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Sunday, May 1, 2011

4th Pay Commission Rank Pay Anomaly: GOI Again Moves Supreme Court

PROGRESS 4TH CPC RANK PAY ANOMALY
COURT JUDGEMENT.
Dear Brig, (Chander Kamboj)
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Union of India has moved an application in SC for Directions seeking Modification/ Directions/ Recall of Order dated 8th March 2010 regarding their Rank Pay Case.
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May I, request you to give this a wide publicity.
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With best regards,
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Lt Col BK Sharma (Retd)
President, RDOA
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4th Pay Commission Rank Anomaly
GOI Again Moves Supreme Court
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It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may be pleased to pass the following orders:-
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(a) Recall the order dated 8th March 2010.
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(b) Upon notice, re-hear all the cases on merits.
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(c) Admit Writ petition Nos. ... grant rule and hear them finally.
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(d) Call for the records of the Writ Petitions filed in the various High Courts and after the completion of pleadings, hear the same finally.
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(e) Pending further orders on the application grant an ad interim stay of the order dated 8th March 2010.
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(f) Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
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Filed by: Advocate for the petitioner
Settled By: Sh Gopal Subramanium, Solicitor General

From: Dhanapalan AK
dhanapalanakmajor@gmail.com
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RANK PAY CASE : PARAWISE COMMENTS ON AFFIDAVIT FILED BY GOI
Dear All ,
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You may be aware that an additional Affidavit has been fileed by the UOI in the Supreme Court in the last of Apr 2011. Para wise comments on this has been prepared and is attached herewith for the info all. Additional points if any are welcome.
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It could be seen from the additional affidavit filed by the Govt of India that a comparison has been made between the Officers of the Armed Forces and the Civilian employees of the central Govt. This comparison will be incomplete unless other service conditions are also subjected to similar comparison. Comparison should therefore be with a live example of two per- one in Army and the other in civil who were appointed on the same date/year i.e if appointed on 1-5-1980 what would be their status as on today (1-5-2011)
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I am sure , you will be able to throw some light with live example. However I am herewith giving some hints for consideration:
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Army Def Services)        
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1.  Method of selection :   Officers : Undergo SSB after selection by UPSC
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2.  Method of selection  :  Lower ranks :  Physical, Medical and written test. only 10% qualify.
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3.  Appointment :  On completion of training.
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4.  Probation :  On promotion of every rank has to complete 28 days unbroken service
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5.  Promotion :  On Merit by selection Board Complete vacancies including the resultant vacancies NOT filled within the year for middle and lower grade officers (Result- 40- 60%)
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6.   Postings : Any where in India
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7.   Duty Time : No fixed duty time.
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8.   Job content : At the will and wish of Senior Officers.
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9.   Med Fitness : To be Medically and Physically fit at all times
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10.  Leave Rules : Not revised during the last 60 years
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11.  Encashment : Leave lapses due to restrictions imposed Full leave can be accumulated
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Civ (Civil Services)
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1.   Method of selection : Officers : Selection by UPSC only.
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2.   Method of selection : Lower Ranks : no test involved.
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3.   Appointment : From date of selection by UPSC.
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4.   Probation : Only at the first appointment. However, for becoming Ty, Semi Pt and Pt on each promotion the requirement has been abolished some 15 years back without waiting for any commission report.
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5.   Promotion : on Merit Cum Sniority by DPC. Complete vacancies are filled (Result 80-90%).
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6.   Postings : Except Gp A, all local based and stay near to home throught service.
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7.   Duty Time : Duty time is 8 Hrs in addition overtime.
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8.   Job content : Specified for each appointment.
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9.   Med Fitness : Not specified.
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10. Leave Rules : Revised 5 times
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11. Encashment : Full leave can be accumulated
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These only are all certain hints. A clear picture is to be given for comparing individual case.

With regards,

Major AK Dhanapalan
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Para wise comments prepared by
Major AK Dhanapalan, on the additional
affidavit filed by the UOI in IA No.09 of 2010
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Para 3H”ble Court inquired about the method of fixation made in respect of civilian employees of the Central Govt, because the same method is made applicable to officers of the Armed Forces Officers also (Para 28 of Resolution No.9E dt 18-3-87 refers). Method for fixation of pay in respect of civilian employees are laid down in Gazette of India Notification No SRO 12E dt 13-9-86. Recommendations of central Pay Commission accepted by the Govt of India are notified in the Gazette and become statutory in nature. Whereas the recommendations not found notified in the Gazette have no legal sanctity. Fixation of Pay in respect of civilian employees are made under the provisions of SRO abid and NOT under the provisions of the Pay Commission report.
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Para 5.   It is not factually correct to say that the Pay fixation of the central Govt employees are made in terms of recommendations of the Pay Commission which is only recommendatory in nature and has no legal sanctity attached to it for making any changes of Salary of the Central Govt Employees.
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Para 6.    The Rank Pay was sanctioned by the Govt of India in-addition to the basic pay . Hence the basic pay is to be fixed in accordance with the provisions of SRO 12E dt 13-9-86and then the Rank Pay to be added in addition.(Para I(i)last sentence refers)

Para 7. The contention of the applicant in para 7 of the affidavit is NOT factually or legally correct, hence denied. Govt orders for civilian employees and for the Armed Forces Officers, JCOs, NCOs and ORs are different. However the method for fixation as given in SRO 12E dt 13-9-=86 are made applicable to the officers of the Armed Forces in terms of Para 28 of the said resolution dt 18-3-97.
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Para 8. Army Instructions NOT a statutory Rule, and cannot over-ride Statutory provisions. The Army Instruction is not in conformity with the provisions contained in the said SRO and the resolutions and therefore liable to be squashed. Deduction of Rank Pay from the Basic Pay is illegal and has no support of any statutory provisions.
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Para 9. The contention of the applicant are misleading . The rules does not say the recommendations of the IV pay commission to be doubled by the V commission. The Pay of the central Govt employees have been revised w.e.f. 1-1-96 under the provisions of Govt of India Gazette Notification No.18(E) dt 9 Oct 1997 Para 7(I)(A) of which reads as under:-
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“(A) in the case of all employees:-
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An amount representing 40 per cent of the basic pay in the existing scale shall be added to the “exiting emoluments” of the employee.
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(ii) after the existing emoluments have been so increased , the pay shall thereafter be fixed in the revised scale at the stage next above the
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Amount thus compute…..”
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Para 10.  The contention in para 10 is also misleading. In fact , from 1-1-2006 the Rank Pay has been replaced with Military Service Pay. The only difference is that the Rank Pay was for Middle level management officers but the Military Service Pay has been extended to All officers, JCOs, NCOs and Ors.
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A very important point brought out here by the applicant is that “Pay in the Pay Band/Scale of Pay will be determined by multiplying the existing basic pay as on 1-1-2006 by a factor of 1.86..”. Here lies the very crucial point . If the pay fixation is not done properly on 1-1-86 and 1-1-96 this will have cumulative adverse effect on the structure of Pay i.e. determination of Pay Band , Basic Pay, Grade Pay, Military Service Pay etc and the allowances attached to these wef 1-1-2006.
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Para 11.  Here the usage of PBOR by the applicant ishighly objectionable. This categorization is neither based on any Rules/regulations/Army Act or any other act of parliament nor used in the Armed Forces. It is very important to be noted here that by replacing Rank Pay with the Military Service Pay the 6th Pay commission also felt recommending an additional sum in-addition to the basic as has been done by the 4th and 5th commission.
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Para 12.  The H’ble court may note that the Pay fixation has not been in accordance with the provisions of the statutory rules but on the presumptions which is un-acceptable.
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Para 13.  It is not correct to say that the Govt of India has accepted all recommendations of the pay commission. Gazette of India and the Rasolutions passed by the Govt of India are only to be considered as accepted and to be implemented by the departments. The Army Headquarters are not at liberty to quote the recommendations of the commissions and make their own rules where the statutory provisions are a pre-requisite for making such rules.
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Page 6 (Annex I) – Resolution No. 9E dt 18-3-87 clearly stipulate that “ In- addition to the pay in the integrated scale, Rank Pay will be admissible as under:-“
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Para 28  of the Annx to the above resolutions clearly stipulate that the method adopted for fixation of pay for civilian employees will also be applicable to officers of the Armed Forces also. This clearly indicate that a separate set of orders for fixation of pay of officers of the Armed forces do not exist nor required.
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Page 8   In the Colum “Service Scales” , authority for fixation has been shown as Special Army Instruction 1/S/87 dt 23-6-87 which is not correct. Army Instruction is not a statutory Rule even this has no statutory backing. Moreover, Para 28 to Annx to the Reso 9E dt 18-3-87 clearly atate that the method of fixation for civ should be applied for fixation of pay of officers of Armed Forces also. Hence issue Army Instruction for this purpose is not correct and not acceptable.
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However the method shown in the Colum under civil employee should be applied for the Armed Forces Officers.
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Page 10  as per the Method of fixation shown under Column “Civilian employee:” for an officer drawing pay Rs.1600 the pay fixed as Rs.3300/-whereas in case of Army Officer iot has been shown as Rs.3100/- This means the Auual Increments will be regulated as under:-

Year         Captain(Army)         Civilian employee

1-1-86         Rs.3100/-                     Rs.3300/-

1-1-87        Rs.3200/-                      Rs.3400/-

1-1-88        Rs.3300/-                      Rs.3500/-

1-1-89        Rs.3400/-                      Rs.3625/-

1-1-90        Rs.3500/-                      Rs.3750/-

1-1-91        Rs.3600/-                      Rs.3875/-

1-1-92        Rs.3700/-                      Rs.4000/-

1-1-93        Rs.3800/-                      Rs.4125/-
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The table clearly indicate that o ver a period of 7 years the diff become Rs.325/- even with the rank pay the civ emp get an apper hand where they were equal on 31-12-85.
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Moreover the Army officer get the higher rate of increment only on completion of 9 years because of the deduction of Rank Pay from the Basic Pay whereas a civilian employee get the higher rate of increment on completion of 3 year.
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Hence the deduction of Rank Pay from the Basic Pay carry heavy financial loss in the long run. This will effect the basic structure of pay.
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For the fixation n on 1-1-96 and for the determination of Pay Band, Grade Pay, Military Service Pay etc on 1-1-2006.

17 comments:

  1. Comments:

    1. Another delaying tactic route taken by bureaucrats to confuse the Politicians and the Public. Intention of GOI is to cheat the Military fraternity and stall the implementation of the Judicial Rulings. The Army, Navy and Air HQs seem to have no visible influence to ensure justice for its ESM! Sadly the bureaucrats have removed the sting of the armed forces literally. It is now to be seen whether we are geared up to fight any battle or will they forever remain belittled and buckled? The only Veteran who has got his entitlement is Maj Dhanabalan

    Click here: Danapalan vs Union Of India on 13 September, 2001

    2. ALL SERVING Offrs commissioned from 1/1/86 upto 31/11/05 are also affected. Therefore respective Service HQs MUST counter this move by babus.

    Brig Autar Singh (Retd)

    ReplyDelete
  2. The judgement has far reaching consequences. The Pay and Allowances and pension 4th and 5th Pay Commission would have to be worked out afresh. The Govt has no grounds to make prayer to recall the judgement. We must fight this tooth and nail to defeat the unjustified designs of the Govt. Why are they heaping injustices upon the soldiers is a matter of great concern to the whole Nation? Let us give it widest of publicity to tell the people of India our grave concerns and the Govts negative attitude.

    Maj Gen (Retd) Satbir Singh, SM

    ReplyDelete
  3. Is there NO ONE IN THE COUNTRY (OPPOSITION---BJP, Left, SP, RJD. BSP etc, OR our dear SUPREME COMMANDER or JUDICIARY or RULING PARTY i.e. UPA-II) who can see the truth/realty/injustice to the Nation/Public (at large & the personnel of the Defense Services, both Serving/IESM; in particular) and raise their voice against the INJUSTICE being done to ALL THE DEFENCE SERVICES' PERSONNEL (both SERVING and RETIRED) who are directly affected due to the game played by the AUTHORITIES, RESPONSIBLE FOR IMPLEMENTING the awards of the CPCs. EVEN THE SERVING PERSONNEL too would be directly affected by the increase in their Pay Scales.....as a result of higher basic pay, after the award of IV CPC and also the subsequent awards and also the FUTURE CPCs..which are based on the last pay drawn. This is causing such a SEVERE BLOW TO THE PEOPLE IN UNIFORM and whose morale (and hence the health of the Nation) is directly affected by such IMMORAL ACTS. I am surprised that these things (i.e. filing of review petitions and all) are happening during the premiership of one of the best and highly educated & respected (and not an illiterate POLITICIAN---in the real sense) PMs of Independent India. I pray to God that good sense prevails in the minds of the POWERs that be and they do not take the DEFENCE SERVICES for GRANTED and it does not BOUNCE BACK. The politicians will realise this on their own peril BUT BY THAT TIME IT MAY BE TOO LATE! LET US INITIATE SOME DRASTIC ACTION and MAKE IT A MASS MOVEMENT.

    Wg Cdr Subhash Bhutani (Retd)

    ReplyDelete
  4. Mr Anthony gave a stealth blow beneath the belt. Let us not panic. Any quick knee jerk reaction will do lot of damage. The game being played is to gain time and pass on the buck to the next Govt. Secondly it hurts their political vote catching plans of doling out money. So much surprising is that we are not asking for any favours. We are asking for our legitimate dues. Having robbed us and our families for 25 years MOD is playing their favorite game of litigation. It anger should be expressed in parliament. Let us stick to the Panchtantra saying: "UNITED WE STAND and DIVIDED WE FALL". MOST IMPORTANT FEATURE OF THIS CASE IS THAT IT AFFECTS NOT ONLY THE RETIRED BUT ALSO THE SERVING OFFICERS. I AM SURE AT LEAST TWENTY FIVE THOUSAND SERVING OFFICERS ARE AFFECTED. IT IS FOR THE CHIEF TO STAND AND UP AND ASK THE CDA TO RECTIFY THE WRONG. We must also insist the culprits should be punished.

    Brig K M Rao Veteran.

    ReplyDelete
  5. Eh.. how invidious or rather diabolical!

    First they cheat you with lower pay fixation and then downgrade your status to boot and to deal a body blow they pack you off and send you home at 54 yrs age!

    When will we faujis stand up and protest against such perfidious acts of boos?

    ReplyDelete
  6. the issue has been adjudicated at highest level of judiciary as per the constitution of INDIA.implementation of the judgment is binding on GOI.non-implementation is a violation of law and are liable for action,
    evasion and delay by GOI is glaringly visible.
    who are these people involved in violation?????? some individuals representing GOI.THIS EVASION OF LEGITIMATE DUES TO DEFENSE SERVICES (who protected and defended the Nation),OF SOME FEW HUNDRED CRORES IN THE LIGHT OF PRESENT AND PAST LOOT OF WEALTH OF NATION AMOUNTING TO OVER A TRILLION RS BY THESE PEOPLE IS A SMALL SUM THAT DOES NOT AND CANNOT JUSTIFY THESE DELAYS.
    AT THIS STAGE EVERY ONE KNOWS THAT DEFENSE FORCES IS PART OF GOVT.THEREFORE THIS WING OF GOVT SHOULD ACT UPON AND RESTORE AND UPHOLD THE CONSTITUTION,
    publicity,projecting,parsuation through the channels -Govt,President of India,MPs,MLAs,LEGISLATURES and PARLIAMENT,media both electronic and print.....etc ;enough has been done and we can keep on doing till eternity-beyond life span of many.
    FINALLY NO MORE OF THESE BUT ACTION TO RESTORE CONSTITUTION OF INDIA AND UPHOLD THE NATION AND NATIONAL INTERESTS. JAI HIND

    ReplyDelete
  7. this is a trivial issue.after all few hundreds/thousands of crores of Rs only. where is the problem??; when there are several lakhs of crores of Rs of our money in Swiss banks and much more with our rajas (political ,civil servants and business tycoons). in fact our rank pay has been siphoned by these culprits.
    SO IT IS SO SIMPLE-SOLUTION IS GET IT - GO AND GET IT AND ALSO PROTECT THIS NATION FROM THESE CHEATS AND BANDITS.

    ReplyDelete
  8. the core and fundamental issue is pay fixing done by all those involved in that act.it is worse than match fixing in sports& games ,particularly in cricket and other fixing acts in the country.
    THE FUNDAMENTAL RULE AND PRINCIPLE OF INTEGRATED PAY SCALE , THAT INTEGRATED PAY IS PROPORTIONAL TO LENGTH OF SERVICE FOR ALL OFFICERS UP TO RANK OF BRIG HAS BEEN SHAMELESSLY ABUSED AND VIOLATED BY THOSE WHO DESIGNED AND DEVISED THE FIXATION FORMULA AND PRINTED IN THAT SAI 1987. THAT SHARMA JI WHO WAS IN THAT GROUP CALLED PC CELL WAS THE ARCHITECT AND DESIGNER . HE WAS EVEN BOASTING OF HIS GREAT SKILL OF ADMINISTRATIVE ACTION TO ENSURE THAT A JUNIOR RK OFFICER WITH 30 YRS OF SVC GOT LESS INTEGRATED PAY THAN AN OFFICER OF HIGHER RK WITH 15 YRS OF SVC.THAT WAS THE GENESIS OF THE PROBLEM CREATED/ABETTED BY AG BR.MANUMENTAL -HIMALAYAN BLUNDER AND CRIME.THE RESULT IS GENERATIONS ARE ADVERSELY EFFECTED. THAT SHARMA JI RETIRED AS ARMY CDR.THAT BLUNDER COULD NOT BE RECTIFIED OR CORRECTED BY SO MUCH OF STRUGGLE ,SACRIFICES AND EFFORT.
    ALL THOSE WHO WERE RESPONSIBLE FOR THAT BLUNDER ARE LIVING AND AROUND US.WHAT A IRONY ?.

    ReplyDelete
  9. Where is the additional affidavit filed by UOI in April 2011? I am unable to down load the same.

    I thought even the question of review/recall of the judgement of one Supreme court bench by another bench of the same court has not been resolved yet. Honourable Justice Katju and his colleague referred the issue to be heard by another bench because the Senior Govt Council had made some disparaging remarks about the bench and cited bias forcing the bench to refer the matter to CJI to refer the matter to be heard by another bench of Supreme Court. In the affidavit filed before the second bench during last year, Union of India maintained following grounds for recall of Judgement of the earlier bench which,to me, appeared to be flimsy.

    A. Financial effects of implementation on the verdict are huge.(In excess of Rs 1600 crores).(A man cheats you your legitimate dues but when got caught,pleads before the court that the amount to be returned is too huge)

    B. The transfer of all writ petitions pending at other courts not completed.

    C.Interpretation of the Kerala court that integrated pay scale (suggested by IV Pay Commission) includes the the rank pay element is wrong.

    Therefore, the new Bench has to decide first whether a review of the Judgement of another bench is permissible under the above flimsy grounds. Normally, reviews are not permitted unless constitutional issues, fundamental rights,violation of principles of natural justice etc are involved. This is to prevent every party that lost its case in Supreme court to conveniently challenge the judgement on the basis of bias and mis-carriage and ask for review by another bench.

    There is a verdict by a Constitutional bench on this important aspect of review. Perhaps, members with legal background, conversant with constitutional provisions of law may perhaps explain the grounds under which such reviews are permitted. The feed back provided by RDOA on the proceedings of the new bench does not explain these important aspects unless these had been disposed off in the last hearing.Can RDOA provide further information and explain? I may be wrong in my above appreciation.

    I have an additional comment about the remarks endorsed by Major Dhanabalan on the points mentioned in the additional Affidavit. While I agree with those points mentioned by him on comparison of civilians with Servicemen, I find that an important aspect in such a comparison is being omitted. The principle of integrated pay scales for Civilians is firmly based on the Last drawn pay of the Retiree.

    IV Pay Commission introduced the same concept to Servicemen in introducing integrated pay scales. But there is a major and vital difference that had not been brought to the notice of courts. Last drawn pay is not purely determined by the new integrated pay scales alone. The last drawn pay is also decided by other determinants like the promotion prospects, longevity of career and nature of career profile in addition to the pay scale decided by pay commission. But,we can easily show that these important determinants(Career profile, length of normal service etc) are quite different for Civilians as compared to those pertaining to Servicemen (truncated career, lack of higher vacancies forced by a Command Structure etc). Therefore, the Court asking for comparison with Civilian Pay Scales is basically misconceived. It is like comparing Apples with Oranges because both are edible fruits.

    S.Murugan

    ReplyDelete
  10. Subject: Affidavit by goi in Sc

    Dear All,

    Three common stages involved in fourth fifth and sixth cpc are as follows.

    1. Pay commission sibmits its report.

    2. The government of India under a resolution either accept or reject clauses of report

    3. The above is duly notified in Gazette of India which is a statutory order.

    4 After the gazette notification the government issues administrative instruction(order) Only those recommendations which are accepted by the government should form part of government order. The MOD issues seperate orders for defnce forces

    5 Unfortunately it is found that the recommendation of successive pay commissions are diluted or tinkered with and whimsical decisions are taken. For instances

    (a)Fourth cpc recommended rank pay to defence officers much to the disliking of civil counter parts. They came out with a totally whimsiical order that the rank payi is to be deducted from the pay fixed.

    (b) Same thing continued in fifth cpc This resulted in officers in para military officers ( Non functional slection group) who were hitherto drawing less pay than Major drawing more pay.

    When this point was brought to the notice a high level committee was formed and the mistake was corrected and the minimum pay of substantive major was raised to Rs 13125 from 12800,but whimsically instead of 1-1-96 it took effect from 29-2-2000. While the subject matter of
    the letter states REDUCTION OF ANOMALY OF FIFTH PAY COMMISSION the effecive date whimsically was decided as 29-2-2000 instead of 1-1-96 Had this along with rank pay was given to Major they would have certainly fitted in PB4

    (c) In sixth cpc as per government affidavit the minimum of pay of major is shown as Rs 37020 but as per NI 2S/08 it is Rs 36210.

    (d) Sixth cpc the minimum of pay in pay band was tinkered with abd changed to minimum of pay band.

    6. It is not the governemnt by Babus wo out of sheer jealous feeling tinkered with the gazette notification fully knowing that

    (a) Minister has no time to notice above

    (b) Defence officers are too weak financially to bear the cost of litigation

    Regards

    Lt cdr Avtar Singh
    avtarsingh119@hotmail.com
    1-5-2011

    ReplyDelete
  11. very good analysis with the facts highlighted.one very important and very relevant point is over looked -
    a. the rks of officers of past are to be
    read/equated with present rks , with abolition of 2/Lt rk and and
    re-designation of rks of appts
    company commander and unit cdr. , namely- former Lt Col to Col,
    Maj to Lt Col,Capt to Maj,Lt to Capt.

    b. these changes have been introduced since 1980.
    if these are not suitably modified/equated, there will be another monumental blunder and grave injustice to past pensioners. as it appears AHQ and these veteran org are simply overlooking this as they are not personally effected i only hope these people at the forefront of the movement take notice and accordingly incorporate in their OROP presentations , re-presentations and agitations.
    i request all those who read this to express this in various forums.

    ReplyDelete
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  13. I chose not to live in India anymore- no real wonder why. This has to be the only known case where a democraticatic government turned against its own military, denying them their legit dues. Shame on the Government!
    So, t was April/May 2011 when the Union of India filed the affidavit. It is March 2012 now. Is there something happening in the Supreme Court at this time with regards to the affidavit review, or is the apex court too allowing the matter to slide?
    Appreciate some quick feedback.

    Madhu Lall

    ReplyDelete
  14. Solicitor General is not available and the UoI/MoD insists that only the SG is authorised to argue. So, on 27th March 2012, the next hearing is scheduled 3 weeks thence i.e. some time third week of April 2012 - For Final Disposal.

    ReplyDelete
  15. Sir,
    I was promoted as Captain (RCO) on 31 Aug 1990 and transfer to pension est on 31 May 1995 in the rank of Substantive Captain (RCO). Am I eligible for service increment Rs. 300/- p.m. if so I have earned 3 increments but pension was sanctioned @ Rs. 1700/-p.m. and revised wef 01 Jan 1996 @ Rs. 5116/- p.m. as per GOI, MoD letter dt 24 Nov 1997. I have a doubt that my pension should have been revised Rs. 9600+3 increment Rs. 900 + Rank Pay Rs. 400 = Rs. 10900/- p.m.X 50% = Rs. 5450/- pension arrived per month whereas, my pension wef 01 Jan 1996 is fixed taking into account only Basic Pay Rs. 9600 + RP Rs. 400 = Rs. 10,000/- X 50% = Rs. 5000/- p.m. only. Please advice me correct entitlement of pension.

    Thanking you,

    ReplyDelete
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