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2019 Supreme(SC) 146
SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, JJ.
UNION OF INDIA THROUGH CABINET SECRETARY & ORS – APPELLANTS
VERSUS
CAPTAIN GURDEV SINGH & ANR – RESPONDENTS
CIVIL APPEAL NO. 2763 OF 2009
Decided on : 11-02-2019
For Appellant(s) : Mr. Vikramjeet Banerjee,ASG Mr. Ayush Anand,Adv. Mr. S.S. Ray,Adv. Ms. Rekha Pandey,Adv. Mr. B. V. Balaram Das, AOR
For Respondent(s): Mr. Ashish Tiwari,Adv. Mr. Ashish Kumar Upadhyay,Adv. Mr. Y. Lokesh,Adv. Mr. Babul Kumar,Adv. Ms. Ruby Singh Ahuja, AOR Mrs. Manik Karanjawala, AOR
IMPORTANT POINT
There can be no undue discrimination in matter of payment of compensatory allowance.
Headnote:Service Law—Allowance – Payment of compensatory allowances—Though it may be true that IMTRAT-like teams in other countries like Zambia, Lesotho and Botswana receive compensatory allowances at par with FA paid to Indian diplomats in those countries, it cannot be forgotten that IMTRAT-like teams working in certain other countries have been stated to be receiving lesser compensatory allowances than FA paid to MEA personnel posted in those countries – It is for State to take a pragmatic view in the matter of fixing compensatory allowances on a country-to-country basis, depending on facts and circumstances of each case and Courts in such matters generally may not interfere, particularly when decision to be taken by State in such matters is akin to a policy decision – Parity had existed between two allowances for 25 years, but that does not mean that such action of Government can be taken to mean that Government should continue such parity in future also – It is open for State to modulate allowances depending on attending circumstances – However, directions made in original order are only to the effect that removal of depression on BCA payable to IMTRAT personnel and its replacement with nominal charges for erstwhile free facilities, be made effective from 01.12.1999 – Same have been fully complied with by appellants after issuance of corrigendum – Government directed to remove depression of 6% and 4% respectively on BCA payable to IMTRAT personnel, being Service Officers and PBORs, with immediate effect – Impugned judgment set aside. (Paras 28 to 32)
Facts of Case:
Vide impugned judgment appellants Union of India and Ministries of Defence, External Affairs and Finance, were directed to award parity between Bhutan Compensatory Allowance payable to Indian Military Training Team (IMTRAT) posted in Bhutan and Foreign Allowance payable to Indian diplomatic personnel serving in Bhutan under Ministry of External Affairs, Government of India (MEA). MTRAT consists of Service Officers and Personnel Below Officer Rank (PBORs).
Findings of Court:
It is an undisputed fact that parity had existed between two allowances for 25 years, but that does not mean that such action of Government can be taken to mean that Government should continue such parity in future also. It is open for State to modulate allowances depending on attending circumstances.
Result : Appeal Partly allowed.
JUDGMENT :
MOHAN M. SHANTANAGOUDAR, J.
1. This appeal arises out of the final judgment and order dated 07.05.2007 passed by the High Court of Delhi in C.M. No. 12743/2006 in W.P. (C) Nos. 17184-17185/2004, allowing the application filed by the respondents herein for direction and clarification of the order of the High Court dated 22.11.2005.
2. Vide the judgment dated 07.05.2007 (henceforth “the impugned judgment”), the appellants herein, i.e. the Union of India and the Ministries of Defence, External Affairs and Finance, were directed to award parity between the Bhutan Compensatory Allowance payable to the Indian Military Training Team (in short, “the IMTRAT”) posted in Bhutan, and the Foreign Allowance payable to Indian diplomatic personnel serving in Bhutan under the Ministry of External Affairs, Government of India (in short, “the MEA”). It is relevant to mention here itself that the IMTRAT consists of Service Officers and Personnel Below Officer Rank (in short, “PBORs”).
3. The facts leading to the instant appeal are as follows:
The instant case revolves around the payment of compensatory allowances to three classes of personnel. The first category is that of personnel belonging to the IMTRAT, which has been posted in Bhutan to train personnel in the Bhutanese Army. IMTRAT personnel receive a compensatory allowance for being posted in Bhutan, called the Bhutan Compensatory Allowance (in short, “the BCA”), which used to have a depression (i.e. deduction) upon it of 22.5% for Service Officers and 10% for PBORs. This was due to the provision of free mess and canteen facilities to the Service Officers and free ration, clothing and accommodation to the PBORs. The second category of personnel constitutes civilian personnel working in various projects in Bhutan (which are self-financed or aided by the Government of India) such as the Border Road Organisation’s Project Dantak, the Tata Hydroelectric Project, the Central Water Commission, etc. The BCA is payable without any depression to such personnel. The third category constitutes MEA personnel in Bhutan, who receive a different compensatory allowance called the Foreign Allowance (in short, “the FA”), under the Indian Foreign Service (Pay, Leave, Compensatory Allowance and other Conditions of Service) Rules, 1981 (in short “the IFS Rules”).
4. There was a demand by IMTRAT personnel for the removal of the depression being imposed upon the BCA being paid to them, which was rejected by the Fifth Central Pay Commission. The issue was thereafter considered by a High Level Committee, which recommended reconsideration of the demand, which was subsequently considered by a Group of Officers chaired by the Cabinet Secretary. The Group of Officers recommended, vide its report submitted on 05.07.1999, that IMTRAT service personnel should be paid the BCA at the same rate as their civilian counterparts, and the existing depression be done away with, subject to the levy of appropriate charges on the facilities that were hitherto free. These recommendations of the Group of Officers were accepted vide the Cabinet decision dated 30.11.1999.
5. Writ Petition Nos. 17184-85/2004 were filed by two IMTRAT personnel, posted in Bhutan since 2003-2004, on two counts. Firstly, they sought parity between the BCA payable to IMTRAT personnel and the FA payable to their ‘civilian counterparts’, who, according to them, were the Indian civil personnel/deputationists under the Indian Embassy/MEA in Bhutan (i.e., the third category of personnel mentioned supra). This was on the ground that parity between the two allowances had existed for 25 years (from 1973 to 1997), after which the FA for MEA personnel had been revised regularly, but the BCA had been revised only twice, once by 25% on 01.01.2001 and once again by 11% on 01.04.2005, and that too in an ad hoc manner, which had still failed to reestablish parity between the two allowances. Secondly, they sought implementation of the Cabinet decision dated 30.11.1999 reg
