Sunday, 9 March 2014

Getting Some Clarity: Maj Dhanapalan Vs Uoi is NOT Lt Col Nair & Anr Vs UoI

Maj Dhanapalan Vs UoI case (OP 2448/1996 and WA 518/1999) concluded in 2005 after the Apex Court dismissed the Special Leave to Appeal No. CC 5908 of 2003. Maj Dhanapalan was paid arrears.

The next phase commenced when other similarly officers filed cases in High Courts which UoI got transferred to the Apex Court as TP (C) No. 56 of 2007 with UoI as the Petitioner and Lt Col N K Nair & Others as respondents on which as judgment was passed by the Apex Court "respectfully agreeing with the reasoning of the Kerala High Court" on 08 Mar 10. UoI, later filed IA No. 9 of 2010 which was heard and judgment passed on 04 Sep 12.

The then Chairman CoSC and CAS wrote on 02 Apr 13 and again on 25 Nov 13, on behalf of Services HQ, that the following issues to be addressed and clarity required were differences of opinion in the implementation of the Apex Court's order dated 04 Sep 12: -

                    (1) As on 1.1.1986 Or retrospectively from 1.1.1986; 

                    (2) Applicability of Orders of 04 Sep 12 to restoration of impugned deduction of  
                    rank pay to 5th CPC and consequent effect on scales of 6th CPC; 

                     (3) 4th CPC has not stipulated a minimum pay for each rank, and

                     (4) Restoration of deduction would mean increasing the ceiling of the integrated 
                     pay scale from Rs 2300 - 5100 to Rs 2300-6150 + Rank Pay.

RDOA was neither invited nor participated in the discussions in the office of the Raksha Mantri after the issue of the MoD letter dated 27 Dec 12.

Even if issues (1) and (2) are addressed vide an "unlikely"corrigenda, other issues (3 & 4) and the alleged contempt of Court are still to be decided by the Apex Court.

RDOA, I repeat, are not a party to the SoC dated 02 Apr 13 on which the Ld AG offered his opinion, and RDOA is not a party to the SoC dated 25 Nov 13 either. Those SoC are the case of the Service HQ. 

RDOA's case is that

                 (1) The DGL perpared by Service HQ at the request of MoD meets the 
                  requirements of the Order of the Apex Court in IA No. 9 of 2010. 

                  (2) MoD's letter dated 27 Dec 12 does not comply with the Order in letter and 
                  spirit and therefore Contempt has been committed by the alleged Contemnors. 
                  Hence Contempt Petition (Civil) No. 328 of 2013.

Service HQ are not litigants - appellants/petitioners/respondents/interveners - in TP (C) 56 of 2007, IA No 9 of 2010 or in CP (C) 328/2013.

We must avoid blurring the battle lines or we will have the same problem as, for the MoD letter of 27 Dec 12, MoD/CGDA/MoF took advantage of orders in Maj Dhanapalan Vs UoI (OP No. 2448/1996 and WA No. 518/1999) as being the same as in UoI Vs Lt Col N K Nair & Ors (TP (C) 56 of 2007, IA No 9 of 2010 and now CP (C) No. 328 of 2013.

Everyone and his uncle (as the colloquialism goes) should stop calling the UoI Vs Lt Col Nair & Ors or the Lt Col N K Nair & Anr vs UoI in CP (C) 328/2013 as the "Major Dhanapalan case."

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