Friday 28 February 2014

Reply of Ld Solicitor General

The 49 page Contempt Petition (C) 328/2013 came up for hearing on 17 Feb 2014.

Though the Hon'ble Supreme Court ordering the presence of the 4 alleged Contemnors from the date till the case was resolved, none of the 4 alleged Contemnors was present and the Ld Solicitor General informed the Court that the advocate on record would file the reply the same day.

The voluminous reply was filed and it consisted of the

        the alleged Contemnors present status - then Shri Shashi Kant Sharma, then Defence Secretary being appointef C&AG, Shri R S Gujral, then Expenditure Secretary and Smt Priti Mohanty, Secretary Def/Fin having retired, and Shri Arunava Dutt, then CGDA being promoted as Secretary Def/Fin,

       Seeking exemption from personal presence of the alleged Contemnors, and

      Averment that the Contemnors have obeyed the Hon'ble Court's order in "letter and spirit."

 Parts of the CGDA's and MOF's comments, which were part of the reference to Ld Attorney General in July 2013, were included in the reply.

Sunday 23 February 2014

Disparity created by the Sixth CPC, between Armed Forces Officers and the AIS/Group A organised Services.



From: Stanley OLeary <oleary_alan@yahoo.com>
Date: 13 February 2014 22:49

Article-1

Subject: Disparity created by the Sixth CPC, between Armed Forces Officers and the AIS/Group A organised Services.

Veteran Rear Admiral Alan O’Leary

NON-FUNCTIONAL UPGRADATION (NFU)

1.             Non-Functional Upgradation (NFU) is another term for assured career progression (ACP) granted for the first time to the AIS and Organised Group'A' services, although the ACP scheme has been in existence for over two decades, for civilian Staff and 'other ranks' of the Armed Forces, where there was a complete lack of promotional opportunities, sometimes not even one, in certain cadres.

2.            NFU, on the other hand, is a bonanza contrived to be given to those, who have already been privileged to move up the ladder of promotion and consequently pay at a much faster rate than the Armed Forces Officer. Thus these 'privileged Officers’, despite having a far better promotional potential than the Armed Forces Officers, been given a double whammy, of non-functional upgradation to the Additional Secretary level (equivalent to Lt Gen), without assuming higher responsibilities and independent of vacancies in their cadre. The Supreme Court directive of equal pay for equal work has thus been thrown to the winds.

3.            I have mentioned, that the Group A civil services have a better promotional potential, as they have availed of a number of Cadre reviews, through the DoP&T; whereas, the Armed Forces get one in three decades, with vacancies being filled over another decade, or so. Notwithstanding the AVS Committee report at the turn of the century, even today, less than 1% of the Officer  Corps, can hope to achieve Flag rank and a mere .018 % can climb to the Lt Gen level. Let us for a moment reflect on the pay prospects of Service Officers from the Third Pay Commission (1973-76) onwards. The Third CPC, was incidentally the first combined CPC, where Armed Forces Officers were considered alongwith their counter-parts in the civil service.

4.            The Third Pay Commission report adopted a basic approach of equating the Armed Forces Officer, with the IPS and Class 1 Central Services (which is the new Group 'A' Organised Services). The Third CPC also accepted a slight edge in pensions for Armed Forces Officers, as one of the compensations for a highly truncated military career. However, these recommendations remained on paper and unfavourable relativities and short scales resulted in the Armed Forces Officers having the poorest comparative prospects vis-à-vis the AIS and Group 'A' services.

5.            The Fourth CPC, sought to give better pay prospects, by evolving a vertical (Running) Pay Band from Capt (Army) to Brigadier, with Rank Pay being given for each rank from Rs 200 at the lowest level to Rs 1600 at the highest. However, consequent to the submission of the report to the Govt, the proposal was watered down, by subsuming Rank pay from the replacement scales, evolved for a change from the Third to the fourth CPC. After over  two decades, the Supreme Court agreed that the Rank pay should have been over and above the replacement scale and the Armed Forces Officer has obtained some benefit, but not to its full extent, a matter that is still being decided.

6.            The Fifth CPC noted that the Armed Forces Officers pay should in no way be inferior to what the Central Govt offers to its top most Civil Services. It also stipulated that the physical structuring of pay scales must recognise the differences in the conditions of service between the Armed Forces and the civil services. It should also take note of the organisational and the cadre structure, career progression and retirement ages on both sides. It would only be then that a fair comparison be made.

7.            The Sixth CPC introduced the element of Military Service Pay for the Armed Forces. However, they introduced a new concept that departed from the other Pay Commissions in drawing parity between the Armed Forces and the CPMF, Central Police organisations, including the Defence civilian organisations, on the specious argument that this would aid lateral movement between these organisations. In effect, the Armed Forces were lowered in parity without any gains of lateral movement that has remained a utopian concept.

8.            This was probably the reason why, the Armed Forces were not extended the bonanza of NFU, thereby creating a ‘Gulf’ between the Armed Forces Officer Corps and the AIS/Group 'A' organised Services. A ‘Gulf’ that has to be bridged, if the Armed Forces Officer has to retain his 'izzat' and at least achieve parity in pay and consequently pensions with the higher civil services. Instead, the Govt sought to narrow the gap between the Armed Forces Officer Corps and the Group 'B' services, such as the Armed Forces Headquarters cadre and the Military Nursing Services. The question is whether this corner stone laid, is the beginning of a scheme to lower the standing of an Armed Forces Officer in the Seventh CPC.

9.            An interesting article appeared in the Times of India on 27 Jan 2014. It stated that tough work conditions, stagnation see paramilitary officers quitting in droves. The statistics quoted were, in my opinion, not earth shattering, as these Officers keep trying to side step into other cadres in the Govt, which has happened all along. The interesting piece was that the paramilitary Officers have claimed NFU, which has been refused by the Home Ministry on the grounds that this would disturb the command structure, an argument refuted by the paramilitary Officers, as the command structure is based on rank and not salary. No doubt, grounds have been laid for them to get NFU, which has so far been denied even to the Armed Forces.

10.         In this context, I would also like to add that the Finance Ministry, while examining the anomalies raised by the Armed Forces Pay and Remuneration Committee (PARC), found themselves in an embarrassing situation, when it was pointed out that they had raised a civilian Pay scale below Lt Col  to Pay Band 4, while not agreeing to bring Lt Cols to PB -4. As a result of a continued struggle, Lt Cols too, were brought into PB -4, but for some inexplicable reason were given a Grade Pay of Rs 8000, instead of Rs 8700, which was given to Commandants of the para-military forces, a post, traditionally below that of a Lt Col. This anomaly still persists and needs to be corrected before the Seventh CPC.

11.          In the next Article, I will draw an analogy between a celebrated judgment of the SC, and establishing a basis for our bid to be treated at par with the AIS/Group 'A' organised services. 

[Published with standing permission of R/Adm O'Leary]

Monday 17 February 2014

Update 180214 - OROP - Really? Fully? Completely? Not Really!

Is it really OROP or modified parity by the new name?


Update: 

Deccan Herald, Bangalore edition page 8, 18 Feb 14:

"Interim budget: Uniform payout approved for ex-servicemen, One-rank, one-pension for defence staff.................. Defence ministry sources said OROP is expected to cost about Rs 2500 crores every year and Rs 500 crore is only the initial allocation." - DH News Service.

From Times of India: 

One rank, one pension: '14 gun salute for Indian armed forces' by Rajat Pandit 

"On Monday, there was again scepticism whether it was full OROP or just "the eyewash of modified parity" yet again. "The UPA was in power for last 10 years but this comes only now. Moreover, Rs 500 crore seems paltry. Earlier, MoD and the controller general of defence accounts had calculated Rs 1,730 crore for 2014-2015. Another official figure was Rs 3,000 crore per year for OROP," said a senior military officer. But MoD contended the contours of OROP and its implementation will be worked out in the coming weeks. "The Rs 500 crore is just a provisional figure to show the government's intent," said an official. Chidambaram, too, said MoD had asked for Rs 500 crore but if more was required, it would be "fully provided".

The government, however, was mum on the legal and administrative reasons used in the past to junk the OROP proposal. Civilian pensioners, for instance, would demand the same with "a heavy financial implication of Rs 8,000-9,000 crore per annum", it had held. 



Earlier

Does it mean a Col  or any other rank who retired at 25 years of service in 1996 will get the same amount of pension as a Col or any other rank who retired on 17 Feb 2014?

Does it mean relaxation of the 33 year clause for the Col  or any other rank who retired in 1996 to be eligible for same pension as the Col  or any other rank who retired on 17 Feb 2014.
 


Here is an earlier opinion expressed by an expert (not myself):


1.     Please refer to the Hon’ble Finance Minister’s declaration of the acceptance of the principle of one rank one pension for the Armed Forces. The text of the speech is: -

"One Rank One Pension
56.    Hon’ble Members are aware of the long standing demand of the Defence Services for One Rank One Pension (OROP). It is an emotive issue, it has legal implications, and it has to be handled with great sensitivity. During the tenure of the UPA Governments, changes in the pension rules applicable to the defence services were notified on three occasions in 2006, 2010, and 2013. As a result, the gap between pre-2006 retirees and post-2006 retirees has been closed in four ranks (subject to some anomalies that are being addressed): Havildar, Naib Subedar, Subedar and Subedar Major. There is still a small gap in the ranks of Sepoy and Naik and a gap in the ranks of Major and above. We need a young fighting force, we need young jawans, and we need young officers. We also need to take care of those who served in the defence forces only for a limited number of years. Government has therefore decided to walk the last mile and close the gap for all retirees in all ranks. I am happy to announce that Government has accepted the principle of One Rank One Pension for the defence forces. This decision will be implemented prospectively from the financial year 2014-15. The requirement for 2014-15 is estimated at 500 crore and, as an earnest of the UPA Government’s commitment, I propose to transfer a sum of `500 crore to the Defence Pension Account in the current financial year itself."

2.    The speech seeks to bridge the gap between the pensions of the pre and post 2006 retirees. This is the MODIFIED PARITY IN PENSIONS and not One Rank One Pension.

3.    The modified parity is applicable to all employees Soldier and Civilians alike and ensures that pre 2006 pensioners get the minimum pension applicable to post 2006 pensioners.  

4.   Another important issue regarding Modified Parity is that wef 1.1.2006 (post 6th CPC), the Govt had abolished the requirement of 33 years of service for full pension only for post 2006 employees while retaining it for pre 2006 employees as a part of the modified parity. Retention of the 33 yrs service pension clause for pre 2006 pensioners was challenged in the AFT in OA 106/2009 and in 2011, the AFT has declared the clause contained in para 5 of DESW letter No 17 (4) 2008(1)/D(Pen/Pol) dated 11 Nov 2008 unconstitutional. The govt has gone in appeal in the Supreme Court in the Case and WILL LOSE THE CASE in due course.  

5.  What the Govt has now done is that it has agreed to the judgement of AFT before its final  disposal in the Supreme Court. In fact the court judgement is effective from 1.1.2006 where FM has accepted is prospectively.

[Please see MA 673/2013 in OA 106/2009 Wg Cdr (Retd) VS Tomar ........Petitioner Versus Union of India & Ors. .......Respondents  elsewhere in this blog.]


6.   One rank one pension envisages same amount of pension for two soldiers who retired in the same rank after having served for the same length of service.

7.   The test of OROP is whether a Colonel who retired in Feb 1997 with 25 years of service will get the same amount of pension as a colonel retiring in Feb 2014 with same length of service.  

8.   The answer to this question is NO and hence what is announced as OROP is in fact MODIFIED Parity in pensions


  *                   *               *               *              *

Tuesday 11 February 2014

Reply to RTI for SOC-2



No. 35 (1)/2013/D(Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 27th January 2014

To,

            Shri S Y Savur
            141, Jal Vayu Towers,
            NGEF Layout,
            Indira Nagar (PO),
            Bangalore – 560 038

            Subject: Seeking information under RTI Act-2005


Sir,

            Reference is invited to Ministry of Defence ID No. MODEF/R/2014/(60037)/D (RTI) dated 7.1.2014 received in this Section on 8.1.2014 forwarding your application dated 6.1.2014 on the above subject.


2.         Regarding information sought vide Para 2 of your application, it is stated that the concerned file has been sent to LA (Defence) on 3.1.2014 to place it before Ld Attorney General for seeking his second legal opinion on the issues raised by the Chairman, CoSC and CAS.  

3.         Regarding information sought vide Para 3 of your application, it is stated that no date-line has been fixed.


4.         The Appellate Authority is Shri Praveen Kumar, Director (AG-I), Ministry of Defence, Room No. 104, Sena Bhavan, New Delhi.


Yours faithfully,
Sd/------------------
(P.S. Walia)
Under Secretary & CPIO.

Reply ends
*          *          *          *          *         


Note: It is understood that LA (Defence) has forwarded the SOC to Ministry of Law & Justice during the week ending 7th February 2014.

Thursday 6 February 2014

Air Force Wives Welfare Association and Widows of Retired/Ex-Servicemen




From
Mrs xxxxxxxxxxxxxxxxxxxxx, AFWWA Life Member No…………………………….          
 
To

President, Air Force Wives Welfare Association, Air Headquarters, Vayu Bhavan,
Rafi Marg, New Delhi – 110 011


Dear xxxxxxxxxxxxxxxxxx,

I refer to Air HQ/99737/79/AFWWA/Org  dated 27 Jan 14 re-produced below: -

Madam,

1.           Please refer Dte of Air Veterans letter dated ……………..

2.           We are extremely sorry to learn about the sad demise of your husband.

3.           The annual income of AFWWA (C) has not grown significantly in the recent past. Due to reduction in the interest rates, the income on Fixed Deposits has actually come down. The executive committee members of AFWWA have decided that Ex-gratia will not be given to the widow of (sic) deceased Retd/Ex-serviceman (emphasis supplied) with effect from 01 Apr 13. Therefore, we regret our inability to extend any financial assistance from this Association. However, you are requested to approach IAF BA, GIS Building, Subroto Park, New Delhi – 10 for financial help.

                                                                                      Yours faithfully,
                                                                                      Sd/------------------
                                                                                      (Prakash Singh)
                                                                                      Asst.
                                                                                      AFWWA (Central)

2.         This is what one reads on the IAF website as of today, 5th February 2014, (please refer to http://indianairforce.nic.in/show_page.php?pg_id=62)

Air Force Wives Welfare Association (AFWWA) is the core welfare organization, for the ladies of the Air Force. Apart from providing innumerable benefits to its members, it provides an excellent forum for meaningful and fruitful interactions for its large number of members.

AFWWA was formed on 28th October, 1970 as a registered body to provide assistance to the families of deceased / disabled/ retired / serving personnel of the Indian Air Force. AFWWA also extends its helping hand to poor and needy people of the society. Its willing contribution to the senior citizens, Spastic children, orphans etc. is praiseworthy and worth emulating for other similar organizations.

There is no mention about the exclusion of widows of retired/ex-servicemen.

And this

3.         Air Force Wives' Welfare Association (AFWWA): The Air Force Wives' Welfare Association was established in 1970 as a welfare arm of the Indian Air Force. The Association has done much for the benefit of the families of serving and retired personnel (emphasis supplied) of the Indian Air Force. Read on for an overview of some of the benefits offered by AFWWA.

4.         I have the following observations: -

(4.1.)   as the decision of the Executive Committee was to be effective April 2013, wasn’t the Dte of Air Veterans aware that it had to forward information about the demise of my husband to AFWWA (C) for a matter that would elicit the above response?

(4.2.)   has the decision of the Executive Committee been disseminated to all past members of the AFWWA through the Air Force Association or placed in the public domain like the IAF website? May I be provided a link to that?

(4.3.)   when we were asked to take a life membership (like I did), it was understood that the validity was till the member died. Hence all benefits would accrue even after our husband retired from service. Has this proviso been changed? May I have a copy of that decision?     

            (4.4.)   “will not be given to the widow of (sic) deceased Retd/Ex-Servicemen” implies that it would be given to the widow of officer/other rank who was still in service at the time of his death. Doesn’t this decision create two classes of widows – those of Retd/Ex-Servicemen and those of personnel who died in service? May I know what would be done to the widows of the former who might be in indigent circumstances?

            (4.5.)   in my husband’s time in service the tradition was any communication with a widow would be by an officer. Has this courtesy been stopped that I receive a copy-paste (with the words ‘to extend any financial assistance’ repeated), from an Asst? Were there so many deaths that the Honorary Secretary or Honorary Jt Secy AFWWA (C) could not sign the letter of denial?     

            (4.6.)   One is aware that every AFWWA (L) contributes certain share of annual profits to AFWWA (R) and AFWWA (C) which is added to whatever the corpus is available. Therefore, FD interest rates falling is an improbable excuse/reason given the photographs of AFWWA day celebrations and the ‘at home’ in the Air House on the occasion of the AFWWA Day.

With Best Wishes

Mrs xxxxxxxxxxxxxxxxxxx

Wednesday 5 February 2014

Statement of Case 2 for Learned Attorney General - Rank Pay



Air HQ/xxxxx/xx/AFPCC (Ty BM-XIII)

1

Copy of Note 38-43 of MoD F No 34(10)/2013-
D(Pay/Services) Air HQ/25450/1/LGL                                                 -1A

2

Copy of Note-44 on Air HQ/25450/1/Lgl Vol I (PC)                           -2A


1.                Please refer copy of Note 38-43 (Encl-1A) and the discussions of RM with the undersigned.
2.                Armed Forces had brought out four substantive infirmities arising out of the executive order issued by MoD on 24 Dec 12 to implement Hon’ble Supreme court judgment dated 04 Sep 12.  On reference from the Ministry of Defence, Ld AG rendered his opinion on these issues on 03 Sep 13. 
3.                It can be discerned that out of the four issues, Ld AG has agreed with Armed Forces on two issues.  The Armed Forces have endorsed the opinion of Ld AG on these issues. 
4.                It is felt that the opinion of Ld AG on the remaining issues ie ‘minima for each rank’ and top of the integrated scale’ was premised upon certain inputs provided by CGDA, which are incorrect.
5.                Accordingly, a Note on file bringing out specific legal issues has been put up for consideration by RM to process the remaining issues for reconsideration by Ld AG, (a copy thereof is placed at Encl-2A). 
6.                Implementation of the already agreed issues will involve the following steps: -
(a)             Examination of the opinion of Ld AG by CGDA, MoD (Fin) and MoF.
(b)             Preparation of DGL incorporating the changes necessitated by the two issues.
(c)             Processing of the DGL with all the agencies mentioned at (a) above.
(d)             Issuance of Government Orders for implementation of the twin issues by MoD.
(e)             Implementation of the orders by CDA(O), NPO, and AFCAO.
7.                It is opined that before all the above steps are completed, the opinion of Ld AG on the remaining two issues is also likely to be available.  This would require revisiting the sequence of issues described at para 6 above.
8.                 An expeditious opinion by Ld AG on the remaining issues would therefore, facilitate a holistic and all encompassing implementation of Hon’ble Supreme Court verdict in the case.
9.                It is therefore, the considered opinion of the undersigned that implementation of the issues on which agreement has been reached should await the final opinion of Ld AG on the remaining two issues for comprehensive resolution encompassing all issues.  Piecemeal implementation of some of the issues may lead to further complexities and unforeseen anomalies.
10.           For the consideration of RM.
 Chairman COSC & CAS
          25 Nov 13
RM

44


1.                Please refer Note-38 to Note-43 ante.

2.                In respect of the Rank Pay case for officers, while endorsing the opinion of Ld AG on the two issues agreed by him in his opinion i.e. “implementation of Court Order wef 01 Jan 86” and “application of legal principles of the judgment to subsequent Pay Commissions”, this Note seeks to raise certain legal issues related to the conditional opinion of Ld AG on the remaining two issues of Minimum and Top of the Scale.  In the Armed Forces view, the Rank Pay has been deducted from the Minimum and Top of the Scale for affected ranks in the integrated Pay Scale of 4th CPC.

Background

3.                The long drawn Rank Pay Case was finally adjudicated upon by Hon’ble Supreme Court on 04 Sep 2012 by upholding the Kerala High Court order.  The Government decided to implement the judgment and issued orders to give effect to the judgment on
27 Dec 12.

4.                The implementation orders however, had certain infirmities.  The infirmities were taken up by the undersigned with RM vide
PC-4-PA/5437 dated 18 Jan 13. In addition, a detailed Statement of Case and a background note on these infirmities was also forwarded to MoD on 02 Apr 13 for further action.

5.                In the absence of any visible progress, the matter was again taken up with RM on 27 May 13.  Subsequently, a meeting was taken by RM with Service Chiefs and representatives of the Ministries of Defence, Finance and Law as well as the CGDA on
14 Jun 2013 to resolve the infirmities in the ibid Govt letter.

6.                 The RM directed MoD to obtain the opinion of Ld AG on differing interpretations of the court order. He also directed the Armed Forces to take up a case separately and independently with Ld AG to obtain his opinion.

7.                Accordingly, a detailed Statement of Case (SoC) with elaborate justifications and actual examples along with six specific queries, was forwarded by the undersigned as the Chairman COSC & CAS to Ld Attorney General on 01 Jul 13.  Ld AG returned the case advising Armed Forces to route the matter through Ministry of Law. The case was then forwarded to MoD on 19 Jul 13 on this file for further processing.

8.                However, it subsequently emerged that during the intervening period, MoD had processed the first case with Ld AG who rendered his opinion on this SoC on 03 Sep 13. This fact was brought to the knowledge of Def Secy by the undersigned.

9.                Consequently, with the approval of Hon’ble RM, it was decided that the initial SoC of 02 Apr 13 along with the Armed Forces SoC of 01 Jul 13 and the legal opinion of Ld AG dated
03 Sep 13, be resubmitted to Ld Attorney General to seek his opinion de-novo.

10.           LA (Def) discussed the matter along with JS & LA with Law Secretary who opined that ‘it will not be proper to bother Ld AG again with regard to same or similar issues on which he has already tendered his opinion in detail.  However, in case MoD finds any material difference between the fresh Statement of Case and the earlier one, by point of the view of its understanding, then specific legal issues, if any, may be framed on which the opinion of Ld AG is required’.

11.           The views of Law Secy were put up to RM for decision. RM has asked Service HQs to submit a statement on framing of legal issues for seeking the opinion of Ld AG.


Opinion by Ld AG

12.           Ld AG gave his opinion on 03 Sep 2013 on the infirmities presented to him by MoD and the following important points emerge from the opinion :-

(a)          While the Armed Forces had raised six queries in their independent Statement of Case dated 01 Jul 13, only four queries were presented by MoD in its initial SoC for opinion by Ld AG.

(b)          Two out of four issues so referred, namely the clause relating to “with effect from” and “extension of the ratio of the judgment to subsequent pay commissions” have been clearly accepted by Ld AG. Others have not been opined favourably. 

(c)          Going beyond the points referred to him, Ld AG has given guidelines on the spirit in which the court order needs to be interpreted.


Guidelines for Interpretation

13.           Ld AG has dwelt and elucidated at para 21 of his opinion as to how the Hon’ble Supreme Court order should be interpreted.  It
states :-
“Before I answer the queries raised, it is important to state that the Government must implement the Supreme Court’s order of granting the same benefit to similarly situated officers both in letter and in spirit. The Government cannot take a restrictive view of who is similarly situated, and must grant benefit on the basis of the underlying principle affirmed by the Supreme Court, i.e, wherever rank pay has been deducted at the time of fixation of pay, the deduction must be undone and pay fixed accordingly. The approach that the benefit would only apply to those who are directly covered by orders of the court would force members of the Armed Forces to approach the Court for each individual claim when the same has already been granted to all similarly, situated officers by the Hon'ble Supreme Court. This would be unfortunate.

14.           It is important that the spirit laid down by Ld AG is followed while implementing the order of Hon’ble Supreme Court.  Essentially, the
Ld AG’s opinion contains three important elements.  These are: -

(a)          Hon’ble Supreme Court’s order is to be implemented granting the same benefit to all similarly situated officers both in letter and spirit.

(b)          The Government cannot take a restrictive view of ‘who is similarly situated’.

(c)          Wherever rank pay has been deducted at the time of fixation of pay, the deduction must be undone.

Issues Opined Favourably

15.           Ld AG has agreed with the view of Armed Forces on the following issues: -

(a)     With Effect From 1.1.1986.   The issue was whether the implementation orders dated 27 Dec 12 should be implemented ‘with effect from 1.1.86’ instead of ‘as on 1.1.86’.  Ld AG has opined that the Government cannot restrict the benefit of the orders only to those officers whose pay was fixed as on 1.1.1986 after deduction of rank pay in terms of para 6 (a) (ii) of SAI 1/S/87. It must grant benefit to all those officers whose pay has been fixed after deducting rank pay whether as on 1.1.1986, or after 1.1.1986. This must be done after properly verifying the facts.

(b)     Application of Court Orders to Subsequent Pay Commissions.  The issue was whether the legal principles of the judgment should be applied to subsequent pay commissions or confined to 4th CPC only.  Ld AG has opined that Government needs to implement the underlying principles laid down in Major Dhanapalan’s case in 5th and 6th CPC also. He has opined that it is immaterial that in Major Dhanapalan's case, only the IVth pay commission was involved. The principle of law laid down is that rank pay cannot be deducted while fixing pay in the integrated scale. Since rank pay has been deducted at the time of fixing pay in subsequent pay commissions, the same would definitely have to be corrected. The officers covered by Vth and VIth Pay Commissions cannot be expected to approach the Courts for orders in the same terms.

16.           The Armed Forces endorse the views of Ld AG and have nothing more to add on these two issues.

Issues Not Opined Favourably: Changes in Minimum of Pay for Each Rank and Top of Integrated Scale of Pay

17.           Ld AG has commented conditionally on the issues involving changes in the ‘Minimum’ and ‘Top’ of pay scales for the ranks in receipt of Rank Pay.  These two issues are intertwined as both have the same genesis and any decision on one issue inevitably impacts the other. 

18.           Ld AG has stated (para 34 of his opinion), “The CGDA has indicated that the minimum of pay for each rank has not been arrived at after deduction of rank pay.” Based on this contention put forth by CGDA, Ld AG at para 36 has opined “There is no need to revise the minimum, if as stated by the CGDA, it has been fixed on another basis. 

19.           From the above, it may be noted that the opinion of Ld AG is premised on the CGDA’s contention – which, as a basis in itself, is incorrect.  The present Note seeks to address this principle issue since it is at gross variation to the CGDA’s contention and therefore, gives rise to the following legal issue: -

LEGAL ISSUE: To establish whether Rank Pay was deducted to fix the minimum pay of each rank and top of the pay scale for affected ranks in the integrated scale prescribed by the 4th CPC?

20.           This issue has invited attention of various agencies of the Govt a number of times during the litigation and outside it.  It is a documented fact that Rank Pay has been deducted from the Pay Scale, both at the minimum and top of the scale.  The following comments and views are available on record to substantiate this fact:-
(a)          6th CPC Report.  The report of the 6th CPC accepts that rank pay was deducted from the Pay Scales of commissioned officers. While analysing the issue of Rank Pay, it has noted at Para 2.3.10 (iv) of its report that ….

“(iv) …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.”

(b)          Additional Affidavit by UoI.  In the instant case, the Govt formed a High Powered Committee (HPC) comprising the Def Secy, Secy Expenditure and Secy Def (Fin) to assess the financial impact of implementing the order of Hon’ble Supreme Court dated 08 Mar 2010.  Based on the report of the HPC, MoD submitted an additional affidavit to Hon’ble Supreme Court. Para 30 (a) of the additional affidavit reads, “In the present matter, implementing the Hon’ble Supreme Court order dated 08 Mar 2010 would mean re-fixation of not only the officers entitled to Rank Pay, but pay scales of other personnel above and below such officers would have to be revised wef 1.1.1986 firstly, and then from 1.1.1996 and 1.1.2006, i.e. at the time of subsequent pay revisions. Similar process would be carried out for the revision of pension of the retired personnel.  Any change at one place will inevitably have impact on horizontal and vertical parities thereby changing the overall pay structure envisaged by the 4th CPC.” 

Analysis:  The ibid Judgment of Hon’ble Supreme Court held that rank pay is in addition to pay scales.  Therefore, deduction of rank pay from the pay scales needs to be undone.  The UoI in the additional affidavit stated that implementing the judgment would require revision of pay scales and pensions across three pay commissions for not only the entitled officers but also those above and below them, thereby clearly indicating that the deduction of Rank Pay in 4th CPC and its subsequent restoration would impact on the Pay Scales of 4th, 5th and
6th CPC as well.

(c)          Opinion of Ld SG. This issue was also referred to Ld Solicitor General by Ministry of Defence after the final disposal of the case by Hon’ble Supreme Court on
04 Sep 2012. In this case, the query referred to Ld Solicitor General by MoD had explicitly stated that the rank pay was deducted from the Minimum of the pay in the integrated pay scale. 

CGDA Views in the Background Note and its analysis

21.           It is relevant to examine the views of CGDA on the subject since Ld AG has based his opinion on these views.

(a)             CGDA’s Contention “…These minima were not fixed after deduction of Rank Pay…” This is factually incorrect as can be seen from 6th CPC Report para 2.3.10 (iv) which states, The element of rank pay was carved out of the pay scales…”
(b)               CGDA’s Contention:  “… the integrated scale for the Armed Forces Officers is devised considering the total service span of 23 years from Lt to Brig/Equivalent.”  This is also factually incorrect as Annexure 28.1 of 4th CPC report clearly indicates that the span extends upto 28 years and not 23 years.

22.           CGDA’s Contention “…Even otherwise, comparison with civilian side is not relevant as far as the apex court order is concerned….”  This contention of CGDA is again, incorrect.  As a matter of fact Pay Commissions devise a common methodology for up-gradation of the pay scales across categories of employees. The manner in which comparison with civilian counterparts is relevant is as follows :-

(a)          The pay scales recommended are functions of existing pay scale and the same mechanism/formula is used to revise the pay scales across various categories of government employees. Exceptions, if any, are clearly stated in the report. The 4th CPC while devolving on internal relativities of pay scales within the government, at para 7.62 of its report, has stated, “It has to be appreciated that where an effort is made to reduce the scales of pay, it sometimes becomes inevitable that internal relativities should be affected, but we will like to maintain them as far as possible.”  Therefore it can safely be assumed that 4th CPC had tried to maintain internal relativities between various categories including Armed Forces.

(b)          As 4th CPC has attempted to maintain internal relativities, it is logical to assume that the same yardstick was used for similarly placed pay scales.  On the other hand, IVth Pay commission report does not mention that it intended to disturb the pay scale relativities between the Armed Forces and their civilian counterparts.  A comparison of similarly placed Commissioned Officers’ pay scales with that of the Civilian Officers’ pay scales will therefore conclusively establish that Rank Pay had been deducted from the minimum and top of the pay scales. Following example will illustrate this fact :-

(i)                The pay scales of a Capt and an STS were similar and comparable before the 4th CPC.  Promotion to both these posts was time bound for both categories.  On promotion to such a rank/post, if there was parity in the pay scale of Commissioned Officer (Capt) and Gp ‘A’ Service Officer (STS) before 1.1.86, their parity should have continued post 1.1.86 disregarding Rank Pay which is an additional element not forming part of pay scale.  This parity has been disturbed for officers assuming this rank/post after 1.1.86 as shown below:-


Rank
Pay in
3rd CPC
Jan 1973-Dec 1985
Minimum Pay in 4th CPC for Pre & Post 1.1.86 officers
(Prior to Court verdict)
Revised Pay for Offrs promoted before
01 Jan 86
Pay for offrs who joined/ promoted after
01 Jan 86
Capt
1,200
2800
3000
2800
STS(Civ)
1100-1200
3000
3000
3000

(ii)              The rank pay for Captain was ` 200. The above table clearly shows that the Captain’s pay scale after 1.1.86 is depressed by ` 200 which is equivalent to the rank pay for Capt.  Similar situation exists for all other affected ranks.  This conclusively establishes deduction of rank pay from the minimum pay of the rank in integrated pay scale prescribed by 4th CPC. 

23.           As in the case of ‘minimum of the scale’, the rank pay has also been deducted from the ‘top of the scale’ as can be seen by comparing the pay scales of a Brigadier and his equivalent in civil who is a DIG Police. Top of the scale of a DIG Police in 4th CPC was ` 6,150/-. But the top of the scale for Brigadier was recommended at ` 5,000/-, which had been arrived after deducting the Rank Pay of ` 1200/- i.e. 6150-1200=4950/-, rounded off to
` 5000/-. Thus the Top of the pay scale, like the Start of the Scale for Brig/equiv was also depressed in the same manner.

24.           The contention of CGDA at Note 30 ante is that “if top of the integrated pay scale is changed, it would burst the next higher scale of Major General”. This contention is not based on facts as shown in the following example. In the 3rd CPC, the existing pay scale of Brigadier on 1.1.86 was 2200-2400 while that of a DIG police was 2000-2250 with a special pay of ` 100. These two scales were therefore, comparable. In the 4th CPC, the revised top of the pay scale of DIG police was ` 6150/- which is well below the top of scale of IG which was ` 6700. If the existing relativities of Brigadier and DIG are retained, Brigadier would have his top of the scale at least at ` 6150. This is also well below Major General top of scale of
` 6700. Thus, in no case the top of scale of Brigadier can burst the top of the scale of Major General, as contended by CGDA. The Rank Pay, which has now been clearly established, is in addition and does not form part of the pay scale and hence cannot be considered while calculating top of the pay scale.

25.           CGDA’s Contention “… the minimum pay, as stipulated at para 6(a)(ii) of SAI 1/S/87 for each rank in the integrated scale of pay, was recommended by 4th CPC”. This contention is also not correct.  Such stipulation are nowhere found in the report of
4th CPC.  A copy of Annexure 28.1 is placed opposite.

Summary

26.           Therefore, it can be surmised from the above facts that Rank Pay was indeed deducted from the Minimum and Top of Pay Scales thereby depressing the entire pay scales for the affected ranks.   This can also be seen from the extracts of 4th CPC report and other official communications brought out above.  I would also like to refer to the order of Hon’ble Kerala High Court (quoted below) which makes it amply clear that the rank pay is 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."

27.           It is the considered opinion of the undersigned that while the Ld AG has opined favourably in the context of the earlier two issues of ‘implementation of Court Orders wef 01 Jan 86’ and ‘application of the legal principles of the case to subsequent pay commissions’, in the light of the clarifications provided, the other two issues of Minimum and Top of Scale be also corrected and a favourable decision be given to the Armed Forces.

28.           May I request the Hon’ble RM to kindly forward the above Note for Ld AG’s re-consideration in the specific two issues of Minima for each rank and Top of the Integrated scale for officers.       

                                                                  
Chairman COSC

RM