Tuesday, May 4, 2010

It is really disgraceful by Lt Col brij Thapa

From: Brij Thapa [mailto:brijmeera@gmail.com]
Sent: 30 April 2010 18:57
Subject: It is really disgraceful

Veteran Brig K.G.BEHL
President Dehradun Ex-Services League
It is disgraceful that the Union of India-MOD has moved the Hon’ble Supreme Court of India appealing for reopening the case and requesting them to limit their judgment to only those appellants who submitted writ petition in different courts and call all records from there and then decide on merit. It is nothing but further delaying tactics. Is it not enough that the Defence Officers have been made to suffer from 1.1.1986 and now when the Hon’ble Supreme Court has set the matters right they are again being asked to reconsider.

They should have gracefully accepted their fault and taken prompt action to close the chapter, to save their face, by rectifying the mistakes. Actually the Hon’ble Supreme Court has let them go cheaply by just imposing 6% interest on arrears and without casting aspersions or punishing the culprits who openly flouted the rules and Court Judgments and did not follow the laid down Court rules and precedents.

As we all know Rank Pay was introduced by the IV Central Pay Commission as Special Pay and was to be paid in addition to the substantive pay of the post/ rank held. It was shown on the Pay Slip as Rank Pay paid but instead of giving additional pay, as sanctioned by the IV CPC, an equivalent amount was deducted from the substantive Pay, fixed for the Rank This amounted, to not only denying the officers the additional rank pay but lowering the Basic Pay, in comparison to their counter parts in civil, on which status, DA and other allowances are worked out. This Rank Pay became double under the 5th CPC award with 100% merger of DA but the increased portion was only paid as Rank Pay and the earlier
deduction continued. The 6th CPC too based their data on the same
less basic pay.

The Hon’ble Kerala High Court in their judgment P.P.No.2448/1996 and as confirmed by the Division Bench of the same High Court in W.A.No.518/1999(Appeal) pointed out that the respondent 2 & 3 – MOD and CDA(O) respectively, had completely misunderstood the scope of extending the benefits of the rank pay to the Armed Forces Officers. As rank pay is some thing which was given to the Army Officers, for peculiar service conditions, in addition to the existing pay scale as was notified in the GOI Gazette dated
18.3.1987. Further. the Court held that the provisions incorporated in Para 6 of MOD Instructions dated 26 May 86 have been found contrary to and without any substantive authority of the Govt. decision stipulated in Min. of Finance and MOD Notification dated 13.3.87 evidenced as exhibit P1 and R1 on record of the case and the said deduction was thus held inadmissible in law. And Para 6 thus stood annulled.

Once SLP No. CC-5908/2005 filed by Union of India against the Judgment of Hon’ble High Court of Kerala was rejected on 12.07 2005, the MOD should have, amended Para 6 of Mod Instruction dated 26 May 86, which was held ultra- vires by the Hon’ble Court, besides paying back the deductions made to the
appellant. It amounts to contempt of court.

Secondly, as there was a Judgment of Hon’ble Supreme Court already available where the Court had directed the Govt. that where a judgment has been delivered in one case and similar faults/ mistake is noticed/ reported in some other case, the concerned departments should set right the similar mistakes, as
pointed out in a particular case earlier, without referring to the Court again. Based on these directions MOD had many times rectified such mistakes and differences were either paid or recovered without reference to any court of law. Similarly, in this case, Officers should not have been made to go to courts and the MOD should have settled the cases accordingly at their own rather than delaying it for so many years. It has unnecessarily delayed matters and amounts to a criminal offence to deny so many officers their dues for so many
years and make them suffer with less Pay and Pension, especially those who have left us during this long period and family pensioners. It lowers the morale of the troops.

It took more than 20 years to get final judgment of the case The matter was heard and finally disposed of by the Hon'ble Supreme court by the Bench of Hon'ble Mr. Justice Markendey Katju & Hon'ble Mr. Justice R.M. Lodha today i.e. 08.03.2010 (Court-7, Item-84). The Apex Court has held that the judgment dated 05.10.1998 of the Hon'ble Single Judge of Kerala High Court in P.P. No. 2448/1996 as confirmed by the Hon'ble Division Bench of the same High Court in W.A. NO. 518/1999 (Appeal) was correct and reasonable and as such the benefit of this judgment be extended to all eligible officers of Armed Forces.
The Hon'ble Apex Court awarded 6% interest on the amount due to the officers. The Hon'ble Supreme court disposed of the transfer petition and allowed the writ petitions of the petitioners.

In spite of clear violations of the rules and Court judgments, going again to Court is a deliberate attempt to delay matters and sub verge justice. It is also contrary to the instructions issued by the Ministry of Law and Justice, Department of Legal Affairs, New Delhi vide their Office Memorandum No.1-28015/01/2009- Admn.IV(LA) Dated 3rd Sep. 2009 where they have advised different Govt. Ministries /Depts. who keep on making repeated references insisting for concurrence of this Department to agree to a particular course of their action which is not legal. It is observed that there is a tendency of filing frivolous petitions/appeals till the highest Court decides otherwise. Once a
considered view has been expressed by this Department and there are
Judgments by the Apex Court on the subject, such petitions to Courts amount to clogging Judicial System where there is already a huge pendency. We hope the Ministry of Law and Justice intervenes and advises them to withdraw such cases and make immediate payments as ordered by the Hon’ble Supreme Court.

If they insist on such tactics, we pray to the Hon’ble Supreme Court to deliver an exemplary judgment punishing officials who indulge in such nefarious acts
denying even Defence Forces their due.

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