Friday, February 22, 2013

A White Paper on Rank Pay Case of Defence officers-Part I

Human beings are members of a whole
In creation of essence and soul
If one member is afflicted with pain
Other members uneasy will remain
If you have no sympathy for human pain
The name of human you cannot retain


(Inscribed on the entrance to the UN Hall of Nations)  

A comprehensive and a detailed write up (deserves a sincere appreciation from one and all) on the Rank Pay Case in which the legitimate dues of the entire lot of defence services officers entitled to Rank Pay, introduced by the 4th Central Pay Commission with effect from 1.1.1986, were denied the same, deliberately or through a mischief perpetrated upon by those in authority. 

After a long drawn out legal battle fought in the Apex Court a judgement against the Government of India was passed. Even then, for implementation, the Government has failed to honour the Supreme Court Judgement truly in letter and spirit and has introduced either deliberately or as another round of mischief some anomalies to deny benefits in the true sense. 

The delay caused is of over 26 years now, but the interest of 6% on the amount of arrears has been allowed by the Supreme Court, only from 1.1.2006, thus the Government has remained richer on this account also. Just imagine and compare the worth of Rs 1000 of 1986 to Rs 1000 of 2013. Defence services officers thus are net losers, in not getting their legitimate rank pay when it was so vitally needed and getting just a paltry sum now in old age, especially after spending lakhs in legal battles for nearly 20 years.
By Air Mshl Sharad Yeshwant Savur, PVSM, AVSM (retd)
Ex AOC-in-C, SAC    

1. In 1987 the Rajiv Gandhi Govt approved the recommendations of the 4th Central Pay Commission for payment of an additional amount designated as Rank Pay to all officers of the Army in the ranks of Captains, Major, Lieutenant Colonels, Colonels and Brigadiers and their equivalents in the Navy and Air Force. This Rank Pay was to be paid over and above what was recommended to be paid to Civilian officers of the Central Government. 

2. The methodology for pay fixation of civilian officers was made vide Gazette of India notification No. SRO 12E dated 13th September 1986 and for the Armed Forces vide Para 28 of Resolution 9E dated 18th March 1987. 

3. A weekly magazine, The Week (issue dated 23rd September 2012, page 28) quotes Maj Dhanapalan, who proved that the UoI & Others wrong in what is now known as Rank Pay Issue, as saying “The government paid arrears only till 1996. I decided not to contest it, as by then RDOA took up the fight,” and The Week continues somewhat presciently ‘There are fears the government might give arrears only till 1996 to others too.’ This brings to the forefront whether, and if so how and why Concerned Ministries of the Government of India are playing with fire by tweaking the orders of the Honourable Supreme Court dated 4th September 2012. 

The Problem 

4. Ministry of Defence, Government of India, while translating the approval into execution, made a change vide Para 6 (a) (ii) of the Special Army Instructions 1/S/1987, and those of the Navy and Air Force. In that sub-sub-para, the MoD ordered a different pay fixation for Armed Forces officers which was not the same as for civilian officers despite the explicit orders of the Govt of India. By this order, Pay disbursing authorities arrived, by a convoluted process, at a revised scale for Armed Forces officers by :-

      (a)     Adding Basic Pay, DA, Additional DA, Ad hoc DA etc as on
31.12.1985 + 20% of the sum,  

      (b)    Deducting an amount equivalent to the relevant rank pay from
the above amount, 

       (c)    Stepping up this reduced amount to the next stage, and  

       (d)    Adding the Rank Pay.
For example, revised emoluments of a civilian officer drawing Rs 1300 all told on 31.12.1985 was fixed at Rs 3300 on 1.1.1986 but the Armed Forces officer’s revised emoluments became Rs 3300 – 200 (Rank Pay) = Rs 3100 + 200 Rank Pay instead of Rs 3300 + 200 Rank Pay.                           

Proof the Problem Exists

5. Major A.K. Dhanapalan (since retired) filed an Original Petition (OP) No. 2448 of 1996 N in the High Court of Kerala at Ernakulam. The respondents were (1) Union of India (UoI/MoD through Secretary in the Ministry of Defence), (2) Chief of the Army Staff (COAS), and (3) the Controller of Defence Accounts (Officers) at Pune, (CDA(O), the pay disbursing agency represented by Shri Mathew J.Nedumpara, the ACGSC. Maj Dhanapalan was represented by Advocate Shri S.N. Sugunapalan.

6. A Single Judge heard the OP on 5th October 1998 and observed (Please see pages 2 and 3 of the judgment):- 

“Rank Pay is defined as pay admissible to an officer appropriate to the rank actually held, either in acting or substantive capacity, in addition to the pay in the revised scale.” ………………… 

“It has not been explained in the counter affidavit as to why Rs 200/- was deducted from the total emoluments of the petitioner…..I see no reason to deduct the amount from the pay of the petitioner. The respondents were requested to file any additional affidavit or bring forward some materials to explain why the deduction was made. But the above additional counter affidavit does not contain any new materials or statement which will support the earlier stand of the respondents. 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 the 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.”

7. The Single Judge then ordered “respondents 2 and 3 are directed to re-fix the pay of the petitioner with effect from 1.1.1986 without deducting the rank pay…”

8. UoI, COAS, and CDA (O), now the appellants, filed a Writ Appeal (WA) No. 518 of 1999 (B) which was heard by a Division Bench of the High Court of Kerala at Ernakulam. Learned Advocate Sri Mathews J Nedumpara ACGSC represented UoI & Ors, the petitioner, and Maj Dhanapalan, now the respondent, was represented by Advocate Sri Sugunapalan. The appeal was heard and the Division Bench passed its judgment on 4th July 2003.

9. The Division Bench observed in its judgment written by Justice Abdul Gafoor J as follows:-

(a) Para 2 “When the writ appeal came up for admission, a Division Bench of this Court, because  of an apparent conflict between the body of the order and the illustration, directed the appellants to file an additional affidavit.”

(b) Para 3 “It is an admitted cases, even in the additional affidavit, that the Army officers are entitled to rank pay. Para 28.13.of the Pay Commission Report, as quoted in the affidavit, reads as follows: 

28.13. We also recommend that in addition to pay in the above integrated scale, the following rank pays may be given to officers in the Army and their equivalents in the other services…” 
Thus, rank pay, is in addition to the pay that (the officer) was getting. This recommendation has been accepted and the Government issued orders as quoted in (the) additional affidavit as follows:

(b) Rank Pay -  In addition to pay in the integrated scale, the following rank pays may be given to officers in the Army and their equivalent in the other services.

Thus, the rank pay as per the order accepting pay revision is in addition to the existing pay.

(c) Para 4. While formulating the principles for pay fixation in case of those who are enjoying special pay, that element also has been directed to be reckoned for the purposes of pay fixation. In case of Army Officers, it was ordered as follows:-

In Chapter 30, we have recommended the method of fixation of pay in proposed scales for civilian employees, we recommend the same method may be adopted for fixation of pay of armed force personnel, also. Since rank pay is a separate element for officers upto the rank of Brigadier and equivalent, the same may be taken into account, while fixing pay in the integrated scale of pay recommended by us.

Thus it is clear that for Civilian officers, there is no rank pay. But for Army officers, there is rank pay admittedly as mentioned above. Necessarily, when the principles as mentioned above applies to Army officers, the rank pay shall also be added to substantive pay. That is what has been directed in the impugned judgment. Therefore, there is no merit in this appeal. The appeal fails: dismissed.

10. Dissatisfied with the order of the Division Bench of the Kerala High Court, UoI & Others filed a Special Leave to Appeal (Civil) CC 5908 of 2005 in the Hon’ble Supreme Court of India. The petitioners (UoI & Ors) were represented by the learned Additional Solicitor General of India and Advocates on Record.

11. The order of the Hon’ble Supreme Court dated 12th July 2005 was to the point, “We do not find any justifiable explanation for the delay of leave petition. The special leave petition is, therefore, dismissed.”            

12. UoI  i.e  MoD confirmed vide Para 3 of GoI/MoD letter No.34

(6) 2012 – D (Pay/Services) dated 27th December 2012 (hereinafter referred to as GoI/MoD letter of 27.12.2012) paid Maj Dhanapalan the arrears but showed its annoyance with other similarly placed officers who appealed to the MoD for payment of arrears of Rank pay in the light of these Court orders and consequent action by MoD.   

13. Then many affected officers approached different High Courts for justice. UoI, represented by the learned Additional Solicitor General, requested the Hon’ble Supreme Court for transfer of all these Writ Petitions to the Apex Court and thus Transfer Petition (Civil) No. 56 of 2007 was heard by a Bench of the Apex Court.

14. On 8th March 2010, the Bench stated in its order: - 
The prayer in these Writ Petitions under Article 32 of the Constitution is for grant of benefits awarded by a learned Single Judge of the Kerala High Court vide his judgment dated 5.10.1998 in OP 2448/1996 which has been affirmed by the Division Bench of the High Court in Writ Appeal No. 518/1999 by judgment dated 4.7.2003. 

We have carefully perused the judgment dated 5.10.1998 of the learned Single Judge as well as the judgment dated 4.7.2003 of the Division Bench of the High Court of Kerala and we respectfully agree with the reasoning given therein for grant of rank pay retrospectively from 1.1.1986. We also direct interest to be paid thereon at 6% p.a. Accordingly, these writ petitions as well as the transferred petitions are allowed.

15. It would be interesting to note that the National Litigation Policy Document released by Ministry of Law and Justice of the Govt of India on 23rd June 2010 states in Part V – Filing of Appeals as under:-

“H)   Appeals will not be filed in the Supreme Court unless:  

a)     the case involves a question of law; 
b)     If it is a question of fact, the conclusion of the fact is so
perverse that an honest judicial opinion could not have arrived at that conclusion;

c)     Where public finances are adversely affected;

       d)    Where there is substantial interference with public

e)     Where there is a question of law arising under the
f)     Where the High Court has exceeded its

g)     Where the High Court has struck down a statutory provision as

h)     Where the interpretation of the High Court is plainly

i)     In each case, there will be a proper certification of the need
to file an appeal. Such certification will contain brief but
cogent reasons in support. At the same time, reasons will also
be recorded as to why it was not considered fit or proper to file an appeal.

16. Notwithstanding National Litigation Policy and the fact that it had erred ab initio in including the impugned Para 6 (a) (ii) in the Special Army/Navy/Air Force Instructions 1/S/1987, UoI/MoD utilized the services of no less a legal luminary than the learned Solicitor General of India to settle an Interlocutory Application No. 9 of 2010 in TP (C) 56 of 2007. It read as follows: - 


It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may be pleased to pass the following orders:- 

         (a)    Recall the order dated 8th March 2010;. 

         (b)    Upon notice, re-hear all the cases on merits; 

         (c)    Admit Writ petition Nos. ......................................,
   grant rule nisi and hear them finally;

(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;

(e)    Pending further orders on the application grant an ad interim stay   of the order dated 8th March 2010;

(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.

            Filed by: 

                  Advocate for the petitioner 

            Settled By: 

            Sh Gopal Subramanium

            Solicitor General

17. Perhaps to buttress its case further that “Public finances are adversely affected” and to avoid paying the similarly placed officers their legitimate arrears with interest, the UoI filed an additional affidavit. The deponent on behalf of UoI/MoD and MoF, solemnly affirmed as follows:-

“Paragraph 30. In these circumstances it is most respectfully submitted that Government of India is fully concerned with the grievances of the armed forces personnel however the order dated 8-3-2010 passed by this Hon’ble Court if implemented would lead to the following practical difficulties: 

(a) In the present matter, implementing the Hon’ble Court order dated 8-3-2010 would mean re-fixation of pay 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 w.e.f. 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 revision of pension of the retired personnel. Any changes at one place will inevitably have impact on horizontal and vertical parities thereby changing the overall pay structure by the 4th CPC.

(b) Grant of this unintended benefit would place a heavy burden on exchequer. Para 9 and 10 of the Report (emphasis by deponent) of the High Powered Committee constituted to assess the financial impact is reproduced below for ready reference: -

“9. Apart from the enormous financial implications, actual implementation of the Hon’ble Court’s order would involve the following stages: -

* Revision of pay of officers on 1.1.1986, 1.1.1996, and 1.1.2006 with simultaneous revision of all pay linked allowances/benefits. Enormous efforts are required to extract data from all backed up resources, including information relating to promotion, annual increment,  stagnation increment, details of forfeiture, admissibility, discontinuation of relevant allowances, calculation of Income tax and apportioning the same over the years;

* Calculation of DA on slab basis from 1.1.1986 to 31.12.1995 is
time consuming;
* Revision of retirement benefits (gratuity, leave encashment) of officers retiring after 1.1.1986;

* Revision of pension on 1.1.1986, 1.1.1996 and 1.1.2006; 

* In several cases, family pensions would have to be revised on the basis of revised pay/pension of the officer; 

* In some cases, payments may have to be made to legal heirs of the deceased retired officers; and 

* Interest at the rate of 6% per annum for upto 24 years in each case will have to be calculated and paid.

This would be a protracted exercise taking a lot of time and involving huge manpower as each case will have to be examined/calculated individually

10. Financial implications of around 1623.71 crores arising out of implementation of the Hon’ble Hon’ble Supreme Court   order dated 8-3-2010 would create a substantial impact on the public exchequer. This impact in only one time. In addition, it would also lead to enhanced recurring expenditure from Consolidated Fund of India. It would further nullify the recommendation of the Pay Commission as well as the decision of the Government thereon. The Committee, therefore, is of the view that the financial implications and above facts and in the present matter may be submitted to the Hon’ble Supreme Court   for considerations.” 

17. The High Powered Committee comprised the Defence Secretary, Secretary (Expenditure) in the Ministry of Finance and the Secretary (Defence/Finance) and reportedly arrived at the implication and financial aspects in a record 4 days. However, at no stage did UoI file a Review Petition in OP 2448 of 1996, WA 518 of 1999 or SLP (CC) 5908 of 2005 nor does the affidavit state why it was considered fit to pay arrears to Maj Dhanapalan and why UoI was now demurring. 

18. There were many hearings, a few of which were adjourned (when it was pointed out on 5th May 2011 by the respondent’s advocates that the SG was not available for the previous 4 or 5 hearing) as advocates of UoI insisted that only the Solicitor General will represent the UoI despite Justice Katju (now retired) admonishing the SG on 18th October 2010 for seeking unnecessary extension of time limit. Finally, a Three Judge Bench of the Hon’ble Supreme Court ordered on 4th September 2012 as follows: - 
I.A. No. 9 in T.P. (C) No. 56 of 2007:

We have heard Mr. R.F. Nariman, learned Solicitor – General of India and Mr. Mahabir Singh, learned senior counsel for the respondents.

2.    On thoughtful consideration of the entire matter, we are satisfied that the order dated March 8, 2010 does not require any modification or variation, save and except the interest part.

3.    As regards interest, on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Major A.K. Dhanapalan was dismissed by this Court in August, 2005 and the Kerala High Court had not ordered payment of interest on the arrears of pay, we direct that the interest shall be paid by the petitioners to the respondents @ 6% p.a. from January 1, 2006 instead of January 1, 1986. It is clarified  that  this  order  shall govern  all  similarly  situated officers who have not approached the court and  also  those  who  have filed  Writ  Petitions  which  are   pending   before   various   High Courts/Armed Forces Tribunal.

4.    We record and accept the statement of the learned Solicitor General that arrears of pay with interest, as directed above, shall be paid to the concerned officers expeditiously and positively within twelve weeks from today (emphasis by author).

5.     I.A. No. 9 of 2010 stands disposed of accordingly. 

W.P. (C) Nos. 268/2010, 192/2012, and I.A. No. 1 of 2011 in W.P.(C)34/2009 and T.C. (C) Nos. 11/2010, 14-19/2010, 31/2010,32/2010, 33/2010 and 35/2010:

The above matters and pending I.As therein, if any, stand disposed of in terms of the above order passed in I.A. No. 9 of 2010 in T.P. (C) No. 56 of 2007. 

19. The Hon’ble Supreme Court directed that the order shall govern all similarly situated officers irrespective of whether they have not approached the Courts or their petitions are pending in various High Courts/Armed Forces Tribunals.

20. Though the Hon’ble Supreme Court also directed completion of payment of arrears with interest with 12 weeks of the order dated 4th September 2012, the fact MoD was not going to heed the orders of the Supreme Court became evident when on the last day of the 12 weeks period granted for completion of payment of arrears and interest, the MoD issued  a letter dated 26th November 2012  that stated, inter alia “Govt of India has decided to re-fix the pay without deducting rank pay w.e.f 1.1.1986.” Ministry of Finance (Dept of Expenditure), Def  (Fin) and MoD, hereinafter referred to as concerned Ministries, conveyed an impression of not worried at being cited for contempt of Court and the orders of the Hon’ble Supreme Court, based on the statement of the Solicitor General had no sanctity, let alone legal importance for it.
Additional Problems 

21. A month later i.e. 27th December 2012, the MoD, with concurrence of the Ministry of Finance (Dept of Expenditure) and Def/Fin, converted that intention pretty by issuing an order to PCDA (O), Naval Pay Office and Air Force Central Accounts Office to pay only those officers who were eligible for Rank Pay “as on 1.1.1986” (para 6) and not as ordered by the Hon’ble Supreme Court of 8th March 2010 and confirmed by its order dated 4th September 2012 in IA No. 9 of 2010 in TP (C) 56 of 2007 “retrospectively from 1.1.1986.”   

22. By confining the implementation of the order of the Supreme Court as interpreted by the concerned Ministries have made an overt attempt at subverting not only what it expressed in the affidavits and counter-affidavits filed in the High Court of Kerala and the Supreme Court but also confirmed that either the contents of the additional affidavit are false or it intends to ignore them.

23. To an intelligent and sane observer it is clear that Maj Dhanapalan’s case concluded when The Hon’ble Supreme Court dismissed UoI & Ors Special Leave to Appeal in 2005. Maj Dhanapalan’s was paid arrears till the date of his retirement in 1996.  He was not a litigant in IA No.9 of 2010 or TP (C) 56 of 2007 and related cases. 

24. The facts of IA No. 9 of 2010 in TP (C) 56 of 2007, the assumed interpretation by concerned Ministries based on the GoI/MoD letter dated 27.12.2012, and an Intelligent Assessment are given below: - 

(a) Fact Number 1: -  Writ Petition (C) 96 of 2009 (Sunil Kumar & Ors vs. UoI) with TP (C) 56 of 2007 (UoI vs N.K.Nair & Ors) with WP (C) 34 of 2009 (K.K.Rohatgi & Ors vs. UoI) was decided on 8th of March 2010 by the Hon’ble Supreme Court alongwith WP Nos.11056 of 2006, 11128 of 2006, 10810 of 2006, 13508 of 2006, 13497of 2006 and 18176 of 2006 pending before the High Court of Kerala, Writ Petition No. 13904 of 2006 pending before the High Court of Andhra Pradesh and Writ Petition Nos. 1935 of 2006, 1934 of 2006, 1957 of 2006 and 47909 of 2006 pending before the High Court of    Allahabad were directed to be transferred to the Hon’ble Supreme Court and were taken on Board.

Concerned Ministries’ Decision: - By repeatedly citing Maj Dhanapalan’s case, it is clouding the issue of IA No. 9 of 2010 in TP (C) 56 of 2007 where the litigants were N.K. Nair and others (for brevity all names are not mentioned here but can be found in the orders of the Hon’ble Supreme Court dated 8.3.2010 and 4.9.2012).

Intelligent Assessment: - Period and amount paid to Maj Dhanapalan cannot be the determining factors for other similarly situated officers, for example: Amount paid to one litigant in an accident claim cases cannot be the same as the amount of compensation to different claimants.

Maj Dhanapalan decided not to contest the amount paid but he had retired in February 1996.
All the Writ Petitions in TP (C) 56 of 2007 were filed in 2006 or thereafter. Those claimants may have served longer and through the 4th, 5th and 6th CPC tenures. Their losses due to the incorrect, and now impugned, deduction of Rank Pay in fixation may result in higher compensation amounts. 

Therefore, making a retrospective case as the example to determine payment is nothing but tweaking the orders of the Hon’ble Supreme Court 

(b) Fact Number 2: - The Hon’ble Supreme Court in its order of 8.3.2010 stated: -

“The prayer in these writ petitions under Article 32 of the Constitution is for grant of benefits awarded by a learned Single Judge of the Kerala High Court vide his judgment dated 5.10.1998 in O.P. 2448/1996 which has been affirmed by the Division Bench of the High Court in Writ Appeal No. 518/1999 by judgment dated 4.7.2003.

We have carefully  perused  the judgment dated 5.10.1998 of the learned Single Judge as well as judgment dated 4.7.2003 of the Division Bench of the High Court of Kerala and we respectfully agree with the reasoning given therein for grant of rank pay   retrospectively from  1.1.1986. We also direct interest to be paid thereon at 6% p.a. Accordingly, these writ petitions as well as the transferred writ petitions are allowed (emphasis in original on the Hon’ble Supreme Court’s website).

This was affirmed by the Hon’ble Supreme Court on 4.9.2012 with just one change – the date of commencement of payment of interest on arrears would be 1.1.2006.

Concerned Ministries’ decision: - UoI had to make the payment to the Armed Forces officers by the order of the Hon’ble Supreme Court over-turning the MoD procedure laid down the impugned para 6 

(a) Iii) of the SAI 1/S/1987. Concerned ministries decided to invoke the judgment of the Kerala in OP 2448 of 1996 and WA 518 of 1999, ignoring the order of the Hon’ble Supreme Court in IA No. 9 of 2010 with TP (C) 56 of 2007.

This makes it possible for the Govt to pay only for the period that Maj Dhanapalan was paid i.e. 1.1.986 to 31.12.1995. This is proved by the use of the words “as on 1.1.1986” in the GoI/MoD letter dated 27.12.2012 instead of the words used in the order of 8.3.2010 i.e. “retrospectively from 1.1.1986” in utter disregard of the Hon’ble Supreme Court.

Intelligent Assessment: - Maj Dhanapalan served during the tenure of the 4th CPC i.e. 1.1.1986 to 31.12.1995 and till his retirement in February 1996 i.e before approval of the 5th CPC Report. The Court gave a figure of Rs 200 applicable to the rank of captain in its example as he contested the Rank Pay of his rank as on 1.1.1986. 

All the Writ Petitions taken on board by the Hon’ble Supreme Court are of year 2006 i.e. encompassing the 4th, 5th and 6th CPC.

Therefore by citing Maj Dhanapalan’s case, it allows concerned Ministries to follow up with restrictions imposed by the Govt letter dated 27.12.12, by confining the amount to be paid for a period determined by it, again in utter disregard of the order of the Hon’ble Supreme Court dated 4.9.2010 in IA No. 9 of 2010 in TP (C) 56 of 2007. 

(c) Fact Number 3: - The impugned deduction of Rank pay from the fitment in the transition from 3rd CPC to 4th CPC on 1.1.1986 ensured that Armed Forces officers pay scales would remain confined within the integrated pay scales of Rs 2300 to Rs 6150. Restoration of Rank Pay and fixation without the impugned deduction would require a revision in the integrated pay scale.

Concerned Ministries’ Decision: - By stating in its order dated 27.12.2012 that there would be no change in the Special Instructions of 1987 except where necessary for re-fixation, it is clear that addition of Rank Pay will be confined within the integrated scale of pay i.e. many Brigadiers will exceed the pay scale and hence the Rank Pay would be deducted to keep them within the confines of the integrated pay scale. 

Intelligent Assessment: - Concerned Ministries have arrogated to themselves the liberty to infer, as it did in inserting the impugned para 6 9a) (ii) in SAI 1/S/1987, that every other similarly situated officer must be paid Rank Pay only for the rank as on 1.1.1986 and till 31.12.1995 and not any higher Rank pay if he/she is promoted after 1.1.1986.

(d) Fact Number 4: -  The Hon’ble Supreme Court held that the Kerala High Court’s judgment that deduction of rank pay was wrong. The order did not confine the restoration and re-fixation only to the period applicable to the precedent case i.e. OP 2448 of 1996, WA 518 of 1999.

UoI made it clear in its additional affidavit that compliance with the Hon’ble Supreme Court’s order of 8.3.2010 would entail “unintended benefit” and a re-fixation of pay and allowances on 1.1.1986, 1.1.1996, and 1.1.2006. 
It had filed the additional affidavit quoting a High Powered Committee (of Defence Secretary, Secretary (Expenditure) and Secretary (Finance/Defence) on the financial implications of the Apex Court’s order of 8.3.2010 and its impact of more than Rs 1623 crores to the Public Exchequer. 

Concerned Ministries’ Decision: - By not amending the Special Instructions of 1997, the practice of deducting Rank pay from revised emoluments before re-fixing pay will continue despite the order of the Hon’ble Supreme Court regarding Rank Pay dated 4th September 2012, and will ensure that the impugned deduction will continue or it will invite more litigation that UoI will bear with no extra personal expense that individual litigants will have to bear, as they have done in Writ Petitions, TP

(C) 56 of 2007 and IA No. 9 of 2010 in TP (C) 56 of 2007. 

Intelligent Assessment: - The contents of the solemnly affirmed additional affidavit under oath either was just a diversionary tactic or, more seriously, a blatant falsehood to impress up on the Hon’ble Supreme Court, that the financial impact of implementation of its order of 8.3.2010 would render India bankrupt.

To make a show that it was complying with the National Litigation Policy, concerned Ministries utilised the services of the Solicitor General in settling IA No 9 of 2010 and also stated in the additional affidavit that a High Powered Committee had determined that public funds would be adversely affected.

The Basic & Long Term Solution to Matters Concerning Handling Armed Forces 

24. I strongly recommend the following measures for the concerned Ministries: - 

(a)  An introspection whether they deal with the same callousness and cold-hearted manner of cases of their own ilk,

(b) An initial capsule and annual refreshers in sensitisation of the concerned ministries that deal with Armed Forces personnel – both serving and retired,

(c) Seek unbiased advice on the strength of a case rather then mechanically, an like a bad habit that they cannot get rid of,  launch into Writ Appeals, Special Leave Petitions, Review Petitions challenging every decision of Armed Forces Tribunals, High Courts and even the Supreme Court

(d) Read their files on the processes that preceded approvals of the Reports of the 4th and 5th Central Pay Commissions to understand what was proposed and what was approved. 

(e) An open house discussion with participation of the Armed Forces on each of the aspects where there is divergent opinion so as to understand each side’s opinions and apprehensions better so that an amicable solution is arrived at “in house.”

The Solution for the Rank Pay Matter 

25. One things would be clear, even to the most obdurate and least intelligent of human beings. Concerned Ministries, by  holding the sword of misinterpretation and shield of recourse to unlimited and free (from personal expenditure) legal representation, are only delaying giving Armed Forces officers what was approved by the Govt of India. It could only be veniality and not lack of sanity in the Concerned Ministries not to recognise the truth not only in OP 2448/1996, WA 518/1999, and SLP (CC) 5908/2005 in the case of Maj Dhanapalan, but also in the several Writ Petitions in different High Courts and Interlocutory Application as well as IA No. 9 of 2010 in the Transfer Petition (C) 56 of 2007 recorded in the orders of the Hon’ble Supreme Court. Concerned Ministries tried to make its case in the High Court of Kerala which found them to be wrong and the judgement upheld that a sole litigant was right and the might of the UoI was not. This judgment was confirmed by the Hon’ble Supreme Court in 2010 and again in 2012.    

26. The matter assumes serious dimensions because it has been heard over a period of 16 years by a Single Judge and a Division Bench of the Kerala High Court and three Benches of the Hon’ble Supreme Court. It now appears that the orders of the Hon’ble Supreme Court are being circumvented, if not covertly flouted, to deny similarly situated officers of their legitimate dues. If this happens with the orders of highest Court of India in a case that has drawn national attention, it could happen to any case being dealt with by the combined might of the concerned Ministries. 2500 cases decided by the Armed Forces Tribunals awaiting implementation of orders is more proof, if any was needed. 
27. I recommend the Concerned Ministries to think over and let the words of Sa’adi permeate their dormant consciences on the following: -

(a) The decision of the Court is applicable to all officers irrespective of the fact whether the officer had approached the courts or not. The provisions of these orders will, therefore, also be applicable to all officers.

(b) The pay of all officers who were in service on 01 Jan 1986 or joined thereafter is to be fixed again as per the pay scales given in these orders. The interest at the rate of 6% per annum on the arrears thus calculated is to be paid w.e. f. 01 Jan 2006 till the date of payment of arrears. 

(c) All officers whose pay is revised consequent to these orders, will be entitled to avail of the option regarding the date of change to the revised pay scales/structure as was available to them when the pre-revised pay scales had come into force wef 01 Jan 86, 01 Jan 96 or 01 Jan 2006 as the case may be.

(d) The option available on promotion to change over to the next higher pay scale from a date subsequent to the date of promotion can also be exercised again by affected officers. 

(e) In case no option is given by the officer in the stipulated time as stated above, pay disbursing authorities of the Army, Navy and Air Force will fix the pay in a manner as is most beneficial to the officer.

(f) Fresh Last Pay Certificate and PPO revising the pension will be issued for all similarly situated officers who have retired after 01 Jan 1986.

(g) All officers have to give an undertaking at the time of disbursement of arrears as per Appendix ‘F’ to SAFI 2/S/08 to the effect that any excess payment that may be found to have been made as a result of incorrect fixation of pay in the revised pay scales will be refunded by him/her to the Govt either by adjustment against future payments or otherwise.  

In Conclusion 

28. By their acts of omission and commission in this the Rank Pay matter subsequent to the orders dated 4th September 2012 in IA No.9 of 2010 in TP (C) 56 of 2007, concerned Ministries seem to have taken seriously what Charles de Montesquieu wrote seriously, “Laws undertake to punish only overt acts” and not covert actions that have followed the Hon’ble Supreme Court’s orders culminating with the order of 4th September 2012.

29. But it would do well to ponder over what Nietzsche wrote “Fight the dragons long enough and you will become one yourself: gaze into the abyss long enough and the abyss will gaze back into you.”

30. This is what is happening to the officers of the Armed Forces in the Rank Pay matter.

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