By SPEED POST EK507230917IN dated 06/08/2014
SYS/RTI/MoF/DoE/E.IIIA/2014 6th August 2014
Shri Amar Nath Singh
Deputy Secretary & First Appellate Authority
Branch E.III.A, Department of Expenditure,
Ministry of Finance, Govt of India,
North Block, New Delhi - 110011
NOTES VIDE 189-195/N: RANK PAY CASE
Please refer to F. No. 7/1/2014-E.III-A/291 dated 30th July 2014 and to MoF, Doe UO No. 94466/E-III (A)/2014 dated 9th July 2014 received by me on 4th August 2014 in reply to my RTI request No. DOEXP/R/2014/60338 dated 12th July 2014.
2. I write to convey my gratitude for your astuteness and the depth to which you delved in pointing out many shortcomings to the MoD’s in its earlier DGL that led to the letter dated 27.12.2012 and now in Draft Government letter received by your Department vide No. 96 of MoD’s file No. 34 (10)/2013 – D (Pay/Services) and LF No. 34 (2) /2013 – D (Pay/Services). I wonder how much more of fairness you would have displayed if all the facts, nay the truth, was available to you.
3. Therefore, I take this unsolicited liberty to place correct facts, obtained under RTI Act 2005 from MoD, MoF/DoE, O/o CGDA, and/or from the websites of the different Government agencies and the Hon’ble Courts so that you have a more complete picture.
4. Para 6:
(i) The Ld Single Judge of the Hon’ble High Court of Kerala upheld the challenge of Maj Dhanapalan in Original Petition No. 2448 of 1996 on 5.10.1998.
(ii) 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.
(iii) The Ld Division Bench did not dismiss the appeal but confirmed the order of the Ld Single Judge.
(iv) 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 that dismissed the SLP at the first hearing.
(v) UoI did not file a Review Petition or a Curative Petition in Maj Dhanapalan Vs UoI thereby achieving an aspect termed Finality of Judgment.
(vi) Therefore, the Maj (retd) Dhanapalan Vs UoI case, with the dismissal of the SLP on 12.7.2005, 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/) with dismissal of SLP (CC) No. 5908 of 2005 on 12.7.2005.
(vii) As you have correctly observed, because of the denial of similar benefit i.e. restoration of the deduction of Rank Pay in re-fixation to other similarly placed Armed Forces officers, they filed fresh cases in different High Courts. These were transferred under the relevant Article of the Constitution of India to the Hon’ble Supreme Court and heard as Transfer Petition (Civil) No. 56 of 2007.
(viii) The Hon’ble Supreme Court upheld the reasoning in the Maj. Dhanapalan case 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. The Hon’ble Supreme Court did not, as mis-stated by CGDA and MoD, uphold the case of Maj Dhanapalan vs UoI & Ors because of circumstances elucidated in (i) to (vi) above.
5. Paras 8 to 10:
(i) There was a table provided by 4th CPC vide Annex 28.1 to Para 28.113, which as per Para 28.15 was for a span of 28 years. But Resolution 9E by improving the scale from 2300-100-5100 (EB not shown) to Rs 2300-100-3900-150-5100 (EB not shown) reduced the span from 28 to 23 years.
(ii) 4th CPC did not mention any minimum of pay for a rank but someone wiser 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.
(iii) 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, the benefit of non-deduction of Rank Pay is only for officers of the ranks of Captains, Majors and may be junior Lt Cols.
(iv) 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) refers).
(v) Maj Dhanapalan retired, at his own request on 31.8.1997. He was nowhere near the top of the integrated scale of pay of Rs 5100. His pay was re-fixed for a Major as CGDA confirmed vide CPIO/AT/HQ/2013/1063 dated 25.06.2013. Therefore, he sensibly did not broach the subject and seek judicial remedy from the Hon’ble Courts.
(vi) Consequently, there was no question of him challenging the “top of the scale” aspect though this is being harped upon as one of the reasons for denial of benefits to other similarly placed Armed Forces officers who were adversely affected.
(vii) 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, and which were part of the MoD file on which the letter of 27.12.2012 was processed.
(viii) With your perceptive mind you would have co-related 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 when Contempt of Court has been committed.
(ix) Therefore, that the 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 but has never been brought out in any of the notes from MoD.
(x) This will, to quote your wise words in Para 19, “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.
6. Para 24: It has been averred in the ibid Para 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.” The factual errors in the above averment are as follows: -
(i) What the 6th CPC stated:
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.
(ii) What the Para 3 (g) & (h) SAI No. 2/S/2008 states:
(g) “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).
(h) “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…. ”
(iii) Basic Differences between Rank Pay and Military Service Pay
(i) Rank Pay was fixed on 1.1.1986 and re-fixed on 1.1.1996. Arrears were paid from those dates.
(ii) 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.
(iii) 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.
(iv) MSP is not included in the calculations for increments because it is not part of Rank Pay.
(v) 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.
7. Which brings us, you and I, to the final question – did MoD make yet another mis-statement in the instant DGL to reduce the impact of yet another missive like the one from your department ref no. MoF, DOE ID Note No. 187654/E.IIIA/2012 dated 05.07.2013?
8. If the references mentioned are not available, I would be glad to send you photocopies.
Satyam ev Jayate
With Best Wishes