Tuesday, 2 August 2016

Wasn't Depression of Rank Pay Decided by the Honourable Supreme Court?

Rank Pay, Uniform Grade Pay, and the Facts from Courts’ Orders

 Maj Dhanapalan's case achieved finality when the Honourable Supreme Court dismissed the Special Leave Petition (No. 5905 of 2003) in July 2005.

             Many litigants filed Writ Petitions in different High Courts in 2006 (hence arrears of Rank Pay from 1.1.2006!)

              Finally, in IA No. 9 of 2010 in TP (C) No. 56 of 2007, the main litigant was Lt Col N K Nair and there were many others (please read the judgment of 4.9.2012 for names of other litigants).

             Lt Col N K Nair & RDOA filed a Contempt Petition No 328 of 2013. 
          Please consider the following chronology before reading the extract from the affidavit in Lt Col N K Nair & Another vs UoI & Others: -

(a)    The JSM was presented to the 7th CPC on 28 Aug 14.

(b)    The order of the Honourable Supreme Court in Lt Col N K Nair & Another vs UoI and Others dismissing the Contempt Petition was delivered on 18 Aug 15 (a year later) but before 19 Nov 15 when 7 CPC submitted its Report and recommendations.

The assertion, inter alia, appears to be that in the case of Defence Forces, the Grade Pay has been artificially depressed as Rank Pay was not taken into consideration while determining the top of the Pay Scale of various ranks. Quoting the definition of Rank Pay, as approved by MoD on 29 Feb 2000, it is asserted that it means that no financial benefit can be denied to the Defence Forces related to pay by not counting Rank Pay for the purpose of higher Grade Pay.

MoD ID No. 1(26)/97/I/D(Pay/Services) dated the 29th February, 2000 referred to is reproduced below: -

Subject: Removal of anomalies arising from the implementation of the revised pay scales and allowances consequent to the V CPC recommendations – definition of Rank Pay – reg.

I am directed to refer to Instructions No. SAI, SNI, and SAFI No. 2/S/98 dated 19.12.1997 and to state that the issue of merger of Rank Pay with the pay scales of the Defence Service officers upto the rank of Brigadier and equivalent has since been reconsidered by the Government in the light of the recommendations of a Committee specially constituted on the above subject and in view of the fact that the Rank Pay cannot be merged with the pay scales for the Defence Service officers and also keeping in view the difficulties being faced by the Defence Service officers with regard to interpretation of Rank Pay, it is clarified that:

"Rank Pay is admissible to the Commissioned Officers of the three Services, holding their rank either in a substantive or acting capacity. It is that element of their pay identified with their Rank, which, in turn, has a relationship with their scale of pay. It is granted separately in recognition of the specific needs of their conditions of service and command structure. It will consequently be taken into account for determining their entitlement to such of those financial benefits, concessions, etc, including retirement benefits, as are directly related to the basic pay or their pay scales."

 Veterans had filed cases in 2006 for similar benefits given to Maj Dhanapalan in different High Courts in India. The Hon’ble Supreme Court, on the plea of UoI transferred all cases to itself in 2007. Hon’ble Supreme Court passed the orders on 08 Mar 2010 in Transfer Petition (Civil) No 56 of 2007 agreeing with the Hon’ble High Court’s order that Rank Pay should not be deducted after re-fixation. Neither in Maj Dhanapalan’s case nor in TP (C) was there an argument for revision of the integrated pay scale by adding Rank Pay.  

The order of 8.3.2010 was challenged by UoI/MoD and on 4.9.2012 in IA No. 9 of 2010 in TP (C) No. 56 of 2007) in UoI vs Lt Col N K Nair & Others, the three Judge Bench (of Justices R M Lodha, T S Thakur, and Anil R Dave) agreed with its judgment of 08 Mar 2010, with two modifications (1) arrears are to paid wef 1.1.2006, and (2) the orders are applicable for all similarly placed Veterans and officers, whether they had sought legal remedy or not.

The keyboard warriors (and some serving warriors wishing to remain pseudonymous) misquote the Honourable Supreme Court order of 4.9.2012 as the Maj Dhanapalan case and take away the credit from ten litigants (for names, please read the order dated 4.9.2012), and followed through after the orders of 4.9.2012 issued in Jul 2014, after the opinion of the then Attorney General for India in September 2013.

A very careful (and patient) reading of the order of 4.9.2012 shows that the Hon’ble Supreme Court only upheld its order of the two Judge Bench (of Justices M Katju and R M Lodha) which “agreed with the order of a Division Bench of the Hon’ble High Court of Kerala” that Rank Pay cannot be deducted after the methodology for re-fixation of pay of Captains to Brigadiers and equivalent on transition from 3rd CPC to 4th CPC.

To reiterate, the Hon’ble Courts did not order that the integrated pay scale for Lts to Brigadiers and equivalents should be amended from Rs 2300-5100 recommended by the 4th CPC to Rs 2300-6150 by adding Rank Pay to the integrated scale. Perhaps because amending the pay scale was not argued!

          If indeed the Hon’ble Court had ordered so on 4.9.2012, then there would have been no need for the Chairman, CoSC to write twice to then RM resulting in a reference to the Learned Attorney General for India and his opinion dated 3.9.2013 on the following 4 anomalies: -

(a)     Should the arrears be paid to concerned officers w.e.f 1.1.1986 as stated in the High Court judgment (Services HQ contention) or for officers eligible for Rank Pay as on 1.1.986 (the CGDA and MoD interpretation).

Ld AG’s Opinion: - Services contention of w.e.f 1.1.1986 upheld.

(b)     Is the judgment effective for 5th CPC wherein Rank Pay was a component (Services HQ contention) or was the judgment’s effectiveness confined to 4th CPC (CGDA and MoD’s interpretation).

Ld AG’s Opinion: - The order is applicable for 5th CPC too.

(c)     Does the minimum pay of a Capt have to be increased from Rs 2800 to Rs 3000 in the integrated pay scale as demanded by Services HQ?

Ld AG’s Opinion: - This is not contained in the judgment and hence not applicable.
(d)     Does the maximum pay of a Brig have to be increased from Rs 5100 to Rs 6300 in the integrated pay scale as demanded by Services HQ?

Ld AG’s Opinion: - This is not contained in the judgment and hence not applicable.
If Services HQ contention at (c) and (d) had been upheld by Ld AG, then and only there was a case for revision of the integrated pay scale of 4th CPC, revision of pay scales in 5th CPC with consequent effect of higher Pay in the pay bands and also higher Grade Pay than was approved in SAI/SNI/SAFI 2/S/2008.   

However, before the opinion of the Ld AG was received on 03 Sep 2013, Lt Col N K Nair & Another (RDOA) had filed a case for Contempt of Court in Jul 13 [Contempt Petition (Civil) No. 328 of 2013].

From the Affidavit Filed in Contempt Petition No. 328 of 2013

Lt Col N K Nair & RDOA submitted that following issues constitute violation of all the judicial pronouncements both of the Hon’ble High Court of Kerala and this Hon’ble Court with regard to implementation/re-fixation of pay of affected officers:

(a)     The MoD letter dated 27.12.2012 has restricted the benefit by making the court order effective “as on 01.01.1986”, whereas both the High Court orders in Dhanapalan’s case and orders dated 08.03.2010 and 04.09.2012 passed by this Hon’ble Court clearly require the respondents to give effect to the orders “with effect from 01.01.1986” instead of “as on 01.01.1986”. This action of Contemnors is a deliberate and intentional effort to defeat the directions of this Hon’ble Court. This has been clearly done at the instance of CGDA as is clear from their DGL. This order clearly excludes all Officers who joined or were promoted to the rank of Captain and equivalents and higher ranks on any date after 01.01.1986. This has given rise to an unprecedented situation of existence of two concurrent pay scales for the same rank within the span of the same IVth Pay Commission. The Court has held that the Rank Pay is payable in addition to the existing pay scales. Therefore, the pay scales have to be amended and enhanced by the amount of Rank Pay as given in the table below which also has the comparison with Civilian Senior Time scale equivalent to Captain drawing the same basic pay in the pre-revised 3rd CPC Scale.

2800 + 200 (RP) = 3000*
9600 + 400 (RP) = 10000*
1100/ 1200

Note. *The Rank Pay has been deducted out of the pay scale and only if it is added back, does the pay become equal to civilians. In 5th CPC the scale has been lowered to Rs 9,600-11,400 as against Rs 10,000-15,600 for STS. This deficiency in pay scales and fixation shall be rectified by SC judgment and needs to be given effect.

Rank/ Reckonable Yrs of Service for Pay
Rank Pay As per IV CPC
Minimum Initial Pay as per SAI 1/S/87
Revised Initial Pay w/o deduction of rank pay as Per para 6(a) (ii) after  SC judgment
Lt Colonel-16

(b)      The Minimum pay for each rank in the integrated pay scale of IV CPC [Para 6(a) (ii) of SAI 1/S/87] has not been amended. The ratio of all the judicial pronouncements on the subject clearly stipulates that the pay of all officers was to be re-fixed w.e.f. 01.01.1986 without deducting the rank pay. This means that the pay is required to be fixed w.e.f. 01.01.1986 in terms of para 6(a) (ii) of SAI 1/S/87. The table given in this para specify minimum initial pay for each rank from Captain to Brigadier. This minimum initial pay has also been arrived at by deducting the amount equal to rank pay. In view of the aforesaid orders of this Hon’ble Court, this minimum initial pay also needs to be enhanced by the amount equal rank pay. The admitted position of MoD vide their Note-8 dated 12.09.2012 signed by Shri P.S. Walia, Under Secretary, MoD obtained through RTI is that the minimum initial pay was arrived at after deduction of rank pay which was the subject of challenge in this litigation. Since the court orders have rejected this deduction and have directed re-fixation by adding the amount equal to the rank pay deducted as indicated in the table above.

(c)       Thence, the Special Army Instruction (SAI) has laid down the integrated scale from Rs 2300-100-3900-150-4200 EB-150-5100. The MoD letter dated 27.12.2012 does not amend this integrated scale to give effect to the orders of this Hon’ble Court. It clearly denies the benefit to those who were already at the top of this integrated scale. For example, the initial pay for Brigadier (Rs.4950/-) was arrived at after deducting Rs.1200/- from his scale which effectively would mean Rs.6150/- and accordingly the benefit cannot be limited to them to Rs. 5100/- as they would stagnate at Rs. 5100/- itself on their pay fixation on 01.01.1986 due IV CPC. This is evident from the table shown.

Existing emoluments as on 1/1/86
Total emoluments
Less rank pay
Pay fixed in integrated scale
4950 + RP
4950 + RP
Basic pay w.e.f. 1/1/86
5100* w.e.f. from 1/1/86

Both stagnate at Rs.5100/- after one increment.

(d)      The judicial pronouncements require that once the minimum for each rank as given in para 6(a)(ii) is changed, the pension of pre 1986 retiree officers would also have to be changed. In the Application submitted to this Hon’ble Court by the Contemnors for seeking extension of time for implementation of the order of this Hon’ble Court, it has been stated and admitted that the implementation would involve the revision of pension of pre 01.01.1986 retirees. However, so far no action has been taken by the Contemnors to address this issue and disburse the amount. In fact, not even a single person has been given this benefit. For example, the pension payable to the Major would change to Rs.4050/- + Rank Pay of Rs.600/- from the existing pension of Rs.3400/- + Rank Pay of Rs.600/-.

(e)     The admitted position of MoD before this Hon’ble Court both during arguments as well as in affidavits was that implementation of the orders of the Hon’ble Kerala High Court in Dhanapalan’s case in respect of others will have cascading effects as it would affect the re-fixation during the transition to 5th and 6th CPC. It is clear from the records that the methodology followed to implement the recommendations of 5th CPC is exactly same as that of 4th CPC wherein Rank Pay has been deducted both at the fixation of initial scales as well as calculation of emoluments after implementing the recommendations. On 01.01.1996, the date 5th CPC was implemented, the rank pay and fitment benefit were doubled. The ratio of the judicial pronouncements also requires the consequential benefits to be given to all affected officers and therefore, the re-fixation on account of 5th CPC is also required to be redone about which the MoD letter dated 27.12.2012 is completely silent. The following chart makes the situation clear:

Rank/Pay Scale

Existing as per SAI 1997 at V CPC
Revised scales w/o deduction of rank pay at V CPC

9600-300-11400 + RP 400
10000-300-11800+ RP 400
11925-325-14850 + RP 1200
12800-325-16050 + RP 1200
Lt Col
13500-400-17100 + RP 1600
15100-400-18700 + RP 1600
15100-450-17350 + RP 2000
17100-400-19350 + RP 2000
16700-450-18050 + RP 2400
19100-450-20450 + RP 2400

(f)       The judicial pronouncements are applicable to Time Scale substantive Lt. Cols and its equivalent also. Rank pay as defined by the IV CPC states ‘Rank pay is 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.’ It is also stated therein that rank pay forms part of basic pay. It has been further clarified by MoD vide their letter of 29 Feb 2000 that, it is that element of their pay which is identified with their rank, which in turn has a relationship with their scale of pay. It will consequently be taken into account for determining their entitlement to such of those financial benefits/concessions etc including retirement benefits, as are directly related to the basic pay or their pay scales. The Army/ Navy/ Air Force instructions should be amended accordingly which never got amended. It should be noted that Time scale Lt Cols were given the pay scale of Lt Col on completion of 21 yrs of service by the V CPC. All Lt Cols with 26 years of service irrespective of the fact they are time scale or selection grade were promoted to the rank of Col with implementation of A V Singh Committee recommendations and are drawing pay and grade pay of Col after 6 CPC. Those Officers of the rank of Lt Col (TS) are also entitled to the benefit of rank pay of Lt Col which has not been covered by the implementation order.

3(ii).    It is respectfully submitted that despite more than sufficient time given by this Hon’ble Court liberally, the Contemnors have failed to disburse the arrears on account of the Court orders by 31.05.2013. The Petitioners applied for information under RTI Act, 2005 on 14.05.2013 asking for the correct information regarding total beneficiaries and those to whom amount has been disbursed. It is submitted that in reply to the RTI, the Respondents on 14.06.2013 have given the information that the total beneficiaries are 45,485 as on date and a total of 31,718 have been partly paid the undisputed amount and it has been clearly admitted that 13,767 beneficiaries remained to be paid as on 14.06.2013 which also amounts to a clear violation of the order of this Hon’ble Court dated 11.03.2013. True typed Copy of the RTI Application dated 14.05.2013 submitted by the Petitioner – Retired Defence Officers Association (Regd.) to CPIO O/o the CGDA and True typed copy of the Reply dated 14.06.2013 given by the Office of the CGDA to the RTI Application of the Petitioner – Retired Defence Officers Association (Regd.) are annexed herewith and marked as ANNEXURE P-15. 

3(iii). It is respectfully submitted that the aforesaid disbursed amounts pertain to arrears on account of re-fixation of pay. Pension of beneficiaries has not been revised till date and arrears on account of such revision have neither been calculated nor disbursed. This also amounts to clear disobedience of this Hon’ble Court.

3(iv).  It is manifest from the aforesaid facts and circumstances that the respondents/Contemnors are wilfully and deliberately violating the aforesaid order of this Hon’ble Court thereby clearly committing Contempt of this Hon’ble court. 

3(v).     It is submitted that the facts and circumstances made out in the foregoing paras clearly demonstrate that the contemnors have acted in willful and deliberate disobedience and in violation of the Order dated 04.09.2012 passed by this Hon’ble Court in I.A. No.9 of 2010 in T.P. (C) No.56 of 2007 and it would be in the interest of justice that the cognizance of this willful disobedience of the orders of this Hon’ble Court is taken and the contemnors are made to face the consequences of same in accordance with law.

Judgment of the Honourable Supreme Court

The final order was pronounced by a three Judges Bench (Justices Anil R Dave, Kurian Joseph, and Adarsh Kumar Goel) of the Hon’ble Court on 18 Aug 15. The Hon’ble Court concluded its order with the words, “Needless to say that if anybody has any grievance with regard to fixation, he may approach the concerned authorities for redressal of his grievance.” The order is reproduced below: - 

CONMT. PET. (C) No. 328 of 2013

N.K NAIR & ANR                                                                           Petitioner(s)


SHASHI KANT SHARMA & ORS                                                  Respondent(s)


Application for impleadment is rejected.

Upon hearing the learned counsel appearing for the petitioners and the learned Additional Solicitor General appearing for the respondents and upon perusal of the reply filed on behalf of the respondents, we find that the Rank Pay with effect from 01.01.1986 has already been paid to the petitioners, as directed by this Court vide order dated 04.09.2012.

In these circumstances, we do not find any reason to pass further orders in these contempt proceedings.

The Contempt Petition is, accordingly, dismissed.

Needless to say that if anybody has any grievance with regard to fixation, he may approach the concerned authorities for redressal of his grievance.

New Delhi;
August 18, 2015.

P.S: It is understood that one Veteran Lt Col intended to file a case in the Principal Bench of the AFT that he was promoted Capt in Oct 86 and his pay was fixed at Rs 2800, whereas other Capts, already in the rank of Capt were being paid Rs 3000/- as basic pay. It is understood that the Veteran has migrated to USA and his advocate, since appointed as Govt counsel in AFT cannot argue the case.]

1 comment:

  1. The blog-post brings out how the litigants might have tried to include too much in their interpretations of the earlier judgement. Equally significant is the Affidavit, seen by me for the first time now, for which another debt of gratitude to this blog needs to be put on record.

    Section (f) of the Affidavit clearly establishes another important issue related to the case. This issue was related to denial of appropriate rank pay to Officers with the pay-scale and rank of Lt Col and equivalent, given on time-scale basis. For some strange reason, their rank pay, contrary to the Govt's own subsequent clarification of the definition of 2000, was linked to the establishment vacancy they filled and not the rank and pay-scale they were given.

    This issue had been highlighted in a rejoinder filed by RDOA and published in their blog-post at para h.

    Subsequently, the case took several turns and it was not clear whether the litigation had continued to include this particular issue.

    Now, from publishing of the affidavit in this blog, it is clear it continued to be part of the case till the end.

    Perhaps this particular matter is relevant to the portion of the HSC judgement that mentions "grievance with regard to fixation". This is one issue that still needs to be looked at legally by this particular section of officers, now veretans, who really appear to have been short-changed.