I love my India and want it to be the best in the world. It has the talent and capability. The state has constantly deteriorated in last six decades. The downfall is due to low quality, incompetent and corrupt leadership, unaccountable, equally corrupt bureaucracy and ineffective judiciary unable to fulfil people's aspirations resulting in unparalleled corruption and lawlessness. Drastic changes are necessary to make systems vibrant and responsive to make it an India of every Indian's dreams.
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
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.
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
Basic Pay, DA, Additional DA, Ad hoc DA etc as on
+ 20% of the sum,
(b) Deducting an
amount equivalent to the relevant rank pay from
Stepping up this reduced amount to the next stage, and
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
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
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,
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
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
“H) Appeals will not be filed in the Supreme
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;
Where public finances are adversely affected;
Where there is substantial interference with public
e) Where there is a question of
law arising under the
f) Where the High Court has
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
file an appeal. Such certification will contain brief but
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: -
P R A Y E R
It is, therefore, most humbly and respectfully
prayed that this Hon'ble Court may be pleased to pass the following orders:-
(d) Call for the records of the Writ Petitions filed in the various
High Courts, ............. and after the completion of pleadings, hear the same
(e) Pending further orders on the application grant an ad interim stay of the order
dated 8th March 2010;
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.
Advocate for the petitioner
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
(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
* 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
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
* 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
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
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.
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
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
Therefore, making a retrospective case as the
example to determine payment is nothing but tweaking the orders of the Hon’ble
(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
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
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
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
(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
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
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
(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
(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
(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
(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
(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
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
30. This is what is happening to the officers of
the Armed Forces in the Rank Pay matter.