A Few Facts Not in the Report of 7th CPC

Reading into the Report of the Seventh Central Pay Commission (7^th CPC)

[Read into something - to find an extra meaning in someone's words or actions that is not obvious.]

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The mutual confidence on which all else depends can be maintained only by an open mind and a brave reliance upon free discussion.

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 Most of the issues that mankind sets out to settle, it never does settle… The dispute fades into the past unsolved, though perhaps it may be renewed as history and fought over again. It disappears because it is replaced by some compromise that, although not wholly acceptable to either side, offers a tolerable substitute for victory…

-         Justice Billings Learned Hand (1872-1961)

The man who will follow precedent, but never create one, is merely an obvious example of the routineer. You find him desperately numerous in the civil service, in the official bureaus. To him government is something given as unconditionally, as absolutely as ocean or hill. He goes on winding the tape that he finds. His imagination has rarely extricated itself from under the administrative machine to gain any sense of what a human, temporary contraption of the whole affair is. What he thinks is the heavens above him is nothing but the roof.

- Walter Lippmann

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I am not sure whether the honourable Chairman and Members of the 7^th CPC will read this (restricted to just 1% in length compared to the Report). However, if they do, they can console themselves that I admit I goofed up for I believed that the Commission would be bold, futuristic, and impartial, not being confined by bureaucratic precedents.

          From the time, in 1947, the first Prime Minister of India decided that the Police is better suited to a “peaceful” India, and started to disband and demoralise the Armed Forces, all that has happened is degrading treatment in the hands of the succeeding Governments, briefed by an entrenched bureaucracy with easy access to the Government i.e. the Civilian Authority, forcing the Armed Forces and Ex-Servicemen (glorified by the term Veterans in recent years) to live their lives in the looming shadow of humiliation (by lowering them in the Warrant of Precedence, or equating them with the Police whose primary responsibility is maintaining law & order and not ensuring the sovereignty of the Nation), exploitation (by denying truthful briefs to the Government), cruel and degrading treatment (the most recent being that the Armed Forces are not Organised Class A Services) and harassment (ceaseless appeals and litigation using the paid for by the State services of Government’s law officers).

MoD, and by inference the Government, ignoring the spate of litigation that has been fought by the Armed Forces personnel, has found ways not to implement orders of the Armed Force Tribunal, even of Courts by resorting to Appeals, Review Petitions and, even the odd Curative Petition, in most cases.

It must be days of unhappiness for those of the 7^th CPC associated with producing a voluminous Report, made longer by more than a score of pages “Intentionally Left Blank.” A detailed reading of 899 pages long Report may justify the feeling of it being insensitive, at times needlessly denigrating the Armed Forces, who can only represent to the same Government. I use the words ‘needlessly denigrating,’ because many analyses in the Report are based on one-sided information, provided as it appears, to facilitate the consequent recommendations.

In these days of saving the environment and paper, the 7^th CPC could have used the blank pages in the Report to mention whether the Armed Forces, even the Ex-Service personnel and widows were asked/requested to provide clarifications, enumerating what those clarifications were, why the CPC found those clarifications unworthy of even the dismissive tone and tenor in the Report.

This analysis (confined voluntarily to 1% in volume) is driven by  a few statements in the Report vis-à-vis facts that exist in the files of the MoD which were obtained through numerous requests and First Appeals under the RTI Act, 2005 and judgments of honourable Courts.

While on the subject of RTI, the CPC has been remiss in providing any information on its website (7cpc.india.gov.in) except of the dates of meetings, who the CPC met, and places the CPC toured. To this day, under the drop-down menu of RTI it shows “Under Construction”, not even disclosure of information required under Section 4 of the RTI Act. And similar is the fate of the Photo Gallery. So much for the praises of the Secretary of the CPC and her leadership etc., etc!   

The 7^th CPC had an opportunity to show its dynamism and ability to project that holistic view (more about which later) but it could not. Permit me to begin with the observations of the 3^rd Central Pay Commission (CPC) in Volume III, Chapter 48, Paragraphs No.5 and 6: - 

5.       It is for the first time that a Pay Commission has been asked to enquire into the structure of emoluments of both the civilian employees of the Government and the Armed Forces personnel. In the past, the latter enquiry was entrusted to departmental committees which included the representatives of the Services also…..

6.      While devising our procedure of work, we were keen that Service personnel, like the civilian employees, should have the opportunity to represent their case before us. We, therefore, requested the Ministry of Defence to consider permitting Servicemen to submit memoranda…..We were, however, informed that the requirements of military discipline and tradition would not permit such an approach………

          Four decades later, in 2014, the GoI/MoD allowed a minor concession because the same UPA Govt had promised a separate Military Pay Commission. The minor concession was that the Armed Forces could present a Joint Services Memorandum (JSM) to the CPC, which the Armed Forces did on 28 Aug 2014. That a separate Pay Commission for the Armed Forces was not considered necessary by then Chairman CoSC & CAS may appear, in hindsight, to have been a folly of reposing faith in the CPC.    

          The folly was also because we in the retired fraternity of the Armed Forces, considered the CPC, yet again, would be like an honourable Court. The CPC would assess the evidence presented and interpret existing Rules and Regulations. They would control how hearings unfold in the Commission. Most important of all, like Courts, the CPC will be impartial decision-makers. The CPC will consider opposing sides of an issue and ensure that evidence and arguments will be fully, truthfully, and forcefully presented. The Chairman and Member of the CPC, much like judges, however, would remain above the fray, taking an independent view and making an impartial assessment of the facts. The Commission differs from honourable Courts in one aspect – The Courts interpret laws as they exist or strike down laws which are in violation of the Constitution of India; the Pay Commission need not recommendations that may or may not conform with recommendations of previous CPCs. 

         

          The Armed Forces have known that the past CPCs have not found solutions to all anomalies – real and perceived. Perhaps it is not the fault of the Armed Forces for their sky-high expectations from the 7^th CPC

Firstly, because the Chairman served as Chairman of the Principal Bench of the Armed Forces Tribunal, and therefore has in-depth knowledge of the numerous grievances of the personnel of the Armed Forces.

Secondly, because of such qualities being bestowed in the CPC by no less and entity called the Cabinet Secretary Committee (CSC).

A CSC set up in 2008 rendered its Report on 30 Jun 2009 on One Rank One Pension (OROP) and related anomalies/issues. Some of its recommendations found favour with the MoD and the MoF and the others were consigned to the dustbin of bureaucratic history.

Yet another High Powered Committee (HPC) bestowed its wisdom in the Rank Pay case in 2010, (more of that in subsequent paragraphs), but the honourable Court did not consider it adequate to change a judgment of another Bench. 

In 2012, then Prime Minister constituted yet another CSC (in July 2012) to recommend solutions to certain Pay, Allowances, and Pensions, including OROP related issues raised by the Armed Forces at the level of the Chiefs of Army, Navy and Air Force. The CSC, with the Cabinet Secretary as its head, consisted of Principal Secretary in PMO, Defence Secretary, Secretary (Ex-Servicemens’ Welfare), Secretary (Personnel) in DOP&T, Secretary (Revenue) and Secretary (Expenditure) in Ministry of Finance. Needless to add, but necessary in the context of this critical analysis, the Secretaries have risen to the posts and the attached responsibilities as they are experts in their fields. They must have been assisted by the usual phalanx of lower level functionaries starting with Special or Additional Secretaries and down the rung to Desk Officers.     

The CSC had, as its leadership, the most meritorious of the IAS, whose edge was justified by Shri Vivek Rae, IAS (retd) quoting a judgement of the Honourable Supreme Court of September 1991. The CSC, with the expertise of the Secretaries, complemented by their respective Departments, had to consider the anomalies raised by the Armed Forces after the 6^th CPC and yet transferred its responsibilities, and with it their accountability and expertise, to the CPC.  

So what did the CSC recommend in its report dated 17 Aug 2012? They informed then Prime Minister that the pay, allowances and One Rank One Pension must be considered by the next Pay Commission because the Pay Commission is an ‘expert body that will take a holistic view of the issues’ ( Para 41 of the CSC Report-2012) (emphasis supplied).  

The CPC, as graciously stated by the CSC, is an expert body. But other than the Chairman and Dr Rathin Roy, an eminent economist, comprised of

A retired Secretary (retd IAS) as Member of the CPC,

A Secretary level officer from the Indian Railways as Secretary of the CPC, and

A phalanx of Joint Secretaries, Directors, Under Secretaries to the Govt of India whose services and virtues were extolled in the Acknowledgement at the beginning of the Report. They were from the IAS, the Indian P&T Accounts and Finance Service, Indian Railways Accounts Service, one from an unnamed Accounts and Finance stream ‘with deep insight into financial matters, especially defence,’ the C & AG, and a token presence for Armed Forces, if so considered, of a PPS in the Armed Forces Tribunal.      

      A discerning lay man, let alone educated and experienced Armed Forces personnel, will wonder what expertise these honourable ladies and gentlemen had to be considered “experts” that the mighty CSC with its Secretary level officers did not have. And to take a holistic view, one has to rise above one’s own likes, dislikes, prejudices, and pet theories.

          It becomes obvious as one peruses the Report that everyone who was on the CPC looked after his or her own parent cadre, quoting precedent where nothing else could win the argument, leaving the unrepresented Armed Forces with  pious, and needless, remarks on their sacrifices.

          Let me start with the Honourable Member, showing both his knowledge about the IAS, which is a good thing, but exposing his partisan thinking. On the magnanimous end one could presume he used his background knowledge,   when quoting a 1991 judgement of the Honourable Supreme Court to defend the edge for the IAS, but on the other end, he also used his place at the high table of the CPC to push his views on behalf of the IAS, into the Report.

Whether the IPS and the sundry Services, the Armed Forces called to offer their proofs is left to the imagination of readers of the Report.   A few of the Intentionally Left Blank pages could have informed us, if the CPC did and the outcome.

Let me take the depression of Rank Pay and the arguments.

The Honourable High Court of Kerala in O.P. No. 2448 of 1996 (Maj A K Dhanapalan Vs UoI), W A No. 518 of 1998 (UoI Vs Major Dhanapalan) and the Honourable Supreme Court in CC No. 5908 of 2003 (UoI Vs Maj Dhanapalan) decreed that Rank Pay had been deducted before re-fixing the pay of officers. The Court ordered re-fixation of pay after restoring the amount so deducted and to pay the Rank Pay in addition. MoD complied, after some embarrassing questions from DOP&T and Deptt of Expenditure on the convoluted procedure of deducting Rank Pay, then fixing the pay, and then adding the Rank Pay to the newly arrived, but depressed, pay. 

The Honourable Supreme Court’s Bench of Justices Katju and Lodha (later CJI), in the Rank Pay case of Lt Col N. K. Nair & Others Vs MoD/UoI [in TP (C) No. 56 of 2007], agreed on 08 Mar 2010 with the 1998 judgement of the Honourable High Court of Kerala, thereby clearly establishing that an amount equal to the Rank Pay had been deducted before re-fixing the pay scales of Defence Forces officers i.e. Pay scales were depressed by the amount of Rank Pay.

There was the above referred High Powered Committee (HPC) constituted in April 2010 on the advice of Shri Gopal Subramanium, then Learned Solicitor General in 2010 to impress up on the Hon’ble Supreme Court the adverse financial effect on the State (Rs 1671 crore) to buttress its Interlocutory Application (I.A.) No. 9 of 2010 in TP (C) No. 56 of 2007.

UoI/MoD prayed for recall or modification of the judgement of 08 Mar 2010 but a 3 judges Bench [Justices Lodha, Thakur and Dave] in the subsequent I. A. No. 9 of 2010 in TP (C) No. 56 of 2007 dated 04 Sep 2012, upheld the judgements.

   
       MoD was economical with the truth to the CPC that the HPC had come to a conclusion that there was no depression, but that begs the question – does the HPC report of 2010 overrule the judgements of 1996, 1998, 2003, 2010 and 2012? 

It might have been ignorance of the truth for the MoD not to mention that after the judgement of 04 Sep 2012, it approached the two highest Law officers of the land for ways and means to a legal challenge. The then Learned Solicitor General (now a Honourable Judge of the Supreme Court) stated on 31 Oct 2012 that the IA was in the nature of a Review Petition and a second Review Petition is not permissible. He also opined that there were insufficient grounds to file a Curative Petition as it did not meet the Hurra Vs Hurra criteria. MoD still persisted and sought the opinion of then (now deceased) Attorney General, who advised MoD to honour the judgment in letter and spirit and pay arrears from 1986 to 2005, the period when Rank Pay was deducted before re-fixing the pay scales. If this is not proof enough that Rank Pay was depressed, then what is?

          Like the CPC Member attempted to protect the interest of the IAS, if an Ex-Serviceman or a representative of the Armed Forces was on the panel of experts of the CPC, he/she may have brought out the above facts or asked why it stated in the JSM that Rank Pay was depressed. Who knows, the Report may have been more objective and fair.

          At Para 6.2.13, we are made to believe, perhaps because the MoD stated so that, “the government has been augmenting middle and senior level positions in the Armed Forces steadily over time” (emphasis in the Report). 

         The expert on Defence matters may have not had enough time to apprise the CPC that there was a thing called (Lt Gen) Bagga Committee which suggested, amongst other solutions, that the time frame for promotions of officers from Capt to Lt Col be reduced, and the number of vacancies above Lt Col be increased, ostensibly to have a younger cadre of Armed Forces officers. The implementation, under the name Ajai Vikram Singh Committee (AVSC), from December 2004 has ended up making the Armed Forces top heavy with a disproportionate increase in the number of middle level (Colonels) and Senior level (Brigadiers, Maj Gens, Lt Gens) officers. If this is cadre review, then perhaps MoD needs to go, collectively, to some management school to learn what Cadre review really is.

      

          Let us now advance to para 6.2.24. In the notes to the table, the Report 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.” Is this the contribution of the CPC expert, with his deep insight in defence matters?

But the 2015 Military Pay Chart (www.dfas.mil/dam/jcr:7061e0ca-a436.../2015MilitaryPayChart.pdf) tells us a different story that Basic Pay at O-7 (Officer-Band 7) at 2 years service starts at USD 8648, O-10 starts at USD 16,072 at 20 years and ends at USD 19762.50 at 40 years service!

          Relying on the statistics provided by the CGDA, the Report states at 10.2.51 that percentage of officers retiring with disability has increased to 19.8 percent, whereas it decreased in the case of JCOs/ORs from 18.9 to 7.2%.

          The Report further states at 10.2.54 “While the number of officers retiring with disability element has shown a significant increase at levels of Brigadiers and above …..no officer in these ranks has been invalided out” and 10.2.55, “….This move is contrary to the tenets of equity insofar as treatment of disability element between Officers and JCOs/ORs is concerned.” Hence we have the slab rate!

          So for the sake of 19.8% of 1524 officers i.e. 302 officers of the ranks of Brigadier & above superannuating with disability benefits, the CPC has penalised 7.2% of 13, 19, 481 JCOs/ORs (Para 6.2.2.) i.e approx 95, 000 superannuating with disability benefits.

Perhaps the “expert on defence related matters” in the CPC did not deem it fit either to read the Defence Pension Regulations, Army Pension Rules 2008 or seek clarifications from the Director General, Armed Forces Medical Services (DGAFMS) who is the Competent Authority to decide degree of disability or the invalidment before arriving at the apparently precipitate and, demoralising conclusion.     

          If CPC did ask DGAFMS, then there is neither mention of the comments nor the reply of the DGAFMS is quoted, if at all he was asked. 

         

CPC opined has the highest risk and hazards (8.10.66), and where only Armed Force personnel serve, has limited the allowance to Rs 31, 500 for Officers and Rs 21,000 for JCOs/ORs. 

Then not heeding its own words about those serving in the Siachen glacier area, the CPC has rationalised the Special Duty Allowance to 30% to ‘attract civilian employees to seek posting in Ladakh and North East, in view of the risk and hardship prevailing in those areas.’

So, even by the impugned Pay Matrix provided by CPC, and adding MSP of Rs 15, 500 or Rs 5200 respectively (Chapter 5.2), many Armed Forces officers (Index 10B, Level 10 and above) and JCOs (Index 7, Level 11 onwards) will stand to lose financially.

          Sir, I could go on  but I shall confine myself to 1% of the Report (and no Intentionally Left Blank pages.)  

Contradiction: CPC recommending withdrawal of entitled ration allowance (of Rs 89.90 per diem or Rs 2700 per month in August 2014) to officers in peace areas, many of which are in the North East. But the CPC sees no contradiction in recommending a 30% of pay as SDA to civilian employees seek a posting in the North East!  

If one had to quote from the previous Commission Reports, which are available on the internet and Digital Library of India, then this bulky Report has been an utter waste of money. In my unsolicited opinion the only truthful thing in the Report is the recommendation not to have Pay Commissions in future.

There was hope in the Armed Forces that truth would prevail, that justice would be done but ignoring the truth, the evidence available by way of judgements of the Honourable Supreme Court, by not demanding answers from other than the MoD and accepting it to be the gospel truth, the CPC chose to rely on an algorithm of disbelief in the Armed Forces.

          Finally, I am sure many of us Ex-Servicemen and widows of Ex-Servicemen must have developed hypertension recently (I have!), caused by consumption of excess salt, imperative to digest the analyses and recommendations in the CPC Report related to Armed Forces, by a CPC so loaded with expertise, ability to take a holistic view and above all, the CPC professed equity.

Post-script:

The Report and Recommendations of the CPC, certified by the CSC of 2012 (comprising Cabinet Secretary, Principal Secretary in PMO, Defence Secretary, Secretary (Ex-Servicemens’ Welfare), Secretary (Personnel) in DOP&T, Secretary (Revenue) and Secretary (Expenditure) in Ministry of Finance to be an expert body capable of taking a holistic view, is now entrusted to a Cabinet Secretary led Committee of, yes, Secretaries of Defence, Department of Personnel and Training, Pension and PW, Revenue, Expenditure, and the new entrants are Secretaries of Home Affairs, Health, Science and Technology, Chairman of Railway Board, Deputy CAG, and Secretary (Security) to advise the Government.

Notable, as usual, is the absence of any formal representation from the 13.5 lakh Armed Forces!

Satyam Ev Jayate

E & O E