Ack Due form was received on 27 Jul 14
3. I disclose the following: -
BY REGD POST-ACK DUE
To,
Shri Ranjit Kumar,
Learned Solicitor General of India,
27, Law Officer’s Chambers,
Supreme Court of India,
Tilak Marg,
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.
Sd/------------------------
ANNEXURE A-2
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
* * * * *
ANNEXURE A-3
F.
No. 35(1)/2013-D (Pay/Services)
Government
of India
Ministry
of Defence
New Delhi,
the 26th April, 2013
To,
Shri S. Y. Savur,
141, Jal
Vayu Towers,
NGEF Layout,
Indira Nagar (PO),
Bangalore
– 560038
Subject: Your letter No. SYS/RTI/MoD/2013 dt
15.04.2013
Sir,
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.
Yours faithfully,
Sd/------------
(P. S. Walia)
Under Secretary
& CPIO
Encls: as above
////TRUE
TYPED COPY\\\\
ANNEXURE A-4
Government of India
Ministry of Defence
No.
35(1)/2013/D (Pay/Services) New Delhi, the 12th
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 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).
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
////TRUE
TYPED COPY\\\\
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