Union of India through Cabinet Secretary & Ors. vs Captain Gurdev Singh & ANR.

UNION OF INDIA THROUGH CABINET …APPELLANTS SECRETARY & ORS.

VERSUS

CAPTAIN GURDEV SINGH & ANR. …RESPONDENTS

JUDGMENT

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 Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2019.02.12

Allowance payable to the Indian Military Training Team (in short, 16:18:25 IST Reason:

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 30 th 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. 30 th 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 30 th 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. 30 th 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 7th 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 20 th 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 30 th 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 30 th November, 1999 when the Cabinet approved the proposal of the Group of Officers. The denial of the BCA at least from 30 th 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.

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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 non­

military personnel who are receiving the BCA without any

28 depression. It is relevant to note here that the 6 th 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.

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