Inquisitiveness related to the 7th CPC Report

Inquisitiveness related to the  

Seventh Central Pay Commission (7^th CPC) Report 

(Before making comments, for a better understanding of this post, please read up some of the references below; For a comprehensive understanding read up all the references.)   

List of References: -

A       Terms of Reference for the 7^th CPC

B       Report of the Seventh Central Pay Commission

C       Judgement of the Learned Single Judge of the Honourable High Court of Kerala in Original Petition (O.P) No. 2448 of 1996 in Maj A K Dhanapalan Vs UoI & Others

D       Judgement of the Learned Division Bench of the Honourable High Court of Kerala in Writ Petition (Civil) No. 518 of 1999 in UoI & Ors Vs Maj (retd) A K Dhanapalan

E       Judgment of the Honourable Supreme Court in Special Leave Petition (Civil) No. 5908 of 2005   

F       Report of the Cabinet Secretary Committee dated 30 Jun 2009 on OROP, Pay, Disability Benefits and Pension issues related to Armed Forces personnel

G       Judgement dated 08 Mar 2010 of the Honourable Supreme Court in Transfer Petition (Civil) No. 56 of 2007 in UoI Vs Lt Col N K Nair & Others

H       Report of the High Powered Committee (HPC) on the Rank Pay matter dated 07 Apr 2010 consequent to the Honourable Supreme Court judgement dated 08 Mar 2010 in TP (C) No. 56 of 2007

J        Report of the Cabinet Secretary Committee dated 17 Aug 2012 on OROP, Pay, Disability Benefits, and Pension issues related to Armed Forces personnel

K       Judgment dated 04 Sep 2012 of the Honourable Supreme Court in I.A. No. 9 of 2010 in TP (C) No. 56 of 2007

L       Opinion of the Learned Solicitor General of India dated 31 Oct 2012 regarding implementation of the above order in reply to the queries of MoD

M      Opinion of the Learned Attorney General for India dated 03 Sep 2013 on the applicability to issues referred to by the MoD 

N       Army Pension Regulations (as amended)

P       Guide for Medical Officers by DGAFMS (as amended)

Q       Military Pay Chart for US Armed Forces (website quoted below)

R       Armed Forces Pay Review Body (44^th report March 2015) – UK

S       Review Body on Senior Salaries (37^th Annual report, March 2015) – UK

T       Rates of Pay for Officers British Army

U       Army & Civil Services Salaries Comparison

V       Department of Veterans, Australian Govt - War Widow(er)’s Pension & Orphan’s pension

W      Request for Information (UK) – Current Job Titles, Associated Jobs, Grades, and Salary Bands

X       Leaflet 9 - British Army, Royal Navy & Royal Air Forces Rates or War Pensions & Allowances 2013-14 (www.veterans-uk.info)

Y       DOP&T O. M. No. 14021/1/2008-AIS-II dated 20 Sep 2008 – Salaries for IAS Officers

 

Z       Ministry of Defence of UK – Supporting Narrative & Pay Scales

         

Introduction

          The Cabinet Secretary Committee (CSC-12) recommended on 17 Aug 2012 that the next Pay Commission consider and resolve (Armed Forces projected) anomalies on Pay, Allowances and some aspects of Pensions because, as the Committee graciously informed the PM, Pay Commissions “are expert bodies which can examine these issues in a holistic manner” while postponing recommending any solution, as required by none less than the PM.

2.      The Defence Secretary, who was member of both CSC’s, appeared unaware of MoD’s view (on the Rank Pay issue) when it took the stand that Pay Commissions are “recommendatory” in nature and it is the Govt that takes the decision in 2010. [Or did MoD infer that the decision taker Secretaries are more expert than the expert body!]  

3.       With these doubts in mind, one perused, with increasing trepidation, the 7^th CPC Report to find holistic solution(s) to long-pending anomalies. The outcome of one’s search is in subsequent paragraphs.

Constitution of the 7^th CPC

4.      There was palpable anticipation among the (retired) Armed Forces personnel when the constitution of the 7^th Central Pay Commission (CPC) was announced, because they were just getting over the disappointment of being denied a separate Armed Forces Pay Commission, not considered necessary by then Chairman CoSC & CAS (now ambassador to Norway).

5.       The general feeling among Armed Forces personnel was that the Chairman of 7^th CPC, having presided over the Principal Bench of the Armed Forces Tribunal (PB, AFT) for 5 years, would have heard, read and deliberated over the evidence of the petitioners, usually serving and retired Servicemen seeking justice, and respondents, more usually, the bureaucrats representing Govt of India denying justice. Ex-Servicemen, the more garrulous, and those liberated from the “lips and keyboard lock,” opined that the Chairman would have the wisdom to separate facts and truth from conjectures and hopes in the submissions made to the 7^th CPC. They also opined that, to have a more holistic approach than other Chairmen, he would have the benefit of the experience in the PB AFT, and would insist that any Member or Secretary be impartial.      

6.      The much awaited Report is now in the public domain for a month. Views, opinions, for and against the recommendations, started to fill the ether within 24 hours of the release of the Report, and so, there may be repetition of some of those opinions and views in subsequent paragraphs.

7.       This analysis, after considerable single-person research, is written bearing in mind that the 7^th CPC cannot be Lord Brahma or Santa Claus bestowing cheer and all the good things every where. But, does the 7^th CPC to take a holistic view, have to be led by concept of precedence, quoting past pay commissions reports that may have little relevance to the terms of reference and existing environment or Cabinet Secretary Committee (CSC) or Committee of Secretaries (CoS) Reports that have been rendered redundant by a Rajya Sabha Committee in 2011, or the Honourable Supreme Court in 2012, and the UPA Govt in Feb 14 and yet referred unresolved issues to the 7^th CPC? Does any CPC need external stimulation to justify observations, analysis, and then the conclusions to deny some request or continue with some request? Or, is looking for precedence an ingrained (bureaucratic?) habit constraining ‘out of the box’ thinking, or is stare decisis (the legal principle of determining points in litigation according to precedent) mandatory even though the task or area of activity officially assigned to the CPC is specified, when more evidence and information is available in the public domain than what the previous Pay Commissions were provided with?

8.      The 7^th CPC, while quoting previous CPC reports, has forgotten that the prevailing economic situation in those times, though not as good as prevails today i.e February 2014 as 7^th CPC remarked in opening chapters of its Report, did not prevent the bureaucrats from recommending the Govt of the day to double the 20% increase recommended by the 5^th CPC to 40% and the 1.74 times increase recommended by the 6^th CPC to 1.86 times.

9.      New paths were forged by this Government/MoD by allowing the Armed Forces to present a Joint Services Memorandum (JSM) directly for the first time in the history of Pay Commissions without the MoD intervening with the 7^th CPC. But precedent reared its ugly head and that wish for fairness has been killed with 7^th CPC ‘requesting’ MoD for its views on the JSM. The MoD’s views have been reflected in the Report.

Not involving Armed Forces Institutions

10.     The 7^th CPC states (Para 1.15) “To gain insight into the principles of emoluments, workshops were organised in association with IIM, Bangalore, Administrative Staff College of India, Hyderabad and SVP National Police Academy, Hyderabad”.

11. The 7^th CPC might not have been aware that the College of Defence Management is also located in Hyderabad or did not need a view of the principles of emoluments of Armed Forces. Instead we have IDSA’s study, which states at Para 1.3 that “(7^th CPC Report)…..requires that the data be collected from primary sources in the public domain, country specific websites or alliance websites e.g. European Defence Agency etc. and United Nations (UN) websites and the data for Indian Defence Expenditure will be collected from Defence Services Estimates (DSE) Vol I. Controller General of Defence Accounts (CGDA) was requested for greater detailed information on Pension & Pay and Allowances beyond those available in DSE Vol I to carry out detailed analysis. Economic Survey and Union Budget (of the relevant years) would be the source documents for GDP and Central Govt expenditure.”

Aren’t Armed Forces employees paid out of the Consolidated Fund of India

12.     In Para 3.11 the 7^th CPC states that it “is in broad agreement with what has been stated in the III CPC Report. For the purposes of its work, the Commission defines Central Government employees as all persons in the civil services of the Central Government or holding civil posts under that government and paid Salaries out of the Consolidated Fund of India. This however, does not include such persons appointed to serve Parliament or the Union Judiciary (emphasis in original Report).

Why are the Armed Forces personnel outside the ambit of Central Government employees? Because they are not in civil services yet are working for the Central Government, and are paid out of the Consolidated Fund of India?

Time scale promotions for Armed Forces officers

13.     The 7^th CPC states in Para 5.2.14. “……Service Officers on the other hand are given time scale promotion up to the rank of Colonel & equivalent….”

14.     The fact of the matter is that promotion to the rank of Colonel & equivalent is by Selection in the first instance i.e. those on the top of the merit list formulated by a Promotion Board are promoted to the rank between 20 and 24 years of service. The Col’s rank becomes time scale only for those who have not found vacancies after being considered by three consecutive Promotion Boards and in the 26^th year of service.

Non-existent scales of Grade Pay (for Armed Forces Officers)

15. The 7^th CPC states in Para 5.2.15. “Pay levels unique to Defence Forces Personnel….. GP 5700… 7600…” There isn’t GP of either Rs 5700 or Rs 7600 for Defence Forces Officers but only for MNS officers. If only the 7^th CPC  will realise GP jumps from Rs 6600 for Majors to Rs 8000 for Lt Cols, as the Pay matrix on Page 89 shows!

(If only Shri D K Rai was more diligent or as knowledgeable!)

Is augmenting middle and senior level positions a Cadre Review of the Armed Forces

16.     The 7^th CPC states

Cadre Structure

6.2.10 The Services have contended that there is an urgent requirement for the Defence Forces to undertake periodic cadre reviews to remain current in their manpower structuring, and to enable the forces to adapt to the changing operational scenario at all times, without affecting the pyramidal structure in the Services. The Commission recognises the importance of cadre reviews in aligning a service to the ever changing organisational needs and to maintain congruence between functional needs and legitimate aspirations of its officers.

And at

6.2.11 To ascertain the position with reference to middle and senior level positions in the three Services the Commission called for additional information in this regard. Based on examination of the data provided it is evident that the government has indeed been reviewing and sanctioning a large number of posts at the middle and senior level positions in the three Services.

And again at

6.2.12  The Army has witnessed an increase in the number of posts of Colonels and Brigadiers that is over nine times and in that of Major Generals and Lieutenant Generals that is nearly four times during the period 1970 to 2014. The growth in sanctioned posts at the level corresponding to Colonels and Brigadiers in the Air Force and Navy has also been substantial, though less pronounced than in the case of the Army. However, at the levels corresponding to Major General and Lieutenant General, the Air Force and Navy have witnessed sharper increases in sanctioned posts than the Army. (Emphasis supplied)

The 7^th CPC states in Para  6.2.13, “Thus, notwithstanding the cadre structure of the Defence Forces, which is highly command and rank oriented with a relatively smaller number of officers at the vertex, the government has been  augmenting middle and senior level positions in the Armed Forces, steadily over time.” (Emphasis in report)

 17.    MoD appears not to have correctly informed the 7^th CPC. The augmentation at the middle and senior levels is actually not due to a systematic and scientific cadre review but the piece-meal implementation of the Ajai Vikram Singh Committee of 2004 (11 years ago!) based on a Army-centric “upward elevation of the bulge,” – one among the recommendations of the (Lt Gen) Bagga Commission. The head-long charge for promotions was led by the Army, followed by the Air Force, and recently by the Navy (please read Navy’s submission in Cdr Kshirsagar Vs UoI).

[The consequent dilution (espoused by a TV commentator-Brigadier for abolishing the rank-pay linkage as a panacea in a recent paper doing the email rounds) appears to be continuation of the syndrome!]

 

Is the US (Military’s) General’s Basic Pay restricted?

18.     At para 6.2.24, in the notes to the table, 7^th CPC states “For Officers at Pay grade O-7 to O-10 in USA defence Forces, basic pay is restricted to USD 15,265 per month.”

19.     However the 2015 Military Pay Chart (www.dfas.mil/dam/jcr:7061e0ca-a436.../2015MilitaryPayChart.pdf) shows that Basic Pay at O-7 at 2 years services starts at USD 8648 and O-10 starts at USD 16,072 at 20 years and ends at USD 19762.50 at 40 years service!

Rank Pay Not Depressed? What did the Honourable High Court of Kerala and Honourable Supreme Court and the then Learned Attorney General aver?

20.    In Para 6.2.29, the 7^th CPC states “In the Joint Services Memorandum, the Services have contended that in the VI CPC recommendation the grade pay for certain ranks had been artificially depressed as Rank Pay was not been taken into consideration while determining the top of the pay scales of various ranks” and goes on it its Analysis and Recommendations as follows: -

21.     At 6.2.30 the 7^th CPC notes “that this issue was deliberated upon in the discussion after the VI CPC Report at various levels in the government. The Commission has taken note of the fact that the Committee of Secretaries (COS) in 2008 did not accept the merger of Rank Pay in Basic Pay. Subsequently, while examining draft service instructions for pay revision, Ministry of Finance also did not approve the merger of Rank Pay with Basic Pay and observed that Pre-revised Scales and Rank Pay should be shown distinctly in two separate columns in pay fixation tables. Service instructions were issued accordingly. The government’s settled view is that the stand of Armed Forces for merger of Rank Pay with Pay Scale for determining Grade Pay is not correct which has also been upheld by the Apex Court. The Commission agrees with this view, and holds that there is no case for revision in the grade pays by taking Rank Pay into consideration while determining the top of the pay scales of certain ranks (emphasis in the original Report.)

22.    Shri D K Rai, praised for his diligence, his intelligence and (shudder) potential, appears either to be ignorant or, more seriously, has not disclosed these facts.

23.    As per SAI/2/S/98 dated 19 Dec 1997, Para 2 (b) “RANK PAY” means the pay admissible to an officer appropriate to the rank actually held, either in acting or substantive capacity, in addition to the pay in the revised scale. Rank Pay forms part of the basic pay.”

[MoD promulgated the SAI when the matter was sub-judice before the Honourable High Court of Kerala, as will be evident from subsequent paragraphs.]

24.    Between 2006 when the 6^th CPC was constituted and till 2008 when its Report was placed before the GoI, Transfer Petition (Civil) No. 56 of 2007 was pending before the Honourable Supreme Court in UoI vs Lt Col N K Nair & Others who petitioned the Court for the same benefits as were given to Maj A K Dhanapalan by the Honourable High Court of Kerala in Original Petition No. 2448 of 1996, upheld by a Division Bench of the Court in Writ Petition (Civil) No. 518 of 1999 in UoI vs Maj Dhanapalan and SLP (C) 5905 of 2003 dismissed by the Honourable Supreme Court in UoI vs Maj Dhanapalan in 2005. The orders of the Single Judge Bench, Division Bench of the High Court of Kerala, and Honourable Supreme Court were as follows: -

Extracts from Order of the Honourable Justice C.S.Rajan of the Kerala High Court in Original Petition 2448 of 1996 filed by Maj (retd) AK Dhanapalan dated 5^th October 1998: -

“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.

(Emphasis supplied).  

Extracts from Order of the Two Judge Bench comprising Hon’ble Justices K. A. Abdul Gafoor and J. M. James in Writ Appeal 518 of 1999 dated 4^th July 2003: -

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 (the officer) 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).

Extract from Order of the Hon’ble Supreme Court   Bench of Justices B. P. Singh and S. H. Kapadia in Special Leave to Appeal (Civil) 5908/2005 with I.A. 1/C (Delay in filing special leave petition) dated 12-7-2005: -

“We do not find any justifiable explanation for the delay of leave petition. The special leave petition is therefore dismissed.”   

25.    The decision of the Honourable Supreme Court in TP (C) No. 56 of 2007 was delivered on 8 Mar 2010 i.e two years after the 6^th CPC report was approved by the GoI. The Honourable Supreme Court held that

O R D E R

            Heard learned counsel for the petitioners and Mr. Mohan Jain, learned Addl. Solicitor General appearing for the Union of India.

            Application for intervention in T.P.(C) No. 56/2007 is allowed.

            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 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 the transferred writ petitions are allowed (emphasis in original judgment).

Thirdly, not content to implement the order, GoI/MoD filed an Interlocutory Application No. 9 of 2010 in TP (C) No. 56 of 2007. The Honourable Supreme Court decided as follows: -

    

We have heard Mr. R.F. Nariman, learned Solicitor General of India and Mr. Mahabir Singh, learned senior counsel for the respondents.

                               

2.         On thoughtful consideration of the entire matter,  we  are   satisfied that the order dated March 8,  2010  does  not  require  any  modification or variation save and except the interest part.

     

3.         As regards interest,  on  totality  of  the  circumstances  including the circumstance that Special Leave  Petition  arising  from  the judgment dated July 4, 2003 in the matter of Major A.K. Dhanapalan  was dismissed by this Court in August, 2005 and the Kerala High  Court had not ordered payment of interest on the arrears of pay,  we  direct that the interest shall be paid by the petitioners to the  respondents @ 6% p.a. from January 1, 2006 instead of  January  1,  1986.  It is  clarified  that  this  order  shall   govern  all  similarly  situated officers who have not approached the court and  also  those  who  have       filed  Writ  Petitions  which  are   pending   before   various   High  Courts/Armed Forces Tribunal.

     

4.          We  record  and  accept  the  statement  of  the   learned  Solicitor General that arrears of  pay  with  interest,  as   directed  above, shall  be  paid  to the concerned officers expeditiously  and positively within  twelve  weeks from today.

 5.         I.A. No. 9 of 2010 stands disposed of accordingly.

26.    Not ready to implement the order of the Honourable Supreme Court, the MoD requested the opinion of then (now deceased) Learned Attorney General for India who opined as follows: -

“22.   With these observations in mind, I shall now answer the queries raised for my opinion.

Query (I) Whether the MoD orders dated 27 Dec.12 have modified the Special Army Instructions 1/S/87 and corresponding Navy and Air Force Instructions in so far as it relates to deduction of Rank Pay and direct to re-fix the initial pay of the concerned officers of the three services in the revised scale (integrated scale) as on 1.1.1986. Whether the term ‘with effect from 1.1.1986’ should be used as given in the Single Bench’s order dated 05.10.98 passed in the High Court of Kerala, instead of using ‘as on 01.01.1986’? What consequences this change in term will entail?

23.    In the judgment dated 05.10.1998 passed by the Learned Single Judge, the direction issued was as follows:

                                      Rest of the paragraph missing

24.    Part of paragraph missing …..scale (integrated scale as on 1.1.1986 as per para 6 of the above instructions without deduction of Rank Pay appropriate to the rank held by the officer on 1^st January 1986 from the amount worked out under para 6 (a0 (ii) thereof.”

25.    According to the armed forces as mentioned in letter dated 18 January 2013 written by Chairman, Chiefs of Staff Committee, the change of wording from “with effect from 1.1.1986” to “as on 1.1.1986” has led to the following anomalies: -

(i)      Officers promoted to the rank of Captain and equivalent after 1.1.1986 have not been granted the benefit of Court’s order, even though rank pay in their case had also been deducted at the time of fixation of their pay in the integrated scale. 

(ii)    Re-fixation of pay in case of certain Colonels and Brigadiers, the ceiling fixed in pay scale in terms of Para 6 (c) of the instructions would lead to a situation where either complete benefit is not granted to these officers, or there would even be reduction of pay in some cases. 

(iii)   The Government has not granted benefit of the Court’s order to those officers whose rank pay was deducted at the time of implementation of Vth and 6^th Pay Commissions.

26.    The CGDA has opined that in this case, the affected officers are those who were drawing pay in the rank of Captain to Brigadier as per 3^rd CPC on 31.12.1985 and whose pay was re-fixed as per SAI 1/S/87 and corresponding Navy and Air Force Instructions on 01.01.1986 after deducting rank pay. They submit that the wording “as on 1.1.1986” or “with effect from 1.1.1986” does not, in effect, make any difference. It has also been stated by CGDA that the pay of officers commissioned after 1.1.1986 and officers promoted after 1.1.1986 has been fixed with reference to rank and qualifying service, and that no rank pay has been deducted while carrying out such fixation. They have been admitted rank pay of the rank held, in addition.

27.     The Ministry of Finance has stated in para 16.1. and 16.2. of the document marked as Annexure XVI in the file that Special Army Instructions dated 26.05.1987 do not provide for deduction of rank pay as the stage of promotion subsequent to 1.1.1986 and that on a matter of fact, fixation of pay on promotion is the revised structure subsequent to 1.1.1986 was never after deduction of rank pay.

28.    For the sake of clarity, I may indicate what has been decided by the Court:

(i)      Section II of Special Army Instructions No. 1/S/87 dated 26.05.1987, deals with fixation and regulation of pay of officers commissioned prior to 01.01.1986.

(ii)    Para 6 of Section II deals with Fixation of initial pay in the revised scales.

(iii)   Para 6 (a) (i) provides that an amount representing 20 percent of the basic pay in the existing scale shall be added to the existing emoluments of the officer.

(iv)    Para 6 (a) (ii) provides that after adding the aforesaid 20 percent, an amount equivalent to the rank pay, if any, appropriate to the rank held by the officer on 1.1.1986 will be deducted. Thereafter, the officer’s pay will be fixed in the scale at the stage next above the amount thus computed.          

29.    The Kerala High Court held deduction of rank pay, in terms of Para 6 (a) (ii) to be unlawful, and this view has been upheld by the Supreme Court.

30.    Thus, the effect of decisions of the Kerala High Court and the Supreme Court is that at the time of fixation of pay in the revised scale, rank pay should not be deducted. The underlying principle is that rank pay is an emolument, and therefore, cannot be deducted when revised pay is fixed with reference to the pay being drawn earlier. 

31.     The Government needs to implement the orders of the Supreme Court in this spirit. It cannot confine the benefit of the orders to those officers whose pay was fixed as on 1.1.1986 after deduction of rank pay in terms of Para 6 (a) (ii). It must grant benefit to all those officers whose pay has been fixed after deducting rank pay, whether as on 1.1.1986 or after 1.1.1986. This must be done after properly verifying the facts.

Query (IV)       Since the treatment to Rank Pay while pay fixation carried out in 5^th CPC was similar to that of the 4^th CPC, whether orders of the Apex Court dated 04.09.2012 be applied to all subsequent Pay Commissions i.e. V and VI CPC under such circumstances.

41.     The divergent views on this issue are as under:

ISSUE – 4: APPLICATION OF COURT ORDERS TO SUBSEQUENT PAY COMMISSIONS

Armed Forces views:  The Services contend that deduction of rank pay at the time of the 4^th CPC implementation which has been set aside should also be followed at the next pay revision i.e. 5^th CPC. They have stated that deduction on rank pay in 1996 also have led to lower pay scales granted to relevant army officers.

Armed Forces have stated that the decision of the Apex Court having been agreed to and implemented has now become law of the land which needs to be applied equally to other similarly placed cases/situations. The ratio of this case has to be applied to subsequent Pay Commissions in similar situations 

Amendments sought by Armed Forces:          The Armed Forces have maintained that to resolve the above issue corresponding amendments to the relevant Special pay Instructions for the 5^th and 6^th CPCs are also required so as to give effect to the verdict of Hon’ble Supreme Court/Kerala High Court in letter and spirit.

CGDA’s views: CGDA has stated that Major Dhanapalan sought revision of pay from 1.1.1986 citing court orders in the present matter. He was informed that the Hon’ble Kerala High Court order was for not deducting rank pay as on 1.1.1986 when Rank Pay was introduced for the first time based on IV CPC recommendations ad not as on 1.1.1996. An element of rank pay was already included in the pay at the time o pay fixation as on 1.1.1986 and 40% fitment benefit was given thereon.

No further communication from him or any court was received thereafter. The case was before courts from 1998 to 2012 and it was never an issue. Neither the Kerala High Court nor Supreme Court has issued any directives for revision of pay fixation formula for Fifth Pay Commission or the Sixth Pay Commission. 

Def (Fin) views: The issue raised is not covered under the Supreme Court order dated 4.9.2012. The change in pay due to this order would automatically be accounted for in subsequent pay commissions revision with reference to orders issued on such recommendations.

MoF views:         The Ministry of Finance agrees with the views of the office of CGDA on the issue contained in their Note No. AT/I/1483-RB/X(PV)/V dated 23.5.2013 (Annexure XVII). 

This issue does not form part of the Order of the Hon’ble Kerala High Court dt 5.10.1998”

42.    In my opinion, the Government needs to implement the underlying principle laid down in Major Dhanapalan’s case i.e. rank pay cannot be deducted at the time of fixing pay in the revised scale. It is immaterial that in Major Dhanapalan’s case, only 4^th Pay Commission was involved. The principle of law laid down is that rank pay cannot be deducted by fixing pay in the integrated scale. Since rank pay has been deducted at the time of fixing pay in subsequent pay commissions, the same would definitely have to be corrected. The officers covered by 5^th and 6^th Pay Commissions cannot be expected to approach the Courts for orders in the same terms. 

(Emphasis supplied).

27.    Therefore, it is conclusively proved that Rank Pay had been deducted from the Basic Pay to arrive at a revised Basic pay i.e Basic pay had been depressed to the extent of the amount of Rank Pay. Shri Rai, MoD or MoF must have been aware that the amount deducted as Rank Pay during 1986-1995 and again 1996-2005 was paid as arrears to the concerned/affected officers. Why would the MoF approve payment unless the Rank Pay had been depressed and subsumed in the Basic Pay till the Courts intervened? 

28.    Because the Honourable Supreme Court delivered its judgment on 8.3.2010 and confirmed it on 4.9.2012, the Learned AG gave his opinion in support on 3.9.2013, neither the Committee of Secretaries in 2008 had the benefit of the wisdom of the honourable Supreme Court’s orders nor did the Ministry of Finance when they made submissions to the 6^th CPC. But the 7^th CPC had the benefit of all the above in 2014 and 2015, and yet has accepted the incorrect stands of the CoS and MoF.

29.    Further, diligent search for an Apex Court order not quoted by the 7^th CPC regarding merger of Rank Pay with Pay Scale for determining Grade Pay has resulted in inability to locate any such order and this author requests a copy of the same.

30.    The Member highlighted certain qualities (of the IAS) to sustain the ‘edge’ [at 7.2.20 (n)] “……They have an important coordinating, multifunctional and integrating role in the administrative frame-work with wide experience of working across various levels in diverse areas in government. They hold important field level posts at the district level and at the cutting edge at the start of their careers with critical decision making and crisis management responsibilities. The leadership function, the strategic coordinating and integrative role at this level requires the best talent available…”

These qualities seem to have disappeared in the CoS reports quoted by the 7^th CPC.

Fixation of Grade Pay for Lt Cols, Cols & Brigs

31.     Initial Pay Fixation of Lt Col, Col, Brigadier/equivalent in Paras 6.2.31 and 6.2.32 – the same arguments above may be read through

Non Functional Upgradation

32.    In Paras 6.2.33 to 6.2.36 Non-Functional Upgradation has been discussed but one aspect of its denial to Armed Forces officers from 2009 onwards to 31.12.2015 has been glossed over

Demands of IAS Associations & defence by Member 7th CPC

33.     The Government of India, in Para 3 of the Terms of Reference (ToR) for the 7^th CPC directed, inter alia, “…….It may call for such information  and take such evidence as it may consider necessary.” Lamentably, nowhere in the Report is it stated that the memorandum presented on behalf of the All India Services associations was referred to the administrative Ministry for its views and if so what the views were. The (ex-IAS) Member appears to have taken up the cause (see Para 7.2.20 on page 151 to 157) of the IAS as somewhat of a personal crusade to justify the edge for the IAS. Nowhere else has such a privilege been granted, to which a little later.

[One wishes he had shown the same diligence when the MoD and MoF did not present the correct picture about Rank Pay (Para 6.2.29 to 6.2.32 on pages 113 & 114).]       

34.    In chapter 7.2 the 7^th CPC has discussed the demands of the IAS Officers Association but no mention is made of whether the same were sent to the parent Ministry/DOP&T for their comments, like the Armed Forces JSM was referred to MoD. However, the views of Shri Vivek Rae, IAS (retd) have had several pages devoted to “distinct edge” for IAS including a Supreme Court order, without discussing the actual performance of the IAS as a whole (not being distracted by aberrations like the Joshis in MP, Yadav in UP etc).

35.     We would probably have been wiser, and it would have been fairer if there were views other than just that of the Member. It would have made for a level playing field if the views of ex-Armed Forces and ex-IPS etc also found space in some of those “pages intentionally left blank” where their averments have been placed in the Report. 

Allowances – Percentages vis-à-vis Slab Rates & sacrificing equity

 36.   At Para 8.10.64, the 7^th CPC bestows a sum of Rs 31, 500 per month for officers and Rs 21, 000 per month for ORs for braving the rigours of Siachen, pithily summarised as ‘risk/hardship in Siachen area is the maximum that any Government employee faces and no individual RHA should be more than this allowance.’

37.     However, few paragraphs later (8.17.115 – 118), Special Duty Allowance for All India Services officers has been rationalised to 30% of Basic Pay and for other civilian employees to 10% of the Basic Pay for serving in Ladakh and North East areas. Needless to add, this will be higher than the “no individual RHA should be more than this (Siachen) allowance.”

Disability Benefits

38.    More instances are available in the context of Disability benefits for Armed Forces personnel – percentile rates being replaced by slab rates which are lower et al.

39.    At Para 10.2.41, the 7^th CPC avers “Armed forces personnel retired with disability attributable to or aggravated by such service and assessed at 20 percent or more are awarded disability pension. Those invalided out with any disability attributable to or aggravated by such service are also awarded disability pension.”

40.    At Para 10.2.54, 7^th CPC states “While the number of officers retiring with disability element has shown a significant increase at levels of Brigadier and above in recent years, it is notable that since 2010-11, no officer in these ranks has been invalided out.”

41.     The analysis is as flawed in its concept as it betrays a lack of the Pay Commission’s reputed holistic view for the following reasons: -

(a)     Invalidment is as per the Guide to Medical Officers issued by DGAFMS. It applies uniformly to all affected personnel, especially as there is now recourse to the AFT and higher Courts for redress.

                  

(b)     As per Chapter III, Regulation 58 (b) of the Army Pension Regulations, “low medical category personnel who are retired/discharged for want of alternative employment compatible with his low medical category is eligible for invalid pension.” So, why should the Armed Forces invalidate those who are otherwise fit for alternative employment?

(c)     Further, Chapter IV, Regulation 82 gives examples like heart and renal diseases, prolonged illness, accidents while on leave etc and,

(d)     Regulation 85 holds that award of disability element of pension otherwise admissible may be withheld or be granted at a reduced rate …..if the personnel unreasonably refuses to undergo an operation or other medical treatment which in the opinion of the service medical authority would cure or reduce the disablement” (emphasis supplied).

      

42.    Surely it is not imputed that a Brig or Maj Gen, even Lt Gen with, say heart or renal problems or psychological bi-polar disorder and unfit for alternative employment, is not invalided out while an OR or a JCO with the same disability is? And worse, there has been no appeal by OR(s) or JCO(s) with the same affliction who has/have been invalided out? Let us look at just the disability but not invalided out category for year 2013-14 (apropos statistics provided by CGDA), at Para 10.2.51 & 10.2.52: -

Rank	Strength ( from CDM except ORs/JCOs )	Disability and superannuated (%)	Actual number with disability but superannuated
Lt Gen & equivalent	132	14.3	19
Maj Gen & equivalent	284	16.5	47
Brig & equivalent	1176	17.6	207
Colonels & equivalent	4100	21.1	865
Lt Col & equivalent	6776	20.8	1410
JCOs/ORs & equivalents	13,19, 481	7.2	95003

43.    Further, it is common knowledge that a large number of Army Aviation (even Naval and Air Force) helicopter and An-32 aircraft pilots fly with impaired hearing brought on by constant and sustained exposure to the noise of the engine perched just behind them and inadequate sound-proofing of the cockpit/aircraft. Many of these pilots would now be Brigs, Maj Gens, or even Lt Gens equivalents and entitled to disability benefits because there would be deterioration in their impairment. Is it the case that they should all be invalided out of service heedless that it would cause a vacuum (welcomed by some cynics!) at the top echelons of the Armed Forces?

44.    Nowhere, from Para 10.2.40 to 10.2.55, is there any mention of any call for information and taking of such evidence from Director General, Armed Forces Medical Services (DGAFMS) who provides, guidelines to Armed Forces Medical Officers for deciding disability, reviews and approves or rejects the recommendations.        

45.    Now, that begs the question affecting the larger number of ORs/JCOs who are entitled to disability benefits - Just because a larger proportion, but lesser number, of senior officers with disabilities is not invalided out, does the 7^th CPC seek to punish the ORs & JCOs by introducing the slab basis?

The reasons why the  7^th CPC did not call for information or take any evidence before handing down such a harsh punishment is a matter of intense speculation among the Disabled Veterans.     At least for the sake of equity that 7^th CPC espouses!

46.    If indeed disability benefits is to be determined on a slab basis for the sake of equity (Para 10.2.55), why aren’t other benefits, including for incentive for civilian employees like the Special Duty Allowance, determined on the slab basis?

47.    The list is longer and we could tread the path strewn with more anomalies as we read more of the Report. Let me enjoy this season of good cheer by concluding with the need to resolve the following anomalies: -

(a)     Appoint a Parliamentary Committee to resolve anomalies instead of the routine Committee of Secretaries. The High Powered Committee (CoS) of 2008 in the Rank Pay case had its recommendations over-turned by the Honourable Supreme Court; the CoS of 2009 and 2012 did not recommend the OROP but the Govt over-turned that recommendation, and the CoS of 2012 recommended that anomalies of pay, allowances and pensions of Armed Forces be referred to the 7^th CPC for a holistic view, tacitly admitting that Secretary level officers neither had the knowledge nor capability to recommend resolutions to the anomalies or state, unequivocally, that the Armed Forces were making mountains out of a molehill.

 

(b)     Recognise the Armed Forces as Central Government employees paid from the Consolidated Fund of India though subject to the Army, Navy and Air Force Acts and Rules.

(c)     Generate a common pay matrix for Civilian employees and Armed Forces personnel to overcome depression of MSP at all levels.

(d)     Allowances must be common for Armed Forces and Civilians and with the same basis – slab or percentile – for civilian employees and Armed Forces personnel 

(e)     Appoint an Armed Force Pay Review Board and a Review Body on Seniors Salaries similar to that in UK for an annual review of the Armed Forces and civil employees, including its cadre management.

(f)      Provide compensation for truncated careers as the Govt is unable to ensure lateral absorption of highly trained and qualified Armed Forces personnel in CAPFs. 

Jai Hind

E & O E