Thursday, September 6, 2012

Rank Pay Landmark Judgement boosts the sagging morale of Armed Forces Personnel

Wednesday, September 5, 2012
Dear All,
We finally won, this matter was not merely a case but a mission for us!!!
And our patience and efforts were tried to the extreme... despite the earlier final order of the Supreme Court, the fruits of success kept on alluding us since the UOI chose to take the most unusual course of persuing a recall application, which was heard on several dates over the last 2 years.
Today, after marathon arguments from morning till almost rising of the Court and several anxious moments of flips and flops, the Judges were finally convinced and saw through the flimsy excuses of the Govt.
It is my priviledge and pleasure to announce that justice finally prevailed, please see the following note for details and circulate to all retired and serving officers and their kin so they can finally get their dues.
Congrats and regards,
Litigation Legend for the Legal Luminaries
LANDMARK DAY FOR DEFENCE OFFICERS- RANK PAY CASE Subject : I.A. NO. 9 IN T.P. (Civil) 56 of 2007 – UOI & Others Versus N.K. Nair & Others.
  • The aforesaid matter along with connected matter came up for hearing before the Hon’ble Supreme Court of India before a Bench of Hon’ble Mr. Justice R.M. Lodha, Mr. Justice T.S. Thakur and Mr. Justice Anil R. Dave before Court No.7, Item No. 9 today i.e. 04.09.2012.
  • This was an application filed by UOI for modification/directions/recall of order dated 08.03.2010 passed by this Hon’ble Court in T.P. (Civil) No. 56 of 2007 and other writ petitions, by which the Hon’ble Supreme Court had agreed with the reasoning of the Kerala High Court in the case of Major Dhanapalan and directed proper fixation of rank pay from 01.01.1986 and interest @ 6% per annum.
  • The core issue in these petitions is with regard to the wrong fixation of rank pay awarded by the Fourth Pay Commission by the Union of India.
  • The background to the core issue is that in the fourth pay commission, the element of rank pay was introduced for all ranks from Captain to Brigadier in the Army and their equivalent ranks in the Air Force and Navy, in addition to pay in the integrated scale. The rationale of this was to make the Armed Forces an attractive career option and to continue the edge that was always provided to the defence officers vis-à-vis their civilian counterparts, owing to the difficult and challenging nature of job profile.
  • However, at the time of fixation, the rank pay was first deducted to arrive at the total emoluments and thereafter added after fixation in the integrated scale. This ensured that the final fixation of the total pay of the officer became at par with his civilian counterpart and the edge was neutralized during fixation.
  • The issue is particularly significant since the services have a longstanding grievance that they get a raw deal from the bureaucrats who have systematically worked on ensuring that the historic edge that the defence officers had with respect to their civilian counterparts is first neutralized and eventually reversed. Interestingly, in this case also the Armed Forces (Army-Navy and Air Force) and the Chiefs of Staff Committee had recommended not to persue the litigation further, however, the Ministry of Defence chose to press the application for recall on several grounds including a total financial liability of about Rs. 1600 crores.
  • Major A.K. Dhanapalan was the first officer to challenge this erroneous fixation before the Hon’ble Kerala High Court in O.P. No. 2448/2006. The Hon’ble Single Judge, Kerala High Court vide order dated 05.10.1998 found no justification in deducting the rank pay and directed the UOI to re-fix the pay without deducting the rank pay. The Hon’ble Division Bench of the High Court also affirmed finding of the Ld. Single Judge and dismissed the Writ Appeal No. 518/1999 of UOI vide order dated 04.07.2003. The UOI challenged the dismissal before the Hon’ble Supreme Court which was also dismissed vide order dated 12.07.2005 in SLP (Civil) No. CC-5908/2005.
  • Thereafter, several petitions were filed by similarly placed officers before different High Courts and different benches of Armed Forces Tribunal. However, because of the pendency of the aforesaid I.A., the entire issue was in limbo and no benefit had been granted to the deserving officers, apart from the individual case of Major A.K. Dhanapalan.
  • Today, the Hon’ble Supreme Court dismissed the Application of Union of India finding no merits or grounds. While doing so, the Hon’ble Supreme Court has also directed the UOI to re-fix the pay of affected officers from 01.01.1986, without deducting the rank pay.
  • The Hon’ble Supreme Court has also directed the UOI to pay interest @ 6% p.a. from 01.01.2006 to all the officers, whether or not they have filed any petition before any of the High Courts or Benches of Armed Forces Tribunal, within 12 weeks from today. The Hon’ble Court has also directed that all pending petitions before any of the High Courts or Benches of Armed Forces Tribunal, by similarly placed officers will be governed by this order.
  • This order of the Hon’ble Supreme Court will benefit a large number of officers who were in the rank of Captain to Brigadier in the Army and equivalent ranks in the Air Force and Navy, between 01.01.1986 to 01.01.2006.
  • The matter was argued by the Ld. Solicitor General for India on behalf of UOI and defended by Gp Capt Karan Singh Bhati, Advocate-on-record and Ms Aishwarya Bhati, Advocate-on-record on behalf of a large number of individual officers and Retired Defence Officers Association.
    Ms. Aishwarya Bhati
    Supreme Court of India.
    18 Todermal Road,
    Bengali Market,
    New Delhi-1
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