Union Of India vs Sh. Sarvendra Singh Chauhan
- SCC(2017) 15 SCC 329
- Neutral2017 INSC 765
- AIRAIR 2017 SC 3998
Ratio decidendi
The rule this decision rests on
Where an administrative authority grants an allowance with executive sanction pursuant to an order that expressly provides for an option between mutually exclusive benefit packages (one of which includes the allowance in question), a subordinate administrative officer may, upon clarification from the superior authority that the allowance should not have been granted concurrently with the alternative benefit package, correct the earlier mistake and implement the clarified policy without requiring fresh Presidential sanction. The clarification from the higher authority suffices to withdraw the allowance that was being paid in error. Special (Duty) Allowance, introduced to Central Government employees posted in the North-Eastern region and extended to Assam Rifles personnel, is a compensatory allowance. When the Risk/Hardship Allowance was introduced with Presidential sanction in 2009 on the express condition that CPMF personnel would have the option to receive "whichever is beneficial to them" as between their existing package of compensatory allowances and detachment allowances on the one hand or Risk/Hardship Allowance on the other, the benefit structure made clear that receipt of both simultaneously was not contemplated. Combatised personnel of Assam Rifles do not, by virtue of their combatised status, acquire an entitlement to receive both Special (Duty) Allowance and Risk/Hardship Allowance cumulatively. Where amounts have been paid in reliance on an erroneous understanding of an employee's entitlements prior to administrative correction of that error, recovery of those amounts already paid is not permissible, though the erroneous payments do not validate the employee's underlying legal entitlement to continued receipt.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.10589-10590 OF 2017 (Arising out of SLP (C) Nos.23204-23205 of 2013)
UNION OF INDIA & ORS. .... Appellant(s) Versus
SH. SARVENDRA SINGH CHAUHAN & ORS. ….Respondent(s)
JUDGMENT
L. NAGESWARA RAO, J.
Leave granted.
The Respondents filed Writ Petitions challenging the
order dated 12.05.2011 issued by the Director General of
Assam Rifles which were allowed by a learned Single Judge
of the Guwahati High Court. The Appeals filed against this Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2017.08.17 order were dismissed by a Division Bench. Aggrieved, the 16:18:23 IST Reason:
Union of India and others have filed these Civil Appeals.
1
2. The Respondents are combatised personnel of the
Assam Rifles. Their grievance pertains to withdrawal of
Special (Duty) Allowance. To understand the controversy, it
is relevant to refer to the events that led to the introduction
of Special (Duty) Allowance and its withdrawal.
3. By office memorandum dated 14.12.1983, the
Government of India introduced payment of Special (Duty)
Allowance to Central Government civilian employees who
were posted to any station in the North-Eastern region.
The said allowance was extended to personnel working in
Assam Rifles on 02.02.1989. On the basis of the
recommendations of the 6th Central Pay Commission, the
President of India approved the introduction of
Risk/Hardship Allowance to Central Para Military Force
personnel w.e.f. 01.03.2009. The office memorandum
dated 16.04.2009 by which the decision was conveyed to
all departments concerned contained a clause which is as
follows:-
"4.CPMF personnel shall have the option to receiving their existing package of compensatory allowances and detachment allowance or the Risk/Hardship Allowances proposed at para-1 and 2 above whichever is beneficial to them.” (emphasis supplied)
2
4. By a letter dated 05.06.2009, the benefit of
Risk/Hardship Allowance was extended to Combatised
Armed Reserved Personnel in Assam Rifles. They were
informed that they have an option to claim Special
Compensatory Allowance (remote locality) and detachment
allowances or risk allowance whichever is beneficial to
them.
5. A clarification was sought on the drawal of
Risk/Hardship Allowance by the Shashatra Seema Bal (SSB)
on 13.12.2010 as to whether the employees posted in the
North-Eastern region were entitled for Risk/Hardship based
allowance along with Special (Duty) Allowance. The
Government examined the proposal and clarified that the
personnel who were getting Risk/Hardship Allowance were
not eligible for Special (Duty) Allowance being a
compensatory allowance. Consequently, the Director
General Assam Rifles passed an order on 12.05.2011
informing the personnel that Special (Duty) Allowance
which was being paid along with Risk/Hardship Allowance
would be stopped w.e.f. 01.06.2011. The personnel were
given an option to choose either Risk/Hardship Allowance or
Special (Duty) Allowance. The said order dated 12.05.2011
was challenged by the Respondents in Writ Petition No.147 3 of 2011 and Writ Petition No. 133 of 2011. A Single Judge
of the Guwahati High Court set aside the order dated
12.05.2011 and directed the authorities not to stop the
payment of Special (Duty) Allowance until a suitable
modification of the notification dated 16.04.2009 is made.
The only ground on which the Writ Petitions were allowed
was that the Special (Duty) Allowance was given to the
personnel by a Presidential sanction whereas its withdrawal
was by an order passed by the Director General of Assam
Rifles. A Division Bench of the Guwahati High Court
affirmed the said judgment of the learned Single Judge.
The judgment of the Division Bench of High Court is
assailed in these appeals.
6. We have heard Mr. Ranjit Kumar, Solicitor General of
India for the Appellants and Mr. Sunil Kumar, learned Senior
Counsel for the Respondents. The Solicitor General
submitted that Government of India clarified on 23.02.2011
that the eligible persons under the scheme are not entitled
for payment of both the Special (Duty) Allowance and
Risk/Hardship Allowance. The order dated 12.05.2011 of
the Director General of Assam Rifles was only a
consequential order issued pursuant to the clarification
4 dated 23.03.2011. Further, he relied upon the order dated
16.04.2009, which was issued with the sanction of the
President, to contend that the personnel would be entitled
to either the Special (Duty) Allowance or the Risk/Hardship
Allowance and not both. According to him, the initial
sanction of the allowance itself made it clear that the
armed reserved personnel were not entitled for both the
allowances and that the question of withdrawal did not
arise. It was by a mistake that the personnel working with
Assam Rifles were being given both the allowances and
after a clarification was given by the Government of India
on 23.02.2011, the Director General Assam Rifles had
withdrawn the Special (Duty) Allowance. The armed
personnel were informed that they have an option to
choose between the Special (Duty) Allowance and
Risk/Hardship Allowance. To a pointed query by us, the
learned Solicitor General submitted that the Special (Duty)
Allowance is a compensatory allowance.
7. Countering the submissions of learned Solicitor
General, Mr. Sunil Kumar, learned Senior Counsel appearing
for the Respondents submitted that Special (Duty)
Allowance is not a compensatory allowance and relied upon
5 the letter dated 02.02.1989 written by Deputy Secretary,
Ministry of Home Affairs to Director General Assam Rifles
whereby the Special (Duty) Allowance was extended to the
combatised personnel of Assam Rifles. He referred to the
said letter to submit that the combatised and non
combatised civil personnel (including officers) were given
the benefit of Special (Duty) Allowance. The special
compensatory allowance (also called special remote locality
allowance) was given only to combatised personnel. He
further submitted that the Respondents, being combatised
personnel are entitled for both the Special (Duty) Allowance
and Risk/Hardship Allowance.
8. We have considered the submissions made by the
learned Senior Counsels. The office memorandum dated
16.04.2009 by which the Risk/Hardship Allowance was
introduced makes it clear that the CPMF personnel will have
the option to receive the existing package of compensatory
allowances and detachment allowance or Risk/Hardship
Allowance. The existing package of compensatory
allowance would necessarily include the Special (Duty)
Allowance which, in our opinion, is a compensatory
allowance. The Special (Duty) Allowance was introduced
6 on 14.12.1983 to all Central Government civilian employees
who were posted in the North Eastern region. The
contention of the counsel for the Respondents that the
Special (Duty) Allowance is not a compensatory allowance
is not correct. The submission on behalf of the
Respondents that combatised personnel were given an
additional benefit of special compensatory allowance which
was not available to the non combatised personnel due to
which they would be entitled for payment of both the
Special (Duty) Allowance and the Risk/Hardship Allowance
is also not acceptable. As stated earlier, the Risk/Hardship
Allowance is an alternative to the existing package of
compensatory allowances which includes Special (Duty)
Allowance. Any ambiguity was already cleared by the
Government of India in a clarification sought by the SSB.
9. We are not in agreement with the findings recorded by
the High Court that the benefit of Special (Duty) Allowance
granted with the sanction of the President could not have
been withdrawn by the Director General Assam Rifles. The
Director General Assam Rifles was only correcting the
mistake that was committed earlier and implementing the
office memorandum dated 16.04.2009 as clarified by the
7 Government on 23.02.2011.
10. By an order dated 19.07.2013, this court while issuing
notice to the Respondents restrained the recovery of the
amounts already paid in the past. We confirm the said order
and direct that there will be no recovery of the amounts
that have already been paid to the Respondents.
11. For the aforementioned reasons, the judgment of the
High Court is set aside and the Civil Appeals are allowed.
…................................J [S.A. BOBDE]
…................................J [L. NAGESWARA RAO]
New Delhi, August 17, 2017
8
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free