Friday 6 December 2013

Maximum of Ceiling - Reply from CGDA to RTI dated 25 Oct 2013



BY SPEED POST

S Y Savur                                                                                           141, Jal Vayu Towers,
Cell: +91 9449676278                                                                      NGEF Layout,
            +91 9688782227                                                                  Indira Nagar (PO),
Email: sysavur@gmail.com                                                            Bangalore-560038

SYS/RTI/MoF/DoE/E.IIIA/2013                                                            25 Oct 2013

To,

Shri S Murali Krishnan, IDAS,
Sr ACGDA & CPIO,
O/o CGDA,
Ulan Batar Road, Palam,
New Delhi – 110 010


REQUEST FOR INFORMATION: RANK PAY CASE

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 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: -

CGDA’s views.             CGDA has pointed out that in order to benefit such officers an element of personal pay was projected in the instant case to MoF. But it was not agreed to by Ministry of Finance. In view of para 6 (o) of SAI 1/S/87 (Annexure XX) which states as under: -  

‘If the amount so computed as at sub-para a (ii) above is more than the maximum of the revised scale, the pay will be fixed at the maximum of the revised scale.’

The relevant Service Instructions provide for maximum three stagnation increments upto the rank of Brig, after completion of every two years qualifying service once the officer reaches the maximum of the scale. However, it is ensured that Basic Pay plus Dearness Allowance plus stagnation increments do not exceed the maximum of Basic Pay plus rank pay of the next higher rank i.e. Major General – Rs 5900-200-6700. 

Further, there is no court order directing changing of the integrated pay scale. In case the demand is met, the pay scale of next senior officers will get burst, disturbing the horizontal and vertical relativity pay scales on Services side, paramilitary forces and civilian side also.

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 1986 relating to fixation/fitment of initial pay of civilian Government servants in the revised pay scales as on 1.1.1986. 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, [No: Tech/321/4CPC/Court case, Office of the PCDA (O) Golibar Maidan, Pune 411001 Date: 21 Nov 2012 refers] (c) the 5th CPC report was approved by MoF on 30 Sep 97, (d) the SAI No. 2/S/98 quoted extensively by O/o CGDA 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 A). O/o CGDA is aware that any Hon’ble Court can only consider facts presented to it.

3.         Rule 7 (1) clearly states “……shall, unless in any case the President by special order otherwise directs.” Such a direction of the President is contained 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 10 Apr 1987 (Annexure ‘B’). SAI No. 1/S/87 was issued on 26 May 1987.

4.         A table of the relevant contents of Rule 7 (1) (A) of the CCS (RP) Rules 1986 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.

5.         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. Further, the Ld Solicitor General in his opinion of 17 Oct 12 has clearly stated that MoD (referred to as The Querist) needs to take decisions abut the scale of the next higher rank officers getting burst.

6.         In view of the above, please provide information, as per Section 2(f) of the RTI Act 2005 on the under-mentioned aspects: -

(i)        O/o CGDA’s advice on the non-applicability of provisions Para 2 of ibid OM dated 10th April 1987 vis-à-vis Rule 7 (1) (A) of CCS (RP) Rules 1986, 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,

(ii)  On O/o CGDA, with its expertise on accounts and audits, advice to MoD on different options for complying with the Hon’ble Supreme Court order striking down deduction of Rank Pay in the matter of ceiling burst of increasing the ceiling/maximum of the integrated scale. 
  
 7.        Indian Postal Order No. 19F 707665 for Rs 10/- payable to CGDA at New Delhi is enclosed as application fee. It is requested that the undersigned may not be requested to visit the offices of CGDA to search for the information for reasons stated in earlier applications for information.

Yours truly,



(S Y Savur)
Enclosures: as stated above
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ANNEXURE ‘A’

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 ‘B’

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.
 
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Office of the CGDA, Ulam Batar Road, Palam, Delhi Cantt-10

No. CPIO/AT/HQ/2013/II/1250                                                                        Dated: 26/11/2013

To

            Shri S Y Savur
            141 Jal Vayu Towers,
NGEF Layout,
Indira Nagar (PO),
Bangalore – 560038

Subject: Seeking Information under RTI Act 2005

Reference: Your application dated 25/10/2013
*****
The information requested in your above quoted application dated 25/10/2013 have been ascertained from the dealing Section being custodian of information on the subject matter and the reply/information received in this regard vide UO Note No. AT/I/1483-Army/X(PC)/V dated 26/10/2013 is forwarded herewith as desired.

Encls. (One page as above)                                                                         Sd/--------------------
                                                                                                                        (S. Murali Krishnan)
                                                                                                                        Sr ACGDA/CPIO

Office of the CGDA, Ulam Batar Road, Palam, Delhi Cantt-10

 Subject: Seeking Information under RTI Act 2005

Reference: Your application dated 25/10/2013 in r/o Shri S Y Savur

The parawise information/reply with reference to Para 6 of the above quoted RTI application dated 25/10/2013 in r/o Shri S Y Savur is furnished as under:

            Para 6 (i): No advice on the non-applicability or otherwise of provisions of Para 2 of DOP&T OM dated 10th April 1987 (quoted in the application) vis-à-vis Rule 7 (1) (A) of CCS (RP) Rules 1986 is found to have been rendered by this office in this case.

            Para 6 (ii): Neither any advice on ‘different options’ on this issue is found to have been sought by MoD nor given by this office in this case.

                                                                                                                        Sd/-----------------
                                                                                                                        Sr AO (AT-I)
RTI Cell (AT) (Local)

Uo Note No. AT/I/1483-Army/X (PC)/V dated 26/11/2013
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