A Comparison 27 Dec 2012 and DGL March
2014
No.
34(6)2012-D(Pay/Services)
Government
of India
Ministry
of Defence
New Delhi,
the 27th December, 2012
|
DGL
Encl
77-A
34(10/2013/D (Pay/Services)
Government of India
Ministry of Defence
New
Delhi, Dated March 2014
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To
The Chief
of the Army Staff
The Chief
of the Air Staff
The Chief of the Naval Staff
Subject: Implementation of Hon’ble Supreme Court
order dated 4th September, 2012 in IA No.9 of 2010 in Transfer
Petition (C) No. 56 of 2007 – Union of India and Others –Versus- N.K. Nair
and Others, etc.
Sir,
I am
directed to invite attention to the Special Army Instructions No. 1/S/87
dated 26th May, 1987 and the corresponding Special Instructions
pertaining to Navy and Air Force both bearing Nos. 1/S/87 dt. 11.06.1987 and
26.05.1987 respectively regarding revision of pay scales, fixation of initial
pay, etc. in the revised scales implemented w.e.f. 01.01.1986 based on the
recommendations of the 4th Central Pay Commission and to say that
Para 6 (a)(ii) thereof, while providing for fixation of initial pay in the
revised scales, provided that –
“After the
existing emoluments have been so increased, an amount equivalent to the Rank
Pay, if any, appropriate to the rank held by the officer on 01 January 1986
at the rates prescribed in para 3(a) (ii) above, will be deducted…”
2. The Hon’ble High Court of Kerala at
Ernakulum in their order passed on 5th Day of October, 1998 in the
matter of OP No.2448 of 1996-N filed by Major A.K. Dhanapalan, had directed
as under :-
“Under
these circumstances, the respondents 2 & 3 are directed to re-fix the pay
of the petitioner with effect from 01.01.1986 without deducting the rank Pay
of Rs.200 as has been done by the Respondents 2 & 3”.
3. The appeal No.WA 518 of 1999 filed by
the Ministry of Defence, Government of India, was dismissed by the Hon’ble
High Court of Kerala at Ernakulum vide their order of 4th day of
July, 2003. Subsequently, after the dismissal of SLP by the Hon’ble Supreme
Court, the above direction of the Hon’ble High Court of Kerala was
implemented by this Ministry, re-fixing the pay of the petitioner w.e.f.
01.01.1986 without applying the aforesaid provision contained in para
6(a)(ii) of the aforesaid Special Army Instruction of 26th May,
1987, i.e. without deducting the Rank Pay as appropriate to the petitioner as
on 01.01.1986.
4. Subsequently, the Hon’ble Supreme
Court, vide their order dated 08.03.2010, in the Transfer Petition (C) No. 56
of 2007 and linked matters, directed as under:-
“We have
carefully perused the judgment dated 05.10.1998 of the Ld. Single Judge as
well as judgment dated 04.07.2003 of the Division Bench of the High Court of
Kerala and we respectfully agree with the reasoning given therein for grant
of Rank Pay retrospectively from 01.01.1986.
We also direct interest be paid thereon at 6% p.a.”
5. The Hon’ble Supreme Court in their
subsequent order passed on 4th September, 2012 in the matter of
I.A. No.9 of 2010 in Transfer Petition (C) No.55 of 2007 has directed as under:-
“On thoughtful consideration of the
entire matter, we are satisfied that the order dated March 8, 2010 does not
require any modification or variation save and except the interest part.
As regards interest, on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Major A.K. Dhanapalan was dismissed by this Court in August, 2005 and the Kerala High Court had not ordered payment of interest on the arrears of pay, we direct that the interest shall be paid by the petitioners to the respondents @ 6% p.a. from January 1, 2006 instead of January 1, 1986. It is clarified that this order shall govern all similarly situated officers who have not approached the court and also those who have filed Writ Petitions which are pending before various High Courts/Armed Forces Tribunal.”
6. Accordingly, in compliance with the
aforesaid Order of the Hon’ble Supreme Court passed on 04.09.2012 read with
their earlier order dated 08.03.2010, upholding the Order of the Hon’ble
Kerala High Court passed on 05.10.1998 in case of Major A.K. Dhanapalan,
which has also directed that the order shall govern all similarly situated
persons, the sanction of the Government is hereby communicated to modify the
provisions contained in para 6(a)(ii) of the Special Army Instructions of 26th
May, 1987, and corresponding instructions in case of Navy and Air Force
bearing both bearing No.1/S/87 dt. 11.06.1987 and 26.05.1987 respectively,
insofar as it relates to deduction of Rank Pay, which has been reproduced in
para 1 above and to re-fix the initial pay of the concerned officers of Army,
Navy and Air Force in the revised scale (integrated scale) as on 01.01.1986 as
per para 6 of those instructions without deduction of Rank Pay appropriate to
the rank held by the officer of 1st January, 1986 from the amount
as worked out under para 6(a)(i) thereof.
7. Except to the extent of modification of
the provision contained in para 6(1)(ii) of the aforesaid Army Instructions
and corresponding Navy and Air Force Instructions both bearing No.1/S/87
dated 11.06.1987 and 26.05.1987 respectively relating to deduction of Rank
Pay in terms of these orders, which is in complete compliance of the
aforesaid judicial pronouncement, in all other respects there shall be no
change in the provisions of the aforesaid Special Army, Navy and Air Force Instructions
of 1987 pertaining to the implementation of the recommendation of the 4th
Central Pay Commission.
8. As the aforesaid Order of the Hon’ble Supreme Court passed on
04.09.2012 read with their earlier order dated 08.03.2010, has upheld the
Order of the Hon’ble Kerala High court passed on 05.10.1998 in case of Major
A.K. Dhanapalan and as the said Order of the Hon’ble Kerala High Court dated
05.10.1998 is for re-fixation of pay as on 01.01.1986, and as this sanction
is in compliance with these judicial pronouncements, it is clarified there
shall be no change in respect of Special Instructions of Army, Navy and Air
Force issued on 19.12.1997 and 11.10.2008 (Army) and 18.10.2008 (Navy and Air
Force) for implementation of the recommendations of the 5th and 6th
Central Pay Commission respectively, except to the extent of the need for
re-fixation of pay as on 01.01.1996 and 01.01.2006, necessitated due to
re-fixation of pay as on 01.01.1986 in terms of these orders.
9. Dearness Allowance, Interim
Relief, Dearness Pay and Non-Practicing Allowance in respect of AMC/ADC/ RVC
Officers will be revised.
10. Pensionary benefits due
to the re-fixation of pay as above, if any, will be admissible as per Rules
on the subject. Fresh LPC cum Date Sheet for this purpose will be issued. PPO
revising the pension will be issued to all the concerned.
11. As directed in Hon’ble
Supreme Court order dated 4th September, 2012, interest @6% per
annum on the arrears will be paid with effect from 01.01.2006.
12. All affected
officers/pensioners have to given an undertaking at the time of disbursement
of arrears as per Appendix ‘A’ to the effect that any excess payment that may
be found to have been made as a result of incorrect re-fixation of
pay/pension will be refunded by him/her to the Government either by
adjustment against future payments or otherwise.
13. All departments/offices
involved in re-fixation of pay under these orders are hereby directed to
process the cases at highest priority so that arrears, if any, are paid at
the earliest. The Head of the Department/ Office will be personally
accountable for any avoidable delay in revision of pay/pension or payment of
arrears as the case may be. Office of PCDA(O), Pune, Naval Pay Office, Mumbai
and Air Force Central Accounts Office, Delhi Cantt. will appoint Nodal
Officers to whom the affected officers may contact for information, in any:
14. Paying authorities and
the Service HQrs. will work in tandem wherever required, in implementing the
Hon’ble Supreme Court order.
15. In partial relaxation of
Serial No.3 of Appendix ‘A’ to the Ministry of Defence Letter
No.IC/1027/32/AS(J)/ 6864/2006 dated 1st September, 2006 for fast
track implementation of the Court judgment in this case wherein a large
number of officers are affected, the payment will be made directly by PCDA
(O)/AFCAO/ Naval Pay Office. Ex-post facto sanction will be granted by
Ministry of Defence on quarterly basis under Charged Expenditure based on
audit/payment reports rendered by CDA(O)/AFCAO/Naval Pay Office and the cases
for the sanction will be processed by AG Branch/ COP/ AOP with Ministry of
Defence.
16. This issues with the
concurrence of Ministry of Defence (Finance) vide their Dy.
No.8(13)/2012-AG/PA (583-PA) dated 27.12.2012 and Ministry of Finance
(Department of Expenditure) vide their Dy. No.187654/E.III(A)/2012 dated 24.12.2012.
Yours
faithfully
Sd/-
(Praveen
Kumar)
Director
(AG.I)
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To,
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
CORRIGENDUM
Sub: Implementation of Hon’ble Supreme Court Order
dt 4th September, 2012 in IA No. 9 of 2010 in Transfer Petition
(C) No. 56 of 2007 Union of India and Others versus N. K. Nair & others,
etc
Sir,
I am
directed to refer to this Ministry Order No. 34 (6)/2012-D(Pay/Services) dt
27th December 2012 regarding implementation of subject Order of
the Hon’ble Supreme Court and to state that as per legal opinion tendered by
the Learned Attorney General of India, the sanction of the Government is
hereby accorded to modify the provisions of this Ministry’s ibid order as
under:
i) The
existing para 6 will be renumbered 6 (A) ad would stand revised as under:
In the twelfth line after the word
‘(integrated scale),’ the words “as on 1.1.1986” will be substituted by
“w.e.f. 1.1.1986.”
ii) A
new para 6 (B) will be added as
follows:
6
(B) Sanction of the Government is hereby also communicated to modify certain
provisions of Special Army Instructions No. 2/S/1998 dated 19th
December 1997 and the corresponding Special Instructions pertaining to Navy
and Air Force both bearing Nos. 2/S/1998 dated 19th December 1997,
in so far as they relate deduction of Rank Pay for fixation of revised pay of
the concerned officers of Army, Navy and Air Force in the revised scale
w.e.f. 01.10.1996. The modifications/amendments in SAI 2/S/1998 and
corresponding instructions for Air Force and Navy are as under:
(a) In para
5 (a) (i) the words ‘and rank pay
wherever applicable in the pre-revised scale’ would stand deleted.
(b) The existing para 5 (a) (ii) would read as under:
ii) The
officer’s pay will be fixed in the revised scale at the stage next stage
above the amount thus computed.
(c) Para 5 (d) (i) the words ‘including
rank pay’ would be deleted.
(d) In
para 5 (e) (i) the words ‘including
rank pay’ would be deleted.
(e) In para 5 (e) (ii) the words ‘including rank pay’ would be deleted.
(f) In para 5 (e) (iii) the words ‘including rank pay’ would be deleted.
(g) In para 5 (e) (iv) the words ‘including rank pay’ would be deleted.
(iii) A new para 6 (C) will also be added in ibid MoD letter as
follows:
6
(C) The pay fixation formula
w.e.f.1.1.2006 as laid down in SAI 2/S/2008
and the corresponding Special Instructions applicable to Air Force and
Navy has also been examined in light of the legal opinion tendered by the
Learned Attorney General. In the [existing (struck off by pen)] methodology of pay fixation of revised pay
w.e.f 1.1.2006, Rank Pay has not bee deducted and [struck off words as was being done w.e.f 1.1.1986 and
1.1.1996. In fact, the Rank Pay] has been taken into account along with
Basic Pay in the pre-revised scale to arrive at the new, revised pay in the
relevant pay band w.e.f.1.1.2006 whereupon Grade Pay has also been given, and [inserted by hand] an additional
component of Military Service Pay (MSP) at Rs 6000 p.m. is also admissible to
the Armed Forces officers up to the rank of Brigadier/eq. As such, the pay
fixation formula w.e.f.1.1.2006 for the relevant officers of the Armed Forces
as laid down in the relevant instructions does not require any change.”
(iv) Existing Para 7 will be replaced with the following:
7 Except to the extent modifications as
stated in MoD letter No. 34(6)/2012-D (Pay/Services) dated 27.12.2012 and as
amended vide this letter, the aforesaid Army Instructions 1/S/87 dated
11.6.1987 and corresponding Navy and Air Force instructions both bearing No.
1/S/87 dated 11.06.1987 and 26.05.1987 respectively as amended from time to
time and Special Army Instructions No. 2/S/98 of 19.12.1997 and the
corresponding Special Instructions in case of Navy and Air Force both bearing
No. 2/S/98 and dated 19.12.1997 as amended from time to time, there shall be
no change in the provisions of the aforesaid Special Army, Navy and Air Force
Instructions of 1987 and 1997 pertaining to the implementation of the
recommendations of the 4th and 5th Central Pay
Commission respectively. For the position brought out in para 6 (C) above,
there is no change required to be made in respect of pay fixation methodology
w.e.f.1.1.2006.
(v) Existing para 8 will be replaced with the
following:
8 As the aforesaid Order of the Hon’ble
Supreme Court passed on 04.09.2012 read with their earlier order dated
08.03.2010, has upheld the order of the Hon’ble Kerala High Court passed on
05.10.1998 is for refixation of pay without deduction of Rank Pay w.e.f.
01.01.1986 [words struck out ‘and 01.01.1996’],
and as this sanction is in compliance with this judicial pronouncements,
[words hereafter in italics inserted by hand] ‘and the legal opinion of the Ld Attorney General on this issue’
it is [word struck out ‘again’] clarified
that there shall be no change in respect of Special Instructions of Army,
Navy and Air Force issued on 11.10.2008 (Army) ad 18.10.2008 (Navy and Air
Force) for implementation of the recommendations of the 6th
Central Pay Commission, except to the extent of the need for re-fixation of
pay w.e.f. 01.01.2006, necessitated due to re-fixation of pay w.e.f. 1.1.1986
and 1.1.1996 in terms of these orders.
(vi) All other provisions of the MoD letter No. 34 (6)/2012-D (Pay/Services) dated 27.12.2012 remain unchanged.
2. This
issues with the concurrence of Ministry of Defence (Finance) vide their Dy
No………. dated…………..and Ministry of Finance (Department of Expenditure vide
their Dy No………….dated …………
Yours faithfully,
Pradeep Kumar
Director (AG-I)
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