Air HQ/xxxxx/xx/AFPCC (Ty BM-XIII)
1
Copy of
Note 38-43 of MoD F No 34(10)/2013-
D(Pay/Services)
Air HQ/25450/1/LGL -1A
2
Copy of
Note-44 on Air HQ/25450/1/Lgl Vol I (PC) -2A
1.
Please refer copy of Note 38-43 (Encl-1A) and the discussions of RM with
the undersigned.
2.
Armed Forces had brought out four
substantive infirmities arising out of the executive order issued by MoD on 24
Dec 12 to implement Hon’ble Supreme court judgment dated 04 Sep 12. On reference from the Ministry of Defence, Ld
AG rendered his opinion on these issues on 03 Sep 13.
3.
It can be discerned that out of
the four issues, Ld AG has agreed with Armed Forces on two issues. The Armed Forces have endorsed the opinion of
Ld AG on these issues.
4.
It is felt that the opinion of Ld
AG on the remaining issues ie ‘minima
for each rank’ and ‘top of the integrated scale’ was
premised upon certain inputs provided by CGDA, which are incorrect.
5.
Accordingly, a Note on file
bringing out specific legal issues has been put up for consideration by RM to
process the remaining issues for reconsideration by Ld AG, (a copy thereof is
placed at Encl-2A).
6.
Implementation of the already
agreed issues will involve the following steps: -
(a)
Examination of the opinion of Ld AG by
CGDA, MoD (Fin) and MoF.
(b)
Preparation of DGL incorporating the
changes necessitated by the two issues.
(c)
Processing of the DGL with all the agencies
mentioned at (a) above.
(d)
Issuance of Government Orders for
implementation of the twin issues by MoD.
(e)
Implementation of the orders by CDA(O),
NPO, and AFCAO.
7.
It is opined that before all the
above steps are completed, the opinion of Ld AG on the remaining two issues is
also likely to be available. This would
require revisiting the sequence of issues described at para 6 above.
8.
An expeditious opinion by Ld AG on the
remaining issues would therefore, facilitate a holistic and all encompassing
implementation of Hon’ble Supreme Court verdict in the case.
9.
It is therefore, the considered
opinion of the undersigned that implementation of the issues on which agreement
has been reached should await the final opinion of Ld AG on the remaining two
issues for comprehensive resolution encompassing all issues. Piecemeal implementation of some of the
issues may lead to further complexities and unforeseen anomalies.
10.
For the consideration of RM.
Chairman COSC & CAS
25 Nov 13
RM
44
1.
Please refer Note-38
to Note-43 ante.
2.
In respect of the Rank Pay case for officers, while
endorsing the opinion of Ld AG on the two issues agreed by him in his opinion
i.e. “implementation of Court Order wef
01 Jan 86” and “application of legal
principles of the judgment to subsequent Pay Commissions”, this Note seeks
to raise certain legal issues related to the conditional opinion of Ld AG on
the remaining two issues of Minimum and
Top of the Scale. In the Armed
Forces view, the Rank Pay has been deducted from the Minimum and Top of the
Scale for affected ranks in the integrated Pay Scale of 4th CPC.
Background
3.
The long drawn Rank Pay Case was finally adjudicated upon by
Hon’ble Supreme Court on 04 Sep 2012 by upholding the Kerala High Court
order. The Government decided to
implement the judgment and issued orders to give effect to the judgment on
27 Dec 12.
4.
The implementation orders however, had certain
infirmities. The infirmities were taken
up by the undersigned with RM vide
PC-4-PA/5437 dated 18 Jan 13. In addition, a detailed Statement of Case and a
background note on these infirmities was also forwarded to MoD on 02 Apr 13 for
further action.
5.
In the absence of any visible progress, the matter was again
taken up with RM on 27 May 13. Subsequently,
a meeting was taken by RM with Service Chiefs and representatives of the
Ministries of Defence, Finance and Law as well as the CGDA on
14
Jun 2013 to resolve the infirmities in the ibid Govt letter.
6.
The RM directed MoD
to obtain the opinion of Ld AG on differing interpretations of the court order.
He also directed the Armed Forces to take up a case separately and
independently with Ld AG to obtain his opinion.
7.
Accordingly, a detailed Statement of Case (SoC) with
elaborate justifications and actual examples along with six specific queries,
was forwarded by the undersigned as the Chairman COSC & CAS to Ld Attorney
General on 01 Jul 13. Ld AG returned the
case advising Armed Forces to route the matter through Ministry of Law. The
case was then forwarded to MoD on 19 Jul 13 on this file for further
processing.
8.
However, it subsequently emerged that during the intervening
period, MoD had processed the first case with Ld AG who rendered his opinion on
this SoC on 03 Sep 13. This fact was brought to the knowledge of Def Secy by
the undersigned.
9.
Consequently, with the approval of Hon’ble RM, it was
decided that the initial SoC of 02 Apr 13 along with the Armed Forces SoC of 01
Jul 13 and the legal opinion of Ld AG dated
03 Sep 13, be resubmitted to Ld Attorney General to seek his opinion de-novo.
10.
LA (Def) discussed the matter along with JS & LA with
Law Secretary who opined that ‘it will not be proper to bother Ld AG again with
regard to same or similar issues on which he has already tendered his opinion
in detail. However, in case MoD finds
any material difference between the fresh Statement of Case and the earlier
one, by point of the view of its understanding, then specific legal issues, if
any, may be framed on which the opinion of Ld AG is required’.
11.
The views of Law Secy were put up to RM for decision. RM has
asked Service HQs to submit a statement on framing of legal issues for seeking
the opinion of Ld AG.
Opinion by Ld AG
12.
Ld AG gave his opinion on 03 Sep 2013 on the infirmities
presented to him by MoD and the following important points emerge from the
opinion :-
(a)
While the Armed Forces had raised six queries in their
independent Statement of Case dated 01 Jul 13, only four queries were presented
by MoD in its initial SoC for opinion by Ld AG.
(b)
Two out of four issues so referred, namely the clause
relating to “with effect from” and “extension of the ratio of the judgment to
subsequent pay commissions” have been clearly accepted by Ld AG. Others
have not been opined favourably.
(c)
Going beyond the points referred to him, Ld AG has given
guidelines on the spirit in which the court order needs to be interpreted.
Guidelines
for Interpretation
13.
Ld AG has dwelt and elucidated at para 21 of his opinion as
to how the Hon’ble Supreme Court order should be interpreted. It
states :-
“Before I answer the queries raised,
it is important to state that the Government must implement the Supreme Court’s
order of granting the same benefit to similarly situated officers both in
letter and in spirit. The Government cannot take a restrictive view of who
is similarly situated, and must grant benefit on the basis of the underlying
principle affirmed by the Supreme Court, i.e, wherever rank pay has been deducted at the time of fixation of pay, the
deduction must be undone and pay fixed accordingly. The approach that
the benefit would only apply to those who are directly covered by orders of the
court would force members of the Armed Forces to approach the Court for each
individual claim when the same has already been granted to all similarly,
situated officers by the Hon'ble Supreme Court. This would be unfortunate.”
14.
It is important that the spirit laid down by Ld AG is
followed while implementing the order of Hon’ble Supreme Court. Essentially, the
Ld AG’s opinion contains three important elements. These are: -
(a)
Hon’ble Supreme Court’s order is to be implemented granting
the same benefit to all similarly situated officers both in letter and spirit.
(b)
The Government cannot take a restrictive view of ‘who is
similarly situated’.
(c)
Wherever rank pay has
been deducted at the time of fixation of pay, the deduction must be undone.
Issues
Opined Favourably
15.
Ld AG has agreed with the view of Armed Forces on the
following issues: -
(a) With
Effect From 1.1.1986. The issue
was whether the implementation orders dated 27 Dec 12 should be implemented
‘with effect from 1.1.86’ instead of ‘as on 1.1.86’. Ld AG has opined that the Government cannot restrict the benefit of the
orders only to those officers whose pay was fixed as on 1.1.1986 after
deduction of rank pay in terms of para 6 (a) (ii) of SAI 1/S/87. It must grant
benefit to all those officers whose pay has been fixed after deducting rank pay
whether as on 1.1.1986, or after 1.1.1986. This must be done after properly
verifying the facts.
(b) Application
of Court Orders to Subsequent Pay Commissions. The issue was whether the legal principles of
the judgment should be applied to subsequent pay commissions or confined to 4th
CPC only. Ld AG has opined that
Government needs to implement the underlying principles laid down in Major
Dhanapalan’s case in 5th and 6th CPC also. He has opined
that it is immaterial that in Major Dhanapalan's case, only the IVth pay
commission was involved. The principle of law laid down is that rank pay cannot be deducted while fixing
pay in the integrated scale. Since rank pay has been deducted at the time
of fixing pay in subsequent pay commissions, the same would definitely have to
be corrected. The officers covered by Vth and VIth Pay Commissions cannot be
expected to approach the Courts for orders in the same terms.
16.
The Armed Forces endorse the views of Ld AG and have
nothing more to add on these two issues.
Issues
Not Opined Favourably: Changes in Minimum of Pay for Each Rank and Top of Integrated
Scale of Pay
17.
Ld AG has commented conditionally on the issues
involving changes in the ‘Minimum’ and ‘Top’ of pay scales for the ranks in
receipt of Rank Pay. These two issues
are intertwined as both have the same genesis and any decision on one issue inevitably
impacts the other.
18.
Ld AG has stated (para 34 of his opinion), “The CGDA has indicated that the minimum of
pay for each rank has not been arrived at after deduction of rank pay.” Based
on this contention put forth by CGDA, Ld AG at para 36 has opined “There is no need
to revise the minimum, if as stated
by the CGDA, it has been fixed on another basis.”
19.
From the above, it may be noted that the opinion of Ld AG is
premised on the CGDA’s contention – which,
as a basis in itself, is incorrect.
The present Note seeks to address this principle issue since it is at
gross variation to the CGDA’s contention and therefore, gives rise to the
following legal issue: -
LEGAL ISSUE: To establish whether
Rank Pay was deducted to fix the minimum pay of each rank and top of the pay
scale for affected ranks in the integrated scale prescribed by the 4th
CPC?
20.
This issue has invited attention of various agencies of the Govt
a number of times during the litigation and outside it. It is a documented
fact that Rank Pay has been deducted from the Pay Scale, both at the minimum
and top of the scale. The
following comments and views are available on record to substantiate this fact:-
(a)
6th
CPC Report. The report of
the 6th CPC accepts that
rank pay was deducted from the Pay Scales of commissioned officers. While analysing the issue of Rank Pay, it has
noted at Para 2.3.10 (iv) of its report
that ….
“(iv) …The
element of rank pay was carved out of the pay scales so revised after
giving the edge vis-à-vis civilian group A officers.”
(b)
Additional Affidavit by
UoI. In the instant case, the
Govt formed a High Powered Committee (HPC) comprising the Def Secy, Secy
Expenditure and Secy Def (Fin) to assess the financial impact of implementing
the order of Hon’ble Supreme Court dated 08 Mar 2010. Based on the report of the HPC, MoD submitted
an additional affidavit to Hon’ble Supreme Court. Para 30 (a) of the additional
affidavit reads, “In the present matter, implementing the Hon’ble Supreme Court
order dated 08 Mar 2010 would mean re-fixation of not only the officers
entitled to Rank Pay, but pay scales of
other personnel above and below such officers would have to be revised wef
1.1.1986 firstly, and then from 1.1.1996 and 1.1.2006, i.e. at the time of
subsequent pay revisions. Similar process would be carried out for the revision
of pension of the retired personnel. Any
change at one place will inevitably have impact on horizontal and vertical
parities thereby changing the overall pay structure envisaged by the 4th
CPC.”
Analysis: The ibid Judgment of Hon’ble Supreme Court
held that rank pay is in addition to pay scales. Therefore, deduction of rank pay from the pay
scales needs to be undone. The UoI in
the additional affidavit stated that implementing the judgment would require
revision of pay scales and pensions across three pay commissions for not only
the entitled officers but also those above and below them, thereby clearly
indicating that the deduction of Rank Pay in 4th CPC and its subsequent
restoration would impact on the Pay Scales of 4th, 5th and
6th CPC as well.
(c)
Opinion of Ld SG. This issue was also
referred to Ld Solicitor General by Ministry of Defence after the final
disposal of the case by Hon’ble Supreme Court on
04 Sep 2012. In this case, the query referred to Ld Solicitor General by MoD had
explicitly stated that the rank
pay was deducted from the Minimum of the pay in the integrated pay scale.
CGDA
Views in the Background Note and its analysis
21.
It is relevant to examine the views of CGDA on the subject since
Ld AG has based his opinion on these views.
(a)
CGDA’s Contention “…These minima were not fixed after deduction
of Rank Pay…” This is factually incorrect as can be seen from 6th
CPC Report para 2.3.10 (iv) which states, “…The element of rank pay was
carved out of the pay scales…”
(b)
CGDA’s
Contention: “… the integrated scale for
the Armed Forces Officers is devised considering the total service span of 23 years from Lt to Brig/Equivalent.” This is also factually incorrect as Annexure
28.1 of 4th CPC report clearly indicates that the span extends upto
28 years and not 23 years.
22.
CGDA’s Contention “…Even otherwise, comparison with civilian
side is not relevant as far as the apex court order is concerned….” This contention of CGDA is again, incorrect. As a matter of fact Pay Commissions devise a
common methodology for up-gradation of the pay scales across categories of
employees. The manner in which comparison with civilian counterparts is
relevant is as follows :-
(a)
The pay scales recommended are functions of existing pay
scale and the same mechanism/formula is used to revise the pay scales across
various categories of government employees. Exceptions, if any, are clearly
stated in the report. The 4th CPC while devolving on internal
relativities of pay scales within the government, at para 7.62 of its report,
has stated, “It has to be appreciated that where an effort is made to reduce
the scales of pay, it sometimes becomes inevitable that internal relativities
should be affected, but we will like
to maintain them as far as possible.”
Therefore it can safely be assumed that 4th CPC had tried to
maintain internal relativities between various categories including Armed
Forces.
(b)
As 4th CPC has attempted to maintain internal
relativities, it is logical to assume that the same yardstick was used for
similarly placed pay scales. On the other
hand, IVth Pay commission report does not mention that it intended to disturb
the pay scale relativities between the Armed Forces and their civilian
counterparts. A comparison of similarly placed Commissioned
Officers’ pay scales with that of the Civilian Officers’ pay scales will
therefore conclusively establish that Rank Pay had been deducted from the
minimum and top of the pay scales. Following example will illustrate this fact
:-
(i)
The pay scales of a Capt and an STS were similar and
comparable before the 4th CPC.
Promotion to both these posts was time bound for both categories. On promotion to such a rank/post, if there
was parity in the pay scale of Commissioned Officer (Capt) and Gp ‘A’ Service
Officer (STS) before 1.1.86, their parity should have continued post 1.1.86
disregarding Rank Pay which is an additional element not forming part of pay
scale. This parity has been disturbed
for officers assuming this rank/post after 1.1.86 as shown below:-
Rank
|
Pay in
3rd CPC
Jan 1973-Dec 1985
|
Minimum Pay in 4th CPC for Pre & Post 1.1.86 officers
(Prior to Court verdict)
|
Revised Pay for Offrs promoted before
01 Jan 86
|
Pay for offrs who joined/ promoted after
01 Jan 86
|
|
Capt
|
1,200
|
2800
|
3000
|
2800
|
|
STS(Civ)
|
1100-1200
|
3000
|
3000
|
3000
|
(ii)
The rank pay for Captain was ` 200. The above table
clearly shows that the Captain’s pay scale after 1.1.86 is depressed by ` 200
which is equivalent to the rank pay for Capt.
Similar situation exists for all other affected ranks. This conclusively establishes deduction of rank
pay from the minimum pay of the rank in integrated pay scale prescribed by 4th
CPC.
23.
As in the case of ‘minimum of the scale’, the rank pay has
also been deducted from the ‘top of the scale’ as can be seen by comparing the
pay scales of a Brigadier and his equivalent in civil who is a DIG Police. Top
of the scale of a DIG Police in 4th CPC was `
6,150/-. But
the top of the scale for Brigadier was recommended at `
5,000/-,
which had been arrived after deducting the Rank Pay of `
1200/- i.e.
6150-1200=4950/-, rounded off to
` 5000/-. Thus the Top of the pay scale, like the Start of the
Scale for Brig/equiv was also depressed in the same manner.
24.
The contention of CGDA at Note 30 ante is that “if top of
the integrated pay scale is changed, it would burst the next higher scale of
Major General”. This contention is not based on facts as shown in the following
example. In the 3rd CPC, the existing pay scale of Brigadier on
1.1.86 was 2200-2400 while that of a DIG police was 2000-2250 with a special
pay of ` 100. These two scales were therefore, comparable. In the 4th
CPC, the revised top of the pay scale of DIG police was `
6150/- which is well below the top of scale of IG which was ` 6700.
If the existing relativities of Brigadier and DIG are retained, Brigadier would
have his top of the scale at least at ` 6150. This is also well
below Major General top of scale of
` 6700. Thus, in no case the top of scale of Brigadier can
burst the top of the scale of Major General, as contended by CGDA. The Rank Pay, which has now been clearly
established, is in addition and does not form part of the pay scale and hence
cannot be considered while calculating top of the pay scale.
25.
CGDA’s Contention “… the minimum pay, as stipulated at para
6(a)(ii) of SAI 1/S/87 for each rank in the integrated scale of pay, was
recommended by 4th CPC”. This contention is also not correct. Such stipulation are nowhere found in the
report of
4th CPC. A copy of Annexure
28.1 is placed opposite.
Summary
26.
Therefore, it can be surmised from the above facts that Rank
Pay was indeed deducted from the Minimum and Top of Pay Scales thereby
depressing the entire pay scales for the affected ranks. This can also be seen from the extracts of 4th
CPC report and other official communications brought out above. I would also like to refer to the order of
Hon’ble Kerala High Court (quoted below) which makes it amply clear that the rank
pay is in addition to the existing Pay Scales.
"Under
these circumstances, I am of the view that respondents
2 and 3 had completely misunderstood the scope of extending the benefit of the
payment of rank pay to the Army Officers. Rank Pay is something which
has been given to Army Officers in addition to the existing pay scales.
That is not an amount which has to be deducted in order to arrive at the total
emoluments which an Army Officer is
entitled to get."
27.
It is the considered opinion of the undersigned that while
the Ld AG has opined favourably in the context of the earlier two issues of ‘implementation of Court Orders wef 01 Jan
86’ and ‘application of the legal
principles of the case to subsequent pay commissions’, in the light of the
clarifications provided, the other two issues of Minimum and Top of Scale be also corrected and a favourable
decision be given to the Armed Forces.
28.
May I request the Hon’ble RM to kindly forward the above Note
for Ld AG’s re-consideration in the specific two issues of Minima for each rank and Top
of the Integrated scale for officers.
Chairman COSC
RM
