MAJOR GENERAL PRAMOD DATTATRAYA Vs. CONTROLLER GENERAL

JUDGEMENT

(1.) THE petitioner was commissioned in Indian Army on 7th June, 1953. On 22nd November, 1983 the petitioner was promoted to the rank of acting Major General to which rank he was appointed substantive on 1st December, 1983 effective from 1st April, 1983. The Union of India accepted Fourth Pay Commission's report and in consequence thereto the Ministry of Defence published Army Instructions (AI) No.1/S/87 dated May 26, 1987. Thereafter the Controller of Defence Accounts, Pune fixed the petitioner's basic pay at Rs. 6100.00 as on 1st January, 1986. The petitioner made representation to the effect that petitioner's pay has been wrongly determined at a lower level than some of the Brigadiers when rank of Major General is senior to that of Brigadier. Upon the representation of the petitioner, it appears that Respondent Nos.1 and 2 viz. Controller of Defence Accounts and Joint Controller of Defence Accounts, Pune revised the basic pay of the petitioner and fixed at Rs.6500.00 per month as from 8-1-1986. The petitioner has contented that one Brigadier Paliwal belonging to the same corps as that of the petitioner and when petitioner was one rank above said Paliwal has drawing pay at Rs.6,300.00 . Upon the complaints of the petitioner, asserts the petitioner, the Additional Secretary, Ministry of Defence, Shri N.N.Vora informed that since the Army Instructions were to be issued, the anomalies would be resolved by the Committee. The petitioner has asserted that several military officers of high rank who had suffered due to these anomalies filed writ petitions in different High Courts, the Major General Pendse filed writ petition No.3451 of 1989 before the Delhi High Court. Major General Popli of Intelligence Corps has also filed a writ petition in Delhi High Court. Air Vice Marshal Chaturvedi who headed the pay and Accounts branch of Indian Air Force similarly filed writ petition No.2141 of 1989 before the Delhi High Court. The petitioner has stated that petitioner's pay was stepped upto Rs.6500.00 with effect from 8-1-86 the date on which Brigadier Baljeet Singh was promoted to the acting rank of Major General. On 5-2-1990 the petitioner received a letter dated 1st February, 1990 from, the Controller of Defence Accounts that in view of the clarification received from Controller General of Defence Accounts, the petitioner's pay was wrongly stepped up at Rs.6500.00 as from 8-1-86.Thereafter petitioner received letter dated 7th Feb. 1990 that the pay scale had been provisionally fixed at Rs.6500 from 9-1-1986. The petitioner has asserted that Brigadier Paliwal who was working directly under the peti-tioner as a Deputy Commandant at the Military Training Intelligence School and Depot had his basic pay fixed at Rs.6150.00 and the petitioner having a rank of Major General was given basic salary of Rs.6100.00 per month. Brigadier Baljeet Singh who is junior to the petitioner in date of commission, date of rank and date of substantive rank in the Army list issued by the Ministry of Defence and shown as junior to the petitioner as also then Brigadier Chopra who was promoted to the rank of Major General were all fixed at the basic scale initially at an amount more than that of the petitioner before the petitioner's scale was stepped up at Rs.6500.00. The petitioner submits that this fixation is obviously unjust, unfair and also contrary to the provisions in that behalf. The petitioner has sought a writ or a direction restraining the Respondent-authorities from revising or refixing or lowering the petitioner's pay scale which was fixed at Rs.6500.00 as from 8-1-1986.

(2.) AFFIDAVITS in reply have been filed on behalf of the respondents. The first affidavit is dated 17th September, 1990 sworn by Lt.Col. Edke. The affidavit states that prior to 1st January, 1986 the Army Officers holding the rank of Major General or its equivalents in the other services were having the pay scale of 2500-125.002-2750. Pursuant to the recommendations of the Fourth Central Pay Commission and the Government of India decision thereon, Special Army Instruction No.1/S/87 were issued containing the revised pay scales with effect from 1st Jan. 1986 as applicable to all Army Officers holding different ranks. As per the said instructions revised pay scale applicable to Army Officers holding rank of Major General is Rs. 500-200-6700. Army Officers upto and including the rank of brigadier have been brought on a single integrated pay scale of Rs. 2300-100-3900-150-4200-EB-150-5100 with effect from 1st January 1986. The affidavit thereafter refers specifically to paragraph 9 of the said Army Instructions which provides that in cases where a senior officer promoted to higher rank before 1-1-86 draws less pay in the revised scale than his junior who is promoted to the higher rank after 1-1-86 the pay of the senior officer is to be stepped up to an amount equal to the pay as fixed for his junior in that higher rank. The stepping up is to be done from the date of the promotion of the junior officer and subject to fulfilment of the following conditions:

(3.) WE have heard Shri Dalvi, the learned Counsel for the petitioner and Shri Rao, the learned Counsel appearing for all the Respondents at some length. We have perused all the annexures and other material which were specifically brought to our notice.