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Beginning of the End of Defiance ? Imposition of Costs on MoD (ESW) and JCDA (AF)

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

11.

MA 673/2013

In OA 106/2009

Wg Cdr (Retd) VS Tomar ........Petitioner

Versus

Union of India & Ors. .......Respondents

For petitioner:         In person

For respondents:     Mr.Ankur Chhibber, Advocate

Dr. BK Singh, Jt. CDA (AF)

CORAM:

HON’BLE MR. JUSTICE PRAKASH TATIA,         CHAIRPERSON.

HON’BLE LT. GEN. S.K.SINGH,                                MEMBER.

O R D E R

21.01.2014

1.         The Tribunal final order was passed on 07.12.2011 in OA 106/2009. The said order was not implemented and the petitioner approached this Tribunal by filing Execution petition being M.A. No. 19/2012. When the matter was listed before the Bench on 21.01.2013 it was pointed out by the learned counsel for respondents that a SLP has been filed to challenge the order dated 07.12.2011. Even after taking note of such submission the Tribunal passed the order directing that the respondents to implement the order subject to the order of the Hon’ble Supreme Court. The Bench of the Tribunal was under the bona fide impression that the order of the Tribunal will be executed with the above stipulation and therefore, the petitioner’s execution petition of M.A. No. 19/2012 was disposed off. Neither any order was obtained from the Supreme Court nor was the order implemented. The aggrieved petitioner then again approached this Tribunal by filing fresh execution petition i.e. M.A. No.673/2013. In this M.A. No.673/2013 we have already taken note of above facts in our first order dated 05.12.2013. In order dated 16.12.2013 we also observed that, ‘we can take judicial notice of the fact that whenever Govt wants they can pursue the SLP vigorously’. But in this case, in spite of the Tribunal’s order dated 21.01.2013 passed in M.A. No. 19/2012 nothing has been done. The copy of the order dated 16.12.2013 was sent to the Secretary, Ministry of Defence, Govt. of India for taking appropriate action against the guilty person who did not pursue the matter before the Supreme Court. We also directed that Jt. Controller of Defence (Accounts) to remain present before us on 09.01.2014 to explain as to why the Tribunal’s final order dated 07.12.2011 has not been implemented in spite of further clear direction given in order dated 21.01.2013 passed in M.A. No. 19/2012. On 09.12.2013, it was submitted that the concerned officer is on election duty from 08.01.2014. In view of the above bona fide reason the personal appearance of 09.01.2014 was dispensed with and again the Jt. Controller of Def. Accts. was directed to give a written explanation as to why the Tribunal’s final order which was passed as back as on 09.12.2011 has not been implemented. The matter was adjourned to 05.1.2014 and today the matter has come up for consideration.

2.         Dr. BK Singh, Jt. CDA (AF) submitted that an SLP has already been preferred in a connected matter wherein notice has been issued by the Hon’ble Supreme Court and said SLP is likely to be listed before Supreme Court for 04.02.2014. It is pointed out by the learned counsel for UOI that by Tribunal’s final common order dated 07.12.2011, three matters i.e. OA 106/20009 and OA 76/2011 and OA 24/2011 were allowed. The SLPs have been preferred in OA 106/2009 OA 76/2011 only. The SLP preferred against the order passed in OA 76/2011 (not of present petitioner’s case) was listed before the Supreme Court wherein the notice has been issued and that SLP is coming up on 04.02.2014, whereas the other SLP preferred to challenge the order passed in OA 106/2009 (in present petitioner’s case) yet has not been listed. So far as order passed in OA 24/2011 is concerned SLP has not been preferred.

3. This is the state of affair, after order dated 07.12.2011 and after the order of the Tribunal dated 21.01.2013 passed in M.A. No. 19/2012 filed in OA 106/2009 and even after orders in MA 673/2013 dated 16.12.2013 and 09.01.2014. The officer Dr BK Singh, Jt. CDA (AF) present before us drew our attention to one communication dated 13.01.2014. The said communication we would like to quote which is as under:-

Most Immediate

Ministry of Defence

Department of Ex-Servicemen Welfare

D (Pen-Legal)

Sub: Civil Appeal No. D/41574/2012 filed by UOI & Others Vs Wg VS Tomar (Retd) before the Hon’ble Supreme Court of India – Hearing of MA No.673/2013 (in OA No.106/2009)

uring the hearing of the subject case on 09.01.2014 by the representative of JCDA (AF) that the JCDA was on election duty and would become available on 13.01.2014. Keeping that in view, the Hon’ble Tribunal directed the presence of JCDA (AF) on 15.01.2014 to explain the non-implementation of Tribunal’s final order dated 07.12.2011 in spite of clear directions given in their order dated 21.01.2013 passed in MA No.19/2012.

2. In this connection JCDA (AF) is requested to immediately ascertain status of subject Civil Appeal and inform the same to Hon’ble Tribunal during his presence on 15.01.2014. The Hon’ble AFT may also be informed that their order cited above was not implemented as a Civil Appeal assailing the same has been filed before the Apex Court and its hearing is awaited.

sd/-

( R.K.Arora )

Under Secretary (Pension/Legal-I)

JCDA(AF)

Subroto Park

New Delhi”

(Emphasis supplied)

4.         In this communication, it has been taken note of that the present Execution Petition M.A. No. 673/2013 was listed before the Tribunal on 09.01.2014 and the Tribunal has directed the Jt. Controller of Defence Accts (AF) to remain present on 15.01.2014 to explain the (reasons) for non-implementation of Tribunal’s final order dated 07.12.2011 in spite of clear direction given in order dated 21.01.2013 passed in M.A. No. 19/2012. By this communication dated 13.01.2014 direction was issued that JCDA (AF) is requested to immediately ascertain the status of the civil appeal and inform the same to the Hon’ble Tribunal during his presence on 15.01.2014. By this communication the said officer was directed to inform the Tribunal that above order was not implemented as a civil appeal assailing the same (order) has been filed before the Supreme Court and its hearing is awaited.

5.         It appears that there is deliberate avoidance of the order of the Tribunal dated 21.01.2013 passed in M.A. No. 19/2012 whereby a specific direction was given that even when the SLP is pending the respondents shall pass the appropriate order to implement the Tribunal’s final order 07.12.2011 subject to the order of Hon’ble Supreme Court. The said order dated 21.1.2013 reiterated again in order dated 16.12.2013 wherein we also observed that this is a choice of the Govt. in which matter they would vigorously pursue the appeal or SLP before the Supreme Court and the Tribunal clearly observed that such an attitude indicate that filing of SLP may be pretext for avoiding the implementation of the order. Copy of this order was sent to the Secretary, Ministry of Defence, Govt. of India for taking appropriate action against the guilty person who did not pursue the matter before the Supreme Court if the Govt. was really serious to challenge the order of the Tribunal. Nothing has been given in writing as required by order dated 09.01.2014 by which we directed that JCDA will give a written explanation as to why the Tribunal’s final order was not implemented.

6.         Orally only it is submitted that the JCDA personally approached the Secretary, ESW, who is the sanctioning authority and appraised her about the order directing the JCDA to remain present before the Tribunal.

7.         There is general impression among the litigants that the Tribunal is “toothless” in absence of power to punish the disobedience of its own order. The subject to give power to punish the guilty person for disobedience of the order of the Tribunal is pending before the Govt. since long. It is difficult to know the reason as to what is the hitch for the Govt. in punishing the guilty officers in contempt proceeding upon non-implementation of judicial order of the Tribunal. The Ministry is therefore, directed to submit its stand whether they want to shield the officers in the Defence Ministry deliberately, continuously, consciously. So far as implementation of the orders of this Tribunal are concerned the Tribunal has statutory jurisdiction under Section 29 to execute the orders and for securing the execution of the order, even if straightway civil contempt proceedings cannot be initiated even then the Tribunal has ample power to take all modes of execution including not only imposition of fine upon the Government and the guilty officer but also has power to attach the property and put on auction. For securing the implementation of the order, the Tribunal can pass order for holding Departmental Enquiry also and submit the result before the Tribunal. All above orders are passed in aid to secure implementation of the orders of the Tribunal in execution petitions.

8.         We are constrained to observe here that the copy of the order dated 16.12.2013 was directed to be sent to the Secretary, Ministry of Defence, Govt. of India and such an order is required to be reached to the concerned authority because of the reason, such order was passed in the presence of Union of India’s representative, which includes the representative of the Secretary, Ministry of Defence, Govt. of India. Yet no information has been given to us what action was taken by the Defence Secretary in view of our above order.

9.         Since, today in spite of all above orders, admittedly, no steps have been taken for implementation of order nor there is any intention to implement the order on pretext of SLP preferred and pretext has been made clear by communication dated 13.01.2014 whereby officially it has been conveyed to the JCDA to inform the Tribunal that order was not implemented as civil appeal has been preferred to challenge the order of the Tribunal, therefore, the Ministry has declared that they will flout the order of the Tribunal dated 21.1.2013 by a written order.

10. Therefore, for implementation of the order we are giving further two weeks of time on payment of Rs.10, 000/- by the officer Dr. BK Singh, JCDA who is present before us as well as cost of Rs.10, 000/- is imposed upon the Secretary, Ex-Servicemen Welfare (ESW). The cost shall be paid to the petitioner on next date of hearing or before that day. The Jt. Controller of Def. Accts (AF) who is present today as well as the Secretary, ESW, Ministry of Defence, Govt. of India shall remain present before us on next date of hearing.

11. The Secretary, Ministry of Defence, Govt. of India is directed to submit what steps have been taken against the guilty person who did not pursue the matter before the Supreme Court (if Govt. wanted to pursue the SLP) and what action was taken by the Secretary, Ministry of Defence by order dated 16.12.2013.

Put up on 06.02.2014.

Order Dasti.

( PRAKASH TATIA )

Chairperson

( S.K.SINGH )

Member

New Delhi

Dated the 21stJanuary, 2014

cs

Broadbanding of Disability Benefits - Dismissal of Review Petition

Hon’ble Supreme Court had directed on 31 Mar 11 in Capt KJS Buttar vs UoI that the benefit of broad-banding of disability element shall be admissible with effect from 01 Jan 1996 to pre-1996 retired/discharged disabled personnel too and the same shall also apply to those who were released on completion of terms or superannuated and not only to those who were invalided out on medical grounds. 

MoD, as is its habit/vice filed a Review Petition which was dismissed by the Apex Court on 21 Jan 14.

The order is re-produced below but there may be errors due to conversion from pdf to doc format, it is recommended that it may be downloaded from the Apex Court website: -

Supreme Court of India

K.J.S. Buttar vs Union Of India And Anr. on 31 March, 2011

Author: M Katju

Bench: B. Sudershan Reddy, Surinder Singh Nijjar

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5591 OF 2006

K.J.S. Buttar .. Appellant

-versus-

Union of India and Anr. .. Respondents

J U D G M E N T

Markandey Katju, J.

1. This appeal has been filed against the judgment and order dated 13.9.2004 in C.W.P. No.20447 of 2002 of the High Court of Punjab and Haryana at Chandigarh.

2. Heard learned counsel for the parties and perused the record.

3. The appellant is an ex-captain in the Indian Army, who was commissioned on 12.1.1969. During the course of his service, the appellant suffered serious injuries of a permanent nature and was invalided out of service. The Release Medical Board held on 3.1.1979 viewed his injury `gun shot wound left elbow' as attributable to military service and assessed the degree of disability at 50% and the appellant was released from service in Low Medical Category on 10.4.1979. Accordingly, the appellant was granted Disability Pension w.e.f. 26.7.1979.

4. The appellant filed a writ petition in the High Court claiming following benefits under Circular and Notification issued by the Ministry of Defence, Union of India from time to time:

(a)       War Injury Pension w.e.f. 1.1.1996 in terms of Ministry of Defence letter dated 31.1.2001;

(b) Treating the disability at 75% instead of 50% w.e.f. 1.1.1996 as per Ministry of Defence letter dated 31.1.2001;

(c) Grant of service element for full 10 years of service instead of 2 years; and

(d) Revision of the rates of the disability pension w.e.f. 1.1.1996 in terms of the letter dated 31.1.2001.

 It is pertinent to state that the Ministry of Defence letter dated 31.1.2001 had revised the rates pursuant to recommendations of Fifth Pay Commission.

5. The appellant was denied the above benefits by the respondent on the basis that he retired before 1.1.1996, and hence in terms of the notification dated 31.1.2001 he could not get the said benefits as they were granted to officers who retired on or after 1.1.1996. The appellant contended that that in view of the instruction issued on 31.1.2001 and subsequent instructions the said benefits are available to those who were invalided even prior to 1.1.1996. In addition, the appellant also prays that his disability should be treated as 75% instead of 50% in terms of clause 7.2 of the subsequent instructions.

6. The appellant had been granted the short service commission in the Indian Army on 21.1.1969. According to him while participating in the exercise conducted with live ammunition, he suffered gun shot on his left elbow and as a result the appellant was relieved from Indian Army with 50% disability on 10.4.1979.

7. A counter affidavit was filed by the respondent in the writ petition in which it was alleged that instruction dated 1.1.1996 is not applicable to the appellant. It was also contended that as regards the instruction dated 31.1.2001 it is not applicable to the appellant as he had not retired but was invalided out. With regard to the instruction dated 16.5.2001 it was alleged that the said instruction is applicable only with respect to paragraph 7.1(ii)(a) of the instruction dated 31.1.2001, and it has no application to the appellant.

8. The High Court in the impugned judgment held that paragraph 7.2 of the instructions dated 31.1.2001 is not applicable to the appellant. With respect we cannot agree.

9. As regards the claim of the appellant for pension for his full 10 years service as a short service commission officer, we have already held in Union of India & Anr. vs. C.S. Sidhu 2010(4) SCC 563 that this claim is justified. Hence his entire service in the army has to be taken into consideration for grant of Disability Pension and he must be given arrears with interest @ 8% per annum as was granted in C.S. Sidhu's case.

10. The stand of the respondent is that the disability of the appellant cannot be enhanced to 75% because the relevant provision being para 7.2 of Government of India, Ministry of Defence, letter dated 31.1.2001 is applicable only to those cases where the officer was invalided out of service after 1.1.1996. It is alleged that the appellant was invalided out much before the date.

11. In our opinion, the restriction of the benefit to only officers who were invalided out of service after 1.1.1996 is violative of Article 14 of the Constitution and is hence illegal. We are fortified by the view as taken by the decision of this Court in Union of India & Anr. vs. Deoki Nandan Aggarwal 1992 Suppl.(1) SCC 323, where it was held that the benefit of the Amending Act 38 of 1986 cannot be restricted only to those High Court Judges who retired after 1986.

12. In State of Punjab vs. Justice S.S. Dewan (1997) 4 SCC 569 it was held that if it is a liberalization of an existing scheme all pensioners are to be treated equally, but if it is introduction of a new retrial benefit, its benefit will not be available to those who stood retired prior to its introduction. In our opinion the letter of the Ministry of Defence dated 31.1.2001 is only liberalization of an existing scheme.

13. In Union of India & Anr. vs. S.P.S. Vains (Retd.) & Ors. 2008(9) SCC 125 it was observed :

“26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1-1-1996 and the other after 1-1-1996, would get two different amounts of pension. While the officers who retired prior to 1-1-1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 1-1-1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1-1-1996.

27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.

28. The question regarding creation of different classes within the same cadre on the        basis of the doctrine of intelligible differentia having nexus with the object to be achieved,  has fallen for consideration at various intervals for the High Courts as well as this Court, over the years.

 The said question was taken up by a Constitution Bench in D.S. Nakara where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counterproductive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.

30. However, before we give such directions we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakara case. The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step-up principle envisaged in the fundamental rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension."

14. In our opinion the appellant was entitled to the benefit of para 7.2 of the instructions dated 31.1.2001 according to which where the disability is assessed between 50% and 75% then the same should be treated as 75%, and it makes no difference whether he was invalided from service before or after 1.1.1996. Hence the appellant was entitled to the said benefits with arrears from 1.1.1996, and interest at 8% per annum on the same.

15. It may be mentioned that the Government of India Ministry of Defence had been granting War Injury Pension to pre 1996 retirees also in terms of para 10.1 of Ministry's letter No.1(5)/87/D(Pen-Ser) dated 30.10.1987 (Page 59 Para 8). The mode of calculation however was changed by Notification dated 31.1.2001 which was restricted to post 1996 retirees. The appellant, therefore, was entitled to the War Injury Pension even prior to 1.1.1996 and especially in view of the instructions dated 31.1.2001 issued by the Government of India. The said instruction was initially for persons retiring after 1.1.1996 but later on by virtue of the subsequent Notifications dated 16.5.2001 it was extended to pre 1996 retirees also on rationalization of the scheme. As per the Instructions, different categories have been provided by the Government for award of pensionary benefits on death/disability in attributable/aggravated cases. As per Para 10.1 of the Instructions dated 31.1.2001, where an Armed Forces personnel is invalided on account of disability sustained under circumstances mentioned in Category-E(f)(ii) of Para 4.1, he shall be entitled to War Injury Pension consisting of service element and war injury element. Para 4.1 provides for the different categories to which the pensionary benefits are to be awarded. Category-E(f)(ii) of Para 4.1 pertains to any death or disability which arises due to battle inoculation, training exercises or demonstration with live ammunition. Appellant is entitled to the War Injury Pension in terms of Category-E(f)(ii) of Para 4.1 and Para 10.1 of the Instructions dated 31.1.2001, which are reproduced hereunder for ready reference :-

Para 10.1

Where an armed forces personnel is invalided out of service on account of disability sustained under circumstances mentioned in category `E' of para 4.1 above, he/she shall be entitled to war injury pension consisting of service element and War Injury Pension as follows :

 (a) Service element : Equal to retiring/service pension which he/she would have been entitled to on the basis of his/her pay on the date of invalidment but counting service up to the date on which he/she would have retired in that rank in the normal course including weightage as admissible. Provisions of para 6 of the Ministry of Defence letter  No.1/6/98/D(Pens/Ser) dated 3.2.1998 shall apply for calculating retiring/service pension. There shall be no condition of minimum qualifying service for earning this element.

(b) War Injury element: Equal to reckonable emoluments last drawn for 100% disablement. However, in no case the aggregate of service element and war injury element should exceed last pay drawn. For lower percentage of disablement, war injury element shall be proportionately reduced.

Category `E;

Death or disability arising as a result of :-

(a) to (e) xxx xxx xxx

(f) War like situations, including cases, which are attributable to/aggravated by:-

(i) extremist acts, exploding mines etc., while on way to an operational areas;

(ii) battle inoculation training exercises for demonstration with live ammunition;

                        (iii) Kidnapping by extremists while on operational duty

(g) to (i) xxx xxx xxx

These instructions, which were initially restricted to Armed Forces personnel, who retired on or before 1.1.1996 were subsequently made applicable to the pre 1996 retirees also by virtue of instruction dated 16.5.2001. Relevant portion of the Instruction/Notification in this regard is reproduced hereunder:-

Subject - Rationalization of Pension Structure for pre 1996 Armed Forces Pensioners - Implementation of Government decisions on the recommendations of the Fifth Central Pay Commission.

16. As per para-6 of these instructions/letter dated 16.5.2001, any person, who is in receipt of disability pension as on 1.1.1996 is entitled to the same benefit as given in letter dated 31.1.2001. Further as per para-7 of this letter w.e.f. 1.1.1996 the rates of War Injury element shall be the rates indicated in letter dated 31.1.2001. Thus, in our opinion in view of the instruction dated 31.1.2001 read with our opinion 16.5.2001, the appellant was entitled to the War Injury Pension. It is pertinent to state that reading of paras 6, 7 and 8 of the Notifications/Circular dated 16.5.2001 makes it absolutely clear that the said benefits were available to pre 1996 retirees also but the rates were revised on 31.1.2001 and the revised rates were made applicable to post 1996 retirees only. But subsequently by means of the Notification dated 16.5.2001 the revised rates were extended to pre 1996 retirees also.

17. At any event, we have held that there will be violation of Article 14 of the Constitution if those who retired/were invalided before 1.1.1996 are denied the same benefits as given to those who retired after that date.

18. The respondents submitted that the appellant was not entitled to the above benefits as he had retired on completion of his short service commission of 10 years and had not been invalided out of service. In this connection it may be mentioned that the appellant was invalided out and released in a low medical category with permanent disability assessed at 50% by the Release Medical Board. As per the Defence Service Regulation/Pension regulation for the Army 1961 where any officer is found suffering from disability attributable to or aggravated by Military Service he shall be deemed to have been invalided out of service. Relevant provision (page 25 additional documents) read as under:-

Officers Compulsorily Retired on account of Age or on Completion of Tenure.

53.(1) An officer retired on completion of tenure or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 percent. The retiring pension/retiring gratuity, if already, sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be. (2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease.

In our opinion the appellant is entitled to the benefit of the above Regulation.

19. As a result this appeal is allowed and we hold that the appellant is entitled to grant of War Injury Pension w.e.f. 1.1.1996. The disability element of the Disability Pension shall be commuted as 75% instead of 50% and the appellant will be granted arrears w.e.f. 1.1.1996 with an interest of 8% per annum. He will also be granted 10 years' commission service and interest as granted in C.S. Sidhu's case from the date of his release. The impugned judgment is set aside.

20. The appeal is allowed. There shall be no order as to costs.

 ...................................J.

(Markandey Katju)

...................................J.

(Gyan Sudha Misra)

New Delhi;

31st March, 2011

RTI Filed for Obtaining information

RTI has been filed on 16 Jan 2014 for obtaining  information on the SoC sent by the Chairman COSC and CAS to MoD in respect of " Minimum pay for each Rank" and "Maximum of the Integrated scale of Pay, " the two issues on which the CGDA offered opinions which it wrongly/misleadingly stated are supported by the 4th CPC Report.

It is understood also that LA (Def) is presently perusing the SoC as well as comments/opinions of the CGDA and MoF on the COSC note/SoC referred to above.

One Step at a Time - Rank Pay Update

The Statement of Case on the two unresolved points (minimum of pay for each rank and MoD imposed ceiling at the top of the integrated scale) sent on 25 Nov 13 by Chairman COSC & CAS to Raksha Mantri has been sent to LA (Defence) on 03 Jan 14 by MoD. 

MoD still deciding on implementing the Ld Attorney General's opinion of 3.9.2013

SPEED POST

RIGHT TO INFORMATION ACT, 2005

FIRST APPEAL FOR CENTRAL GOVERNMENT

I.D. No____________________                                              Date: _________

[For office use]

To,

Shri Praveen Kumar, Director (AG-I) & First Appellate Authority,

Ministry of Defence, Govt of India,

Room No. 103, Sena Bhawan, New Delhi - 110011

Sir,

As I am aggrieved by no decision of Under Secretary & Central Public Information Officer, Pay/Service, Ministry of Defence, Sena Bhawan,  New Delhi – 110 011 by RTI Online vide Ref No. MODEF/R/2013/60605/D(RTI) dated 11 Oct 13 I hereby file this appeal for your kind decision.

1. Details of appellant:

(i)        Full Name: Sharad Yeshwant Savur

(ii)                Full Address: 141, Jal Vayu Towers, NGEF Layout, Indira Nagar (PO), Bangalore-560038

(iii)              Phone/Cell No: +91 9449676278

(iv)              Email ID: sysavur@gmail.com

2. Details of CPIO: -

(i)        Name/Designation:  Under Secretary (Pay/Services) & CPIO
(ii)       Full Address: Sena Bhawan, Ministry of Defence, Govt of India, New Delhi - 110011
(iii)      Name of Public Authority: Ministry of Defence

3. Details of RTI application to CPIO: -

(i)        Date of Application: by RTI Online: 11.10.2013               

(ii)       Mailed on: 11.10.2013 respectively

(iii)      Date of Receipt by MoD – D RTI): 11 Oct 13 vide ID No. MODEF/R/2013/(60605)/D(RTI)         

(iv)      Date sent by D(RTI) to  US (Pay/Services) & CPIO:  14 Oct 13

4. Particulars of payment of filing fee + additional fee: -

(i)        Application fee of Rs 10/- by Internet banking for RTI Online

5. Details of information sought: -

Please provide information relevant to MoD’s decision in the above quoted letter of the Ld Attorney General for India comprising records, documents, memos, U.O., O.M., e-mails, opinions, advices, circulars, orders, logbooks, reports, papers, etc, i.e.

(a)      To issue or not to issue another implementation order/corrigendum to MoD letter dated 27 Dec 12 referred above incorporating the ibid opinion of the Ld Attorney General approval(s), and/or

(b)       Seeking further opinion of of CGDA, Def/Fin and MoF in the matter of implementation of the opinion of the Ld Attorney General of India.

6. Particulars of Decision of CPIO: -

(i)        Letter reference No:                                    NIL   

(ii)       Date of CPIO’s Decision:                             No Decision

(iii)      Date of receipt of decision by the appellant: Not Applicable

7. Brief facts of the case: - Based on remarks of O/o CGDA Note No. AT/I/1483/RB/X(PC)/V dated 23.5.2013 and MoF, DOE ID No. 187654/E.III-A/2012 dated 05.07.2013, on the Service HQ SoC dated 02 Apr 13, the Ld Attorney General for India had given his opinion dated 03 Sep 13 on the order of MoD F No. 34(6)/2012/D(Pay/Services) dated 27.12.2102 in implementing the order of the Hon’ble Supreme Court in I.A. No. 9 of 2010 in UoI & Others Vs  N.K. Nair & Others.  

8. Reasons/grounds for this appeal: - Refusal by CPIO to provide information.

9. Any other information in support of appeal: Nil         

10. Prayer/relief sought for: - Please provide me with copy of the complete information on decision to implement or not to implement the opinion of the Ld Attorney General for India’s opinion of 03 Sep 13 in the Rank Pay matter.

11. Grounds for prayer/relief sought for: - Refusal of US & CPIO (Pay/Services) to provide the information.

12. Personal Presence at hearing: - No

13. Enclosures: - Photocopies of

(i) Original RTI application with its enclosures: -           attached

            (ii)   Postal proof of mailing by RTI: -                               attached

(iii)  Acknowledgement of MoD - D (RTI): -                                            Not received

(iv)   Decision letter of CPIO: -                                           Not received

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.

Sd/-----------------------

Place: Bangalore                   Date:   15^th November 2013                  Signature of appellant
[P.S. Format as per office memorandum dated 09-07-2007 issued by DoP&T, Govt. of India.]

*          *          *          *          *         

Reply: Received on 08 Jan 2014

Government of India

Ministry of Defence

No. 35(1)/2013/D (Pay/Services)                                                New Delhi, the 12^th December 2013 

ORDER

            Subject: Appeal under Section 19 of RTI Act, 2005 filed by S. Y. Savur

            Reference is invited to online Appeal forwarded by D(RTI) section vide No. MODEF/A/2013/60073/D(RTI) dated 21.11.2013 (recd. On 25.11.2013) filed by Shri S Y Savur            against non-response within the time limit by CPIO of MoD to his RTI application dated 11.10.2013 regarding decision of MoD to implement or not to implement the opinion of Ld Attorney General of India dated 3.9.2013 given in the Rank Pay case.

2.         I have considered the aforesaid appeal on the basis of the facts submitted by the appellant and comments furnished by the CPIO of MoD. It is stated that your RTI request dated 11.10.2013 (received on 17.10.2013) has already been considered in the section ad reply has already been sent to you on 14.11.2013 which may have been received by you now. 

3.         The appeal is, thus, not maintainable against the CPIO of MoD. However, a copy of MoD reply dated 14.11.2013 is again sent to you for information. It is further stated that your RTI application dated 25.10.2013 has also been transferred to this section by MoF. In this connection it is stated that the Rank Pay matter after opinion of Ld AG dated 3.9.2013 in under consideration in MoD in consultation with CGDA, Defence (Finance) and MoF.    

                                                                                                            Sd/--------------------------

                                                                                                            (Praveen Kumar)

                                                                                    Director (AG-I) & Appellate Authority

Copy of this order be supplied to: - Shri S Y Savur, 141 Jal Vayu Towers, NGEF Layout, Indira Nagar (PO), Bangalore – 560038

Encl: as above

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Non Functional Upgradation - Another Update

Read on Chatroll of Maj Navdeep's blog that "Generals are responsible for Armed Forces officers not getting NFU." Here is an update obtained through RTI

Online RTI Request Form Details

Public Authority Details :-

* Public Authority Department of Defence

Personal Details of RTI Applicant:-

* Name S Y SAVUR

Gender Male

* Address 141 JAL VAYU TOWERS , NGEF LAYOUT INDIRA NAGAR, BANGALORE

Pincode 560038

Country India

State Karnataka

Status Urban

Educational Status Literate

Phone Number +91-9449676278

Mobile Number +91-9688782227

Email-ID sysavur[at]gmail[dot]com

Request Details :-

Citizenship Indian

* Is the Requester Below Poverty Line ? No

(Description of Information sought (upto 500 characters)

* Description of Information Sought

Please provide information in the form of photocopies of notings on file, deliberations, minutes, memos, UO notes, ID notes, advices, opinions of the Cabinet Secretary headed Committee which was appointed by the Prime Minister in the matter of Non-Functional Upgradation for Armed Forces personnel, which the MoD has decided to wait.

*          *          *          *          *          *

Received on 06 Jan 14

RTI MATTER

No. 35 (11)/2013/D(Pay/Services)

Government of India

Ministry of Defence

New Delhi, the 27^th December, 2013

  To

            Shri S Y Savur,        

141 Jal Vayu Towers,

NGEF Layout,

Indira Nagar (PO),

Bangalore – 560038

Subject: Seeking Information under RTI Act – 2005

Sir,

            Refernce is invited to MoD ID No. MODEF/R/2013/(61057)/D(RTI) dated 10.12.2013 (received in this Section on 12.12.2013) and forwarding your application dated 9.12.2013 on the above subject.

2.         Ths issue on Non Function Upgradation was one of the issues considered by the Cabinet Secretary Committee. It is informed that decision on the recommendations of Cabinet Secretary Committee Report on the issues related to serving defence personnel is yet to be taken by the Government emphasis by Aerial View). Hence, the information sought vide above referred applicant cannot be shared at this stage by this Ministry under Section 8 (1) (i) of RTI Act, 2005.

3.         The Appellate Authority is Shri Praveen Kumar, Director (AG-I), Ministry of Defence, Room No. 103, Sena Bhavan, New Delhi.

Sd/---------------------

(P. S. Walia)

Under Secretary & CPIO

*          *          *          *          *          *

Aerial View’s note: Section 8 (1) (i) of the RTI Act states –

“cabinet papers including deliberations of the Council of Ministers, Secretaries and other officers:

            Provided that the decisions of Council of Ministers, the reasons thereof, and the material basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

            Provided further that those matters which come under the exemptions specified in this section shall not be disclosed

    

Contempt Petition (Civil) No. 328 of 2013 - Next Hearing on 17 Feb 2014

SUPREME COURT OF INDIA

Case Status Status : PENDING

Status of : Contempt Petition (Civil)    328    OF   2013

N.K NAIR & ANR   .Vs.   SHASHI KANT SHARMA & ORS

Pet. Adv. : GP.CAPT.KARAN SINGH BHATI

Subject Category : ORDINARY CIVIL MATTER - T.P. UNDER ARTICLE 139A(1) OF THE CONSTITUTION OF INDIA

Listed 2 times earlier                                                             Next Date of listing is : 17/02/2014