Wednesday 7 August 2013

Reply from CGDA - Part 2



CGDA Reply dated 25062013 to RTI of 13032013 – Part 2 of 3 parts

Please Note:

1.         That MoD, as the nodal Ministry and principal respondent and /or appellant in UoI vs Maj Dhanapalan did not inform the Hon’ble High Court of Kerala of the issue of SAI (and SNI/SAFI) No. 2/S/98 on 19.12.1997 in the OP, the WA or even the SLP.

2.         That MoD also has not mentioned about promulgation of SAI 02/S/98 to the Hon’ble Supreme Court in its several affidavits in UoI & Ors Vs N K Nair & Ors even though the Hon’ble High Court of Kerala was still hearing the matter in Maj Dhanapalan Vs UoI & Ors.

3.         That the above fact appear has not to have been intimated by MoD to MoF, CGDA or anyone else any time subsequent to 17 Dec 1997 [date of impugned SAI (SNI & SAFI) 02/S/98).

4.         Information on page numbers indicated in this post is available on the blog in replies provided by MoD/MoF etc. Please refer to those posts.


5.         However, to those with a lot of curiosity, where entire pages have not been re-produced, the page numbers and the subject matter has been indicated like example below: - 

Page Nos 85 to 99 – Note sheets and Draft DGL by Service HQ vide Air HQ/99141/7/AFPCC (Ty BM)           

*          *          *          *          *
Page 100

Most Immediate
RANK PAY CASE

Ministry of Defence
D (Pay/Services)


Subject: Implementation of Supreme Court order dated 4.9.2012 in Rank Pay given in IA No. 9 of 2010 in Transfer Petition (C) No. 56/2007 – UoI Vs N.K. Nair on Rank Pay case 


A copy of DGL received from Service HQrs (TRIPAS) on the above subject is forwarded herewith for comments/vetting by 19.11.2012 forenoon positively. In this connection, a copy of Note dated 7.11.2012 recorded by Service HQrs is also enclosed.

Sd/---------------
Naveen Kumar
Director (AG)
Te’FAX – 2301 4036
Jt CGDA (AT-I) (Shri Mohinder Singh)
MOD ID No. PC-34 (6)/2012/D(Pay/Services) dated 14.11.2012

Imp
Urgent action pl                    Sd/-------------- 16/11/12

SAO/AAO (AT-I)

Page 101

Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt - 10

FAX Message
No. AT/I/1483-Army/X(PC)/III                                                             Dated: 16/11/2012
To

            1.         Smt Manjula Mathur, IDAS
                        Principal Controller
                        O/o the PCDA (O)
                        Pune

            2.         Shri Savitur Prasad, IDAS
                        Principal Controller
                        O/o the PCDA (Navy)
                        Mumbai

            3.         Shri A N Das, IDAS
                        Controller
O/o the CDA (AF)
                        New delhi

Subject: Implementation of Supreme Court order dated 4.9.2012 in Rank Pay given in IA No. 9 of 2010 in Transfer Petition (C) No. 56/2007 – UoI Vs N.K. Nair on Rank Pay case


            Please find enclosed herewith a copy of MoD D (Pay/Services) ID bearing No. PC-34(6)/2012-D(Pay/Services) dated 14/11/2012 forwarding DGL on the subject alongwith copy of Note dated 07/11/12 of Service HQrs for your examination and offering comments/views of your office by return fax.

Encls: (As above)                                                                              Sd/---------
                                                                                                            Jt CGDA (AT-I)       
                                                                                                            16/11             

*          *          *          *          *         
Page No. 102 – Draft of Interim reply from ACGDA (AT-I) dated 19/11 to MoD D(Pay/Services 

Page No. 103 – MoD D (Pay/Services) intimation to JS & Addl FA (M), LA (Def), Jt CGDA (AT.I) and Director (TRIPAS) of meeting to be taken by AS (A) on 20.11.2012  vide MoD ID No. PC. 34(6)/2012 – D (Pay/services) dt 20.11.2012 with copies to PPS to AS (A) and PPS to JS (E)  

Page No. 104 – MoD D (Pay/Services) ID No. 34 (6)/2012 – D (Pay/Services) dated 12.11.2012 to Director TRIPAS and Jt CGDA (AT.I) requesting for clarifications/comments on the MoF/DoE ’s observations  about applicability to 5th CPC, extent of financial implications, copy of order of payment of arrears to Maj (Retd) Dhanapalan and whether the payment can be only in case of similarly placed officers of the Army etc 

            *          *          *          *          *
Pages 105 & 106

FAX

Office of the JCDA (AF), Subrato Park, New Delhi – 110010

No. DCA/O-III/Misc- III/Vol III                                                 Dated 20 November 2012

To
            CGDA
            (Audit –I Section)
            Palam, Delhi Cantt – 10



Sub: Implementation of Hon’ble Supreme Court order dated 04/09/2012 in
IA No. 9 of 2010 in Transfer Petition I No. 56/2007 filed on behalf  of
UoI Vs N K Nair & others on the matter of “Rank Pay”  

Ref: HQrs office letter No. AT/I/1483-Army.X/PC/III dated 12/11/2012 and
16/11/2012

            The subject Draft DGL on the above subject has been examined and the following comments are offered: -

(1)       Hon’ble Supreme court have delivered a judgment vide TP I No. 56/2007 dt 4/9/2012 for implementation of judgment passed by Hon’ble High Court of Kerala, Ernakulam in case of Maj Dhanapalan which provides that:             

·                The Rank Pay which was deducted from the integrated pay scale and granted separately is not to be deducted from the basic pay as was done in Govt orders. The Rank Pay will be in addition to the Pay Fixed in the integrated pay scale i.e. after application of the fixation formula, the pay so arrived will be, in addition, enhanced by the rank pay with effect from 01.01.1986. 

            (ii)       Hon’ble Court have also ordered to pay interest @ 6% PA from 1/1/2006.

(iii)      It will also result in re-calculation of pension of post 1986 retirees, as well as revision modified parity for each rank.

(2)       The DGL received from Service HQ on the subject contains the following proposals:

a.         Re-fixing the pay with effect from 1.1.1986 without deducting the rank pay.
b.         Revision of pay on 1.1.86, 1.1.96 and 1.1.2006 and payment of consequential benefits during service and post retirement benefits.
            c.         Change/modification to the pay scale structure on Ivth CPC and Vth CPC.
            d.         Change/modification in the grade pay in Vith CPC.

(3)       Recommendations of Ivth CPC: As per Ivth CPC pay in the revised scale is to be fixed by adding 20% of basic pay to the emoluments of the officer and an amount equivalent to the rank pay appropriate to the rank held by the officer as on 1.1.1986 shall be deducted.

(4)       Recommendation of the Vth CPC: Under Vth CPC 40% of the Basic pay including stagnation increments and rank pay in the pre-revised scale has been added to the emoluments and again the rank pay appropriate to the rank held by the officer on 1.1.1996 shall be deducted.

(5)       In Vith CPC, no element of rank pay was provided and new elements of Military Service pay/Grade pay has been introduced.

(6)       Views of this office:

(a)       After analysing the court judgment vis-à-vis proposed DGL with reference to the Orders of the Ivth CPC, Vth CPC and Vith CPC the proposal made at Para 2 (c) & (d) above are not in conformity to the Court order. Court order is only restricted to re-fix the pay by adding to Rank Pay.

(b)       Also, as per the Court order only Rank Pay element w.e.f. 01.01.1986 (Fourth CPC), 01.01.1996 (Fifth CPC is to be admitted, instead of modifying the scale of pay. Any anomaly arising out of such pay fixation have to be delat with on case to case basis. 

·                IFurther Para 12 (d), (e) and (f) recorded by Service Hrs in note dated 7/11/2012 are not in consonance with the Court judgment.

CDA (AF) has seen.
Sd/-------------------
DCDA (AF)

                                                Imp
                        Please examine & put up
                                                Sd/------------- 20/11/12
SAO/ACGDA (AT-I)

*          *          *          *          *
Pages 107 to 109
                        FAX/SPEED POST

No: IRLA/0/260
Office of the PCDA (N)
IRLA Sn. S B S Road
Mumbai – 400023
Dtd: 21/11/12

To

The CGDA
Ulan Batar Road, Palam
Delhi Cantt - 10

Sub:    Implementation of Honourable Supreme Court Order dated 04-09-2012 in IA
No. 9 of 2010 in Transfer Petition (C) No. 56/2007 – UoI Vs N K Nair and others 
regarding Rank Pay

            Ref:     HQrs No. AT/I/1483-Army/C (PC) dated 16/11/2012           


Copy of MoD D (Pay/Services) ID bearing No. PC-34 (6)/2012 – D (Pay/Services) dated 14-11-2012 forwarding DGL on the subject along with copy of Services HQrs Note dated 07-11-2012 received vide HQrs letter quoted above has been examined and the following comments are offered.

1.         The entire subject issue is regarding fixation of pay under IVth CPC with regard to the inclusion or non-inclusion of RANK Pay only.  

2.         The fixation formula is as per Para 6 of Special Navy Instruction 1/S/87 dated 14.07.87 which is in pursuance of the recommendation of IVth CPC and government decision thereon. The fixation formula with regard to Rank Pay as enjoined in para 6 of the special navy instruction 1/S/87 ibid has been contested and operative part of judgment in Maj A. K. Dhanapalan case is as follows: -

“The respondents no 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1.1.1986 without deducting the rank pay of Rs 200/- as has been done by respondents 2 & 3. The petitioner is also entitled to get his pay re-fixed in accordance with the pay fixation of 1987 evidence by Ext. P1.”

3.         It is very clear and unambiguous that the judgment in the instant case relates to the modus operandi for taking into account the element of rank pay in the formula for fixation of pay beginning from 1.1.1986. At no stage in the operative part of the judgment, the Hon High Court of Kerala have decreed on the need for revision of pay scale. 

4.         In the light of the judgment above referred to, DGL has been examined and the following further comments are offered.

a)         Para 6 of the Note dated 7.11.12 recorded by the Service HQrs reads as follows:

                                    “Clearly, the court has held that ……….. civilian pay scale.”
                       
The statement made in said Para 6 of the Note that “Therefore the pay scales have to be amended and enhanced by the amount of rank pay” is not tenable as it is not as per court verdict.

As such proposing revised integrated pay scale vide Para 4 of DGL is not in order, as it is out of the ambit and against the acceptance of recommendations  of the IVth CPC and promulgated under special navy instructions of 1/S/87.

b)        In our view separate government sanction is required for revision of integrated pay scales as the same does not form part of the implementation of court judgment under consideration.

c)         Similarly, the proposal for revision of minimum pay in integrated pay scale vide Para 5 (3) of DGL does not arise and not in order. The same view are applicable mutatis mutandis on all aspects of revision proposed under section II and section III of DGL.

5.         To sum up

i)          The DGL should only be confined to implementation directive on the mode of taking into account the element of rank pay in fixation formula of IVth, Vth and VI CPC respectively. In other words, Para 6 (a) (ii) of SNI 1/S/87 and Para 5 (a) (ii) of SNI 2/S/98 are only to be modified and amended in consonance with HIGH COURT judgment dated 5.10.1998 and no other provision in any of the SNI needs modification unless it is the intention of the Govt to revise upwards the pay scales for giving enhanced benefit which is more than that entails from the implementation of the Court judgment.      

ii)         Proposal for revision of pay scales and other allied matters are not in order and it is not the logical extension of the judicial order as stated in Para 12 (f) of Note dated 7.11.12 being out of the scope of the High Court judgment unless it is the express intention of the Government to give enhanced benefit.

This has the approval of CDA.

Sd/-------------------
Dy Controller of Defence Accounts (N)

*          *          *          *          *
Pages 110 to 115
BY FAX – 011-25675488
(Kind attention: Shri Mohinder Singh IDAS
Jt CGDA, AT-I)

No: Tech/321/4CPC/Court case
Office of the PCDA (O)
Golibar Maidan,
Pune 411001
Date: 21 Nov 2012
To,
The CGDA
Audit I Section, O/O CGDA,
Ulan Batar Road, Palam,
Delhi Cantt 110011

Sub:    Implementation of Honourable Supreme Court Order dated 04-09-2012 in IA
No. 9 of 2010 in Transfer Petition (C) No. 56/2007 – UoI Vs N K Nair and others 
on Rank Pay case:

Ref:     HQrs No. AT/I/1483-Army/C (PC) dated 16/11/2012 & MoD ID No. PC-34(6)/2012/D(Pay/Services) dated 14/11/12 received vide letter ibid.       

            Contents of the Note dated 7/11/12 recorded by service HQrs and DGL submitted alongwith the same have been examined and the following is stated: -

(A)      The Hon’ble Supreme Court Order dated 04/09/12 is to refix the pay of all similarly situated officers w.e.f. 01/01/86 without deducting Rank Pay, where pay was earlier fixed in integrated pay scale after deducting Rank Pay as per SAI 01/S/87. This involves pay revision as on 01/01/86 and thereafter based on the pay so revised , further increment(s), stagnation increment(s), pay revision on subsequent promotions/demotions, pay revision on Fifth & Sixth Pay Commission etc will be carried out.

(B)       (a) While implementing the High Court of Kerala verdict in case of Maj (Retd) Dhanapalan, this office has revised his pay in the rank of Capt as on 01/01/86 by re-fixing without deducting Rank Pay. The change in pay continued till 31/12/95. His pay as on 01/01/96 was fixed at the same stage, as per earlier revision on Fifth Pay Commission Orders.

(b)       The High Court order was silent about revision of pay based allowances. Maj Dhanapalan was admitted arrears of DA and IR II only amongst the pay-based allowances with reference to revised basic pay fixed as per Court order.

(c)       The officer has retired pre-maturely on 01/09/07. Since there was no change in last pay drawn at the time of pre-mature retirement, no arrears on account of leave encashment were due to him. Also, no amendment to LPC-cum-Data Sheet was issued by PCDA (P), Allahabad for revision of pension and pensionary benefits. 

(d)       Maj (Retd) Dhanapalan claimed the revision of pay as on 01/01/96 consequent on Fifth pay Commission, without deducting Rank pay. He was informed that the High Court judgment was for not deducting Rank pay as on 01/0186 ad not as on 01/01/96. No further communication was received thereafter from him and also no directives/orders were received from High Court to justify the claim of the officer.

(C)       Service HQrs have stated in their Note that DGL proposed is based on the import of the Hon’ble Supreme Court judgment. However, the following points incorporated in the DGL are not in the scope of Hon’ble Supreme Court judgment.

(i)        Para 2: High Court of Kerala and Hon’ble Supreme Court judgments have made no mention about admitting consequential benefits due to revision of pay during the service.

(ii)       Para 2: Pay of the officers who joined service after 01/01/86 has been correctly fixed in the minimum of Integrated Pay scale as per the rank held. There was no deduction of Rank Pay while fixing of pay in integrated pay scale. Hence they will not be covered under revision of Pay as SC Order.

Section I: Modifications effective from 01/01/86 to 31/12/95 to SAI 01/S/87: -
                       
(iii)      Para 4: High Court of Kerala judgment is to re-fix the pay in integrated pay scale without deducting Rank pay. Further, Rank pay is to be paid additionally. It means after adding 20% of Existing Basic Pay as fitment to the total emoluments the officer was drawing in the pre-revised scale, the revised pay si to be fixed in the Integrated Pay scale.  

Note of Service HQrs states about revision of Integrated Pay Scale justifying it with essential features to be borne in mind is “the incorrect deduction of Rank pay will have to be rectified. The Rank pay accordingly will have to be added back into the pay scale to determine new pay.” THIS IS INCORRECT AND NOT AS PER COURT ORDER.   

The Court judgment does not have any mention about revision of Integrated Pay scale after adding Rank Pay to it. Hence revision of integrated pay scale with changed rates of increments, as Rs 2300-100-3900-150-150-5850-200-6450 is not covered as per Court orders. Further, if it is done, the pay scale fixed for the rank of Maj Generals & above will get burst (sic) (pay scale for Major Generals: Rs 5900-200-6700; Lt Generals: Rs 7300-100-7600, Army Commanders & VCOAS: Rs 8000/- Fixed, and COAS : Rs 9000/- Fixed). These officers will also ask for revision of pay scales.  

(iv)      Para 5 (a) (iii): No change is required to minimum pay fixed for each rank because integrated pay scale from Rs 2300-100-3900-150-EB-4200-150-5100 has been devised considering 23 years from the rank of Lt to Brig. Since Hon’ble Supreme Court has not issued any directives for revision of Integrated Pay scales as per Fourth Pay Commission Orders, the change in minimum pay for each rank has no relevance.

 (Comment by Aerial View: 4th CPC mentions 28 years in Para 28.15 and is illustrated in table at Annex 28.1 to Para 28.113.)  

(v)       Para 5 (c) : Since officers commissioned after 01/01/86 are not affected by the Court order, the provisions for revision of pay as per court order cannot be made applicable to these officers.

(vi)      Para 5 (d) & (e): The officers will be entitled to get minimum pay of rank as per SAI 01/S/87  on completion of qualifying service for the rank and on promotion. Pay proposed in DGL vide Para 5 (a) (iii) will not be applicable in such cases.

Section II:      Modifications effective from 01/01/96 to 31/12/05 to SAI 01/S/98

(Comment by Aerial View: Since the matter was not decided in Court i.e. it was sub-judice till 04 Jul 2005, but SAI 02/S/98 was promulgated on 19.12.1997 and MoD has admitted that there is no record that either Hon’ble High Court of Kerala informed or any judicial order was sought, the foundations of the subsequent portion of PCDA (O) contentions may be viewed in that light.)    
           
(vii)     Para 6 (a):  High Court of Kerala has not issued any directives for Change in Pay Scales as per Fifth Pay Commission Orders. The pay of affected officers as on 01/01/96 will be revised, considering the pay in the Integrated scale being drawn as on 31/12/95, consequent upon the revision carried out as on 01/01/86 without deducting Rank Pay. Hence, no amendment to SAI 02/S/98 are required for implementation of Court Order. Captains of AMC on completion of one year will draw Rs 9600/- as per SAI 02/S/98.       
Further provisions mentioned at subsequent para 8 (c) & (d) regarding fixation of pay at maximum and minimum of such changed pays scales become irrelevant.

(vii)     Para 7: Since the provisions of SAI 02/S/98 stand correct for officers in service as on 01/01/96 & commissioned thereafter, the pay scales mentioned at Para 6 of DGL becomes irrelevant.

                        (ix)      Para 8 (b): Fixation of initial pay in revised scales as on 01/01/96:

(Notation by hand by some official of O/O CGDA at the top of page 112 – “Each Pay Commission is separate entity. Moreover the Rank Pay of V CPC allowed not to be deducted by the Hon’ble Supreme Court is in any case would be included while fixing ch pay in V CPC.” Notation ends).

Neither High Court of Kerala nor the Hon’ble Supreme Court has issued any directives for revision of Pay Fixation Formula as per Fifth Pay Commission Orders for not deducting Rank Pay. As per Fourth pay Commission Orders Rank Pay was introduced for the first time which was in addition to integrated Pay Scale.

But at the time of Pay revision on Fifth Pay Commission orders, officers were in receipt of Rank pay which was treated as part of Basic Pay for all purposes including pension & retirement and pensionary benefits. For revision of Pay as on 01/01/96, 40% fitment was allowed to be added to existing emoluments before deducting Rank Pay at pre-revised rates while fixing pay in the revised scale for that rank.  

(x)       Minimum Pay for bunching of increments: All the provisions of SAI 01/S/87 regarding pay scale, minimum qualifying service and minimum pay for each rank etc are applicable for pay revision to be carried out on 01/01/1996, except the clause of deducting Rank pay before fixation of pay in the integrated scale. As such, revision of Pay scales for the rank of Lt to Brig as mentioned at Section II, para 6 (a) and minimum stage of pay for bunching of increments for each rank mentioned at para 8 (e) becomes irrelevant.

Section III:    Para 9: Modifications effective 01/01/06: -

(xi)      As mentioned in earlier paras, in case the pay being drawn by the officer as on 31/12/05 gets affected, due to the pay revision carried out as on 01/01/86 as per Court Order, the pay as on 01/01/06 will be revised w.r.t. the instructions laid down vide SAI 01/S/08 in the respective Pay Band with Grade Pay of that rank as mentioned in Fitment Tables, attached thereto. Court order does not have any mention to revise either the pay scales & rates of increments mentioned as per Fifth Pay Commission or Grade pas as per Sixth Pay Commission, as given at Col 3 & 7 respectively at Table under para 9. Comparison with pay scales & rates of increments of similarly placed civilians is also beyond the scope of court order. Hence the changes proposed at para 9, 10 & 11 are irrelevant.    

(xii)     Para 13: The Court order is applicable to only those officers in the rank of Capt to Brig, who were in service as on 01/01/86 and their pay was fixed in integrated pays scale after deducting Rank Pay from the total emoluments. Hence no revision is to be carried out for officers commissioned thereafter.
                       
                        (xiii)    Para 13: The method of calculation of 6% interest i.e. simple or compound needs to be explained in the DGL since in certain cases arrears may work out after 01/01/06 also.

(xiv)    Paras 14,15, & 16: Exercising of Option: Considering the non-availability of date related to pay drawn and other elements affecting pay entitlements in huge number of cases, due to destruction of time expired records and also the time span involved in each case for scrutiny and analysis of pay data with reference to different dates i.e. increment, promotion etc at three occasions of Pay Commissions and subsequent multiple promotions, to ascertain/decide the manner/option for pay fixation by PCDA (O) which is most beneficial to officer if not exercised by him/her and also pay revision with reference to fresh options if exercised by the officers on each occasion will not be possible. 

(xv)     Para 18: Hon’ble Supreme Court’s verdict has no mention about revision of all pay linked allowances simultaneously. Further, Maj Dhanapalan was paid only DA & IR II amongst pay based allowances.

In a nutshell,

This office has implemented the judgment of Hon’ble High Court of Kerala in case of Maj (Retd) Dhanapalan as mentioned at para (B) ante. Going by the method followed in implementation of that order, the revision of following is not at all covered under the scope of Court Orders

a.        Integrated Pay Scales, rates of increment, minimum pay for each rank  for IVth Pay Commission orders,

b.        Pay scales for each rank & rates of increment for Vth Pay Commission orders,

            c.         Grade pay as per Sixth Pay Commission.

Certain pay based allowances like HRA etc admitted to only eligible officers, subject to fulfilment of specific conditions for a particular period, are not revised even during pay commission orders from retrospective dates. Hence, question of revision of such allowances from retrospective dates does not arise.  

(D)     The DGL does not have mention about the procedure to be followed for revision of pay and calculations or arrears where pay details and other information affecting pay entitlements is not available due to destruction of records being time expired.

PCDA has seen                                                                                              Sd/----------------
                                                                                                                        S P Singh
                                                                                                                        Dy Controller
*          *          *          *          *

Page Nos. 116 to 128 – Drafts of CGDA reply to MoD D(Pay/Services) ID No. PC-34(6)/2012 D (Pay/Services dated 14/11/2012 

*          *          *          *          *
Page No. 129 – FAX Confirmation sheet dated 22/11/12 on the Final Reply from CGDA to MoD on Services HQ DGL

*          *          *          *          *
Page 130 to 134

Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt - 10

            Subject: Implementation of Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in Transfer Petition No. 56 of 2007 filed on behalf of
UoI Vs N K Nair & Ors on the matter of Rank Pay: vetting of DGL regarding

Reference:     MoD, D (Pay/Services) ID No. PC-34 (6)/2012 D (Pay/ Services) dated 14/11/2012


MoD may refer to their ID quoted under reference under which DGL on the subject issue has been forwarded to this HQrs for comments/vetting. The following comments are offered in consultation with the concerned field Controllers for consideration before final decision by the MoD. 

2.         The Hon’ble Supreme Court in its judgment dated 08/03/2012 have upheld the judgment dated 05/10/1998 of Kerala High Court. Upon further hearing the Hon’ble Apex Court in its final judgment dated 04/09/2012 has affirmed its earlier judgment dated 08/03/2010 clarifying that “….this order shall govern all similarly situated officers…” with modification in the interest part. As such, the Apex Court judgment dated 04/09/2012 may be implemented in the same way as was done in the case of Maj (Retd) A K Dhanapalan. In this regard views of MoF vide Para (b) (iv) of MoD, D (Pay/Services) ID dated 12/11/2012 on the subject also refer. If extended benefits are allowed, it may not stand in audit.

3.         Keeping in view the above facts, para-wise comments as follows are offered on the DGL.

Para 2.          High Court of Kerala and Hon’ble Supreme Court judgment have made no mention about admitting consequential benefits due to revision of pay during the service. Besides, the pay of the officers who joined the service after 01/01/1986 has been correctly fixed in the minimum of the Integrated Pay Scale as per the rank held. There was no deduction of Rank Pay while fixing the pay of such officers in the integrated pay scale. Hence they may not be covered for revision of Pay as per Supreme Court order.

Section I

Para 4. The justification given by service HQrs does not seem to be as per court order. The Court judgment does not have any mention about revision of Integrated Pay Scale adding Rank Pay to it. Hence, revision of integrated pay scale with changed rates of increments is not covered as per Court order. If it is done, the pay scale fixed for the rank of Maj General & above may get burst (sic).

Para 5 (a) (iii).     No change is required to minimum pay fixed for each rank because the integrated pay scale from Rs 2300-100-3900-150-4200-EB-150-5100 has been devised considering the total span of 23 years from the rank of Lt to Brig. Since there are no directives from Hon’ble Supreme Court for revision of the scale as per fourth CPC, the change in minimum pay for each rank has no relevance.

Para 5 (c).  Since Officers commissioned after 01/01/86 are not affected by the Court Order, the provisions for revision of pay as per court order may not be made applicable to these officers.

Para 5 (d) & (e).   On completion of qualifying service for the rank and on promotion, the officers will be entitled to get the maximum pay of the rank as per SAI 01/S/87. Pay proposed in DGL vide Para 5 (a) (iii) may not be applicable in such cases. The comments against para 5 (a) (iii) may also be referred in this regard. 

Section II

Para 6 (a).  The pay of affected officers as on 01/01/1996 will be revised considering the pay in the Integrated scale being drawn as on 31/12/1995 consequent upon the revision carried out as on 01/01/1986 without deducting Rank Pay in compliance of subject Apex Court order. Hence, no amendments to SAI 02/S/98 are required for implementation of the Court order. 

Para 7: Since the provisions of SAI 02/S/98 stand correct for officers in service as on 01/01/1996 & commissioned thereafter, the pay scales as mentioned at Para 6 of DGL become irrelevant. 

Para 8 (b): Fixation of initial pay in the revised scale as on 01/01/96: Neither High Court of Kerala nor the Hon’ble Supreme Court has issued any directives for revision of Pay Fixation Formula as per Fifth Pay Commission orders for not deducting the Rank Pay. In this regard it is worth noting that while implementing the judgment in the case of Maj (Retd) Dhanapalan his pay was revised in the rank of Capt as on 01/01/1986 by re-fixing it without deducting Rank Pay. This change of pay continued till 31/12/1995. After fifth CPC his pay was fixed as on 01/01/1996 as per fifth CPC orders only. On representation from Maj (Retd) Dhanapalan for revision of his pay as on 01/01/1996 consequent on 5th CPC recommendations without deducting Rank Pay, he was informed by the PCDA (O) that High Court order was for “not deducting Rank Pay” as on 01/01/1986 and not as on 01/01/1996. No further communication was received thereafter either from the officer or any directive from High Court to justify the above claim of the officer.

            It is further stated that as per Fourth Pay Commission Orders, Rank Pay was introduced for the first time which was in addition to Integrated Pay Scale. But at the time of pay revision on Fifth Pay Commission orders, officers were in receipt of Rank Pay which was treated as part of Basic Pay for all purposes including pension, retirement & pensionary benefits. For revision of pay as on 01/01/1996,  40% fitment was allowed to be added to existing emoluments before deducting Rank Pay at pre-revised rates while fixing pay in the revised pay scale for that rank. It is also felt that Fifth Pay Commission’s recommendation may be looked at as independent and distinct from Fourth Pay Commission. Moreover, the Rank Pay element introduced in 4th Pay Commission has very much gone into the Pay fixation while implementing 5th Pay Commission, as also mentioned above.  

            In view of the above it is felt that the Apex Court order does not affect the method of pay fixation adopted while implementing the Fifth CPC recommendations. The estimated financial implications were also, in fact worked out accordingly. However, the MoD may take a final view in this regard after obtaining legal advice, if needed.     

Para 8 (e): All the provisions of SAI 01/S/87 are applicable for pay revision to be carried out as on 01/01/1986 except the clause of “deducting Rank Pay” before fixation of pay in the Integrated scale. Comments against Para 5 (a) (iii) of the DGL also refer.

Section III

Para 9:         In case the pay being drawn by the officers as on 31/12/2005 get affected due to the pay revision carried out as on 01/01/1986 as per the Court order, the pay as on 01/01/06 will be revised with reference to the instructions laid down in SAI 01/S/08. Hence, changes proposed at Para 9, 10 & 11 of the DGL are irrelevant.

Para 13:       The court order is applicable only to those officers in the rank of Capt to Brig who were in service as on 01/01/86 and those whose pay was fixed in integrated pay scale after deducting Rank Pay. Hence, no revision may be carried out for officers commissioned thereafter.             

            Regarding payment of interest, the method of calculation need to be mentioned in the DGL i.e. whether it will be simple or compound interest. Interest on pension arrears also needs to be specified as Para 13 of the DGL is silent about the same.

Para 14, 15 & 16: Exercising of Option: In this regard it has been specifically mentioned by PCDA (O) that deciding the most beneficial manner/option for fixation of pay in such cases is not feasible due to various reasons such as non-availability of date related to pay drawn and other elements affecting pay entitlements due to destruction of time expired records in huge number of cases, the time span involved in each case for scrutiny and analysis of pay data with reference to different dates (i.e. increment, promotion etc) at three occasions of  pay commissions and subsequent multiple promotions. Therefore, pay revision based on such options is not feasible.    

Para 18: Hon’ble Supreme Court decision has not mentioned about revision of all pay linked allowances simultaneously.  

4.         General Points for Consideration:

(a)       Certain pay based allowances like HRA etc admissible to only eligible officers, subject to fulfilment of specific conditions for a particular period, are not revised even during pay commission orders from retrospective dates. Hence, question of revision of such allowances from retrospective dates may not arise.

(b)       The DGL does not have any mention about the procedure to be followed for revision of pay and calculations of arrears where pay details and other information affecting pay entitlements is not available due to destruction of records being time expired.

Addl CGDA (VS) has seen.

Sd/---------------------
(K L Mound)
ACGDA (AT-I)
Phone No. 011-25665581
Shri Naveen Kumar
Director (AG)
MoD, D (Pay/Services), Sena Bhawan,
New Delhi

UO No. AT/I/1483-Army/X (PC)/III     Dated: 22/11/2012 

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Page No. 135 - MOD ID No. PC 34(6)/2012-D (Pay/Services) dt 22.11.2012 intimating AS (A) will take a meeting on 23.11.2012 at 1130 hours and requested JS & Addl FA (M), LA (Def), Jt CGDA (AT.I), Dy Secy Deptt of Expenditure, MoF and Director, TRIPAS to attend.

*          *          *          *          *
Page Nos. 136 to 141 – Hon’ble Supreme Court Order dt 04/09/2012 in IA No. 9 of 2010 in TP (C) No. 56 of 2007 in UoI & Ors Vs N.K. Nair & Ors

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Page Nos .142 to 146 – Budgetary provisions of Army

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Page Nos. 147 to 153 – Correspondence between PCDA (O) and Maj (Retd) A. K. Dhanapalan 

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Page No. 154 - No: Tech/0321/4th CPC/Court Case, Office of the PCDA (O), Golibar Maidan, Pune – 411001, Dated: 14.11. 2012 to The CGDA, AT-I, Ulan Batar Road, Palam, Delhi Cantt - 10 Parawise comments on the MoD ID No. 34 (6)/2012 – D (Pay/Services) dated 12.11.2012 addressed to the Director TRIPAS and the CGDA on quantum of payment to Maj (Retd) Dhanapalan and also for random sample of 27 officers of major rank as on 01.01.1986.

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Page Nos. 155 & 156 – Post copy of observations dated 20.11.2012 by JCDA (AF) on DGL of Service HQrs

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Page No. 157 – MoD ID No. 34 (6)/2012-D (Pay/Services) dated 26.11.2012 requesting a DGL by 27.11.2012 from CGDA as it has not agreed with the DGL prepared by Service HQ.

*          *          *          *          *
Page Nos. 158 to 160 – Copy of Note 16 dated 30.10.2012 of MoD file No. 34 (6)/2012-D(Pay/Services)

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Page Nos. 161 & 162 – Copy of MoF Dept of Expenditure Note 18 dated 9.11.2012 seeking clarifications vide MoF. DoE. ID Note No. 187654/E III (A)/2012 dt 09/11/12 

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Page No. 163 – JS & Addl FA (M) requesting CGDA to prepare DGL as it has not agreed to DGL prepared by Service HQ

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Page Nos. 164 to 176 – DGL dated 27.11.2012 prepared by CGDA and certain amendments incorporated with forwarding letter to MoD (Def/Fin), copy to MoD, D (Pay/Services)

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Page Nos. 177 to 182 – Request to PCDA (O), ADGPS, ADG MP (P&P), Dy MS (B) to attend meeting on 06.12.2012 chaired by CGDA

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Page Nos. 183, 184 & 185 – MoD letter No. 34 (6)/2012-D(Pay/Services) dated 26.11.2012 about implementation of Hon’ble Supreme Court order and request to TRIPAS to prepare DGL.

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Page No. 186 – Reply by TRIPAS that DGL was forwarded vide Air HQ/99141/7/AFPCC (Ty BM) on 07.11.2012

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Page Nos. 187 & 188 – Intimation by TRIPAS about meeting chaired by Chairman PARC on 04.12.2012 to finalise DGL and response from O/o CGDA that such a meeting is not considered necessary at this stage.

Page No. 189 – FAX confirmation of O/o CGDA

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Page Nos. 190 to 195 -        Financial implications by NPO and PCDA (N) Mumbai

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Page Nos. 196 to 198 – Postal copies of observations/comments of PCDA (N) dated 21.11.12 on DGL of Service HQ

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Page 199

Ministry of Defence (Fin)
AG (PA)

URGENT/COURT CASE

           
Subject : Implementation of Hon’ble Supreme Court order dated 04/09/2012 in IA No. 9 of 2010…………..UoI Vs NK Nair and Ors in the matter Rank Pay

            CGDA may please refer to their UO No. AT/I/1483-Army/X (PC)/III dated 29/11/2012 on the subject noted above. Observations of MoD (Finance) on that basis, has been sent to JS (E) MoD on 29/11/2012 with kind concurrence of FA (DS) 

2.         JS (E) MoD rang me at 11.40 AM today intimating that Defence Secretary desires the remarks of MoD (Fin) on the following: -

“Since there is apparently no change in pay scales after implementation of Hon’ble Supreme (Court) Orders, methods/procedures should be suggested if the pay crosses the maximum pay scale after requisite fixation. Whether that excess amount should be treated as personal pay or otherwise with requisite consequential financial implementation (implication?), may also be indicated.” 

3.                  Since the matter has to be sent to MoF for approval, urgent feedback on war footing, preferably by 3rd December 2012 (afternoon) is solicited.

Sd/----------------------
(BK Mukhopadhyay)
JS & Addl FA (M)
3rd December 2012
Tele (Fax) -  23792076
Shri M Singh
Jt CGDA

UO No. MoD (Fin) 8 (13)/2012-AG/PA dated 3rd December 2012

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Page Nos 200 to 203 – Draft replies to the above

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Page 204

Office of the CGDA, Ulan Batar Road, Palam, Delhi  Cantt -10

Subject: Implementation of Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in Transfer Petition No. 56 of 2007 filed on behalf of
UoI Vs N K Nair & Ors on the matter of Rank Pay

Reference:     MoD (Finance) UO Note No. MoD (Fin) 8 (13). 2012 – AG/PA dated 03/12/2012
  

            DGL was prepared by this office as per the directions of MoD (Finance) and the same was forwarded vide this HQrs office UO Note of even No dated 29/11/2012. Now, it has been desired to suggest methods/procedures if the pay crosses the maximum of the pay scale after requisite fixation and whether the excess amount should be treated as personal pay or otherwise. The issue has been examined in consultation with concerned field Controllers office and following is stated.

a)         Para 6 (c) of SAI 1/S/87 stipulates that if the amount computed as per sub-para a (ii) of the ibid SAI is more than the maximum of the revised scale, the pay will be fixed at the maximum of the revised scale. There is no provision in this clause to allow the excess as personal pay to be absorbed in future increases in pay.

b)        However, as per Para 6 (j) of the ibid SAI where existing emoluments as calculated in accordance with sub-para (e) or (g) of ibid SAI exceed the revised emoluments so fixed in the case of any officer, the difference shall be allowed as personal pay to be absorbed in future increases in pay. However, it may be stated that in this clause there is comparison between existing emoluments and revised emoluments. Therefore, this clause is not applicable for protecting the pay in subject cases.   

            In view of the above, if any protection is to be given, suitable amendment in the provisions of para 6 (c) of SAI 1/S/87 and corresponding provisions of SNI & SAFI would be required.

Sd/-----------------
(K L Mound)
ACGDA (AT-I)
Phone No. 011-25665581
Sh. B K Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi

UO No. AT/I/1483-Army/X (PC) III dated 06/12/2012

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Page Nos. 205 to 214 – Report of the High Powered Committee

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Page No. 215 – MoD ID No. 34 (6) 2012 – D (Pay/Services) dated 6.12.2012 seeking clarifications from O/O CGDA on several issues including whether “the affidavit filed by the Committee of Three Secretaries in the Supreme Court will have any impact on the refixation of pay in the Rank Pay case.”

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Page No. 216 – MOD ID of even No dated 6.12.2012 requesting Jt CGDA to make rank-wise calculations of the minimum and maximum of the pay scales based on proposed revised DGL

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Page Nos. 217 to 225 – Drafts of revised DGL prepared by CGDA
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Page Nos. 227 & 228 – Photocopy of Swamy’s Fundamental Rules pages 16, 17, 140 and 141 
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Page No. 229 -          Director (AG), MoD D (Pay/Services) requesting immediate follow up on meeting taken by Defence Secretary on 7.12.2012
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Page 230

Ministry of Defence (Fin)
AG (PA)
URGENT/COURT CASE

Subject : Implementation of Hon’ble Supreme Court order dated
04/9/2010 in IA No. 9 of 2010………UOI Vs N K Nair & Ors in the matter of Rank Pay

O/O CGDA may please refer to the meeting taken by the Defence Secretary on 7th December 2012 (AN) on the subject noted above and to say that as desired by the Chairman of the meeting, a revised DGL, incorporating element of ‘personal pay,’ if any, when the pay, fixed as per Supreme Court Order, crosses the maximum of the pay scale, may kindly be sent by return Fax.

            Sd/-----------------
10/12
B K Mukhopadhyay
JS & Addl FA (M)
10th December 2012
Ms Vandana Srivastava
Addl CGDA   

UO No MoD (Fin) 8 (13) /2012-AG/PA dated 10th December 2012


n.a.pl
Sd/--- 10/12/12
SAO (AT-I)
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Page Nos. 231 to 236 – Revised DGL prepared by O/O CGDA
*          *          *          *          *
Office of the CGDA, Ulan Batar Road, Palam, Delhi Cantt-10

Subject: Implementation of Hon’ble Supreme Court Order dated 04/09/2012 in
IA No. 9 of 2010 in Transfer Petition No 56 of 2007 filed on behalf of
UoI Vs N K Nair & Ors in the matter of Rank Pay

Reference: MOD (Finance) UO Note No. MoD (Fin) 8 (13)/2012-AG/PA dated 10/12/2012

It is mentioned that the term personal pay has been defined in the FR 9 (23) as under:

“Personal Pay means additional pay granted to a Government servant – (a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to a revision of pay or to any reduction of such substantive pay otherwise than as a disciplinary measure: or (b) in exceptional circumstances, on other personal considerations.”  

2.         Further, FR 37 stipulates that “Except when the authority sanctioning it orders otherwise, personal pay shall be reduced by any amounts by which the recipient’s pay may be increased, and shall cease as soon as his pay is increased by an amount equal to his personal pay.” The condition of future absorption of Personal pay exists in Para 6 (j) of SAI 1/S/87.   

3.         Thus, usually, the personal pay is to be absorbed in future increases of pay unless it is decided otherwise by the competent authority.

4.         Keeping in view the above aspects, this HQrs office, vide Para 3 (c) of UO Note dated 07/12/2012 had suggested for consideration that if any protection is to be given, suitable amendment in the provisions of para 6 (c) of SAI 1/S/87 and corresponding provisions  of SNI & SAFI would be required. However, as directed in MoD (Fin) UO Note referred above and MoD ID dated 10/12/2012 [copy of which has been endorsed to Defence (Fin)] a revised DGL incorporating element of ‘personal pay’ at para 2 (c) is forwarded herewith for examination and consideration please.    

Addl CGDA (VS) has seen.
Sd/-------------------
(J P Kukade)
Sr Accounts Officer (AT-I)
Phone no 011 -25665580
Shri B K Mukhopadhyay
JS & Addl FA (M)
MoD (Finance) (AG/PA)
New Delhi

UO No. AT/I/1483-Army/X (PC)/III dated 10/12/2012
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Page No. 238 – FAX transmission sheet
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Page No. 239 – MoD ID No PC-34(6)/2012-D (Pay/Services) dated 9th November 2012 to O/O CGDA requesting likely cash outgo
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Page Nos. 240 to 246 – Postal copy of PCDA (O) observation dated 21.11.2012 on DGL prepared by Services HQ
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Page Nos. 247 & 248, 252 & 253 (duplicate copies) – ADGPS IHQ of MoD (Army) letter dated 05.11.2012 requesting PCDA (O) of contact for providing details of officers affected in Rank Pay case

Page Nos. 249 to 251 – Response of PCDA (O) to O/o CGDA on the above
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Page Nos. 254 to 311 - in Part 3 of 3

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