
concerning recruitment, training, career development and staff welfare. The Department has been functioning under
the charge of Secretary (Personnel) who is presently assisted by two Special
Secretaries, one Additional Secretary, four Joint Secretaries and other
supporting officers and staff. Functionally, the Department is presently
divided into ten divisions, each of which is headed by an officer of the level
of Joint Secretary or above. The Divisions
of the Departments are Establishment Officer (EO),
Establishment, Administrative Tribunal, Central Secretariat (CS), Cadre Review (CR), Retraining and Redeployment (RR),
State Reorganization (SR),
Welfare, Vigilance, and Training.
10. Prayer/relief
sought for: -
10.1. The CPIO, by sending my application to MoD and
DoPT, is clearly disregarding or ignorant of the duties/charter of the Deptt of
Expenditure as enunciated in the MoF website referred to above.
10.2. Para 19 of MoF, DoE ID Note No.
187654/E.III-A/2012 dated 5.7.2012 supports O/o CGDA quoting proviso (b) of Rule
7 (1) (A) of the CCS (RP) Rules 1986 but makes no mention of the ibid OM dated
10.4.1987.
10.3. This applicant/appellant may be provided
information sought within the rules and time frame of the RTI Act 2005.
11. Grounds for
prayer/relief sought for: -
11.1. Therefore, this appellant seeks relief,
without any further delay, by way of information as per Section 2 (f) of the
RTI Act 2005 on the applicability or non-applicability of the DOPT O.M, dated
10 Apr 1987 to Armed Forces officers whose pay may exceed the ceiling stated in
Para 6 (c) of the impugned SAI No. 1/S/1987 due to striking down the deduction
of Rank Pay in re-fixing pay by the Hon’ble Supreme Court in IA No. 9 of 2010
on 4.9.2012.
11.1. Deptt of Expenditure has overarching duties
as stated in the MoF website, an extract of which is produced at sub-para 9.1
above.
11.2. The MoD sought/seeks opinions/concurrence on
financial aspects from MoF/DoE/E.III-A in the Rank Pay matter as indicated,
inter alia, in sub-para 9.4. above.
11.3. Information provided by CPIOs/Appellate
Authorities of MoD, MoF, O/o CGDA in
replies to earlier requests for information by this appellant, clearly indicate
that in the Rank Pay matter there was no reference to DOP&T for its views
or opinions.
11.4. In the views of MoF/DoE dated 5 Jul 13 (appended
to the reference to Ld Attorney General), MoF/DoE has not informed O/o CGDA or to
MoD that Rule 7 (1) (A) of the CCS (RP) Rules 1986 supersedes DOP&T OM
dated 10 Apr 1987 referred to in RTI application dated 25 Oct 13.
11.5. MoD has unquestioningly incorporated the
opinions of and amendments proposed by MoF/DoE/E.III-A, in the MoD letter No.
34(6)/2012-D(Pay/Services) dated 27.12.2012.
11.6. It is apparent from the opinion dated MoF ID
No. 187654/E.III-A/2012 dated 5.7.2013 and the foregoing that the final
decision on financial aspects – minimum of pay for each rank, maximum of
ceiling etc - rests with MoF/DoE/E.III-A and its interpretation.
11.7. It is inconceivable that the information
requested for does not exist on the files of the MoF/DoE/E.III-A because even
DOP &T would have approached MoF/DoE for its concurrence before issuing the
OM dated 10th April 1987.
12. Personal Presence at hearing: - No
13. Enclosures: - Photocopies of
(i) Original RTI
application with its enclosures: - attached (pages 9 to 15)
(ii) Postal proof of mailing Speed Post: - attached (page 15)
(iii) Acknowledgement
of CPIO:
-
attached (Page 16)
(iv) Decision letter of CPIO:
-
attached (Page 16)
14. Declaration: I hereby state that the information and
particulars given above are true to the best of my knowledge and belief. I also
declare that this matter is not previously filed with any information
commission nor is pending with any Court or tribunal or authority.
* * * * * *
Reply to First Appeal from MoF, Deptt
of Expenditure
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF EXPENDITURE
E.III (A) BRANCH
Case No. AA/90/2013
Name of
Appellant: Sh S.
Y. Savur
Vs
CPIO, DEPARTMENT OF EXPENDITURE,
MINISTRY OF FINANCE
SUBJECT:- Appeal
under Section 19 (1) of the RTI Act 2005
Sh. S. Y. Savur, the appellant, preferred RTI application
dated 25.10.2013 under the RTI Act, 2005 which were forwarded by the RTI Cell
of this Department to Sh. S. K. Biswas, US (E.III-A) & the CPIO.
2. In his RTI application dated 25.10.2013, Shri S. Y. Savut
sought the information on the following point: -
“provide information on the non-applicability
of provisions (of) Para 2 of ibid OM dated 10th April 1987, to
officers who are promoted or appointed to another post carrying duties and
responsibilities of greater importance as Colonels and Brigadiers and
equivalent, and who will exceed the maximum of the integrated scale consequent
to striking down of the deduction of Rank Pay for re-fixation as ordered by the
Hon’ble Supreme Court on 4 September, 2012.”
3. In his reply to Shri Savur, the CPIO (E.III-A) vide his
letter dated 5.11.2013 has stated as follows:
“The information available with this
Department on the subject matter has already been furnished to you vide this
Branch’s letter dated 5.11.2013. No further information is available in this
Branch. However, since Ministry of Defence is the Administrative Ministry in
this case and the OM dated 10.4.1987 referred by you in your RTI application
relates to DOPT, the RTI application is transferred under Section 6 (3) of the
RTI Act, 2005 to Ministry of Defence and DOPT.”
4. Not satisfied with the reply dated 5.11.2013 the appellant
has preferred his first Appeal dated 13.11.2013 vide which he has stated as
follows:
The CPIO, by sending my application
to MoD and DoPT, is clearly disregarding or ignorant of the duties/charter of
the Department of Expenditure as enunciated in the MoF website referred above.
This applicant/appellant may be
provided information sought within the rules and time frame of the RTI Act
2005.
5. I have gone through the RTI application preferred by the
appellant on 25.10.2013 and also the aforesaid reply of the CPIO dated
5.11.2013. The appellant has not sought any personal hearing.
6. As regards Rank Pay, the documents available with this
Department have already been provided to the appellant. His query in the RTI
application is about the non-applicability of provisions (of) Para 2 of ibid OM
dated 10th April 1987, to officers who are promoted or appointed to
another post carrying duties and responsibilities of greater importance as
Colonels and Brigadiers and equivalent. Since the CPIO is not in custody of any
such information in material form, he cannot provide the same. However, the
detailed note dated 5.7.2013 of this Department to Ministry of Defence, a copy
of which has already been provided to the Appellant, has all the details on the
issue of Rank Pay, as arising out of the Major Dhanapalan’s case. No further
information is available in this Department.
ORDER
7. In view of the above, the appeal is disposed off.
Sd/-----------------------
(Amar Nath Singh)
Deputy Secretary (E.III-A) & 1st Appellate Authority
20.12.2013
T0
(i) Sh. S Y Savur, 141 Jal Vayu Towers, Beniganahalli, Indira
Nagar (PO), Bangalore - 560038
(ii) Sh. S. K. Biswas, CPIO & US (E.III-A)
Deptt of Expenditure
Copy to: -
1. US (RTI), Department of Expenditure for information with a
copy of Appeal Application.
