Career Planning and promotions of Officers in the Indian Air Force

Air HQ (AoP’s Branch) formulates the Promotion Policy and Procedure, which is then approved by the Ministry of Defence. To keep pace with careers in the civil, the Air Force has also reviewed its promotion policies to make the service more attractive and has published them for the knowledge of all officers.

Candidates passing out from the Air Force Academy or Air Force Technical College are directly commissioned as Flying Officers (Lieutenants). Technical officers who are graduate engineers are given ante-date in seniority of 2 years for pay and promotion compared to other officers of the IAF. The reason is to attract the best possible talent in the technical field.

Officers, after serving as Flying officers for 3 years, are promoted to Flight Lieutenants ( equivalent to Captain/Lieutenant) of the other services. However to become a substantive Flt Lt, the officers must pass Promotion Examination 'B.' This examination consists of papers in General Knowledge, Staff duties and Professional subject. An officer must secure 60% to pass this examination.

On completion of six years of total service, an officer of the IAF is granted the substantive rank of Squadron Leader (Major/Lt Cdr). This is a far cry from the earlier promotion policy when an officer of the Flying Branch became a substantive Squadron Leader after 11 years of service. Ground duty officers were earlier promoted as Squadron Leaders after 13 years of service.

One of the conditions for promotion is that all officers must pass promotion exam C. This again consists of papers on Current affairs, Air Power, Air Force Law, and General Service training. An officer becomes a substantive Wing Commander (equivalent to Lieutenant Colonel/ Cdr) after 12 years of commissioned service. Promotions up to the rank of Wing Commander are referred to as time scale promotions.

But above the rank of Wg Cdr, all promotions are based on seniority and merit. An officer of the Flying Branch will become eligible for consideration to the rank of Group Captain (Colonel) after completing 16 years of service. Ground duty officers who are non flyers will be considered for Group Captain rank after 18 years of service.

Eligible officers will be empanelled and considered by Promotion Board No 2, which is presided over by the Vice Chief of Air Staff. Specialist officers of the concerned branch are co-opted as members of this promotion board. For example for technical officers, the AOM (Air Officer in charge Maintenance) is co-opted as member.

No 2 Promotion Board is usually convened once every year in the month of April/May. Eligible officers after due consideration depending upon their service qualifications and annual confidential reports will be considered for the rank of Group Captain. As a rule the last 10 years ACR's (Annual Confidential reports) are considered and an average worked out on a 9 point scale.

Officers who have added service qualifications like staff college, Qualified Flying Instructors Course, Long Defense Management course are given extra weightage. The Board will clear a number of officers for promotion to the rank of Group Captain depending on the number of vacancies available (and as per a ratio for Flying Branch officers (fighter/transport/helicopter pilots & navigators) and Aeronautical Branch (Mechanical and Electronics).

Subsequent promotions to the rank of Air Commodore and Air Vice Marshal come under the purview of the No 1 Promotion board of which the Chief of Air Staff is the presiding officer. The AOA is in attendance. The board, usually held in February/March will consider the last 10 years ACR's as well as service qualification like command of a wing or station. All recommendations of the promotion boards (1 and 2) are put for approval to the Ministry of Defence, which has the last say in all matters of promotion.

Normally all officers are considered for promotion for 3 consecutive promotion boards, and after that face the concurrent promotion board. 25% of all vacancies are reserved for concurrent list officers. Officers who are bypassed for promotion in all boards are given the time scale rank of Group Captain after 25 years of service.

A Special Promotion Board, presided over by the CAS and comprising the four senior-most Air Marshals, consider air officers of the rank of AVM for promotion to the rank of Air Marshal. Promotion to the rank of Air Marshal as well as the Air Officer Commanding- in- Chief is approved by the ACC (Appts Committee of the Cabinet) and the Air Chief's appointment by the Prime Minister himself.

From IDSA - Officers' Promotion Policy in the Army

Officers’ Promotion Policy in the Army

Rumel Dahiya and Vivek Chadha

November 30, 2012

In a judgement pronounced by the Hon’ble Delhi High Court on November 19, 2012, promotions of officers of the rank of Major General (Maj. Gen.) to Lieutenant General (Lt. Gen.) approved by a Special Selection Board held on January 7, 2011 were quashed, mainly on the ground that the revised Quantification Policy (QP) forming the basis FOR the selection was not approved by the Ministry of Defence (MoD) and, therefore, lacked legality. The Hon’ble Court also directed that a fresh Special Selection Board (SSB) must be held to assess the officers on the basis of QP dated December 31, 2008. Whereas the judgement may not benefit the petitioners for various reasons, it is a timely reminder to Army Headquarters (AHQ) and MoD that promotion policies should not be tinkered with every change of personality at the helm of affairs. The quantification model itself spells out selection criteria for greater objectivity and helps in selecting the most deserving officers for higher rank from among a batch of officers. This Issue Brief analyses the officers’ promotion policy in the Indian Army. The arbitrary change in the QP is not the only aberration in the system. The system is by and large fair but needs to be freed from the proclivities of the military leadership itself. The subject is examined at the following levels:
(a) Career ambition of voluntary officer corps.
(b) Importance of Annual Confidential Reports (ACRs) in officers’ career progression.
(c) Systemic problems afflicting the process of selection of officers for higher ranks.

Career Ambition of Voluntary Officer Corps

Service in the Indian Armed Forces is voluntary. Therefore, all officers who join the armed forces are either permanent commissioned officers or are granted permanent commission after expiry of the short-service commission period. Therefore, all officers who rise in the profession to attain higher ranks do so in a highly competitive environment, given the pyramidal nature of the rank structure. This needs to be seen in light of a longer period of service that higher ranks afford and the consequent impact on prestige and financial remuneration. The anxieties further get heightened because there are lesser avenues for alternate employment for a large number of army officers retiring every year. The shortage of officers in the army does not leave enough time for them to pursue academic or professional training, which empowers them for employment post retirement. This problem becomes more acute after the age of 50, when appropriate employment opportunities diminish.

Importance of ACRs in Officers’ Career Progression

The inputs before the Selection Board for empanelling officers for higher ranks are confidential reports (CRs), performance on training courses, honours and awards, value judgement and negative inputs such as poor disciplinary awards. Of these inputs, CRs normally constitute approximately 90 per cent of the total weightage. In the past, spoken reputation and employability in the higher rank of the officer being assessed was also taken into consideration before making the recommendation about his suitability for further promotion. However, after the Quantification Model was introduced in 2008, these inputs were by and large ignored. The operational performance of an officer against an external threat and in counter-insurgency operations provides an important input. Therefore, CRs form the most important input in the Selection Board. This has been the case for a very long time. Major Hoshiar Singh who earned a Param Vir Chakra in the 1971 India-Pakistan War retired as a Colonel because he was graded poorly in his CR initiated when he was serving as a Battalion Commander at the National Defence Academy.

The ACR system and its impact on an officer’s career progression is often criticised on the grounds that it breeds sycophancy and induces sacrifice of moral courage merely to get a good CR. However, the fact remains that the CR system is well-designed since the report is normally reviewed by two superior officers in the chain of command, after it is endorsed by the initiating officer (IO). The Reviewing Officer (RO) and Senior Reviewing Officer (SRO) are required to moderate the report and eliminate biases of subjective reporting. For some time in the 1980s a closed system of reporting was tried, wherein the report was not required to be shown to the ratee (officer reported upon) unless there was an adverse comment in the CR. This created anxiety among the officers; those not empanelled for the next rank were forced to initiate complaints only after their non-empanelment, thus not providing them an opportunity to seek redress after the initiation of CRs. It was also felt that a closed system generated distrust between IOs and ratees. Review of the closed system led to the re-introduction of the present system of open CRs. The success of this system was dependent upon IOs displaying objectivity and moral courage. However, in an environment where most battalions function at half their authorised strength of officers, many commanding officers found it difficult to report objectively on their officers, lest those graded lower lost the motivation to work hard. A good leader is expected to carry along his team. However, objective reporting could result in some officers under-performing. Given the context of poor officer strength in units, this could adversely impact effective training and administration of units.

Exceptions apart, in any organisation at any given time, normally there would only be about 20 to 30 per cent personnel whose performance would be above average. However, the limitation of numbers has resulted in most officers being rated above average or outstanding. In the process, the truly outstanding or above average officers are the losers since there is no incentive left in the system except perhaps important assignments to which they can be appointed. Performance in courses like the Defence Services Staff College and the Junior Command Course remains the only criteria that separate the high achievers from others. Whereas good performance in courses helps such officers in tenanting prestigious staff and instructional appointments, however, a very low percentage of weightage is given to performance on courses in the Quantification Model and, therefore, they do not get adequate compensation in the selection process.

The ACR system followed by the army is, perhaps, still the best appraisal system in the armed forces with built-in checks and balances. However, in some cases it still tends to be subjective, particularly since the ROs and SROs do not get to see the ratees very closely to be able to make considered judgement on the latter’s performance. Experience suggests that an officer of high integrity and professional capability cannot be denied his due and an odd aberration does not repudiate this observation. It rather proves a point, even though some officers overlooked for further promotion would dispute this.
It would be appropriate to cite two examples of objective reporting even before a formal system of redressal of grievances related to CRs was instituted within the Military Secretary’s Branch in the Army Headquarters and Complaints and Advisory Board (CAB) was attached to the COAS Secretariat. In one case, wherein the ratee was assessed poorly by the IO, the RO, in his observation in the pen picture of the rate, clearly mentioned that the IO had a tendency to be subjective in his reporting and had failed to improve despite being advised in this regard. The RO further stated that while writing the report on the IO, he would endorse this adverse remark in his report. The CR of the junior officer was kept pending in the MS Branch until receipt of the report of the IO. It was observed in the report on the IO that the RO had indeed made an adverse remark about the IO’s tendency to be subjective. The junior officer’s ACR was then processed and the IO’s portion of the report was overlooked.

In the second case, an officer performing the duties of a Brigade Major – a prestigious appointment for a Major rank officer – was not approved for the rank of Lieutenant Colonel, based on the report of his RO, a Brigade Commander, when the officer was performing the duties of a Company Commander in counter-insurgency operations in Nagaland. In this case, whereas the IO had graded the Company Commander above average, the Brigade Commander as RO had rated him average in certain qualities. While doing so, he had explained the rationale quite clearly and said that the officer had the qualities of a good staff officer but, based on his close observation of the officer’s leadership qualities, he found him to be an average leader of men. This observation was corroborated by a low high average operational report during the 1971 War when the officer was a Second Lieutenant.
These two incidents highlight the fact that the system can only function properly if the reporting officers have moral courage and adequate tenures to observe their subordinates in different situations.

The Systemic Problems Afflicting the Process of Selection

The problem of commanding officers having to run their units efficiently with a bare minimum number of offices available has been discussed earlier. An inflationary tendency in writing reports has also been highlighted. In addition, a major systemic problem impacts the redressal of grievance mechanism. This problem has existed for long. Way back in the late 1980s, a Lieutenant Colonel who was directly related to a very senior officer managed to get at least three of his CRs ‘cleaned’ after submitting complaints against the reports. Although this officer was cleared for promotion by the Selection Board in a review after the reports were cleaned, fortunately for the system his promotion was not cleared by the MoD since an upright officer brought this travesty to their notice. A deeper examination of his earlier CRs revealed that the officer was not up to the mark right from the beginning of his career. As a result, promotion was denied to him. Whereas this was a good example of the system taking care of aberrations, a large number of cases do take place wherein some officers with ‘connections’ and sometimes based on parochial regimental affiliations with Service Chiefs or other senior officers manage to get relief and promotions.

The grievance redressal mechanism is meant to provide relief only to the deserving candidates; however, it is not always fair or adequate. In some cases, it merely looks at an aberration and removes it despite the possibility that it was perhaps the only time when the true worth of an officer was reported. To this extent it tends to favour some people who have already reached their level of incompetence. In some other cases personal preferences dictate decisions. A number of cases are fairly well known within the army circles and need not be specified here.

Recently, a large number of cases of misdemeanour and financial impropriety on the part of senior army officers has come to light. Some commentators have argued that the media is sensationalising such issues because they make good copy, while others attribute motives to some sections in the establishment who want to show the army in poor light. The merit in these arguments notwithstanding, it is clear that an increasing number of such cases will be exposed in future and exposure of misdeeds is not bad in itself. It is necessary to recognise that there is something wrong somewhere and corrective measures are required to be taken. Involvement of senior officers in cases of corruption or in other socially unacceptable actions brings down the prestige of the army and the faith of the rank and file in the senior leadership. While the armed forces are the only organ of the state that take swift disciplinary action against defaulters, though at the cost of invaluable time and manpower resources in taking such disciplinary actions, many cases of misdemeanour go unpunished for want of substantial proof to initiate disciplinary action. Objective reporting, therefore, assumes added importance in weeding out officers of doubtful integrity and competence.

The Chief of the Army Staff reports on every Major General in the Indian Army as IO, RO or SRO. The reputation of senior officers is generally known to his peers, subordinates and immediate superiors. The Chief also has the resources to brief himself on the reputation of senior officers, should he so desire. It is therefore incumbent upon him to make a definitive recommendation about every Major General as regards suitability for promotion to the rank of Lieutenant General keeping his performance, capabilities and conduct in mind. The Chief has the authority to moderate, agree or disagree with the report of the IO or RO. Under normal circumstances, when a Major General lacks either the capabilities or if his conduct is not exemplary, the COAS should discuss the issue with the concerned Army Commander so that the officer is rated appropriately, thereby denying him promotion to the next higher rank. Even if the Army Commander feels otherwise, the Chief can exercise his prerogative as the final RO, to grade the office appropriately and write his observations about the officer’s suitability for promotion unambiguously in the pen picture of the ratee.

There is no requirement of change of policy or for the Chief to assume the powers to upgrade an officer’s report. In case an officer is aggrieved by the reporting of his IO, RO or SRO, the Chief has the authority to provide relief when the officer submits a non-statutory complaint. It is unlikely that the government or the courts will go against the recommendations of the Chief, if he mentions the reasons for not recommending an officer for promotion in his report. By doing so, the Chief would do great service to the organisation by stopping the less competent and not so honest officers from rising in service. This will also send an appropriate message to all officers down the line to maintain high standards of integrity and professionalism. Over a period of time higher standards of probity and professionalism will get established, thereby benefiting the army and the country.

Conclusion

The reporting system in the Army is time tested and is probably the best among all the services in India. However, there is room for improvement. It is desirable, however, that the policies are not tinkered with after every change of command and are allowed to stabilize over a period of 5 to 10 years before they are reviewed for their efficacy. Obviously, any organisation is as good as its leaders and the senior leadership in the army must display moral courage in reporting objectively, particularly on senior officers to set an example for officers lower down the chain of command. It is only when the competent and honest officers are promoted and officers with less than optimal professional competence and compatibility are weeded out that the senior officers in the army will start getting promoted at a comparatively younger age, which would permit them to hold their appointments for longer periods. It is absolutely essential for senior officers to hold longer tenures so that they can influence their command positively and get to know all officers serving under them so that they can report on them objectively.

Would the Reference to Ld Attorney General Be Something Like This?

A CASE SEEKING THE OPINION OF

THE ATTORNEY GENERAL OF INDIA

BY

THE ARMED FORCES OF THE UNION OF INDIA

ON THE INTERPRETATION OF THE JUDGMENTS OF

THE HON’BLE HIGH COURT OF KERALA IN

O.P.2448 OF 1996 DATED 05 OCT 98, W.A. 518 OF 1999

& SLP (CC) 5908/2005 IN HON’BLE SUPREME COURT

in MAJ (RETD) A K DHANAPALAN Vs. UOI

AND

THE HON’BLE SUPREME COURT OF INDIA IN

TP(C) 56 OF 2007 DATED 08 MARCH 2010 &

IA No. 9 OF 2010 IN TP (C) 56 OF 2007 DATED 04 SEP 12

UOI & OTHERS Vs. N. K. NAIR & OTHERS

RANK PAY CASE

INTRODUCTION

1.                  The Rank Pay issue (also known as Maj Dhanapalan case) refers to extension of the judgment given in the case of Major AK Dhanapalan by a Ld Single Judge and then a Division Bench of the Hon’ble High Court of Kerala to correct his pay fixation which was wrongly carried out under the provisions the pay instructions SAI No. 1/S/87 issued by MoD for implementing the 4^th Central Pay Commission (4^th CPC) award.  On appeal by UoI in N. K. Nair & Others, the Hon’ble Supreme Court of India has upheld the judgment of the Hon’ble High Court while extending it to all officers irrespective of the fact whether they had approached the court or not along with interest on arrears.

2.                 The government has decided to implement the order of Hon’ble Supreme Court of India.  However, the interpretation of the Order of the Hon’ble Supreme Court by the Armed Forces and the Ministry of Defence are different. Hon’ble Raksha Mantri has directed the Ministry and the Armed Forces to obtain the interpretation of the learned Attorney General of India by processing their cases separately.

3.                 The Hon’ble High Court of Kerala in the said case had held that the Rank Pay is something which has been given to Army Officers in addition to the existing pay scales. That 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. It directed UoI that the pay of Maj AK Dhanapalan to be re-fixed from 01.01.86 by paying him the rank pay over and above the basic pay. It also directed a second re-fixation on his promotion stating, “The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987”.  Based on this judgment other affected officers also filed petitions in various High Courts which were consolidated by the Hon’ble Supreme Court based on a request by MoD.

4.                 A Bench of the Hon’ble Supreme Court comprising Justice Markandey Katju (since retired) and Justice R M Lodha heard these appeals on 08 Mar 10 and upheld the reasoning in the judgments of the Hon’ble High Court of Kerala.  It directed that relief similar to Maj Dhanapalan be given along with interest computed @ 6% per annum with retrospective effect from 1.1.1986.  The UoI filed an Interlocutory Application No. 9 of 2010 against the Order of the Hon’ble Supreme Court which was finally disposed of on 04 Sep 12 by Justices R M Lodha, T S Thakur and Anil R Dave of the Hon’ble Supreme Court. The Hon’ble Court upheld the Hon’ble High Court of Kerala’s judgment that the Rank Pay which was deducted from the total emoluments and granted separately is not to be deducted from the emoluments as was done in the impugned Govt orders.  The Hon’ble High Court of Kerala had also held that Rank Pay is in addition to the Pay fixed in the integrated pay scale i.e. after the application of the fixation formula, the pay so arrived at will, in addition, be enhanced by the rank pay with effect from 01.01.1986. The Hon’ble Supreme Court also directed payment of interest on arrears so calculated @ 6% which will be payable to all similarly situated officers with effect from 01 Jan 2006. The MoD was given a period of 12 weeks to implement the court order. The time was extended till 31 May 13 by the Hon’ble Supreme Court based on an Interlocutory Application No. 11 of 2013 filed by UoI.

5.                 The matter at hand pertains to implementation of the Hon’ble Supreme Court’s order for all similarly situated officers, upholding the reasoning in the judgment of the Hon’ble High Court of Kerala in the case of Maj A K Dhanapalan. The MoD order dated 27 Dec 12 hereinafter called implementation order has been issued to authorise the re-fixation of pay of affected officers as directed by the Hon’ble Supreme Court. However, the implementation order issued denies justice to the affected officers, both serving as well as retired and the NoK of deceased officers. It is contended by Service HQ that the implementation orders are not in keeping with the letter and spirit of Hon’ble Supreme Court’s order.  Thus, a need has been felt to put the matter in its correct perspective and to take it to its logical end. The issue is discussed at length in the succeeding paragraphs.

BACKGROUND

6.                 The concept of Rank Pay was first introduced by the 4^th Central Pay Commission hereinafter referred to as 4^th CPC vide Para 28.12 and 28.13 of its report attached as Annexure-I. The 4^th CPC recommended a running pay scale called the integrated pay scale for officers’ ranks from 2^nd Lieutenant to Brigadier. The relevant recommendation of 4^th CPC is given below: -

“28.12  ….  Taking all factors into account, we recommend the integrated pay scale for all officers upto the rank of Brigadier and equivalent in the three services : -

                        Rs. 2300 – 100 – 4200EB – 100 – 5000

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 Army and their equivalent in the other services: -…“

7.                  The Government accepted the recommendation of the 4^th CPC vide Gazette of India Extraordinary Resolution no 9-E dated 18 Mar 87 which is attached as Annexure II. The decision of the Government was later promulgated for implementation in the form of Special Army Instructions (for short SAI) 1/S/1987 which is attached as Annexure-III. Similar instructions were separately issued for the Navy and Air Force. The important features of these instructions were: -

(a)              The increased rate of annual increment of Rs 150 which was applicable to the civilian scales from Rs 3900 onwards and ignored for Armed Forces pay scales was extended to the integrated Scale. It also resulted in slight change in the top of scale as the stage of Rs 5000/- was not present in the integrated scale. It further resulted in reducing the time span of 28 years for promotion from 2^nd Lt to Brig as envisaged by 4^th CPC to 23 years. The integrated pay scale for the ranks of 2^nd Lt to Brigadier was, therefore, changed to: -           

                        Rs. 2300 – 100 – 3900 – 150 – 4200 – EB – 150 – 5100

(b)              For fixation of pay, the following methodology was promulgated vide Para 6 (a) of SAI 1/S/87:-

Para 6 (a) (i). An amount representing 20% of the basic pay in the existing scale shall be added to the existing emoluments of the officer.

Para 6 (a) (ii). After the existing emoluments have been so increased, an amount equivalent to the rank pay, if any, appropriate to the rank held by officer on 01 January 1986 at the rates prescribed in Para 3 (a)  (ii) above, will be deducted. Thereafter, the officer’s pay will be fixed in the revised scale at the stage next above the amount thus computed. In case the stage of fixation falls below the minimum pay for the rank held by the officer on 01 January 1986 as prescribed in the table below, the pay will be stepped up to such minimum provided the officer has completed the length of reckonable commissioned service indicated in the same table: -

Rank	Minimum Pay in the Integrated Scale	Completed years of service
Lieutenant	2500	2
Captain	2800	5
Major	3400	11
Lt Col(Selection)	3900	16
Colonel	4500	20
Brigadier	4950	23

(c)               A minimum pay was thus introduced, within this integrated pay scale for each rank linked to length of service required to attain that rank. This was an integral part of the fixation process as it provided a minimum for each rank linked to the number of years of service. In case the stage of fixation was below the minimum pay for the rank held, it was to be raised to the minimum thus specified. No such recommendation was made by the 4^th CPC nor any table as given above. Therefore, the methodology for calculation of this minimum pay as given in column 2 of the table is not available in the report of 4^th CPC. This methodology can, however, be established by simple arithmetic as shown subsequently in this document.

(d)              Another relevant provision of SAI 1/S/87 was the definition of rank pay given in para 2 (d) of SAI 1/S/87. It was defined as: -

“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 revised scale. Rank pay forms part of basic pay.

THE JUDGMENT OF HON’BLE HIGH COURT OF KERALA

AND

THE HON’BLE SUPREME COURT

8.                 Aggrieved by the provisions of SAI No. 1/S/87, Maj A K Dhanapalan filed O. P. No. 2448 of 1996 in the Hon’ble High Court of Kerala. The case filed by Maj Dhanapalan was decided by Hon’ble Mr. Justice C. S. Rajan on 05 Oct 98. A copy of the judgment is attached as Annexure -IV. The Hon’ble Court held that the deduction of Rank Pay from the amount arrived at by the fixation formula was incorrect. It directed that the petitioners pay be re-fixed from 01.01.86 by paying him the rank pay over and above the basic pay. An appeal against this judgment of learned single judge was filed by UoI in a Division Bench of the Hon’ble High Court of Kerala vide writ appeal No. 518/1999.  The Division Bench of Hon’ble High Court of Kerala affirmed the judgment of learned single Judge vide its order dated 04 Jul 2003. A copy of the Division Bench of High Court of Kerala Judgment is placed as Annexure - V. After dismissal of appeal in the Supreme Court (No. 5908 (CC) of 2005) in the case of Maj A K Dhanapalan, arrears amounting to Rs 28,031 were paid in 2006.

9.                 Meanwhile a large number of petitions were filed in several High Courts seeking the benefit of the judgment of the High Court of Kerala in the case of Maj A K Dhanapalan. These petitions were transferred to Supreme Court on the request of UOI as Transfer Petition (Civil) No. 56 of 2007. The combined cases were adjudicated upon by the Hon’ble Supreme Court with Mr. Justice Markandey Katju and Mr. Justice R M Lodha in the bench. In Writ Petition (C) No 96 of 2009 tagged with TP (C) N0 57 of 2007. the Hon’ble Supreme Court agreed with the reasoning given in the judgment of Hon’ble High Court  of Kerala and upheld the judgment in its order dated 08 Mar 2010. The copy of the Order is placed as Annexure -VI.

10.             Thereafter, Ministry of Defence on the advice of the then Solicitor General of India dated 31 Mar 10, constituted a High Powered Committee (HPC) on 05.04.2010 to assess the financial impact in the implementation of the order of Hon’ble Supreme Court in the rank pay case in the Writ Petition (c) No. 96/2009- Sunil Kumar Chand and Ors Vs UOI and Ors dated 08 Mar 2010. The HPC consisted of Def Secy, Expenditure Secy, and Secy Def (Fin). Based on the Report of the HPC, the Hon’ble Supreme Court was again approached by UOI by way of Interlocutory Application (I. A.) No 9 of 2010. UOI, in its submissions before the Hon’ble Supreme Court on the interpretation and effects of implementations of the Hon’ble High Court of Kerala’s judgments, submitted Affidavits and Additional Affidavits. Copies of the Affidavit and Additional Affidavit is placed as Annexure -VII  & VIII respectively. The report of the HPC was also submitted to the Hon’ble Supreme Court and a copy of the same is placed as Annexure - IX.

11.                The case, after taking due cognizance of all submissions, was finally disposed of by a larger Bench of the Hon’ble Supreme Court vide its order dated 04 Sep 2012. The copy of the Order is placed as Annexure-X.

Developments After Supreme Court Judgment

12.             UOI then sought the opinion of the then Solicitor General on certain aspects of interpretation of the Order dated 04 Sep 12 and his opinion was received on 17.10.2012 and is placed as Annexure XI. UoI then decided to implement the verdict of the Hon’ble Supreme Court. Government Orders have been issued vide MoD No. 34(6)2012-D(Pay/Services) Dated 27 Dec 12, a copy of which is placed as Annexure - XII. 

Interpretations of the Order of the Hon’ble Supreme Court

13.              The Chairman COSC and Chief of Air Staff, Air Chief Marshal N A K Browne PVSM AVSM VM ADC has written to Hon’ble RM stating that the ibid implementation order is not in compliance with the Hon’ble Supreme Court’s Order. The DO from Chairman COSC & CAS is placed as Annexure-XII. When no action was forthcoming, Chairman COSC & CAS wrote another DO to Hon’ble Raksha Mantri on 27 May 13 which is placed as Annexure-XIII. 

14.             To appreciate the issue, it is necessary to examine the order of the Hon’ble High Court of Kerala’s judgment in more detail. The ratio (legal principle) of the judgment given in their order dated 05 Oct 98 is as follows: - 

"Under these circumstances, I am of the view that respondents 2 and 3 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 Army Officers in addition to the existing pay scales. That 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.”

15.              Based on the afore stated ratio,  the operative part of the Hon’ble High Court of Kerala’s judgment (Annexure –III) reads as under:-        

"Under these circumstances, the respondents 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1.1.86 without deducting the Rank Pay of Rs.200/- as has been done by the 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."

ISSUE - 1 : “WITH EFFECT FROM 01.01.86” OR “AS ON 1.1.86”

16.             Issue. The implementation orders dated 27 Dec 12, at Para 6 and 8 have modified the Special Army Instructions 1/S/1987 and corresponding Special Navy and Air Force Instructions in so far as it relates to deduction of Rank Pay and 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.  It is noticeable that the court in its judgment has used the term with effect from 1.1.86 which has been changed to as on 1.1.86 in the ibid Govt order. This subtle change in language narrows down the scope to the extent that it only partially implements the court’s judgment.  The Armed Forces have objected to the use of words ‘as on 1.1.86’.  They are of the opinion that the words ‘with effect from 1.1.86’ which have been used by the courts should be used in these orders to give effect to the Court Orders correctly in letter and spirit.

Armed Forces Views

17.                         In the implementation orders, only the first sentence of the court direction has been mentioned ignoring the remaining part of direction of Hon’ble High Court of Kerala.  Whilst, in the order, the Hon’ble Court has used the words “with effect from 1.1.86” the implementation order reads “as on 1.1.86”.  It is felt by the Services that the term “with effect from” connotes an ongoing application where as the term “as on” implies one time application of the direction of the court.  Therefore, “with effect from” will require re-fixation of pay of all officers on 1.1.86 and thereafter on promotions as well e.g. an officer promoted on 01 Feb 1886 will also be entitled to the benefit of the court order like those who were already in the higher rank on 1.1.86.  The term “as on” on the other hand restricts it only to one time application for those officers who held the rank of Capt to Brig and equivalent on 1.1.86.

18.                         To substantiate the point it is necessary to examine the second sentence of the directive part of the order. The Services have pointed out that MoD has inexplicably omitted this sentence from the judgment quoted in the Govt order.  As per the order of the Hon’ble High Court of Kerala, after having directed to re-fix the pay of the officer with effect from 1.1.86 in the first sentence, the directions continued and stated “The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987 evidenced by Ext. P1”. Clearly the court has directed re-fixation of the pay for Maj AK Dhanapalan to be done twice.  It is conceded that the pay cannot be re-fixed twice on the same day i.e. 1.1.86.  The occasion to carry out this second re-fixation can be deduced from the first paragraph of the Hon’ble High Court of Kerala’s judgment which considers the facts of the case and reads: -

“The Petitioner is a retired Commissioned Officer (Major) in the Indian Army.  As per Ext P1 resolution issued by the Government of India, Ministry of Defence, in addition to pay in the integrated scale, rank pay are admissible to the Army officers.  The amount of rank pay for officers in the Rank of Major and equivalent is Rs 600/-.  This is the pay revision of 1987.  In an earlier pay revision with which we are concerned the above amount was Rs 200/-.  But the petitioner was not granted the benefit of the above rank pay…….”

19.                         Therefore, the Hon’ble court has mentioned about two revisions of pay for Maj AK Dhanapalan ie when the rank pay was Rs 200/- and when it became Rs 600/-.  During the 4^th CPC regime, the rank pay changed from Rs 200/- to Rs 600/- on promotion from the rank of Captain to Major. Therefore, the court has directed the second re-fixation on the promotion of the then Capt AK Dhanapalan to the rank of Major be also carried out. The MoD order dated 27 Dec 12, however, has not provided for the pay re-fixation again on promotion.  This presumably is due to the fact the MoD letter mentioned the phase “as on” instead of ‘with effect from’.  The phrase ‘as on’ neither relates to nor implements the direction of the judgment in its entirety. The moot issue is that the court order is to be implemented conforming to the principles of law established by the Apex Court’s verdict to give a treatment to “Rank Pay” in fixation of pay of officers in 4th CPC.

20.                       The fact that now needs consideration and opinion is whether the language of the Hon’ble Supreme Court’s Order can be changed by MoD. The consequential effect of replacing the phrase ‘with effect from’ to ‘as on’ also needs validation from legal point of view. Further, it also needs to be considered whether the second line of the judgment of Hon’ble High Court of Kerala as mentioned in Para 18 above needs to be included in the MoD order.

21.             It is pertinent to mention that while upholding judgments of the Hon’ble High Court of Kerala, Hon’ble Supreme Court in its order dated on 04 Sept 2012 has further clarified that:-     

"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/AFT".

22.                       It may be mentioned, in this regard, that in April 2010, a Committee headed by the Defence Secretary which comprised Secretary (Department of Expenditure) and Secretary Defence (Fin) as members in it’s Report had stated that pay fixation needs to be done for Officers on 1.1.86, 1.196 and 1.1.06.  This report was also submitted as a part of the additional affidavit in the Hon’ble Supreme Court.  In the Additional Affidavit, MoD had further submitted that the instant  court order will entail re-fixation of pay of not only the officers entitled to Rank Pay, but pay  scales of other personnel above and below such officers will have to be revised with effect from 1.1.86 firstly, and then from 1.1.1996 and 1.1.2006. i.e. at the time of subsequent pay revisions.  It is for consideration that the Government interpretation of the court order in its submissions to the Hon’ble Supreme Court as part of Affidavits and while implementation of the same order needs to be similar or not. Whether the change in Govt’s stand in the matter as occasioned above is judicially/legally correct may be clarified and commented upon.

23.            The view of Controller General of Defence Accounts (for short CGDA) on this matter has been that whatever was done by Controller of Defence Accounts (Officers) in the case of Maj AK Dhanapalan is to be done now for implementing the court order for affected officers.  This may not be the correct stand to adopt.  If, in the case of Maj AK Dhanapalan (Retd), the judgment has been applied incorrectly that cannot be justifiably extended to all officers.  It may be noted that Maj AK Dhanapalan (Retd) had represented repeatedly against the manner in which the court order was implemented, but he did not move the court for the same when the CDA (O) informed him that the impugned methodology has been incorporated even in the 5^th CPC and consequent SAI No. 2/S/98 dated 19^th December 1997, i.e. ten months before the Hon’ble High Court of Kerala passed its judgment on 5^th October 1998.  It may be appreciated that a retired soldier will have his financial and other limitations in moving the courts on each wrong.  Just because Maj Dhanapalan did not appeal to the Courts cannot mean that he accepted that the Hon’ble High Court’s order has been implemented correctly in his case also.

24.                       Consequential Effect. The implementation orders issued on 27 Dec 12 has used a particular interpretation of the court orders which is not in conformity  with the many sworn submissions of MoD to Hon’ble Supreme Court. This deviation would result in the following inconsistencies in the Govt Order:-

(a)        It will lead to different officers of the same rank drawing different pay with same years of service in the currency of the same pay commission thus violating the basic principle that personnel belonging to a particular rank with equal years of service are remunerated equally in terms of pay and pension.

(b)        Extending provisions of judgment to the officers who were in the service as on 1.1.86 in the rank of Captain to Brigadier only is in violation of judgment and spirit of the judgments of Hon'ble High Court/ orders of Hon’ble Supreme Court which have implied that it should be an ongoing process applicable with effect from 1.1.86 to all similarly situated officers and not only to officers in service as on 01.01.86.

25.            Amendment Sought by Armed Forces in implementation orders.  Re-fixation of pay be done with effect from 01.01.86 in respect of all defence officers who were in service as on 01.01.86 as well as for those who joined/promoted thereafter as per the documented verdict of Hon'ble Supreme Court.

ISSUE - 2 : REVISION OF MINIMUM PAY OF RANKS IN THE INTEGRATED SCALE

26.           Issue. The Govt order issued for implementing court order has no provision to change the Integrated Pay Scale (Para 3(a)(i) of SAI/SNI/SAFI 1/S/87) and the minimum pay for each rank in the Integrated Pay Scale ( Para 6 (a) (ii)of SAI/SNI/SAFI 1/S/87). This in fact has resulted in two different pay scales for the same rank in the currency of the 4^th CPC.  A large number of officers who were promoted to the rank of Capt and Equivalent after 01.01.86 as well as those who joined service after that date and became entitled for Rank Pay subsequently will be adversely affected by the implementing order and no change in their pay is envisaged and they will continue to draw the pay as given in the existing SAI/SNI/SAFI relating to 4^th CPC.

Armed Forces Views

27.            As per Armed Forces, the provision of deduction of rank pay as mentioned in para 6 (a) (ii) of the Special Army Instruction and corresponding instructions for the other two services is just one sentence of the ibid para.  This sub-sub Para lays down the methodology of deduction of rank pay from the total emoluments of an officer and the process to be adopted thereafter.  It also states that in case the stage of fixation falls below the minimum pay for the rank held by the officer on 01 Jan 1986 as prescribed in the tables below, the pay will be stepped up to such minimum provided the officer has completed the length of reckonable commissioned service indicated in the same table. The ibid Para contains a table which specifies, within the integrated scale, the minimum pay for each rank.  It may be pertinent to note that neither such table was recommended by the 4th CPC nor was it published in the Government resolution approving the recommendations of the 4th CPC.  These have been added in SAI/SNI/SAFI No. 1/S/87 by MoD.  These minimums for each rank had also been depressed by an amount equal to the rank pay only due to deduction of rank pay.   This is borne out by simple arithmetic and comparing equivalent pay scales of civil and military and also Para 2.3.10 (iv) of the report of the 6^th CPC which while analysing the Rank Pay noted: -

“(iv) The Fourth CPC had continued this edge in devising the running pay band for Defence Forces officers up to the rank of Brigadier and had revised the integrated pay scale taking in account the time taken for promotion to different pay scales. The element of rank pay was carved out of the pay scales so revised after giving the edge vis-à-vis civilian group A officers.”

28.           It is imperative that the rank pay which was carved out of the pay scales by the impugned SAI/SNI/SAFI No. 1/S/87 is added back.  Only this will implement the Hon’ble Courts’ orders in letter and spirit.  The minimum for each rank represents its pay scale and need to be revised to give effect to re-fixation with effect from 1.1.86.  Deletion of only the clause related to deduction of rank pay without changing the minimum for each rank, which has also been arrived at by deducting the rank pay, gives rise to a situation where Officers who were promoted to the rank of Capt and equivalent or joined service after 1.1.86 and rose to the ranks of Capt/equiv will draw lesser pay than those who got promoted before that date with same years of service. This is because the implementation orders has not addressed this aspect by due modification of para 6 (a)(ii) table and it has resulted in enhancing the pay of the rank only for those who held the rank as on 01 Jan 86.

29.           The Division Bench of Hon’ble High Court of Kerala, while dismissing the appeal of UoI against the judgment of Learned single judge directed: -

“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 the appeal.  The appeal fails.”

30.            The implementation orders dated 27 Dec 12 ignores this judgment and fails to add Rank Pay to the substantive pay for each rank tabulated in Para 6 (a) (ii) of SAI 1/S/87 which additionally contains the provisions for deduction of rank pay.

31.             To understand this anomaly, the pay fixation of officers commissioned in Dec 80 and Jun 81, who will get different pay is exemplified below :-

	DOC : DEC 80	DOC : Jun 81
Rank on 1.1.86	Flt Lt	Fg Offr
Existing Basic Pay (Min of the scale)	1200	910
DA, ADA, Ad Hoc DA, IR	1640	1514
Existing Emoluments	2840	2425
20% of Basic Pay	240	182
Total Emoluments	3080	2607
Pay Fixation 1.1.86 (Revised Minimum)	3100	2700
Pay after 5 yrs of Service As on 01/06/1986	3100	2800

32.            This is also against the basic principle enunciated by pay commissions which ensures that officers of the same rank and length of service are remunerated equally.  5th CPC, at Para 147.12 of their report elucidating this principle have observed: -

“147.12:  Armed Forces officers up to the rank of Brigadier are presently paid on the basis of an integrated pay scale introduced on the recommendations of the Fourth CPC so as to provide reasonable career progression to service officers. To compensate for ranks attained, rank pay is also granted which attracts dearness allowance and is reckoned for pensionary benefits. The integrated pay scale has a fixed minimum pay for each rank linked to number of years taken to achieve such rank. The resultant effect is that personnel belonging to a particular rank with equal number of years of service are remunerated equally….” 

Amount of Minimum of Scale/Rank Pay

33.            The pay commission has not given the arithmetic or the logic as to how it arrived at the amount (quantum) of Rank Pay. This can be derived by examining the report in a holistic manner. It is important to know that all Pay Commissions decide principles for enhancing the pay scales which may or may not be discussed in detail in their report. These principles are common to all pay scales irrespective of the cadre save some exceptions which are explained in the text of the report.

34.             Senior Time Scale for civil services, before 4^th CPC, started at Rs 1100/1200.  On the other hand, the pay scale of a Captain in the Army and his equivalents in other services, started at 1200.  The start of the scale recommended by 4^th CPC for STS was Rs 3000.  If the Rank Pay was not introduced by the 4^th CPC, the new pay scale recommended by the 4^th CPC would have started at the same level for both, the STS in the civil and the Captain in the Army i.e Rs 3000/-.  The table at Para 6 (a) (ii) of SAI/SNI/SAFI No. 1/S/87 gives the start of scale of a Capt at Rs 2800/-.  This along with the Rank Pay of Rs 200/- makes it equal to the start of scale of the STS at Rs 3000/. These figures clearly show that Rank pay element has also been deducted from the start of the scale of the rank and needs to be added back keeping in mind the Judgment in Maj Dhanapalan’s Case.  It is also relevant that Para 6 (a) (ii) of SAI/SNI/SAFI No. 1/S/87, which has the table specifying the minimum pay for each rank deals with the provision of deduction of rank pay in pay fixation.

35.            Consequential Effect.  The genesis of the term minimum pay of the rank is that It was given as a protection in the pay fixation if the total emoluments after deduction of rank pay were below the prescribed amount. It was also identified and notified in pay instructions to ensure that officers with same years of service and rank draw same pay.  To put the matter in its perspective, it is stated that there has so far been no instance wherein officers of same rank and length of service had two different pay scales in the same pay commission.  The minimum re-fixed pay in the revised pay scales for a Capt /equiv promoted on or before 01.01.86 will be fixed at Rs 3000+200 (Rank Pay) as per the Govt order. However, as per the same Govt letter officers promoted to the same rank after 1.1.86 with corresponding length of service would get Rs 2800+200 (Rank Pay) only as no minimums have been changed. Provisions of the Govt letter also effectively means that officers promoted to the rank of Capt and equivalent after 01 Jan 86 will not be covered by this order. This will lead to officers with same years of service and rank drawing different pay (lesser pay for those officers who joined/promoted as Capt/equiv after 01 Jan 86) in the currency of the same pay commission. Therefore, it violates the basic principle that personnel holding similar rank with equal years of service are remunerated equally in terms of pay and pension. It is illustrated through the following example:-

37.              

Rank	Pay in  III CPC	Minimum Pay in IV CPC (Prior to Court verdict)	Pay to be Revised for Offrs as on 01 Jan 86 (As per MoD letter)	Anomaly in Pay for other offrs who join/promoted to the rank of Capt/equal after 01 Jan 86)
Capt	1,200	2800 + 200 (Rank Pay)	3000 + 200(Rank Pay)	2800/- + 200/- (Rank Pay)
STS (Civ)	1100-1200	3000/-	3000/-	3000/-
Maj	1500	3400+600	3700/3950+600	3400+600
Dy Secy	1500	3700/3950	3700/3950	3700/3950
Lt Col	1800	3900+800	4500/4800+800	3900+800
Director	1800	4500/4800	4500/4800	4500/4800

36.            Amendments Sought by Armed Forces.  The Services have stated that the minimum of pay for each rank in the Integrated Pay Scales of IV^th CPC, which were then arrived at by deducting the Rank Pay, needs to be re-fixed after adjustment for the Rank Pay to ensure single pay scale for same rank and length of service. This would also restore the modified parity for pre-1986 retirees.

ISSUE - 3 : REVISING THE TOP OF INTEGRATED SCALE

37.            Issue.  The top of the 4^th CPC integrated scale of Rs 5100 has not been amended to remove the effects of deduction of rank pay.

Armed Forces Views

38.            In support of the issue stated above, the Armed Forces have stated that the Fourth Pay Commission vide para 28.12 of its report, had recommended the following Integrated Scale for all officers upto the rank of Brigadier and equivalent in the three services spanning over a period of 29 years: -

Rs 2300-100-4200 EB-100-5000

39.             Even though all the pay scales on the civilian side, starting from Rs 3900/- onwards, had an increment of Rs 150, the pay commission kept the rate of increment for defence officers at Rs 100 throughout this integrated scale. This aberration was later rectified by the Government and the following integrated scale was finally approved: -

Rs 2300-100-3900-150-4200 EB-150-5100

40.           The final orders not only changed the rate of increment but also raised the top of the scale to Rs 5100 but this resulted in reducing the time-span of the integrated scale from 29 yrs to 25 yrs. 

41.             In view of the above it has been brought out that similar to the minima for each rank, the maximum was also depressed to the extent of the Rank Pay.  To emphasise the issue it may be seen that the top of the scale on the civil side for DIG Police, who is considered to be equivalent to a Brigadier (and equivalent) was Rs 6150/- whilst the Brigadier’s top of scale was retained at Rs 5000 which is the next stage from Rs 4950/- which was not present in integrated scale recommended by the 4^th CPC.  The Brigadier was given a rank pay of Rs 1200/- making a total of Rs 6200/- (the nearest possible stage to Rs 6150/-). This is how the pay scale of Brig/equiv was depressed. Now with the Hon’ble Supreme Court order that RP is to be given over and above the Basic Pay, there is an imperative to relook at the top of the integrated scale.

42.           It has been also pointed out that the above stated arrangement did not pose any practical problem earlier when the Rank Pay was deducted from the emoluments of officers of the Rank of Brigadier/equivalent.  But now with the re-fixation occasioned by deletion of the clause relating to deduction of Rank Pay, the re-fixation of pay of all officers who were drawing top of the scale for Col/equivalent in 3rd CPC and all officers of Brigadier Rank irrespective of seniority will be restricted at the top of integrated scale of Rs 5100. Thus Brigadiers/equivalent will be deprived of the fixation benefit (20% of emoluments of 3^rd CPC) given to Defence and Civilian officers and in effect would be denied the legitimate fixation benefit.  A live example of pay fixation of two officers on top of Brigadier scale is given below: -

Name & No                            :  Air Cmde A

                                                               Air Cmde B                                                                                                  As per SAI                 As per Implementation Order

Basic pay on 31.12.85          :           2400                           2400

DA+ADA+IRs                       :           2572                           2572

Existing Emoluments           :           4972                           4972

20% of BP                              :           480                             480

Less: Rank Pay                     :           1200                               0

Total Emoluments                :           4272                           5472

Pay in Integrated Scale       :           4950                           5100 (Top of Integrated

                                                                                    Scale)

43.            Further, as per  the above example the said officers will not get any benefit of fixation because as per Para 6 (c) of SAI/SNI/SAFI No. 1/S/1987, if the total emoluments computed for fixation are more than the maximum of the revised scale, the pay will be fixed at the maximum of the revised scale.  There is no provision of even personal pay for these officers as per the CGDA.   In other words, these officers would get fixed on the top of the scale but without fixation benefit and stagnate from the day of fixation itself i.e. 1.1.86. 

44.           Consequential Effect. This interpretation by MoD defeats the very purpose of integrated scale which was to provide reasonable pay progression to officers. There is no parallel of such an example in AIS or Gp A services where benefit of fixation has not been given to all officers in a Rank/Post whereas all officers of the rank of Brig and equiv stagnate from the date of initial fixation. To remedy this unjust disadvantage and also to rectify the shortened length of integrated scale, the top of scale needs to be suitably enhanced/extended to restore the original span up to 29 years by due extrapolation of integrated scale. Further, it may be relevant to bring out here that resolving the stagnation through grant of personal pay is fraught with two distinct disadvantages to the effected Officers - firstly, the Stagnation increment accrues once in two years and secondly personal pay is not considered for the purpose of determining corresponding replacement scale in subsequent Pay Commissions, perpetuating the financial loss to concerned officers as long as they are in the service of the Nation and thereafter in their pensions. 

45.            Amendments Sought by Armed Forces.  The Armed Forces have asked that this anomaly can be resolved by enhancing the upper limit of Rs 5100 in the integrated pay scale of IV^th CPC, which was arrived at after making allowance for the Rank, to ensure effective implementation of the Govt orders.

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

46.           Issue.  During the implementation of V^th CPC, the pay scales of officers of the rank of Capt to Brigadier and equivalent, were downwardly adjusted by an amount equal to Rank Pay (revised), thereby causing a consequential effect on getting lesser replacement pay for defence officers in V^th CPC as well. This further lead to obtaining lower replacement scales and Grade Pay in the VI^th CPC. Even the pay fixation formula of V^th CPC, which was similar to that of IV^th CPC, has not been amended by deleting the provisions relating to deduction of Rank Pay on 01 Jan 96. It is for consideration whether the adoption of the impugned methodology in SAI/SNI/SAFI No. 2/S/98 before the Hon’ble High Court delivered its judgment on 5^th October 1998 and UoI not referring to it in its many affidavits in the Hon’ble High Court of the Hon’ble Supreme Court justifies continuing with that deduction from 01 Jan 96 to 31 Dec 2005.   The Govt letter does not address these aspects and thus violates the spirit of the apex court's judgment. There is thus a need to take a view on the demand of Services seeking deletion of the provision relating to deduction of Rank Pay from the total emoluments for re-fixation in revised pay scales as on 1.1.96.

Armed Forces Views

47.            In support of the above anomaly Armed Forces have stated that it is a well settled position that the decision of the apex court becomes 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.

48.           Treatment of Rank Pay in 4^th CPC.  As per fixation formula enshrined at Para 6 (a) (i) & (ii) of SAI 1/S/87 {IV CPC}; an amount representing 20% of the basic pay in the existing scale shall be added to the ‘existing emoluments’ of the officer.  After the existing emoluments have been so increased, an amount equivalent to the rank pay, if any, appropriate to the rank held by the officer on 01 January 1986 will be deducted.

49.           Treatment of Rank Pay in 5^th CPC.  Similarly the fixation formula of the 5th CPC, as given at Para 5 (a) (i) & (ii)  of SAI 2/S/98, enunciated that an amount representing 40% of the pay including stagnation increments, if any, and rank pay where applicable, in the pre-revised scale, shall be added to the ‘emoluments’ of the officer.  After the existing emoluments have been so increased, an amount equivalent to the rank pay prescribed at Para 3 (a) (ii) above shall be deducted…’

50.            It can be seen that the fixation formula of the SAI 1/S/87 (4^th CPC) which was verbatim adopted in the SAI 2/S/98 (5th CPC) except that the fixation benefit of 20% given by the 4th CPC was changed to 40%.  This change was common to all central government employees.  But the clause for deducting Rank Pay continued in the 5th CPC also. This deduction of Rank Pay, held illegal in 4th CPC as per court orders should automatically get struck down in the 5th CPC as MoD did not disclose this to the Hon’ble High Court of Kerala in its W.A. No 518 of 1999 or any other case including IA No. 9 of 2010 in TP (C) 56 0f 2007 dealing with Rank Pay.

51.             It is also relevant to mention here that Maj AK Dhanapalan had filed the case in Kerala High Court in 1996 which was decided on 05 Oct 98.   The SAI on the 5th CPC award was issued on 19 Dec 97.  It is pertinent that the case remained sub judice till it was finally decided by the Supreme Court on 04 Sep 12.  Further as the case was filed in 1996 even before the recommendations of the 5^th CPC were made, neither Maj AK Dhanapalan (Retd) could have raised the anomalies of similar nature in the 5^th CPC nor the court could have passed any orders restraining GoI regarding treatment of Rank Pay in 5^th CPC.  Till 04 Sep 12 when the Supreme Court finally settled the issue, the government did not take any cognizance of court direction whilst issuing orders for implementation of 5^th CPC awards, or refer to it in the Hon’ble Courts.  The moot issue that needs to be noted is that revised scales promulgated for implementation of a fresh pay commission have their basis in the old pay scales of the previous pay commission.  In no circumstance, without the reasons explained in the report, can the revised pay of two employees of the Govt drawing same pre-revised Pay Scale be different. This cardinal principle has however, been flouted in the case of Armed Forces Officers, both in the 4^th and 5^th CPC. An example as appended here under showing sequential progression of the pay of an Armed Forces officer and a similarly placed civilian will substantiate this fact:-

RANK	3rd CPC PAY	4th CPC PAY	5th CPC PAY	GRADE PAY IN 6th CPC
CAPT	1200	2800 + 200 (RP) = 3000*	9600 + 400 (RP) = 10000*	6100
STS (CIVIL)	1100/1200	3000	10000	6600

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

52.            Consequential Effect. The implementation order of GoI dated 27 Dec 12 does not incorporate any change for subsequent pay commissions i.e. 5^{th and} 6^th CPCs.  This is despite the fact that the treatment of Rank Pay at the time of re-fixation of pay for transition from one CPC to another has been exactly similar and has resulted in depressed replacement pay scale on both occasions. This will certainly invite unnecessary and avoidable litigation whose outcome is likely to go against the Government.  It is, therefore, imperative that all consequential effects of the Supreme Court Judgment as brought out above are carefully analysed and incorporated in the implementation order to give effect to the verdict in its letter and spirit. 

53.            Moot Issue.  The Ratio of the judgment needs to be applied in subsequent pay commissions or not?

QUERIES RAISED

54.            UoI has obtained relaxation in the interest by giving an interpretation of the court order submitted by its officers in the form of affidavits.  Is it bound to implement those steps which, it informed the court, would be required to implement the judgment?

55.            Does the following part of the judgment make it obligatory for the government to give rank pay in addition to the existing pay scales: -

"Under these circumstances, I am of the view that respondents 2 and 3 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 Army Officers in addition to the existing pay scales. That 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".

56.            The High Court of Kerala in its judgment dated 05 Oct 98 has used the term “re-fix the pay of the petitioner with effect from 01 Jan 86”.  It has also stated that “The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987”.  Does the term ‘with effect from’ denote a continuum? Does the ibid judgment grant the benefit only on one day ie “as on 01 Jan 1986” or on a subsequent day also?

57.            If the amount of rank pay has also been deducted while determining the minima for each rank as specified at Para 6 (a) (ii) of SAI 1/S/87, is the rank pay to be added back to these minima?

58.            If the rank pay has been deducted from the top of the scale, is it be added back to such top of scale?

59.            If the court order has corrected the fixation formula by striking down deduction of rank pay clause in 4^th CPC, is it obligatory to strike down deduction of rank pay clause in a similar formula in the subsequent pay commission?

60.           Is there any legality in MoD notifying SAI/SNI/SAFI No. 2/S/98 on 19 Dec 97 when the matter (O.P. No. 2448 of 1996) was still sub-judice in the Hon’ble High Court of Kerala?

61.             Is there any legality in MoD continuing with the impugned methodology when MoD did not disclose to the Hon’ble High Court of Kerala in W.A. No. 518 of 1999 filed after enacting the ibid SAI/SNI/SAFI No. 2/S/98 and affidavits in year 2000 onwards till the Division Bench passed its judgment on 04 Jul 2003?

62.           If SAI/SNI/SAFI No. 2/S/98 has no legal legs to stand on, should MoD incorporate the same methodology of restoring the deducted Rank pay in its implementation order?