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2017 Supreme(SC) 761
SUPREME COURT OF INDIA
S.A. BOBDE, L. NAGESWARA RAO, JJ.
UNION OF INDIA & ORS. – Appellant(s)
Versus
SH. SARVENDRA SINGH CHAUHAN & ORS. – Respondent(s)
CIVIL APPEAL Nos.10589-10590 OF 2017 (Arising out of SLP (C) Nos.23204-23205 of 2013)
Decided On : 17-08-2017
IMPORTANT POINTS
CPMF personnel cannot avail benefits of both compensatory allowances (including Special (Duty) Allowance) and Risk/Hardship Allowance.
Benefit granted with the sanction of the President cannot be withdrawn by any other authority.
Headnote:(a) Service law – Risk/Hardship Allowance – Personnel entitled to receive either compensatory allowances or Risk/Hardship Allowance – Special Duty allowance introduced later – Compensatory allowance – Held, personnel cannot avail both. (Para 8)
(b) Administrative law – Hierarchy – Benefit of Special (Duty) Allowance granted with the sanction of the President – Could not have been withdrawn by Director General Assam Rifles – However, Director General not doing so – Only correcting a mistake made earlier and implementing the OM – No infirmity. (Para 9)
Facts of the case:
By office memorandum dated 14.12.1983, the Government of India introduced payment of Special (Duty) Allowance to Central Government civilian employees who were posted to any station in the North-Eastern region. The said allowance was extended to personnel working in Assam Rifles on 02.02.1989.
On the basis of the recommendations of the 6th Central Pay Commission, the President of India approved the introduction of Risk/Hardship Allowance to Central Para Military Force personnel w.e.f. 01.03.2009.
By a letter dated 05.06.2009, the benefit of Risk/Hardship Allowance was extended to Combatised Armed Reserved Personnel in Assam Rifles. They were informed that they have an option to claim Special Compensatory Allowance (remote locality) and detachment allowances or risk allowance whichever is beneficial to them.
On a clarification on the drawal of Risk/Hardship Allowance the Director General Assam Rifles passed an order on 12.05.2011 to the effect that Special (Duty) Allowance which was being paid along with Risk/Hardship Allowance would be stopped w.e.f. 01.06.2011. The personnel were given an option to choose either Risk/Hardship Allowance or Special (Duty) Allowance.
This order dated 12.05.2011 was challenged by the Respondents in Writ Petition which was allowed. A Division Bench of the High Court affirmed the judgment of the Single Judge.
Finding of the Court:
CPMF personnel cannot avail benefits of both compensatory allowances (including Special (Duty) Allowance) and Risk/Hardship Allowance.
Result: Appeals allowed.
JUDGMENT
L. NAGESWARA RAO, J.
Leave granted.
The Respondents filed Writ Petitions challenging the order dated 12.05.2011 issued by the Director General of Assam Rifles which were allowed by a learned Single Judge of the Guwahati High Court. The Appeals filed against this order were dismissed by a Division Bench. Aggrieved, the Union of India and others have filed these Civil Appeals.
2. The Respondents are combatised personnel of the Assam Rifles. Their grievance pertains to withdrawal of Special (Duty) Allowance. To understand the controversy, it is relevant to refer to the events that led to the introduction of Special (Duty) Allowance and its withdrawal.
3. By office memorandum dated 14.12.1983, the Government of India introduced payment of Special (Duty) Allowance to Central Government civilian employees who were posted to any station in the North-Eastern region. The said allowance was extended to personnel working in Assam Rifles on 02.02.1989. On the basis of the recommendations of the 6th Central Pay Commission, the President of India approved the introduction of Risk/Hardship Allowance to Central Para Military Force personnel w.e.f. 01.03.2009. The office memorandum dated 16.04.2009 by which the decision was conveyed to all departments concerned contained a clause which is as follows:-
"4.CPMF personnel shall have the option to receiving their existing package of compensatory allowances and detachment allowance or the Risk/Hardship Allowances proposed at para-1 and 2 above whichever is beneficial to them.” (emphasis supplied)
4. By a letter dated 05.06.2009, the benefit of Risk/Hardship Allowance was extended to Combatised Armed Reserved Personnel in Assam Rifles. They were informed that they have an option to claim Special Compensatory Allowance (remote locality) and detachment allowances or risk allowance whichever is beneficial to them.
5. A clarification was sought on the drawal of Risk/Hardship Allowance by the Shashatra Seema Bal (SSB) on 13.12.2010 as to whether the employees posted in the North-Eastern region were entitled for Risk/Hardship based allowance along with Special (Duty) Allowance. The Government examined the proposal and clarified that the personnel who were getting Risk/Hardship Allowance were not eligible for Special (Duty) Allowance being a compensatory allowance. Consequently, the Director General Assam Rifles passed an order on 12.05.2011 informing the personnel that Special (Duty) Allowance which was being paid along with Risk/Hardship Allowance would be stopped w.e.f. 01.06.2011. The personnel were given an option to choose either Risk/Hardship Allowance or Special (Duty) Allowance. The said order dated 12.05.2011 was challenged by the Respondents in Writ Petition No.147 of 2011 and Writ Petition No. 133 of 2011. A Single Judge of the Guwahati High Court set aside the order dated 12.05.2011 and directed the authorities not to stop the payment of Special (Duty) Allowance until a suitable modification of the notification dated 16.04.2009 is made. The only ground on which the Writ Petitions were allowed was that the Special (Duty) Allowance was given to the personnel by a Presidential sanction whereas its withdrawal was by an order passed by the Director General of Assam Rifles. A Division Bench of the Guwahati High Court affirmed the said judgment of the learned Single Judge. The judgment of the Division Bench of High Court is assailed in these appeals.
6. We have heard Mr. Ranjit Kumar, Solicitor General of India for the Appellants and Mr. Sunil Kumar, learned Senior Counsel for the Respondents. The Solicitor General submitted that Government of India clarified on 23.02.2011 that the eligible persons under the scheme are not entitled for payment of both the Special (Duty) Allowance and Risk/Hardship Allowance. The order dated 12.05.2011 of the Director General of Assam Rifles was only a consequential order issued pursuant to the clarification dated 23.03.2011. Further, he relied upon the order d
