Thursday, February 28, 2013

White Paper on Rank Pay – Is there Self- Exculpatory Mendacity for Discrimination by the letter dated 27.12.2012 – Final (Concluded)

1.    Does the GoI/MoD letter dated 27.12.2012 want to achieve by its exculpatory mendacity what it could not legally? Does it want to minimise payments to Armed Forces officers and NoK in line with its appeals in the Rank Pay case? Does it want to oppose/bypass the Hon’ble Supreme Court’s Court order on 8.3.2010 and the Court’s order dated 4.9.2012 declining to modify/recall/re-hear it order of 8.3.2010, and deciding in finality that all similarly situated officers who have, and those who have not, approached Courts/Tribunals are to be paid Rank Pay as per the “reasoning of the Kerala High Court in OP 2448/1996 and WA 518/1999? Does it want to stand on (false?) prestige as petitioner/respondent in IA No.9 of 2010 in TP (C) 56 of 2007 and related cases? Does it a perceive immunity from prosecution of concerned officers because permission of the Competent Authority (Union of India) is required to prosecute them and is unaware that, as per a Supreme Court order, no communications within 4 months means a "go ahead"? Then why the executive fiat/fatwa dated 27.12.2012?     

2.    MoD, with the concurrence of the Min of Fin’s Dept of Expenditure and Defence/Finance, by its order dated 27.12.2012 has, intentionally or unintentionally, discriminated between officers eligible for Rank Pay “as on 1.1.1986” and those eligible as per the Courts’ order “with retrospective effect from 1.1.1986.” There is a clear attempt to clear itself of the falsehood that it is discriminating between officers of the Armed Forces by quoting wrongly that “the aforesaid Order of the Hon’ble Supreme Court”……“upholding the Order of the Hon’ble High Court passed on 5.10.1998” in (the) case of Maj Dhanapalan. Any reader (of the proceedings in the Courts) with average intellectual capacity would not arrive at the same conclusion as MoD because the Hon’ble Supreme Court wrote in its order of 4.9.2012 that “…on totality of the circumstances including the circumstance that Special Leave Petition arising from the judgment dated July 4, 2003 in the matter of Maj A. K. Dhanapalan was dismissed by this Court on August, 2005……” In simple and easy words, the Hon’ble Supreme Court had refused, in year 2005, to hear the UoI & Ors in the SLP (CC) 5908 of 2005.
3.    There is Stare Decisis [Latin, ‘Let the decision stand.’] - The policy of courts to abide by or adhere to principles established by decisions in earlier cases. For stare decisis to be effective, each judicial pronouncement must have one of the High Courts or the Supreme Court declare what the law is in a precedent-setting case. The Hon’ble High Court of Kerala and the Hon’ble Supreme Court have both served as precedential bodies, resolving conflicting interpretations of law or dealing with the Rank Pay issue by the decisions of these Courts in Maj A.K. Dhanapalan vs. UoI & Others in OP 2448/1996, UoI & Others vs. Maj Dhanapalan in WA 518/1999 and SLP (CC) 5908/2005. That has become a judicial precedent in the Rank Pay Issue in TP (C) 56 of 2007 and the subsequent IA No. 9 of 2010 in TP (C) 56 of 2007.

4.    Having established that, it is time to consider the methodology of promotion in the Armed Forces that prevailed in 1986 so as to rule out any discrimination in the policy and procedure in the Armed Forces for promoting officers to the next higher rank. The procedure is as follows : -

(a) Time Scale Promotions: - All eligible Lieutenants and Captains (and equivalent in the Navy and Air Force) are promoted to the rank of Captain and Major (and equivalent in the Navy and Air Force) respectively on the same date because of Service exigencies – subject to

(i) Numbers not exceeding approved vacancies in the cadre,

(ii) Not being away on training courses,

(iii) Not being temporarily medically unfit on due date,

(iv) Being found fit for promotion on a later date,

(v) Not passing the promotion when his/their turn for promotion came up, etc.

So, there will be many from a single course/entry (batch in civilian Services) due for promotion to Captain and Major (and equivalent in the Navy and Air Force) who could have been promoted on subsequent dates to 1.1.1986.

(b) Select Promotions: - Promotion Boards (PBs) considered all eligible Majors (and equivalent in the Navy and Air Force) for promotion to the rank of Lt Col, officers of the rank of Lt Col (and equivalent in the Navy and Air Force) to the rank of Colonel (and equivalent in the Navy and Air Force), officers of the ranks of Colonel (and equivalent in the Navy and Air Force) to the rank of Brigadier (and equivalent in the Navy and Air Force), depending on the projected vacancies that

(i) Numbers not exceeding the cadre vacancies (till implementation of the AVSC’s recommendations),

(ii) Be medically fit or attain medical fitness within the validity of the PB period,

(iii) Promotion, pre-mature retirement, superannuation of the higher ranked officer against whose vacancy every Major, Lt Col, Col (and equivalent in the Navy and Air Force) cleared by the PB would eventually be promoted to the respective higher rank(s).

So, there will be many from a course due for promotion to Lt Col and higher to Colonel and Brigadiers (and equivalent in the Navy and Air Force) who would have been promoted on subsequent dates to 1.1.1986 as and when vacancies arose because of reasons stated in sub-paras (b) (i), (ii) and (iii).

5.   In an extensive search of documents, policies and procedures, there is no judicial precedent for UoI/MoD to deny payment of Rank Pay to all officers of the ranks Capt to Brig (and their equivalents) irrespective of the date they attain the ranks of Captain, Major, Lt Col, Colonel and Brigadier (and their equivalents in the Navy and, Air Force). GoI Resolutions approving the Reports of the 4th (and 5th) Central Pay Commission(s), the Gazette Extraordinary notifications or 4th and 5th CPC recommendations do not state that for re-fixation of pay scales and payment of Rank Pay to officers of the ranks of Captain to Brigadiers (and their equivalents in the Navy and Air Force) it is limited to only those who were in the eligible ranks as on 1.1.1986 and that all others (promoted to Captain or higher ranks subsequently) should have their pay fixed at a different, even lower pay scale. If there was such a discriminatory rule, Courts and AFTs would have been flooded with litigation.

6.   That there should not be any discrimination, if any proof was needed, is now available in the Hon’ble Supreme Court’s Order in Civil Appeal Nos. 8848 - 8849 of 2012 (in the case Kallkkurichi Taluk Retired Official Association, Tamil Nadu & related cases vs State of Tamil Nadu & Other). A Bench of the Hon’ble Supreme Court comprising Justices D. K. Jain and Jagdish Singh Khehar ordered on January 17, 2013 as (parts of which are reproduced) below: -

          Page 28, Para 26: -

“We have given our thoughtful consideration to the controversy in hand. First and foremost, it needs to be understood that the quantum of discrimination is irrelevant to a challenge based on a plea of arbitrariness, under Article 14 of the Constitution of India. Article 14 of the Constitution of India ensures to all, equality before the law and equal protection of the laws. The question is of arbitrariness and discrimination. These rights flow to an individual under Articles 14 and 16 of the Constitution of India. The extent of benefit or loss in such a determination is irrelevant and inconsequential. The extent to which a benefit or loss actually affects the person concerned, cannot ever be a valid justification for a court in either granting or denying the claim raised on these countsThe rejection of the claim of the appellants by the High Court, merely on account of the belief that the carry home pension for employees who would retire after 1.6.1988, would be trivially lower than those retiring prior thereto, amounts to begging the issue pressed before the High Court….”

         Page 29, Para 27: -

“At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification… A valid classification is based on a just objective. The result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. A classification must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another must have reasonable nexus to the objective sought to be achieved…… Whenever a cut off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied…..”

Page 29, Para 28: -

“……….all pensioners (irrespective of the date of their entry into service or retirement), it is not per se possible to accept different levels of ‘dearness pay’……Just like the date of entry into service (for serving employees) would be wholly irrelevant to determine the ‘dearness allowance’ to be extended to serving employees would be wholly irrelevant…. In the absence of any objective, projected in this case……the pleadings filed on behalf of the State Government, do not reveal any reason for the classification, which is subject matter of challenge in the instant appeal.”

Page 32, Para 30: -

“……….The relevance and purpose of treating ‘dearness allowance’ as ‘dearness pay’, has been brought out in the foregoing paragraphs. Therefore, clearly, the object sought to be achieved by adding ‘dearness pay’ to the wage of a retiree, while determining pension payable to him, is to remedy the adverse effects of inflation. The aforesaid object has to be necessarily kept in mind, while examining the present controversy. Any classification without reference to the object sought to be achieved, would be arbitrary and violative of the protection afforded under Article 14 of the Constitution of India, it would also be discriminatory and violative of the protection afforded under Article 16 of the Constitution of India.”
Page 40, para 34: -

“34. The instant appeals are accordingly allowed. The impugned order dated 17.12.2007 passed by the High Court is hereby set aside. The impugned Government Order dated 9.8.1989, to the extent that it extends to employees who retire on or after 1.6.1988, a lower component of ‘dearness pay’, as against those who had retired prior to 1.6.1988, is set aside, being violative of Articles 14 and 16 of the Constitution of India.”

7.   So, since there isn’t any judicial pronouncement as stated often in the GoI/MoD letter dated 27.12.2012 nor any Govt Resolution in approving 4th and 5th CPC reports, providing judicial cover, or sanctioning, or approving discrimination, why is it

(a)      That an officer who is a Captain on 1.1.1986 will be have his emoluments re-fixed as Rs 3000 + Rank Pay Rs 200 Pay but any officer being promoted to the rank of Captainon any subsequent date will have his emoluments re-fixed at Rs 2800 + Rank Pay Rs 200? Isn’t this violative of Articles 14 and 16 of the Constitution of India? Has the Govt of India placed an Under Secretary as on 1.1.1986 at a higher Basic Pay than another Under Secretary who becomes/is promoted as Under Secretary after .1.1986?   

(b)       By not making any amendments in the integrated pay scales of 1986 and the pay scales of 1.1.1996 and 1.1.2006, will it not nullify the orders of the Hon’ble Supreme Court? A cursory glance at the examples for calculations provided by the PCDA (O) seems to point, unmistakably, in that direction.  

8.       MoD and its financial advisers have sought to deprive by a bureaucratic order of the legitimate dues for all similarly situated officers in contradiction, even wilful defiance of the judicial pronouncements of the Hon’ble Supreme Court.  

9.     The judgments of the Hon’ble High Court of Kerala and dismissal by the Hon’ble Supreme Court (in UoI & Others vs Maj A. K. Dhanapalan) and the orders dated 8.3.2010 of the Hon’ble Supreme Court, confirmed by the Court’s order of 4.9.2012 (in UoI & Others vs. N. K. Nair & Others) do not contain any judicial pronouncements that Rank Pay must be paid only to those in the eligible ranks as on 1.1.1986.  Their learned Law Officers must have apprised them of the Hon’ble Supreme Court’s order of 17th January 2013. Will we now see a corrigendum being issued to GoI/MoD letter dated 27.12.2012?

10.     Therefore, by what judicial order has the MoD (with concurrence of Min of Finance (Dept of Expenditure) and Defence (Finance), decided that it/they can bypass Articles 14 and 16 of the Constitution of India? Or did someone read and take to heart Machiavelli’s justification (in ‘The Prince’) that “pursuit of power justifies immoral means?”    


All articles on the White Paper on Rank Pay Case of defence services officers (I, II, III & Final) are by the kind courtesy of blog "Ariel View" and authored by Air Mshl Savur. With due gratitude to the author, these have been posted here only for wider circulation amongst our veteran friends.

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