Ack Due form was received on 27 Jul 14
3. I disclose the following: -
BY REGD POST-ACK DUE
Shri Ranjit Kumar,
Learned Solicitor General of India,
27, Law Officer’s Chambers,
Supreme Court of India,
New Delhi – 110 001
RANK PAY CASE: Armed Forces Officers & Veterans
List of Annexures: - A-1 – Order of Hon’ble Supreme Court dated 31.3.2014 in Contempt Petition (Civil) No. 328 of 2013
A-2 – Reference numbers of files and documents
A-3 – Typed true copy of GoI/MoD reply to RTI application reference F. No. 35(1)/2013-D (Pay/Services) dated 26th April, 2013
A-4 – Typed true copy of GoI/MoD reply to RTI application reference F No. 35(1)/2013- D (Pay/Services) dated 12th December 2013
Respected Learned Solicitor General of India,
I take courage in my hands in writing this, inspired by the wise words of Shri Mukul Rohatgi, Learned Attorney General for India who is quoted to have said, “Transparency is the antithesis of arbitrariness…..transparency is an important principle behind executive decision making….” (Times of India, 20th June 2014).
2. My reference is to Contempt Petition (C) No. 328 of 2013: Lt Col N K Nair & Anr Vs Union of India in Interlocutory Application (I. A.) No. 11 of 2013: Union of India & Ors Vs Lt Col N K Nair & Ors in IA No. 9 of 2010: Union of India & Ors Vs Lt Col N K Nair & Others in Transfer Petition (Civil) No. 56 of 2007: Union of India & Ors Vs Lt Col N K Nair & Ors & tagged cases, hereinafter called the Rank Pay case.
3. I disclose the following: -
(a) I am a law abiding, income tax paying citizen of India, and a former Indian Air Force officer with 40 years of service awarded Ati Vishist Seva Medal (AVSM) for service of an Exceptional Order in 2002 and Param Vishist Seva Medal (PVSM) for service of the Most Exceptional Order and life time achievement in 2006.
(b) I disclose that I do not have any legal qualification/experience but, that I am a similarly situated officer as defined by the Hon’ble Supreme Court in its order in I. A. No. 9 of 2010 dated 4th September 2012.
4. I request the liberty to place before you plain & simple documented facts to consider when you receive the brief in the above case on behalf of UoI & Ors in Contempt Petition No. 328 of 2013 in Lt Col (retd) N K Nair & Anr vs UoI where the alleged Contemnors are the present Defence Secretary (Def Secy) and Controller General of Defence Accounts (CGDA) as directed by the Hon’ble Supreme Court on 31st March 2014 (Annexure A-1).
5. The documented facts, quoted in subsequent paragraphs, are from the Hon’ble High Court of Kerala, the Hon’ble Supreme Court and from replies to applications for information under the RTI Act 2005 of Ministry of Defence (MoD), MoD/Finance (MoD/Fin), Ministry of Finance (MoF), Department of Expenditure (DoE), and Controller General of Defence Accounts (CGDA). File, UO, and ID Note reference numbers dates have been provided and the originals would be available in the UoI/MoD’s files.
6. UoI & Ors have been represented in the Rank Pay case by the following learned Law Officers of the Government: -
(a) Transfer Petition (C) No. 56 of 2007: - By Shri Mohan Jain, Ld ASG in;
(b) Interlocutory Application No. 9 of 2010: - Shri Gopal Subramanium, then Ld SG, settled and represented UoI till his resignation, then by Shri R F Nariman, Ld SG represented UoI;
(c) Interlocutory Application No. 11 of 2013 in IA No. 9 of 2010: - Shri Mohan Parasaran, Ld SG, and
(d) Contempt Petition (C) No. 328 of 2013: - till date of last hearing on 31st March 2014 by Shri Mohan Parasaran, Ld SG
7. In early 1987, the then Prime Minister approved an element called Rank Pay that would be paid to officers of the ranks of Captains to Brigadiers (and their equivalents in the Navy and Air Force) in addition to a higher salary recommended by the Fourth Central Pay Commission (4th CPC) in Chapters 28 and 30 of its Report.
8. The case, now known as Rank Pay case, originated in February 1996, when Capt (later Major (retd) Dhanapalan challenged in the Hon’ble High Court of Kerala (Original Petition No. 2448N of 1996), the interpretation and formula of re-fixation of pay in the newly recommended integrated pay scale by MoD realising that his pay re-fixation had not been as per 4th CPC Report & recommendations and Govt of India/MoD Resolution 1-E but by a different formula devised by MoD (Finance). Maj Dhanapalan found that instead of being paid Rank Pay in addition to his re-fixed salary, an amount equal to the Rank Pay was being deducted and, by some tortuous logic, which the MoD could not explain to MoF (DoE) and DOP & T, that amount was being added again to make a sum called the “re-fixed emoluments” (please see Para 10 below for more details).
9. While the case [of Maj (retired at his own request in August 1997) Dhanapalan Vs UoI/MoD] was being heard by a Ld Single Judge of the Hon’ble High Court of Kerala and a judgment/order was yet to be pronounced, the MoD issued Special Army Instructions (SAI) No. 2/S/1998 (and corresponding special instructions for the Navy and Air Force) on 19th December 1997 incorporating the impugned formula for re-fixation, recommended by the 5th CPC, which had submitted its report in September 1997. As records were not provided by MoF/DoE the coordinating Ministry/Department for Pay Commission issues in reply to RTI application, it is not possible to conclude whether MoD, as the nodal/administrative ministry for Armed Forces, informed either MoF/DoE or the 5th CPC of the pending court case in the memorandum invited by the CPC in the process of finalising its Report and Recommendations.
10. The learned Single Judge issued a judgment in favour of Maj Dhanapalan on 5th October 1998 - a full 10 months after the impugned SAI was issued. Therefore, by this act of issuing SAI No. 2/S/98, MoD it appears to have committed Contempt of Court in 1997 itself.
11. MoD filed Writ Appeal No. 518 of 1999B before the Hon’ble High Court’s Division Bench against the order of the Ld Single Judge. The Division Bench sought certain clarifications, reply to which was filed by MoD vide W A No. 510 of 2000. MoD did not mention issue of SAI No. 2/S/98 incorporating the impugned formula in either of the Writ Appeals (518/1999 or 510/2000) thereby concealing material facts from the Hon’ble Court. The Division Bench upheld Maj Dhanapalan’s arguments on 4th July 2003, and again confirmed the judgment of the learned Single Judge. In a reply to RTI applications, MoD admitted on 26.4.2013 it did not either inform Hon’ble High Court of Kerala nor obtain any judicial order to issue SAI No. 2/S/98 (please see Annexure A-3).
12. However, MoD filed a Special Leave Petition (SLP) No. (CC) 5908 of 2005 with IA No. 1 of 2005 (for condonation of delay) ignoring the advice of then Addl Solicitor General, as revealed by reply to another RTI application (Note 81 in MoD File No. B/25511/AKDP/AG/PS-3(a) dated 27th February 2004). Again MoD did not mention the issue of SAI 2/S/98 in the affidavit filed in support of SLP No. (CC) 5908 of 2005. The SLP was dismissed by the Hon’ble Supreme Court in the first hearing itself on 12th July 2005. Maj (retd) Dhanapalan was paid arrears in 2006, after Defence (Finance) admitted to MoF/DoE and DOP&T that the formula of deduction Rank Pay before re-fixation was its own initiative in Note 88 on MoD File No. B/25511/AKDP/AG/PS-3(a)/D(Pay/Services) dated 25th June 2004.
13. MoD decided that the judgment was applicable only to Maj (retd) Dhanapalan and each and every Officer entitled to be paid Rank Pay has to approach the Courts for justice. MoD compelled the affected Armed Forces officers, many who had retired and some of whom had died, leaving their Next of Kin (NoK) to fight for the dues at their own cost.
14. So, many similarly situated officers filed cases in different High Courts. MoD prayed before the Hon’ble Supreme Court and had all the cases transferred to the Hon’ble Court in TP (C) No. 56 of 2007. On 8th March 2010, the Hon’ble Court ruled in favour of all the Armed Forces officers eligible to be paid Rank Pay that it was in agreement with the Hon’ble High Court of Kerala that the amount equivalent to Rank Pay should not have been deducted and the MoD should pay arrears with an interest of 6% per annum from 1.1.1986 i.e. the date from which Rank Pay was authorised by the Govt of India.
15. MoD filed an Interlocutory Application (IA) No. 9 of 2010 (settled by then Ld Solicitor General) in TP (C) No. 56 of 2007 praying to the Hon’ble Supreme Court to “recall, re-hear, modify,” etc its order of 8th March 2010, utilising recommendations of a High Powered Committee (HPC) comprising then Defence Secretary, Secretary Expenditure, and Secretary Defence (Finance) to impress upon the Hon’ble Court that it would entail an expenditure of Rs 1623.71 crores if the order was implemented as it would lead to re-fixation of emoluments of Armed Forces officers for the periods of 4th, 5th and 6th CPC. What was left unsaid was that it was the faulty interpretation and delays in implementation by MoD that led to the situation.
16. The SAI No. 2/S/98 was quoted in several notes on files and in the Report of the HPC annexed to affidavit, but one fact continued to have been glossed over in briefs for Law Officers of the Ministry of Law & Justice (MLJ) and in solemnly sworn affidavits by officers of MoD - that SAI 2/S/98 was issued without permission of the Courts, though deponent officers always stated that “nothing material has been concealed.” MoD has admitted that this fact was not informed to the Hon’ble High Court of Kerala vide MoD vide F No. 35 (1)2013-D (Pay/Services) dated 26th April 2013 (Please see typed true copy at Annexure A-3) and again in a letter of even reference dated 19th July 2013 enclosing photocopies of the Writ Applications filed in the Hon’ble High Court of Kerala (please see Para 9 above).
17. On 4th September 2012, a Bench of three Judges of the Hon’ble Supreme Court upheld the Hon’ble Court’s earlier order dated 8th March 2010 with one modification i.e. the interest was to be paid from 1.1.2006, the date when the first of several writ petitions were filed by affected Armed Forces officers. On the statement of the Ld Solicitor General who represented MoD, the Court also directed the UoI to complete payment of arrears and interest within 12 weeks from 4th September 2012.
18. MoD again sought the opinion of the Learned Solicitor General of India (Shri Rohinton F Nariman) on whether there was further legal recourse but received an opinion dated 17th October 2012 (Encl 13A of MoD File No. 34(6)/2012/D(Pay/Services) advising the MoD to implement the Hon’ble Court’s order dated 4th September 2012 in letter and spirit. Then MoD, by an implementation order dated 27th December 2012, paid part of the arrears from 1.1.1986 to 31.12.1995 by stating that there was not enough clarity in the order of the Hon’ble Supreme Court for payment from 1.1.1996 to 31.12.2005 and re-fixation from 1.1.2006. Photocopies of notes on MoD File No. 34(6)/2012/D (Pay/Services) and File No. 35(1)/2013/D (Pay/Services) obtained through RTI confirm this.
19. Please contrast this with when the Department of Telecommunications (DoT) was not clear about the 2G judgment of the Hon’ble Supreme Court in WP (C) No. 423 of 2010, the DoT filed an IA in 2012 seeking clarifications.
20. Another RTI application has revealed the fact of Ministry of Finance, Department of Expenditure (vide MoF, DoE ID Note No. 187654/E.IIIA/2012 dated 5th July 2013 has stated that MoD did not even prepare a draft reference to be placed for the consideration of Ld AG, on a SoC dated 2nd April 2013 furnished by Services HQ (Reference No. Air HQ/19141/7/AFPCC). MoD forwarded the same to the Ld Attorney General for India, again without any draft reference. The opinion of Ld AG dated 3rd September 2013 was available to MoD immediately thereafter.
21. MoD could have done so too, when it filed an IA praying for extension of time till 31st May 2013for implementation of the Hon’ble Court’s orders of 4th September 2012, to implement the Hon’ble Court’s order, MoD did not seek any clarifications. If MoD had done so, the Rank Pay matter would have been clear to itself as well as affected Officers and Veterans and Next-of-kin of deceased officers/Veterans.
22. Fresh orders of then Defence Minister, Shri A K Antony on 14th June 2013 to his own Ministry to send separate Statements of Cases (furnished by Service HQ on 25th November 2013) for a comprehensive legal reference to the Ld Attorney General for India did not appear to have any effect on the MoD till December 2013 as MoD’s Dir (AG-I) intimated vide F No. 35(1)/2013-D (Pay/Services) dated 12th December 2013 that “……In this connection it is stated that the Rank Pay matter after opinion of Ld AG dated 3.9.2013 is under consideration in MoD in consultation with CGDA, Defence (Finance) and MoF” and is signed by Shri Praveen Kumar, then Director (AG-I) (please see Annexure A-4).
23. Now the Rank Pay case is before the Hon’ble Supreme Court as Contempt Petition (C) No. 328 of 2013 in Lt Col N.K. Nair & Anr Vs UoI. Defence Secretary and CGDA are now Co-Contemnors, impleaded under instructions on 31st March 2014 of the Hon’ble Supreme Court Bench presided over by Justice (now Chief Justice of India) Shri R M Lodha.
24. In reply to an RTI application, Whether MoD will take action with the same alacrity as it did in (General) Vijay Kumar Singh Vs UoI in Writ Petition (C) No. 26 of 2012 in the Hon’ble Supreme Court is a subject of speculation.
25. MoD submitted a file with draft corrigendum on 25th April 2014 to MoF/DoE but withdrew the file on 7th May 2014 before MoF could take any action, as stated by CPIO, E.III.A/DoE/MoF in his ID note dated 6th June 2014.
26. Now that the Hon’ble Supreme Court has reconvened after summer vacation, hearing on the Contempt Petition will resume. MoD will provide the brief for the consideration and representation by the Ld Solicitor General but the brief may not be any different i.e. it will not inform the Law Officer that a Contempt of Court was committed on 19th December 1997 and that affidavits solemnly sworn have concealed this material fact.
27. As a fundamental duty enshrined in the Constitution of India, I have placed the truth and facts available from Court orders and UoI’s files for perusal of the second highest Law Officer of the Govt of India in the hope that you will take cognisance, verify the statements from original documents, and the decide your course of action.
List of References
1. Fourth Central Pay Commission (4th CPC) Report – Chapters 28 and 30
2. Government of India, MoD Resolution No. 1E dated 18th March 1987 approving 4th CPC Report relevant to Armed Forces
3. Special Army Instructions No. 1/S/87 (and corresponding instructions for Navy and Air Force) on methodology of implementation of the Resolution 9E
4. Original Petition (OP) No. 2448N of 1996 filed by Capt (later Major retired) A K Dhanapalan vs. UoI in the Hon’ble High Court of Kerala at Ernakulam challenging the impugned methodology of deduction of Rank Pay for re-fixation
5. Fifth CPC report dated 30th January 1997 including Para 147 and 148 describing the impugned methodology challenged by Maj A K Dhanapalan with illustrations
6. Resolution No. 50(1)/IC/97 of the Govt of India dated 30th September 1997
7. Special Army Instruction No. 2/S/1998 dated 19th December 1997 incorporating the impugned methodology of deduction of Rank Pay for re-fixation
8. Judgment of the Ld Single Judge of the Hon’ble High Court of Kerala dated 5th October 1998 upholding the challenge of Maj (now retd) A K Dhanapalan
9. Writ Appeal No. 518 of 1999 filed by UoI before Division Bench of Hon’ble High Court of Kerala against the judgment of Ld Single Judge
10. Writ Appeal No. 510 of 2000 filed by UoI in providing clarifications to queries by Hon’ble High Court
11. Judgement of Division Bench of Hon’ble High Court dated 4th July 2003 upholding judgment of the Ld Single Judge
12. Special Leave to Appeal (CC) No. 5908 and IA No. 1 for condonation of delay dismissed by the Hon’ble Supreme Court on 12th July 2005,
13. Query why Rank Pay was deducted if it was to be added by
(a) DOP & T vide DOPT- UO No. C -57/04/Pay-I dated 8th April 2004,
(b) MoF (Exp) UO No. C-57/EIII(A)/2004 dated 15th April 2004,
(c) Note 86 on MoD F No. B/25511/AKDP/AG/PS-3(a)/D(Pay/Services) dated 29th April 2004,
(d) DOPT UO No. 1/2/2004-Estt(Pay-I) dated 31st May 2004, and
(e) Note 88 on MoD F No. B/25511/AKDP/AG/PS-3(a)/D(Pay/Services)
dated 25th June 2004
14. Order dated 8th March 2010 in Transfer Petition (C) No. 56 of 2007 in the Hon’ble Supreme Court upholding the judgments of the Hon’ble High Court of Kerala
15. Opinion of the Ld Solicitor General dated 31st March 2010 to file Interlocutory Application No 9 of 2010 for “recall, re-hearing, modification...” of order dated 8th March 2010
16. Report of High Powered Committee date 7th April 2010 on financial implications of implementing order of Hon’ble Court dated 8th March 2010
17. Order dated 4th September 2012 in IA No. 9 of 2010 in TP (C) No. 56 of 2007 upholding its order of 8th March 2010 with one modification – interest on arrears to be paid from 1.1.2006 instead of 1.1.1986
18. Opinion of Ld Solicitor General dated 17th October 2012 (Encl 13A of MoD File No. 34(6)/2012/D(Pay/Services) advising MoD against filing any further petition and also to implement the order dated 4th September 2012 in letter and spirit
19. MoD No. 34 (6)/2012/D (Pay/Services) dated 27th December 2012 for implementation of the order of the Hon’ble Supreme Court
20. Objections by Service HQ dated 18th January 2013 sent to Hon’ble Raksha Mantri
21. Statement of Case (SoC) from Service HQ dated 2nd April 2013 for opinion of Ld Attorney General on the orders of the Hon’ble Raksha Mantri
22. Opinion of the Ld Attorney General dated 3rd September 2013 upholding two of the four issues in the SoC of Service HQ vide MLJ No. AG QW/2013-ADV. ‘C” DT. 1408.2013 & AG Dy. No. 325/AG/OPIN DT 14.8.2013
23. MoD File Numbers 34(11)/2010/D (Pay/Services), 34(6)/2012/D(Pay/Services and 35 (1)/2013/D (Pay/Services)
24. MoD letter F No. 35(1)/2013/D (Pay/Services) dated 12th December 2013
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F. No. 35(1)/2013-D (Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 26th April, 2013
Shri S. Y. Savur,
141, Jal Vayu Towers,
Indira Nagar (PO),
Bangalore – 560038
Subject: Your letter No. SYS/RTI/MoD/2013 dt 15.04.2013
This is with reference to your request for information No. SYS/RTI/MoD/2013 dt. 15.04.2013 received in this office on 18.04.2013.
2. The para-wise 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 2/S/98 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) (emphasis supplied).
(x) No other information apart from what has already been provided to you exists in this matter.
The Service Hqrs also submit their demands to the Pay Commissions. You may also like to take up the matter with them to seek the 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.
4. With reference to para 4 of your letter No. SYS/RTI/MoD/2013 dt 16.04.2013 received on 26.04.2013 in this office it is stated that while the contents of the file are not normally numbered sequentially, sometimes the papers in the file are not numbered for various reasons. No action, therefore, is left to be taken in this regard on MoD part.
(P. S. Walia)
Under Secretary & CPIO
Encls: as above
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Government of India
Ministry of Defence
No. 35(1)/2013/D (Pay/Services) New Delhi, the 12th December 2013
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 and 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 (emphasis supplied).
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
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