By SPEED POST EK507230917IN dated 06/08/2014
SYS/RTI/MoF/DoE/E.IIIA/2014 6th
August 2014
To,
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
Sir,
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
Yours sincerely,
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