REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2763 OF 2009
UNION OF INDIA THROUGH CABINET …APPELLANTS
SECRETARY & ORS.
VERSUS
CAPTAIN GURDEV SINGH & ANR. …RESPONDENTS
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
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. 1718417185/2004, 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,
1
“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 selffinanced or aided by the Government of
2
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
3
Officers were accepted vide the Cabinet decision dated
30.11.1999.
5. Writ Petition Nos. 1718485/2004 were filed by two IMTRAT
personnel, posted in Bhutan since 20032004, 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 regarding removal of depression and
imposition of charges for free facilities, which had not yet been
implemented.
4
6. During the pendency of the above writ petitions, the Cabinet
decision dated 30.11.1999 was given effect to through an order of
the Ministry of Defence dated 20.09.2005, removing the existing
depression and directing that the payment of the BCA to IMTRAT
personnel be made at the same rates as to their civilian
counterparts, subject to the recovery of nominal charges @ 6%
and 4% for Service Officers and PBORs respectively for providing
mess facilities, etc. The said order was prospective in operation.
7. The writ petitions were allowed by the High Court vide order
dated 22.11.2005 (hereinafter “the original order”), setting aside
the Ministry of Defence order dated 20.09.2005 to the extent it
gave relief prospectively. The High Court gave effect to the
Cabinet decision dated 30.11.1999 from 01.12.1999, after taking
into account the two ad hoc revisions. It would not be out of
place to mention here that the operative portions of the Cabinet
decision and the Ministry of Defence order were identical, except
for the important difference that the Cabinet decision dated
30.11.1999 did not specify the rates of the nominal charges to be
imposed on the personnel in lieu of the depression, which only
came to be specified by the Ministry of Defence order dated
5
20.09.2005. The direction in the writ petitions effectively
amounted to giving retrospective operation to the Ministry of
Defence order dated 20.09.2005, which is evident from the
following observations made in the original order (reproduced
from the SLP paper book):
“14. Accordingly, the writ petition is allowed and the
order dated 20th
September, 2005 to the extent it
grants the relief prospectively to the petitioners is
quashed and set aside and the respondents are
directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
December, 1999 in
favour of the petitioner after taking into account the
two ad hoc revisions on 1st
January, 2001 and 1st
April, 2005 and are further directed to pay all the
arrears consequently payable to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest in view of the fact that the dues were
wrongfully withheld. The learned counsel for the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
the communication/letter dated 20th
September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
6
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
(emphasis
supplied)
8. The Union of India sought multiple opportunities to comply
with the order, in which interregnum, the Ministry of Defence
issued a corrigendum on 23.02.2006 to its order dated
20.09.2005, directing that the removal of depression and
recovery of charges at the specified rates be given retrospective
effect from 01.12.1999.
9. However, in its order dated 07.03.2006, the High Court
observed that although one part of the directions in the original
order had been complied with, the “remaining part” of the
directions was still unimplemented, and granted further time for
such compliance. After this order, an additional affidavit was filed
by the MEA, claiming that with the issue of the corrigendum
making the removal of depression effective from 01.12.1999, the
directions issued in the original order had been effectively
complied with. It was further stated that the direction with
respect to periodic revision of the BCA had also been taken note
of, and such revisions would be duly considered from time to
7
time. It was also placed on record that IMTRAT personnel were
being paid the same BCA as other Indian civilian personnel in
Bhutan (i.e. the second category of personnel mentioned supra).
10. Subsequently, in light of the above affidavit, the
respondents filed an application i.e. CM No. 12743/2006 for
direction and clarification of the original order, on the basis that
the Union of India was incorrectly interpreting the term “civilian
counterparts” as referring to persons on deputation with the
Royal Government of Bhutan, and seeking a clarification that the
original order directed the maintenance of parity between the
BCA and the FA paid to MEA personnel at the Indian Embassy in
Bhutan. On this application, the impugned judgment was passed
affirming parity between the BCA and the FA, leading to the
instant appeal by the appellants on the ground that the High
Court erred in granting the relief of such parity, which was not
contemplated in the directions issued in the original order, and
that the BCA could not be held to be at par with the FA.
11. This Court is conscious of the fact that the original order
was never challenged by either the appellants or the respondents,
and has thus attained finality. The fundamental issue before us,
8
therefore, is whether the impugned judgment went beyond the
scope of the original order in directing parity between the FA and
the BCA payable to IMTRAT personnel.
12. To that end, the appellants submitted that the original order
did not direct the two allowances to be maintained at par, and
while dealing with the issue of parity between the two allowances
it only contemplated that periodic revisions be undertaken to the
BCA just like periodic revisions had been undertaken for the FA.
Furthermore, it was submitted that the direction for granting
retrospective effect to the removal of the depression on the BCA,
payable to IMTRAT personnel had to be considered in the light of
the underlying recommendation of the High Level Committee and
the Group of Officers, and the Cabinet decision dated
30.11.1999. These were to the effect that the BCA be paid to the
IMTRAT at the same rate as their “civilian counterparts”, which
did not make any reference whatsoever to the FA paid to MEA
personnel, and were only meant to ensure parity with civilian
deputationists in Bhutan who receive the BCA, albeit without any
depression.
9
13. The respondents, on the other hand, submitted that there
were two parts to the directions in the original order and only one
of them had been complied with by the appellants, i.e. removal of
depression and its retrospective operation. The impugned
judgment in no way went beyond the judgment being clarified, as
the clarification was in consonance with the second part of the
directions in the original order in paragraphs 12 and 13, on the
issue of parity between the FA and the BCA. This claim was
based on the argument that the recommendation of the Group of
Officers and the Cabinet decision dated 30.11.1999 to the effect
that the BCA be paid to the IMTRAT at the same rate as their
“civilian counterparts” could only mean parity with MEA
personnel. It was further argued that the appellants themselves
had submitted before the High Court while the writ petitions were
being heard that the grievances of the respondents had been fully
met post the removal of depression on the BCA, which indicated
acceptance of the interpretation of the term “civilian counterparts”
as MEA personnel; and that in the order of the High Court dated
07.03.2006 (already mentioned supra), it had been observed that
10
the appellants had not complied with the “remaining part of the
directions” given in the original order.
14. To determine the validity of the clarification made vide the
impugned judgment, it is essential to first examine the original
order. The High Court acknowledged while passing the original
order that two grievances had been raised by the writ petitioners
(the respondents herein)—i.e., concerning removal of depression,
and concerning parity with MEA personnel in the quantum of the
respective allowances in the form of the BCA and the FA. With
regard to the question of depression, the grievance was in terms
of the nonimplementation of the Cabinet decision dated
30.11.1999. It was contended by the writ petitioners that the
decision needed to be enforced retrospectively from 30.11.1999,
when the Cabinet decision was made, or from 01.08.1997, the
date suggested by the Group of Officers.
15. The High Court went on to conclude that the writ petitioners
were justified in claiming retrospective benefit of the Ministry of
Defence order dated 20.09.2005, the prospective operation of
which was arbitrary insofar as it did not disclose any reason for
the same, and unreasonable insofar as it failed to address the
11
lack of parity between the BCA and FA payable to IMTRAT and
MEA personnel respectively between 1997 and 2005, as they had
been at par since the institution of the FA in 1973 until 1997,
due to nonrevision of the BCA when the FA was revised. The
High Court further reasoned that the writ petitioners’ stance was
vindicated by the recommendation of the Group of Officers and
the Cabinet decision dated 30.11.1999. On this basis, the High
Court directed that the Cabinet decision dated 30.11.1999 be
given effect from 01.12.1999, after taking into account the two ad
hoc revisions of the BCA undertaken previously, and to pay all
consequent arrears.
16. However, it is evident that though the above observations
were made by the High Court concerning parity between the two
allowances, no direction was issued to that effect. In this respect,
it would be useful to revisit the directions actually and finally
issued in the original order (reproduced from the SLP paper
book):
“14. Accordingly, the writ petition is allowed and the
order dated 20th
September, 2005 to the extent it
grants the relief prospectively to the petitioners is
quashed and set aside and the respondents are
directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
December, 1999 in
12
favour of the petitioner after taking into account the
two ad hoc revisions on 1st
January, 2001 and 1st
April, 2005 and are further directed to pay all the
arrears consequently payable to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest in view of the fact that the dues were
wrongfully withheld. The learned counsel for the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
the communication/letter dated 20th September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
(emphasis supplied)
17. It is clear that the operative portion of the order
unambiguously states only that the Cabinet decision dated
30.11.1999 has to be given effect from 01.12.1999 (i.e. the
Ministry of Defence order dated 20.09.2005 has to be given
retrospective effect from 01.12.1999). This direction stands duly
complied with after the issuance of the corrigendum dated
23.02.2006 to the Ministry of Defence order dated 20.09.2005.
Evidently, the observations made by the High Court regarding
13
parity between the BCA and the FA noted above are based on a
conflation of two distinct grievances of the writ petitioners, i.e.,
firstly, removal of the depression from the BCA payable to
IMTRAT personnel, and secondly, the reinstatement of parity of
the BCA with the FA. Such conflation, in turn, appears to be
based upon the implicit assumption of the High Court that the
term “civilian counterparts” in the underlying recommendations of
the High Level Committee and Group of Officers, and the Cabinet
decision dated 30.11.1999, refers to MEA officials posted in
Bhutan, though the term “civilian counterparts” itself has not
been defined in any of the above recommendations/orders.
18. The impugned judgment throws light on the lack of
consideration of this issue by the High Court while disposing of
the writ petitions. It is noted in the impugned judgment that the
Government could not at that stage (i.e. while the High Court was
considering the application for clarification of the original order)
raise the argument regarding nonparity between the BCA and
the FA, or between IMTRAT and MEA personnel, after failing to
raise it while the writ petitions were being heard. Moreover, while
noting in paragraph 4 of the impugned judgment that the
14
Government had specifically submitted before the High Court
earlier that the grievances of the writ petitioners had been met
through the Ministry of Defence order dated 20.09.2005, the
High Court articulated the implicit assumption which had been
made in the original order that the civilian counterparts of the
IMTRAT personnel referred to in the report of the Group of
Officers, Cabinet decision, etc. were MEA officials. It would be
useful to compare and contrast extracts from the relevant
paragraphs from the two judgments, i.e. paragraphs 1013 of the
original order and paragraph 4 of the impugned judgment, at this
juncture.
The relevant extract from paragraphs 1013 of the original order
(reproduced from the SLP paper book) is as follows:
“10. The learned counsel for the respondent Ms.
Sangeeta Tomar has handed over a decision of the
Government dated 20th September, 2005 which showed
the acceptance of the parity claimed by the petitioners
to a large extent by the Government and records the
following:
“1(9)/2000/D(Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 20th September, 2005
To,
15
The Chief of Army Staff,
The Chief of Air Staff,
The Chief of Naval Staff.
Subject: Removal of anomalies arising out of the
implementation of the revised pay scales and
allowances consequent to the fifth CPC
recommendations Bhutan Compensatory Allowance
Removal of Depression
Sir,
I am directed to refer to this Ministry’s letter No.
A/00787/AG/PS3(a)/51S/D(Pay/Services) dated 17th
January, 1974 and No. 54452/AG/PS3(a)/1808
S/D(Pay/Services) dated the 14th December, 1976 on
the above subject and to state that the issue regarding
certain anomalies arising from the implementation of
the revised pay scales and allowances consequent to
the fifth CPC award for Defence Service Officers and
Personnel Below Officer Rank (PBORs) has been
considered by the Government in the light of the
recommendations of the Committee specially
constituted on the above subject and it has been
decided that the depression of 22.5% and 10% for
Officers and PBORs respectively from the Bhutan
Compensatory Allowance may be removed and service
personnel posted at IMTRAT, Bhutan be paid Bhutan
Compensatory Allowance at the rates applicable to
their civilian counterparts subject to the condition that
full and final charges in respect of free facilities
provided to them are recovered.
2. The charges in lieu of free facilities at the following
rates will be recovered from the BCA laid down in this
Ministry’s letter No. 4(1)/2005/D(Pay/Services) dated
7
th September, 2005:
(i) Officers 6%
(ii) Personnel Below Officer Rank 4%
16
X X X
Yours faithfully
Sd/
Under Secretary to the Government of India”
11. The learned counsel for the respondent Ms.
Sangita Tomar has thus contended that since the
grievance of the petitioner has been met by the order
dated 20th
September, 2005, nothing survives in the
present writ petition and therefore, the writ petition
should be disposed of as having become infructuous.
The learned senior counsel for the petitioner, Mr.
Gaurab Banerji, however, drew our attention, what
according to him, to the glaring infirmity in the above
order. He submitted that the decision in paragraph 4
of the communication/letter dated 20th September,
2005 clearly states that it was prospective in nature
i.e. with effect from 20th September, 2005. He has
submitted that while the grievances raised in the writ
petition have been met in respect of the period
subsequent to 20th September, 2005, at least from 30th
November, 1999 the date of the Cabinet Approval, if
not from 1st August, 1997 as recommended by the
Group of Officers, the allowances as approved by the
order dated 20th September, 2005 ought to have been
paid at least from the 30th November, 1999 when the
Cabinet approved the said proposal.
12. While we do appreciate that the Government has
taken a fair stand in acceding to the demands raised
by the petitioners who represent the IMTRAT
nevertheless there appears to be substance in the
grievance raised by the learned counsel for the
petitioner. There appears to be no reason averred or
17
discernible why the parity between the MEA and the
BCA which was in existence from 1973 to 1997 should
not continue right upto 20th September, 2005. The
allowance having been granted for being stationed in
high cost of living area like Bhutan, there is no reason
why it is not being paid from 1999 to 2005. The
petitioners ought not to be deprived of this allowance
for the period when the disparity between the BCA and
the foreign allowance existed. The stand of the
petitioner has indeed been vindicated as far back as
1997 by the recommendation of the G.O. and the
approval of the Cabinet on 30th November, 1999. There
is no rational cause justifying the delay in its
implementation and the Government cannot make the
petitioner the victim of its inaction and lethargy. In so
far as the amount deducted towards the free facilities
provided is concerned, we are satisfied that no
anomaly can be found in respect of the decision taken
by the Ministry of Defence to deduct a lump sum of 6%
and 4% from the allowance of Officers and PBORs
respectively. Consequently, the prayer made in the writ
petition qua the recovery of lump sum charges of
22.5% and 10% for officers and PBORs respectively no
longer survives.
13. Accordingly, we are of the view that the petitioners
are entitled to the allowance from 30th November, 1999
when the Cabinet approved the proposal of the Group
of Officers. The denial of the BCA at least from 30th
November, 1999 to the petitioners is wholly arbitrary
and no reason whatsoever is discernible from the order
why it was made prospective only. The prospective
operation of the order of 20th September, 2005 is not
only arbitrary as the order does not disclose any
reason nor is it reasonable as the parity between the
BCA payable to the IMTRAT and the foreign allowances
payable to the personnel of MEA was disturbed due to
18
the non revision of BCA as and when the foreign
allowances were revised. Since the anomaly has
occurred due to the respondent’s inaction the
petitioner cannot be made to suffer for the fault of the
respondents. The action of the respondents in denying
the parity retrospectively violates Article 14 for
arbitrariness and unreasonableness, and such action
is also violative of Article 14 and 16 of the Constitution
in so far as foreign allowances to MEA personnel have
undergone periodic revisions without giving such
benefits to the petitioners notwithstanding the
erstwhile parity in force from 1973 to 1997.”
(emphasis supplied)
The relevant extract from paragraph 4 of the impugned judgment
(reproduced from the SLP paper book) is as follows:
“4. The Government itself reiterated as recorded
in paragraph 10 of the Judgment that the parity
claimed by the Petitioner qua the civilian counter parts
in Bhutan, which is naturally the officials of MEA was
redressed by the decision of the Ministry of Defence
dated 20th September, 2005 …”
(emphasis supplied)
19. It is evident from the original order that no reference was
made by the Government to equivalence between the MEA and
IMTRAT personnel, though they made an implied reference to
equivalence between the IMTRAT and their civilian counterparts.
Despite the same, the High Court came to the erroneous
conclusion that the Government also impliedly conceded that
there should be equivalence between IMTRAT and MEA
19
personnel. All through, it was the specific contention of the
appellants that the BCA payable to IMTRAT personnel should be
on par with the BCA of their civilian counterparts. As mentioned
supra, the Government always maintained that “civilian
counterparts” means the civilians working on projects, etc. but
not the diplomatic personnel who come under the MEA. However,
we hasten to add here itself that the Government’s conduct in the
form of certain submissions before the High Court may have
generated confusion in the mind of the High Court while arriving
at the conclusion that parity should be maintained between the
MEA and the IMTRAT. However, the Court should not have
confused itself based on such conduct.
20. The High Court had thus reached the conclusion in the
original order that the only point of contention between the
parties was with respect to the retrospectivity of the Ministry of
Defence order dated 20.09.2005, and on this basis the Court
further formed the opinion that giving effect to the Cabinet
decision dated 30.11.1999 from 01.12.1999 (which essentially
amounted to giving retrospective effect to the Ministry of Defence
order dated 20.09.2005) would lead to reinstatement of parity
20
between the FA and the BCA. In the impugned judgment too, the
Court made the same conflation of the issue of retrospective
application of removal of the depression with the issue of parity
between the BCA and the FA, based on the above interpretation
of the term “civilian counterparts” in the Group of Officers report,
the Cabinet decision, etc.
21. In the absence of any argument before the High Court
during the hearing of the writ petitions on the meaning of the
term “civilian counterparts”, and in the absence of any specific
finding recorded by the High Court in the original order to the
effect that the term “civilian counterparts” refers to MEA
personnel, the High Court in the impugned judgment should
have restricted itself to the directions actually issued in the
original order, which were limited to the relief of implementing
the Cabinet decision dated 30.11.1999 from 01.12.1999. By
granting the relief of parity, the Court went beyond the relief
explicitly granted in the original order. It was not open to the
Court to interpret the relief granted in such a manner so as to
expand its scope to include the second relief prayed for but not
granted. It must be kept in mind that the Court’s power in a
21
clarificatory proceeding is different from that in revision or
appeal.
22. Therefore, in our considered opinion, the argument of the
respondents, which effectively is that though the substantive
relief of parity was not specified in the directions issued by the
High Court in the original order, the surrounding discussion
reveals the true intent of the High Court and the same was
validly accounted for in the impugned judgment, cannot be
accepted, inasmuch as the High Court has erred in going beyond
the explicit directions issued in the original order.
23. The learned counsel on both sides, incidentally, also argued
on the merits of the matter on the issue of parity/equivalence
between the BCA payable to the IMTRAT and the FA payable to
the MEA personnel. The case of the appellants, in this regard,
fundamentally is that the FA and BCA are incomparable
allowances paid to persons whose scope and nature of duties are
completely different and whose service conditions are governed
by different sets of rules/terms and conditions. Other notable
arguments put forth by the appellants are that parity between
the two allowances until 1997 was a mere coincidence arising out
22
of similar methods of calculation and could not be demanded by
way of legitimate expectation by the IMTRAT personnel since the
Government never made any promise to that effect; that the
parity was discontinued once the FA was linked to the United
Nations Retail Price Index (in short “the UNRPI”); that granting
the relief of parity would lead to demands for parity between the
FA and the compensatory allowances paid to other
deputationists/defence personnel in various countries and may
have grave financial implications, and may even have security
implications due to the possible reduction of military personnel
in Bhutan; and that the difference between civilian and military
personnel is anyway a valid ground for classification.
24. On the other hand, the case of the respondents in this
regard primarily is that IMTRAT personnel cannot be equated
with civilian personnel on deputation, who according to them are
personnel under the control of the Royal Government of Bhutan
in various projects aided by the Government of India, or those
selffinanced by the Bhutanese Government, whereas both the
MEA and IMTRAT personnel work under the direct control of the
Government of India, and therefore cannot be held at par with
23
deputationists and are interse comparable. Other important
arguments submitted by the respondents, in brief, are that the
two allowances are of the same nature, i.e. their purpose is to
offset the higher cost of living in a foreign country; that the BCA
should be paid to IMTRAT personnel at an equivalent, if not
greater, rate compared to the FA since they are working in a
difficult terrain and in the deeply hostile atmosphere bordering
Bhutan and China, with an exorbitant cost of living; that parity
between IMTRAT and MEA personnel will not create grounds for
parity between deputationists and the MEA, since the IMTRAT
and deputationists constitute two separate classes; that there is
parity between the compensatory allowances paid to IMTRATlike
teams and MEA personnel in other countries; that there was
parity between the two allowances for 25 years which was
arbitrarily discontinued; that the linkage of the FA with the
UNRPI is not a valid ground for disparity since by the admission
of the Government even the BCA payable to IMTRAT personnel
was supposed to be linked to UN indices after 2002.
25. After duly considering the material placed on record before
us, we are of the opinion that the High Court while passing the
24
impugned judgment was not justified in concluding that a
legitimate case for parity between the BCA payable to IMTRAT
personnel and the FA payable to MEA personnel can be made
out. Of course, it cannot be disputed that the purpose of both
allowances is fundamentally the same, i.e. to meet the higher
cost of living abroad, but at the same time the requirements that
have to be met out of the two are somewhat different. IMTRAT
personnel benefit to a larger extent compared to MEA personnel
in terms of getting food and other purchases at a cheaper cost
due to the provision of facilities such as mess, canteen, etc.
Moreover, a comparison between the different allowances to
which these two classes of personnel are entitled shows that
IMTRAT personnel are entitled to an additional allowance called
“Difficult Area Allowance”, and also receive Military Service Pay,
in addition to Basic Pay which is paid to both MEA and IMTRAT
personnel according to the respective grades of the personnel.
26. Moreover, it has not been shown by the respondents that
the nature of the work done by the IMTRAT and MEA personnel
is one and the same, or even comparable. The terms of
appointment and conditions of service of the IMTRAT and MEA
25
personnel are also completely different. This aspect in itself is
sufficient to negate the case for parity pled by the respondents.
The institution of the IMTRAT team for Bhutan can be traced to
the sanction letter of the Government of India dated 27.8.1962,
by which a military team (the IMTRAT) was loaned out for
training purposes to the Government of Bhutan. As indicated by
the letter dated 28.01.1985 from the Army Headquarters to the
IMTRAT containing administrative instructions for the team, the
IMTRAT is fully under the control of the Government of India and
is an integral part of the Indian Armed Forces, functioning under
the direct command of the Army Headquarters, Government of
India. In contrast, MEA personnel are governed by the IFS Rules.
In Rule 2, the said rules are stated to be applicable to:
“(i) all persons who have been, or may hereafter be,
appointed to the Service; and (ii) any other officer of an
All India Service or Central Civil Service, subject to the
option, if any, exercised by such officer under the
provisions of the Indian Foreign Service Rules.”
It is relevant to note that Rule 7 of the same refers to the
FA, stating that:
“A member of the Service serving outside India may be
granted a foreign allowance at such rates and subject
to such conditions as may be prescribed by the
Government from time to time.”
26
27. At this juncture, it would be apt to observe that this Court
has on several occasions affirmed that the difference between
civilian and defence personnel is a valid classification. (For
instance, see : Confederation of ExServicemen Associations v.
Union of India, (2006) 8 SCC 399; Union of India v. K.P. Singh,
(2017) 3 SCC 289).
28. Moreover, though it may be true that IMTRATlike teams in
other countries like Zambia, Lesotho and Botswana receive
compensatory allowances at par with the FA paid to the Indian
diplomats in those countries, it cannot be forgotten that
IMTRATlike teams working in certain other countries (except the
aforementioned) have been stated to be receiving lesser
compensatory allowances than the FA paid to MEA personnel
posted in those countries. It is for the State to take a pragmatic
view in the matter of fixing compensatory allowances on a
countrytocountry basis, depending on the facts and
circumstances of each case, and Courts in such matters
generally may not interfere, particularly when the decision to be
taken by the State in such matters is akin to a policy decision.
27
29. Additionally, it is an undisputed fact that parity had existed
between the two allowances for 25 years, but that does not mean
that such action of the Government can be taken to mean that
the Government should continue such parity in the future also.
As mentioned supra, it is open for the State to modulate the
allowances depending on the attending circumstances.
30. However, we accept the submission of the respondents that
IMTRAT personnel cannot be termed as deputationists. It is
evident from the letter dated 26.11.2008 from the Army
Headquarters that IMTRAT personnel are not deputationists. Be
that as it may, this in itself is not a sufficient ground to grant
parity between IMTRAT and MEA personnel. Even a perusal of
the recommendations of the 5th Central Pay Commission, the
High Level Committee and the Group of Officers, as well as the
Cabinet decision dated 30.11.1999, do not suggest in any
manner that the civilian counterparts of the IMTRAT personnel
are MEA personnel. The issue before them being the arbitrary
depression imposed upon the BCA payable to IMTRAT personnel,
the reference to “civilian counterparts” would naturally mean nonmilitary personnel who are receiving the BCA without any
28
depression. It is relevant to note here that the 6th and 7th Central
Pay Commissions also recommended maintaining the status quo
with respect to the BCA payable to IMTRAT personnel.
31. In view of the above discussion, we hold not only that the
clarification made through the impugned judgment is beyond the
scope of the original order dated 22.11.2005, but also that there
were no valid grounds for the High Court while passing the
impugned judgment to grant parity between the BCA payable to
IMTRAT personnel and the FA payable to MEA personnel. The
directions made in the original order are only to the effect that
the removal of depression on the BCA payable to IMTRAT
personnel, and its replacement with nominal charges for the
erstwhile free facilities, be made effective from 01.12.1999. As
noted supra, the same have been fully complied with by the
appellants after the issuance of the corrigendum dated
23.02.2006. It is also pertinent to note that seven revisions of the
BCA payable to IMTRAT personnel have been undertaken
between 20072017 as per the appellants. However, having
regard to the fact that the IMTRAT personnel are working in
difficult areas of Bhutan bordering China, and as they have to be
29
vigilant all through in the interest of our nation, they deserve to
be provided the BCA without any depression. Hence, having
regard to the totality of the facts and circumstances, we direct
the Government to remove the depression of 6% and 4%
respectively on the BCA payable to IMTRAT personnel, being the
Service Officers and PBORs, with immediate effect.
32. Accordingly, we allow the instant appeal in part and set
aside the impugned judgment dated 07.05.2007 with the
aforementioned directions.
……………..…………………..J.
[ N.V. Ramana]
……………..…………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
February 11, 2019.
30
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2763 OF 2009
UNION OF INDIA THROUGH CABINET …APPELLANTS
SECRETARY & ORS.
VERSUS
CAPTAIN GURDEV SINGH & ANR. …RESPONDENTS
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
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. 1718417185/2004, 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,
1
“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 selffinanced or aided by the Government of
2
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
3
Officers were accepted vide the Cabinet decision dated
30.11.1999.
5. Writ Petition Nos. 1718485/2004 were filed by two IMTRAT
personnel, posted in Bhutan since 20032004, 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 regarding removal of depression and
imposition of charges for free facilities, which had not yet been
implemented.
4
6. During the pendency of the above writ petitions, the Cabinet
decision dated 30.11.1999 was given effect to through an order of
the Ministry of Defence dated 20.09.2005, removing the existing
depression and directing that the payment of the BCA to IMTRAT
personnel be made at the same rates as to their civilian
counterparts, subject to the recovery of nominal charges @ 6%
and 4% for Service Officers and PBORs respectively for providing
mess facilities, etc. The said order was prospective in operation.
7. The writ petitions were allowed by the High Court vide order
dated 22.11.2005 (hereinafter “the original order”), setting aside
the Ministry of Defence order dated 20.09.2005 to the extent it
gave relief prospectively. The High Court gave effect to the
Cabinet decision dated 30.11.1999 from 01.12.1999, after taking
into account the two ad hoc revisions. It would not be out of
place to mention here that the operative portions of the Cabinet
decision and the Ministry of Defence order were identical, except
for the important difference that the Cabinet decision dated
30.11.1999 did not specify the rates of the nominal charges to be
imposed on the personnel in lieu of the depression, which only
came to be specified by the Ministry of Defence order dated
5
20.09.2005. The direction in the writ petitions effectively
amounted to giving retrospective operation to the Ministry of
Defence order dated 20.09.2005, which is evident from the
following observations made in the original order (reproduced
from the SLP paper book):
“14. Accordingly, the writ petition is allowed and the
order dated 20th
September, 2005 to the extent it
grants the relief prospectively to the petitioners is
quashed and set aside and the respondents are
directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
December, 1999 in
favour of the petitioner after taking into account the
two ad hoc revisions on 1st
January, 2001 and 1st
April, 2005 and are further directed to pay all the
arrears consequently payable to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest in view of the fact that the dues were
wrongfully withheld. The learned counsel for the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
the communication/letter dated 20th
September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
6
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
(emphasis
supplied)
8. The Union of India sought multiple opportunities to comply
with the order, in which interregnum, the Ministry of Defence
issued a corrigendum on 23.02.2006 to its order dated
20.09.2005, directing that the removal of depression and
recovery of charges at the specified rates be given retrospective
effect from 01.12.1999.
9. However, in its order dated 07.03.2006, the High Court
observed that although one part of the directions in the original
order had been complied with, the “remaining part” of the
directions was still unimplemented, and granted further time for
such compliance. After this order, an additional affidavit was filed
by the MEA, claiming that with the issue of the corrigendum
making the removal of depression effective from 01.12.1999, the
directions issued in the original order had been effectively
complied with. It was further stated that the direction with
respect to periodic revision of the BCA had also been taken note
of, and such revisions would be duly considered from time to
7
time. It was also placed on record that IMTRAT personnel were
being paid the same BCA as other Indian civilian personnel in
Bhutan (i.e. the second category of personnel mentioned supra).
10. Subsequently, in light of the above affidavit, the
respondents filed an application i.e. CM No. 12743/2006 for
direction and clarification of the original order, on the basis that
the Union of India was incorrectly interpreting the term “civilian
counterparts” as referring to persons on deputation with the
Royal Government of Bhutan, and seeking a clarification that the
original order directed the maintenance of parity between the
BCA and the FA paid to MEA personnel at the Indian Embassy in
Bhutan. On this application, the impugned judgment was passed
affirming parity between the BCA and the FA, leading to the
instant appeal by the appellants on the ground that the High
Court erred in granting the relief of such parity, which was not
contemplated in the directions issued in the original order, and
that the BCA could not be held to be at par with the FA.
11. This Court is conscious of the fact that the original order
was never challenged by either the appellants or the respondents,
and has thus attained finality. The fundamental issue before us,
8
therefore, is whether the impugned judgment went beyond the
scope of the original order in directing parity between the FA and
the BCA payable to IMTRAT personnel.
12. To that end, the appellants submitted that the original order
did not direct the two allowances to be maintained at par, and
while dealing with the issue of parity between the two allowances
it only contemplated that periodic revisions be undertaken to the
BCA just like periodic revisions had been undertaken for the FA.
Furthermore, it was submitted that the direction for granting
retrospective effect to the removal of the depression on the BCA,
payable to IMTRAT personnel had to be considered in the light of
the underlying recommendation of the High Level Committee and
the Group of Officers, and the Cabinet decision dated
30.11.1999. These were to the effect that the BCA be paid to the
IMTRAT at the same rate as their “civilian counterparts”, which
did not make any reference whatsoever to the FA paid to MEA
personnel, and were only meant to ensure parity with civilian
deputationists in Bhutan who receive the BCA, albeit without any
depression.
9
13. The respondents, on the other hand, submitted that there
were two parts to the directions in the original order and only one
of them had been complied with by the appellants, i.e. removal of
depression and its retrospective operation. The impugned
judgment in no way went beyond the judgment being clarified, as
the clarification was in consonance with the second part of the
directions in the original order in paragraphs 12 and 13, on the
issue of parity between the FA and the BCA. This claim was
based on the argument that the recommendation of the Group of
Officers and the Cabinet decision dated 30.11.1999 to the effect
that the BCA be paid to the IMTRAT at the same rate as their
“civilian counterparts” could only mean parity with MEA
personnel. It was further argued that the appellants themselves
had submitted before the High Court while the writ petitions were
being heard that the grievances of the respondents had been fully
met post the removal of depression on the BCA, which indicated
acceptance of the interpretation of the term “civilian counterparts”
as MEA personnel; and that in the order of the High Court dated
07.03.2006 (already mentioned supra), it had been observed that
10
the appellants had not complied with the “remaining part of the
directions” given in the original order.
14. To determine the validity of the clarification made vide the
impugned judgment, it is essential to first examine the original
order. The High Court acknowledged while passing the original
order that two grievances had been raised by the writ petitioners
(the respondents herein)—i.e., concerning removal of depression,
and concerning parity with MEA personnel in the quantum of the
respective allowances in the form of the BCA and the FA. With
regard to the question of depression, the grievance was in terms
of the nonimplementation of the Cabinet decision dated
30.11.1999. It was contended by the writ petitioners that the
decision needed to be enforced retrospectively from 30.11.1999,
when the Cabinet decision was made, or from 01.08.1997, the
date suggested by the Group of Officers.
15. The High Court went on to conclude that the writ petitioners
were justified in claiming retrospective benefit of the Ministry of
Defence order dated 20.09.2005, the prospective operation of
which was arbitrary insofar as it did not disclose any reason for
the same, and unreasonable insofar as it failed to address the
11
lack of parity between the BCA and FA payable to IMTRAT and
MEA personnel respectively between 1997 and 2005, as they had
been at par since the institution of the FA in 1973 until 1997,
due to nonrevision of the BCA when the FA was revised. The
High Court further reasoned that the writ petitioners’ stance was
vindicated by the recommendation of the Group of Officers and
the Cabinet decision dated 30.11.1999. On this basis, the High
Court directed that the Cabinet decision dated 30.11.1999 be
given effect from 01.12.1999, after taking into account the two ad
hoc revisions of the BCA undertaken previously, and to pay all
consequent arrears.
16. However, it is evident that though the above observations
were made by the High Court concerning parity between the two
allowances, no direction was issued to that effect. In this respect,
it would be useful to revisit the directions actually and finally
issued in the original order (reproduced from the SLP paper
book):
“14. Accordingly, the writ petition is allowed and the
order dated 20th
September, 2005 to the extent it
grants the relief prospectively to the petitioners is
quashed and set aside and the respondents are
directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
December, 1999 in
12
favour of the petitioner after taking into account the
two ad hoc revisions on 1st
January, 2001 and 1st
April, 2005 and are further directed to pay all the
arrears consequently payable to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest in view of the fact that the dues were
wrongfully withheld. The learned counsel for the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
the communication/letter dated 20th September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
(emphasis supplied)
17. It is clear that the operative portion of the order
unambiguously states only that the Cabinet decision dated
30.11.1999 has to be given effect from 01.12.1999 (i.e. the
Ministry of Defence order dated 20.09.2005 has to be given
retrospective effect from 01.12.1999). This direction stands duly
complied with after the issuance of the corrigendum dated
23.02.2006 to the Ministry of Defence order dated 20.09.2005.
Evidently, the observations made by the High Court regarding
13
parity between the BCA and the FA noted above are based on a
conflation of two distinct grievances of the writ petitioners, i.e.,
firstly, removal of the depression from the BCA payable to
IMTRAT personnel, and secondly, the reinstatement of parity of
the BCA with the FA. Such conflation, in turn, appears to be
based upon the implicit assumption of the High Court that the
term “civilian counterparts” in the underlying recommendations of
the High Level Committee and Group of Officers, and the Cabinet
decision dated 30.11.1999, refers to MEA officials posted in
Bhutan, though the term “civilian counterparts” itself has not
been defined in any of the above recommendations/orders.
18. The impugned judgment throws light on the lack of
consideration of this issue by the High Court while disposing of
the writ petitions. It is noted in the impugned judgment that the
Government could not at that stage (i.e. while the High Court was
considering the application for clarification of the original order)
raise the argument regarding nonparity between the BCA and
the FA, or between IMTRAT and MEA personnel, after failing to
raise it while the writ petitions were being heard. Moreover, while
noting in paragraph 4 of the impugned judgment that the
14
Government had specifically submitted before the High Court
earlier that the grievances of the writ petitioners had been met
through the Ministry of Defence order dated 20.09.2005, the
High Court articulated the implicit assumption which had been
made in the original order that the civilian counterparts of the
IMTRAT personnel referred to in the report of the Group of
Officers, Cabinet decision, etc. were MEA officials. It would be
useful to compare and contrast extracts from the relevant
paragraphs from the two judgments, i.e. paragraphs 1013 of the
original order and paragraph 4 of the impugned judgment, at this
juncture.
The relevant extract from paragraphs 1013 of the original order
(reproduced from the SLP paper book) is as follows:
“10. The learned counsel for the respondent Ms.
Sangeeta Tomar has handed over a decision of the
Government dated 20th September, 2005 which showed
the acceptance of the parity claimed by the petitioners
to a large extent by the Government and records the
following:
“1(9)/2000/D(Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 20th September, 2005
To,
15
The Chief of Army Staff,
The Chief of Air Staff,
The Chief of Naval Staff.
Subject: Removal of anomalies arising out of the
implementation of the revised pay scales and
allowances consequent to the fifth CPC
recommendations Bhutan Compensatory Allowance
Removal of Depression
Sir,
I am directed to refer to this Ministry’s letter No.
A/00787/AG/PS3(a)/51S/D(Pay/Services) dated 17th
January, 1974 and No. 54452/AG/PS3(a)/1808
S/D(Pay/Services) dated the 14th December, 1976 on
the above subject and to state that the issue regarding
certain anomalies arising from the implementation of
the revised pay scales and allowances consequent to
the fifth CPC award for Defence Service Officers and
Personnel Below Officer Rank (PBORs) has been
considered by the Government in the light of the
recommendations of the Committee specially
constituted on the above subject and it has been
decided that the depression of 22.5% and 10% for
Officers and PBORs respectively from the Bhutan
Compensatory Allowance may be removed and service
personnel posted at IMTRAT, Bhutan be paid Bhutan
Compensatory Allowance at the rates applicable to
their civilian counterparts subject to the condition that
full and final charges in respect of free facilities
provided to them are recovered.
2. The charges in lieu of free facilities at the following
rates will be recovered from the BCA laid down in this
Ministry’s letter No. 4(1)/2005/D(Pay/Services) dated
7
th September, 2005:
(i) Officers 6%
(ii) Personnel Below Officer Rank 4%
16
X X X
Yours faithfully
Sd/
Under Secretary to the Government of India”
11. The learned counsel for the respondent Ms.
Sangita Tomar has thus contended that since the
grievance of the petitioner has been met by the order
dated 20th
September, 2005, nothing survives in the
present writ petition and therefore, the writ petition
should be disposed of as having become infructuous.
The learned senior counsel for the petitioner, Mr.
Gaurab Banerji, however, drew our attention, what
according to him, to the glaring infirmity in the above
order. He submitted that the decision in paragraph 4
of the communication/letter dated 20th September,
2005 clearly states that it was prospective in nature
i.e. with effect from 20th September, 2005. He has
submitted that while the grievances raised in the writ
petition have been met in respect of the period
subsequent to 20th September, 2005, at least from 30th
November, 1999 the date of the Cabinet Approval, if
not from 1st August, 1997 as recommended by the
Group of Officers, the allowances as approved by the
order dated 20th September, 2005 ought to have been
paid at least from the 30th November, 1999 when the
Cabinet approved the said proposal.
12. While we do appreciate that the Government has
taken a fair stand in acceding to the demands raised
by the petitioners who represent the IMTRAT
nevertheless there appears to be substance in the
grievance raised by the learned counsel for the
petitioner. There appears to be no reason averred or
17
discernible why the parity between the MEA and the
BCA which was in existence from 1973 to 1997 should
not continue right upto 20th September, 2005. The
allowance having been granted for being stationed in
high cost of living area like Bhutan, there is no reason
why it is not being paid from 1999 to 2005. The
petitioners ought not to be deprived of this allowance
for the period when the disparity between the BCA and
the foreign allowance existed. The stand of the
petitioner has indeed been vindicated as far back as
1997 by the recommendation of the G.O. and the
approval of the Cabinet on 30th November, 1999. There
is no rational cause justifying the delay in its
implementation and the Government cannot make the
petitioner the victim of its inaction and lethargy. In so
far as the amount deducted towards the free facilities
provided is concerned, we are satisfied that no
anomaly can be found in respect of the decision taken
by the Ministry of Defence to deduct a lump sum of 6%
and 4% from the allowance of Officers and PBORs
respectively. Consequently, the prayer made in the writ
petition qua the recovery of lump sum charges of
22.5% and 10% for officers and PBORs respectively no
longer survives.
13. Accordingly, we are of the view that the petitioners
are entitled to the allowance from 30th November, 1999
when the Cabinet approved the proposal of the Group
of Officers. The denial of the BCA at least from 30th
November, 1999 to the petitioners is wholly arbitrary
and no reason whatsoever is discernible from the order
why it was made prospective only. The prospective
operation of the order of 20th September, 2005 is not
only arbitrary as the order does not disclose any
reason nor is it reasonable as the parity between the
BCA payable to the IMTRAT and the foreign allowances
payable to the personnel of MEA was disturbed due to
18
the non revision of BCA as and when the foreign
allowances were revised. Since the anomaly has
occurred due to the respondent’s inaction the
petitioner cannot be made to suffer for the fault of the
respondents. The action of the respondents in denying
the parity retrospectively violates Article 14 for
arbitrariness and unreasonableness, and such action
is also violative of Article 14 and 16 of the Constitution
in so far as foreign allowances to MEA personnel have
undergone periodic revisions without giving such
benefits to the petitioners notwithstanding the
erstwhile parity in force from 1973 to 1997.”
(emphasis supplied)
The relevant extract from paragraph 4 of the impugned judgment
(reproduced from the SLP paper book) is as follows:
“4. The Government itself reiterated as recorded
in paragraph 10 of the Judgment that the parity
claimed by the Petitioner qua the civilian counter parts
in Bhutan, which is naturally the officials of MEA was
redressed by the decision of the Ministry of Defence
dated 20th September, 2005 …”
(emphasis supplied)
19. It is evident from the original order that no reference was
made by the Government to equivalence between the MEA and
IMTRAT personnel, though they made an implied reference to
equivalence between the IMTRAT and their civilian counterparts.
Despite the same, the High Court came to the erroneous
conclusion that the Government also impliedly conceded that
there should be equivalence between IMTRAT and MEA
19
personnel. All through, it was the specific contention of the
appellants that the BCA payable to IMTRAT personnel should be
on par with the BCA of their civilian counterparts. As mentioned
supra, the Government always maintained that “civilian
counterparts” means the civilians working on projects, etc. but
not the diplomatic personnel who come under the MEA. However,
we hasten to add here itself that the Government’s conduct in the
form of certain submissions before the High Court may have
generated confusion in the mind of the High Court while arriving
at the conclusion that parity should be maintained between the
MEA and the IMTRAT. However, the Court should not have
confused itself based on such conduct.
20. The High Court had thus reached the conclusion in the
original order that the only point of contention between the
parties was with respect to the retrospectivity of the Ministry of
Defence order dated 20.09.2005, and on this basis the Court
further formed the opinion that giving effect to the Cabinet
decision dated 30.11.1999 from 01.12.1999 (which essentially
amounted to giving retrospective effect to the Ministry of Defence
order dated 20.09.2005) would lead to reinstatement of parity
20
between the FA and the BCA. In the impugned judgment too, the
Court made the same conflation of the issue of retrospective
application of removal of the depression with the issue of parity
between the BCA and the FA, based on the above interpretation
of the term “civilian counterparts” in the Group of Officers report,
the Cabinet decision, etc.
21. In the absence of any argument before the High Court
during the hearing of the writ petitions on the meaning of the
term “civilian counterparts”, and in the absence of any specific
finding recorded by the High Court in the original order to the
effect that the term “civilian counterparts” refers to MEA
personnel, the High Court in the impugned judgment should
have restricted itself to the directions actually issued in the
original order, which were limited to the relief of implementing
the Cabinet decision dated 30.11.1999 from 01.12.1999. By
granting the relief of parity, the Court went beyond the relief
explicitly granted in the original order. It was not open to the
Court to interpret the relief granted in such a manner so as to
expand its scope to include the second relief prayed for but not
granted. It must be kept in mind that the Court’s power in a
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clarificatory proceeding is different from that in revision or
appeal.
22. Therefore, in our considered opinion, the argument of the
respondents, which effectively is that though the substantive
relief of parity was not specified in the directions issued by the
High Court in the original order, the surrounding discussion
reveals the true intent of the High Court and the same was
validly accounted for in the impugned judgment, cannot be
accepted, inasmuch as the High Court has erred in going beyond
the explicit directions issued in the original order.
23. The learned counsel on both sides, incidentally, also argued
on the merits of the matter on the issue of parity/equivalence
between the BCA payable to the IMTRAT and the FA payable to
the MEA personnel. The case of the appellants, in this regard,
fundamentally is that the FA and BCA are incomparable
allowances paid to persons whose scope and nature of duties are
completely different and whose service conditions are governed
by different sets of rules/terms and conditions. Other notable
arguments put forth by the appellants are that parity between
the two allowances until 1997 was a mere coincidence arising out
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of similar methods of calculation and could not be demanded by
way of legitimate expectation by the IMTRAT personnel since the
Government never made any promise to that effect; that the
parity was discontinued once the FA was linked to the United
Nations Retail Price Index (in short “the UNRPI”); that granting
the relief of parity would lead to demands for parity between the
FA and the compensatory allowances paid to other
deputationists/defence personnel in various countries and may
have grave financial implications, and may even have security
implications due to the possible reduction of military personnel
in Bhutan; and that the difference between civilian and military
personnel is anyway a valid ground for classification.
24. On the other hand, the case of the respondents in this
regard primarily is that IMTRAT personnel cannot be equated
with civilian personnel on deputation, who according to them are
personnel under the control of the Royal Government of Bhutan
in various projects aided by the Government of India, or those
selffinanced by the Bhutanese Government, whereas both the
MEA and IMTRAT personnel work under the direct control of the
Government of India, and therefore cannot be held at par with
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deputationists and are interse comparable. Other important
arguments submitted by the respondents, in brief, are that the
two allowances are of the same nature, i.e. their purpose is to
offset the higher cost of living in a foreign country; that the BCA
should be paid to IMTRAT personnel at an equivalent, if not
greater, rate compared to the FA since they are working in a
difficult terrain and in the deeply hostile atmosphere bordering
Bhutan and China, with an exorbitant cost of living; that parity
between IMTRAT and MEA personnel will not create grounds for
parity between deputationists and the MEA, since the IMTRAT
and deputationists constitute two separate classes; that there is
parity between the compensatory allowances paid to IMTRATlike
teams and MEA personnel in other countries; that there was
parity between the two allowances for 25 years which was
arbitrarily discontinued; that the linkage of the FA with the
UNRPI is not a valid ground for disparity since by the admission
of the Government even the BCA payable to IMTRAT personnel
was supposed to be linked to UN indices after 2002.
25. After duly considering the material placed on record before
us, we are of the opinion that the High Court while passing the
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impugned judgment was not justified in concluding that a
legitimate case for parity between the BCA payable to IMTRAT
personnel and the FA payable to MEA personnel can be made
out. Of course, it cannot be disputed that the purpose of both
allowances is fundamentally the same, i.e. to meet the higher
cost of living abroad, but at the same time the requirements that
have to be met out of the two are somewhat different. IMTRAT
personnel benefit to a larger extent compared to MEA personnel
in terms of getting food and other purchases at a cheaper cost
due to the provision of facilities such as mess, canteen, etc.
Moreover, a comparison between the different allowances to
which these two classes of personnel are entitled shows that
IMTRAT personnel are entitled to an additional allowance called
“Difficult Area Allowance”, and also receive Military Service Pay,
in addition to Basic Pay which is paid to both MEA and IMTRAT
personnel according to the respective grades of the personnel.
26. Moreover, it has not been shown by the respondents that
the nature of the work done by the IMTRAT and MEA personnel
is one and the same, or even comparable. The terms of
appointment and conditions of service of the IMTRAT and MEA
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personnel are also completely different. This aspect in itself is
sufficient to negate the case for parity pled by the respondents.
The institution of the IMTRAT team for Bhutan can be traced to
the sanction letter of the Government of India dated 27.8.1962,
by which a military team (the IMTRAT) was loaned out for
training purposes to the Government of Bhutan. As indicated by
the letter dated 28.01.1985 from the Army Headquarters to the
IMTRAT containing administrative instructions for the team, the
IMTRAT is fully under the control of the Government of India and
is an integral part of the Indian Armed Forces, functioning under
the direct command of the Army Headquarters, Government of
India. In contrast, MEA personnel are governed by the IFS Rules.
In Rule 2, the said rules are stated to be applicable to:
“(i) all persons who have been, or may hereafter be,
appointed to the Service; and (ii) any other officer of an
All India Service or Central Civil Service, subject to the
option, if any, exercised by such officer under the
provisions of the Indian Foreign Service Rules.”
It is relevant to note that Rule 7 of the same refers to the
FA, stating that:
“A member of the Service serving outside India may be
granted a foreign allowance at such rates and subject
to such conditions as may be prescribed by the
Government from time to time.”
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27. At this juncture, it would be apt to observe that this Court
has on several occasions affirmed that the difference between
civilian and defence personnel is a valid classification. (For
instance, see : Confederation of ExServicemen Associations v.
Union of India, (2006) 8 SCC 399; Union of India v. K.P. Singh,
(2017) 3 SCC 289).
28. Moreover, though it may be true that IMTRATlike teams in
other countries like Zambia, Lesotho and Botswana receive
compensatory allowances at par with the FA paid to the Indian
diplomats in those countries, it cannot be forgotten that
IMTRATlike teams working in certain other countries (except the
aforementioned) have been stated to be receiving lesser
compensatory allowances than the FA paid to MEA personnel
posted in those countries. It is for the State to take a pragmatic
view in the matter of fixing compensatory allowances on a
countrytocountry basis, depending on the facts and
circumstances of each case, and Courts in such matters
generally may not interfere, particularly when the decision to be
taken by the State in such matters is akin to a policy decision.
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29. Additionally, it is an undisputed fact that parity had existed
between the two allowances for 25 years, but that does not mean
that such action of the Government can be taken to mean that
the Government should continue such parity in the future also.
As mentioned supra, it is open for the State to modulate the
allowances depending on the attending circumstances.
30. However, we accept the submission of the respondents that
IMTRAT personnel cannot be termed as deputationists. It is
evident from the letter dated 26.11.2008 from the Army
Headquarters that IMTRAT personnel are not deputationists. Be
that as it may, this in itself is not a sufficient ground to grant
parity between IMTRAT and MEA personnel. Even a perusal of
the recommendations of the 5th Central Pay Commission, the
High Level Committee and the Group of Officers, as well as the
Cabinet decision dated 30.11.1999, do not suggest in any
manner that the civilian counterparts of the IMTRAT personnel
are MEA personnel. The issue before them being the arbitrary
depression imposed upon the BCA payable to IMTRAT personnel,
the reference to “civilian counterparts” would naturally mean nonmilitary personnel who are receiving the BCA without any
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depression. It is relevant to note here that the 6th and 7th Central
Pay Commissions also recommended maintaining the status quo
with respect to the BCA payable to IMTRAT personnel.
31. In view of the above discussion, we hold not only that the
clarification made through the impugned judgment is beyond the
scope of the original order dated 22.11.2005, but also that there
were no valid grounds for the High Court while passing the
impugned judgment to grant parity between the BCA payable to
IMTRAT personnel and the FA payable to MEA personnel. The
directions made in the original order are only to the effect that
the removal of depression on the BCA payable to IMTRAT
personnel, and its replacement with nominal charges for the
erstwhile free facilities, be made effective from 01.12.1999. As
noted supra, the same have been fully complied with by the
appellants after the issuance of the corrigendum dated
23.02.2006. It is also pertinent to note that seven revisions of the
BCA payable to IMTRAT personnel have been undertaken
between 20072017 as per the appellants. However, having
regard to the fact that the IMTRAT personnel are working in
difficult areas of Bhutan bordering China, and as they have to be
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vigilant all through in the interest of our nation, they deserve to
be provided the BCA without any depression. Hence, having
regard to the totality of the facts and circumstances, we direct
the Government to remove the depression of 6% and 4%
respectively on the BCA payable to IMTRAT personnel, being the
Service Officers and PBORs, with immediate effect.
32. Accordingly, we allow the instant appeal in part and set
aside the impugned judgment dated 07.05.2007 with the
aforementioned directions.
……………..…………………..J.
[ N.V. Ramana]
……………..…………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
February 11, 2019.
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