Delivered on 14.8.2014 as per India Post
Monday, 11 August 2014
Will the Defence Secretary Uphold Honesty, Integrity and Truth? - Update
By SPEED POST
EK507240052IN dated 11.8.2014
Delivered on 14.8.2014 as per India Post
Delivered on 14.8.2014 as per India Post
SYS/MoD/RP/2014 11th August 2014
Shri R K Mathur,
Ministry of Defence, Govt of India,
Room No. 101-A, South Block, New Delhi - 110011
HONESTY, INTEGRITY & TRUTHFULNESS
NARRATIVE OF SKILFUL VERISIMILITUDE
RANK PAY CASE aka UNION OF INDIA Vs LT COL N K NAIR & OTHERS
Dear Secretary to the Government of India,
Greetings of the occasion of Independence Day.
Please refer to photocopies of the notes provided by Under Secretary & CPIO, MoF, DoE, E.III-A vide F. No. 7/1/2014-E.III-A/291 dated 30.7.2014 related to processing the MoD’s Draft Corrigendum to MoD sanction dated 27.12.2012 received by Department of Expenditure vide Note No. 96 of MoD’s file No. 34 (10)/2013 – D (Pay/Services) and LF No. 34 (2) /2013 – D (Pay/Services) for the approval of the Hon’ble Finance Minister. Regretfully, MoD [Under Secretary & CPIO, D-Pay/Services] is yet to provide information requested for vide MODEF/R/2014/61069 dated 10.6.2014. A First Appeal has been filed on 05.8.2014 vide MODEF/A/2014/60185.
2. From the notings on MoF, DoE files, it appears that MoD has narrated with skilful verisimilitude a case for a corrigendum to its impugned implementation order dated 27.12.2012 in the Rank Pay case (UoI & Others Vs. Lt Col N K Nair & Others) in IA No. 9 of 2010 in TP (C) No. 56 of 2007). Deptt of Expenditure has concurred with the DGL and obtained the approval of the Hon’ble Finance Minister. In the subsequent paragraphs are documented facts, nay the truth, in the hope and prayer that there would be a re-examination by the MoD. The documents used in support of this grievance have been obtained from MoD, CGDA, MOF, DoE through requests for information under RTI Act, 2005 or downloaded from Govt of India and Hon’ble Supreme Court website(s).
3. Did 4th CPC Specify a Minimum Pay for Each Rank?
3.1. In Para 28.12 of the 4th CPC Report, (hereinafter referred to by the Paragraph numbers), the 4th CPC recommended an integrated scale for Armed Forces officers starting at Rs 2300 for Lieutenants and ending at Rs 5100 for Brigadiers (Annexure ‘A’).
3.2. In Para 28.15, the 4th CPC stated “The integrated pay scale recommended by us covers a span of 28 years”…..(emphasis supplied)
3.3. In Para 28.113, the 4th CPC, besides recommending that fixation of pay for Armed Forces Officers would adopt the same methodology as for Civilian officers in Chapter 30, provided illustrations and a table in Annex 28.1 expanding the integrated scale of Rs 2300-100-4200E-100-5100 in annual increments of Rs 100 to meet the 28 years span - Rs 2300 to 3900 in the 17th year and then to Rs 5100 in the 28th year.
3.4. The footnote of this table in Annex 28.1. states “Note: Existing minimum period of reckonable commissioned service prescribed for substantive promotion to each rank in the Army has been taken into account for working out the same” (emphasis supplied) To a simple, clean and clear mind, it is would be apparent that this is not Minimum pay for each rank but extrapolation of the reckonable service into the table.
3.5. This contradicts the mis-statement by O/o CGDA through your Ministry to the then Ld Attorney General that the “4th CPC recommended a minimum pay for each rank.”
3.6. Govt of India, vide Resolution 9E dated 18.3.1987 improved the integrated scale to Rs 2300-100-3900-150-4200-EB-150-5100 (Annexure ‘B’).
3.7. The consequence of this improvement by the Govt of India is that it reduced the span to 24 years but did not mention what happens beyond that span for the remaining years in the table. If this issue is addressed, it will automatically address the issue of “top of the integrated scale of Pay.”
4. Illogical Denial of Benefits quoting “Issues not flowing from Dhanapalan case or not considered in Major Dhanapalan case”
4.1. Captain (later Major) A K Dhanapalan filed his case (O. P. No. 2448 of 1996) in February 1996 in the Hon’ble High Court of Kerala. He disputed the methodology vide Para 6 (a) (ii) of SAI No. 2/S/1987 of deducting Rank Pay for re-fixation in the transition from 3rd CPC scales to 4th CPC’s integrated scale of pay.
4.2. Maj Dhanapalan retired on 31.8.1997 at his own request even before the Ld Single Judge could pronounce his judgment on 5.10.1998.
4.3. Maj Dhanapalan was nowhere near the top of the integrated scale of pay of Rs 5100. His pay was re-fixed for a Major as CGDA has confirmed vide CPIO/AT/HQ/2013/1063 dated 25.06.2013 (Annexure ‘C’).
4.4. Maj (retd) Dhanapalan, therefore, did not seek a change/increase at the top of the integrated scale because he was not entitled i.e. he was nowhere near the top of the integrated scale. Therefore, he sensibly did not broach the subject and seek judicial remedy from the Hon’ble Courts. This line of argument is either due to ignorance of, or has again been misinterpreted by O/o CGDA but not contested by MoD and MoF.
If Maj Dhanapalan had demanded something to which he was not entitled, it would have been akin to a scooter accident victim demanding compensation for a car accident! And now MoD, CGDA et al have decided that the victim of a car accident must be paid the same compensation as the scooter accident victim because “issue not flowing…..!”
4.5. MoD/CGDA has not stated the honest, truthful facts in averring “Issue not flowing from Dhanapalan case or not considered in Major Dhanapalan case” for there was no question of Major Dhanapalan bringing up the issue of “top of the scale,” Assertion of CGDA has not been challenged by MoD (Fin), MoF or MoD, and the latter has acted like a passive spectator as brought out in Para 2 of MoF, DOE, ID Note No. 187654/E-IIIA/2012 dated 5.7.2013 (Annexure ‘D’).
5. Did Hon’ble Supreme Court uphold Maj Dhanapalan’s case in judgments dated 8.3.2010 and/or 4.9.2012?
5.1. As the chronology below will show, MoD has resorted to incorrect statement. The Ld Single Judge of the Hon’ble High Court of Kerala on 5.10.1998 pronounced his judgment in O. P. No. 2448 of 1996 as follows: -
……..“Under these circumstances, I am of the view that respondents 2 (COAS) and 3 (CDA (O) 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 the Army Officers in addition the existing pay scales. This 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.
Under these circumstances, the respondents 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1-1-1986 without deducting the rank pay of Rs 200/- as has been done by respondents 2 and 3. The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987 evidenced by Ext P1. Respondents 2 and 3 are directed to complete the process of re-fixation of the pay of the petitioner as directed above within three months from the date of receipt of a copy of this judgment.
The original petition is disposed of as above.”
5.2. The Union of India challenged the judgment of the Ld Single Judge before the Division Bench of the Hon’ble High Court of Kerala in Writ Appeal No. 518 of 1999.
5.3…. The Ld Division Bench did not dismiss the appeal, as stated by MoD, but the Ld Division Bench confirmed the order of the Ld Single Judge as follows: -
……”3. It is an admitted case, even in the additional affidavit, that the Army officers are entitled to rank pay. Para 28.13. of the Pay Commission report, as quoted in the affidavit reads as follows: -
28.13. We also recommend that, in addition to pay in the above integrated scale, the following rank pays may be given to officers in the Army and their equivalents in the other services……..
Thus, rank pay, is in addition to the pay that was getting. This recommendation has been accepted, and the Government issued orders as quoted in additional affidavit as follows: -
(b) Rank Pay – In addition to pay in the integrated scale, the following rank pays may be given to officers in the Army and their equivalent in the other services.
Thus, the rank pay as per the order accepting pay revision is in addition to the existing pay.
4. While formulating the principles for pay fixation in case of those who are enjoying special pay, that element also has been directed to be reckoned for the purposes of pay fixation. In case of Army Officers, it was ordered as follows: -
In Chapter 30, we have recommended the method of fixation of pay in proposed scales for civilian employees, we recommend the same method may be adopted for fixation of pay of armed force personnel, also. Since rank pay is a separate element for officers upto the rank of Brigadier and equivalent, the same may be taken into account, while fixing pay in the integrated scale of pay recommended by us.
Thus it is clear that for Civilian officers, there is no rank pay. But for Army officers, there is rank pay admittedly as mentioned above. Necessarily, when the principles as mentioned above applies to Army officers, the rank pay shall also be added to substantive pay. That is what has been directed in the impugned judgment. Therefore, there is no merit in this appeal. The appeal fails: dismissed (emphasis supplied).
5.4. Ignoring the advice of then Addl Solicitor General [as admitted by MoD in note 88 dated 27.02.2004 of file No. B/25511/AKDP/AG/PS-3(a)], MoD filed a Special Leave to Appeal No. CC 5908 of 2003 in the Hon’ble Supreme Court alongwith an I.A. No. 1 of 2005 for condonation of delay. It is the Hon’ble Supreme Court Bench of Justice B P Singh and Justice S H Kapadia of the Hon’ble Supreme Court on 12.7.2005 dismissed the SLP at the first hearing ordering as follows: -
“We do not find any justifiable explanation for the delay of leave petition. The special leave petition is therefore dismissed” (emphasis supplied).
5.5 UoI neither filed a Review Petition nor a Curative Petition in Maj Dhanapalan Vs UoI, thereby achieving an aspect termed Finality of Judgment.
5.6. Therefore, with the dismissal of the SLP No. CC 5908/2005 on 12.7.2005, the Maj (retd) Dhanapalan Vs UoI case attained Concept of Finality of Judgment, `interest Republicae ut sit finis litium' to quote Mr Justice Dalveer Bhandari and Mr Justice H L Dattu of the Hon’ble Supreme Court and their order in Indian Council for Enviro-Legal Action v. Union of India & Ors (Source: http://indiankanoon.org/doc/1356184/).
6. So what is the Rank Pay Case? Is it the Maj Dhanapalan case??
6.1. As correctly observed by DS (E.III.A) in his note dated 02.07.2014 on MoD’s request for concurrence of the DGL to incorporate the Ld AG’s opinion dated 03.9.2013, because of the denial of similar benefit i.e. restoration of the deduction of Rank Pay in re-fixation, other similarly placed Armed Forces officers filed fresh cases in different High Courts. These were transferred under the relevant Article of the Constitution of India by the Hon’ble Supreme Court and heard as Transfer Petition (Civil) No. 56 of 2007 which really is the Rank Pay Case. It is different from the Maj Dhanapalan vs UoI case that attained finality on 12.7.2005, as stated earlier.
6.2. The Hon’ble Supreme Court upheld the reasoning in the Maj. Dhanapalan case i.e restoration of deducting of Rank Pay for re-fixation in the Union of India Vs Lt Col N K Nair & Others, in IA No. 9 of 2010 in TP (C) No. 56 of 2007 and the order reads, inter alia, as follows: -
“Since the issue involved in the writ petitions pending before the various High Courts is the same as in Writ Petition (C) Nos. 96/2009 and 34/2009 pending before this Court, this transfer petition is allowed. Writ petition Nos. 11056/2006, 11128/2006, 10810/2006, 13508/2006, 13497/2006 and 18176/2006 pending before the High Court of Kerala, Writ Petition No. 13904/2006 pending before the High Court of Andhra Pradesh and Writ Petition Nos. 1935/2006, 1934/2006, 1957/2006 and 47909/2006 pending before the High Court of Allahabad are directed to be transferred to this Court and taken on Board.
The prayer in these writ petitions under Article 32 of the Constitution is for grant of benefits awarded by a learned Single Judge of the Kerala High Court vide his judgment dated 5.10.1998 in O.P. 2448/1996 which has been affirmed by the Division Bench of the Kerala High Court in Writ Appeal No. 518/1999 by judgment dated 4.7.2003.
We have carefully perused the judgment dated 5.10.1998 of the learned Single Judge as well as judgment dated 4.7.2003 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 1.1.1986. We also direct interest to be paid thereon at 6% p.a. Accordingly, these writ petitions as well as transferred writ petitions are allowed (emphasis in the original order).
6.3. It is therefore clear, that the Hon’ble Supreme Court did not uphold the case/judgment in Maj Dhanapalan vs UoI & Ors because of circumstances elucidated above. Therefore, treating the Rank Pay case with the same parameters i.e. applicability of the Hon’ble Supreme Court’s order only for the duration of the 4th CPC was stretching incredulity and has since been partially corrected by the Ld AG’s opinion.
7. Interpretation by CGDA - Minimum Pay for each rank & Need to increase the top of the integrated scale: -
7.1. 4th CPC provided a table of illustration vide Annex 28.1 to Para 28.113, which as per Para 28.15 was for a span of 28 years.
7.2. But Govt of India Resolution 9E by improving the scale from 2300-100-5100 to Rs 2300-100-3900-150-5100 reduced the span from 28 to 24 years.
7.3. 4th CPC did not mention any minimum of pay for a rank but someone wiser (MoD (Fin) has interpreted that redundant table of illustration to incorporate minimum of pay for each rank in Para 6 (a) (ii) of the SAI No. 1/S/87 (please see para 3.4 and 3.5 above).
7.4. Because, if the 4th CPC recommended a span of 28 years (Para 28.15) and Govt Resolution reduced it to 24 years, what happens to the 4 years at the top of of the table @ Rs 150 p.a.? Therefore the top of the scale needs a re-look unless as shown in CGDA UO No. AT/I/1483-Army/X dated 6.4.2010 and Annexures B2 to B4, (Annexure ‘E’) the benefit of non-deduction of Rank Pay is only for officers of the ranks of Captains, Majors and may be junior Lt Cols.
7.5. However, from amongst the similarly placed officers who filed cases which were clubbed together in TP (C) No. 56 of 2007 and later in IA No. 9 of 2010, there are many senior Colonels and Brigadiers who have either received a pittance as arrears or have not received any benefit because they are already at Rs 5100 on switch over from 3rd CPC to 4th CPC. This may be confirmed from Annexures B-2, B-3 and B-4 provided by CGDA to the High Powered Committee (HPC) CGDA UO No. AT/I/1483-Army/X dated 6.4.2010 and Annexures B2 to B4, (Annexure ‘E’) and which were part of the MoD file on which the letter of 27.12.2012 was processed.
7.6. With your reputed perspicacity it would be possible to co-relate that SAI No. 2/S/98 was issued on 19.12.1997 but the first judgment of the Ld Single Judge was delivered on 5.10.1998. In which case the ibid SAI and the impugned methodology suffers a legal disability of being issued in Contempt of the Hon’ble High Court of Kerala.
7.7. MoD did not inform the Hon’ble High Court about the issue of SAI No. 2/S/1998 is established as confirmed by MoD in letter F No. 35 (1)/2013-D (Pay/Services) dated 26.04.2013 and has never been brought out in any of the notes from MoD (Annexure ‘F’) making a travesty of honesty, integrity and truthfulness.
7.8. This will, needless to add, “create further legal complications” in Contempt Petition (C) No. 328 of 2013 in IA No. 9 of 2010 in TP (C) No. 56 of 2007 in Lt Col (retd) N K Nair & Anr Vs UoI where the two unresolved issue are bound to be argued.
8. Did Military Service Pay (MSP) replacing Rank Pay
8.1. It has been averred in the MoD’s notes to MoF, DoE which in turn states that “At the time of 6th CPC, Rank Pay was replaced by Military Service Pay (MSP) and while fixing pay in the revised pay scales based on 6th CPC, both old basic pay and old Rank Pay were included for the purpose of fixation in the revised pay and no deduction of Rank Pay took place, with MSP added to the revised pay….Thus no change is called for at the time of 6th CPC. This has been confirmed by the Ministry of Defence also….6th CPC fixation method remains unaltered as per revised draft sanction.”
8.2. The factual errors in the above averment are as follows: -
8.2.1 Rank Pay was deducted vide SAI No. 2/S/1998 and it is an admitted fact for which reference was made to then Ld Attorney General.
8.2.2. That Restoration of the deducted Rank Pay w.e.f 1.1.1996 has taken place on the issue of MoD letter dated 24.7.2014. The statement that Rank Pay was included in the revision to 6th CPC is being economical with the truth because 5th CPC recommended (Para 148.2 of its Report) and MoD vide SAI 2/S/98 (Para 5 (a) (ii), followed the procedure of deducting Rank Pay.
8.2.3. If MoD, vide the corrigenda is now i.e. 24.7 2014, being set right, then how can MoD make a statement “that both old basic pay and old Rank Pay were included for the purpose of fixation in the revised pay and no deduction of Rank Pay took place” much before issue of the concurrence of MoF/DoE and Hon’ble FM on 5.7.2014 because the SAI 2/S/2008 was issued on 29.8.2008? It is stranger than fiction that MoF/DoE, with its reputation and integrity for guarding the State Exchequer, has accepted this economy with the truth.
8.3. What the 6th CPC stated about Military Service Pay:
Para 2.3.12 - Analysis – Military Service Pay: The Commission is of the view that running pay bands on par with those recommended for civilian officers needs to be introduced in respect of the Defence Forces as well. This is also in conformity with the recommendations of all the three earlier Central Pay Commissions that had simultaneously considered the pay scales and related issues of civilians as well as the Defence Forces. The edge enjoyed by the Defence Forces over the civilian scales will, after suitable enhancement to meet the genuine aspirations of the Defence Forces, be given as a separate element called Military Service Pay. Presently the edge enjoyed by the Defence Forces officers is limited to the rank of Brigadier. This edge will need to be protected. The edge will be carried to the post of Major General as well because Military Service Pay shall be taken in account for purposes of fitment at the time of promotion from Brigadier to Major General. Higher grades do not need to be extended any MSP. Consequently, the Military Service Pay will be extended to all the posts in the Defence Forces upto the level of Brigadier/equivalent. MSP being a new element, no arrears shall be paid on this account. It will, however, be considered for purposes of fixation of pay and pension.
2.3.13. The Military Service Pay shall count as pay for all purposes except for computing the annual increment(s). However, status of the Defence Forces officers would be determined by the grade pay attached to their post as is the case with civilians. This will meet the two major demands of the Defence Forces viz.
i) Parity with civilian posts with a distinct edge to compensate for hardships specific to defence service.
ii) Grant of Military Service Pay. As stated earlier, the Commission has taken adequate care while devising the Military Service Pay to ensure that not only the element of edge over civilian pay scales currently enjoyed by the Defence Forces is maintained but also that the genuine aspirations of the Defence Forces officers are met.
8.4. What the Para 3 (g) & (h) SAI No. 2/S/2008 states:
8.4.1. “Military Service Pay (MSP)’ is as defined in the Entry at S No. 2 in Annexure-2 Part-A of the Government of India Resolution No. 1(30)/2008/D(Pay/Services) dated 30.08.2008 published in the Gazette of India Extraordinary Part I Section II vide SRO 1(E) dated 30.08.2008 (hereinafter called Resolution). MSP will be treated as pay for all purposes except for computation of increments and determination of status. The financial benefit of MSP will be admissible from 01.09.2008. It will not count for fixation of pay at the time of promotion except in the case of promotion from Brigadier to Major General (emphasis supplied).
8.4.2. “Basic Pay” in the revised pay structure means the sum of pay in Pay Band and the grade pay applicable, but does not include any other type of pay like special pay etc…. ”
8.5. Other Differences between Rank Pay and Military Service Pay
8.5.1. Rank Pay was fixed on 1.1.1986 and re-fixed on 1.1.1996. Arrears were paid from those dates.
8.5.2. Military Service Pay was made applicable only from 01.09.2008 though Pay in the Pay Band and Grade Pay were paid from 01.01.2006.
8.5.3. If MSP replaced Rank Pay then it should have formed part of Basic pay but the definition at Para 3 (h) of the SAI No. 2/S/2008 excludes MSP.
8.5.4. MSP is not included in the calculations for increments because it is not part of Rank Pay.
8.5.5. MSP is not reckoned for promotion because it is of a single rate for officers of the Armed Forces up to the rank of Brigadier.
9. The original misdeed of deducting the Rank Pay for re-fixation was by MoD (Fin) on the advice of CGDA. That misdeed occurred because of MoD’s failure to inform and obtain approval of MoF as mandated in Para 2(c) the Business (Transaction) Rules 1961 (as amended) (Annexure ‘G’), which reads as under:
“(2) Unless the case is fully covered by powers to sanction expenditure or to appropriate or re-appropriate funds, conferred by any general or special orders made by the Ministry of Finance, no department shall, without the previous concurrence of the Ministry of Finance, issue any order which may: -
xxxx xxxx xxxx
(c) relate to the number or grade of posts, or to the strength of a service, or to the pay or allowances of Government servants or to any other conditions of their service having financial implications…”
10. DOP&T vide note 17 (Annexure ‘H’) sought information as under:
…….. Before we consider the matter, D/O Expenditure may be requested to clarify whether the Rank Pay in pursuance to 4th CPC recommendations was introduced in Ministry of Finance and this Department. Further, it may also be clarified whether the criteria of pay fixation in revised scale, by deducting the equal amount from the existing emoluments and then allowing Rank (pay), was adopted in consultation with M/O Finance and this Department….”
11. MoF, Deptt of Expenditure vide U.O. No. C-67/EIII(A)/2004 dated 15.04.04 (Annexure ‘J’) stated “Ministry of Defence may kindly clarify the …..points to DOP&T alongwith requisite information requested for by them ….before the case is considered further for taking a decision.”
12. DOP&T vide U.O No. 1/2/2004-Estt. (Pay-I) dated 31.5.2004 asked, inter alia, (Annexure ‘K’): -
(a) as to why the Rank Pay was being deducted from the pre-revised emoluments and if the same was not admissible on the pre-revised emoluments.
(b) It is was deducted from the revised emoluments what was the purpose for the same because first deducting it and then adding it to pay fixed in the revised scale as that would tantamount to the same.
(c) Whether the pay fixation formula was adopted in consultation with the Department of Personnel & Training/Ministry of Finance.
(d) As para 5 of Note 67/N of the Linked File, wherein it has been mentioned that the Rank Pay was not to be deducted from the total of emoluments while fixing the pay in the revised scale, is contradictory to para 3 of p.10/ante and also to the p.86/N of the Linked File, it is requested to indicate the exact formula adopted by the Ministry/recommended by the Pay Commission with an illustration of the method of fixation of pay in the revised scale w.e.f. 1.1.1986.”
13. MoD, in the deduction of Rank Pay has violated Para 4 (c) of Government of India (Transaction of Business) Rules 1961 as amended without obtaining prior concurrence of MoF for the Rank Pay deduction methodology (Note 88 B/25511/AKDP/AG/PS-3(a)[Annexure ‘L’].
14. I also draw attention to Para 2 (1A) (i) and (2B) of Ministry of Personnel, Public Grievances and Pensions, DOP&T F No. 11017/1/2014-AIS-III dated 06.8.2014. Will the Defence Secretary again permit another misdeed by unquestioningly concurring with the narration with blatant verisimilitude leading to what is now MoD order dated 24.7.2014? Or will Defence Secretary have the wisdom and courage to recall the file and uphold integrity and honesty and truthfulness?
15. In conclusion I quote Malala Yousafzai, who was shot at by the Taliban for espousing a good cause, “When the whole world is silent, even one voice becomes powerful.” After you read this, and if you use your reputed perspicacity, honesty, integrity and respect for the truth, I pray that there will be two voices.
Satyam ev Jayate
With Best Wishes
Enclosures: as stated