DIRECTOR GENERAL, CRPF & ORS. versus JANARDAN SINGH & ORS. on 2 July 2018

DIRECTOR GENERAL, CRPF & ORS.

v.

JANARDAN SINGH & ORS.

(Civil Appeal No. 5850 of 2011)

JULY 02, 2018

[ADARSH KUMAR GOEL AND ASHOK BHUSHAN, JJ.]

Service Law – Allowances – Special (Duty) Allowances –Claim of – On facts, by the Government Order dated 31.03.1987,benefit of Special (Duty) Allowances extended to CRPF personnelsposted and serving, and had their headquarters in North EasternRegion – Respondents-pharmacists in CRPF posted in North EasternRegion but their Headquarters were in Gwalior, sought Special(Duty) Allowances for the period during which they were posted inthe North Eastern Region – However, case of Director General,CRPF that respondents entitled to Special (Duty) Allowances onlywith effect from 03.08.2005 when by the Office Memorandum, theGovernment allowed the claim of CRPF personnel that benefitswould be extended to all whether their headquarters are in NorthEastern Region or not – Courts below granted Special (Duty)Allowances to the respondents for the period they actually workedin the North Eastern Region – On appeal, held: When the purposeis to encourage and retain the personnel in North Eastern Region,denial of benefit of Special (Duty) Allowance to those who althoughposted and serving in North Eastern Region but have theirHeadquarter outside the North East Region does not have anyrational nexus with object sought to be achieved – Perusal of theOrder dated 03.08.2005 does not indicate that the said benefit wasintended only after 03.08.2005 – Order uses the words ‘it is clarifiedthat allowance would be admissible to the personnels who areactually working in the North East Region’ – Order was clarificatoryin nature – To differentiate the employees in two categories, whoseHeadquarters are within North Eastern Region and whoseHeadquarters are outside the North Eastern Region, clearly indicatethat classification is not founded on any intelligible differentia –Classification as made in the GO dated 31.03.1987 did not passthe twin test – Government having itself realised the error, corrected

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Athe same by GO dated 03.08.2005 – Thus, it was unconstitutionalto deny the said benefit on the premise that Government correctedits error only on 03.08.2005, hence, with effect from 03.08.2005only the benefit should be given – Order passed by the courts belowupheld.BDismissing the appeal, the CourtHELD: 1.1 The main Office Memorandum by which Special(Duty) Allowance was decided to be granted is dated 14.12.1983.A perusal of the said Memorandum clearly indicates that genesisof grant of Special (Duty) Allowance was posting of person in NorthCEastern Region. The said benefits were extended to attract andretain the services of the competent officers serving in NorthEastern Region. The said benefit was extended to CRPFpersonnels also. The benefit as extended by Office Memorandumdated 14.12.1983 was revised from time to time and by 29.08.1986revised orders were issued with effect from 01.10.1986, benefitDof which orders was claimed in the claim petition filed by therespondents before the Tribunal. A perusal of the letter dated15.04.2005 indicates that only reason for denying the Special(Duty) Allowance to the respondents was that their Headquarterswere in Shivpuri/Gwalior i.e. out of North Eastern RegionEalthough there was no denial that their posting was in NorthEastern Region. [Paras 9, 11-13][88-F; 89-C-F]

1.2 The purpose and object of granting the benefit was toreward the persons who are posted in the North Eastern Region.The tribunal has directed for granting the benefit to theFrespondents for the period they have actually worked in the NorthEastern Region. When the basis for granting Special (Duty)Allowance was posting in North Eastern Region, it cannot beseen how the respondents who were posted in the North EasternRegion would have been denied the Special (Duty) Allowance onthe ground that their Headquarters are in Shivpuri/Gwalior. TheGbenefit is attached to their posting in the North Eastern Regionand denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. [Para 14][89-F-H; 90-A]

1.3 A perusal of the Order dated 03.08.2005 does notindicate that the said benefit was intended only after 03.08.2005.H

Paragraph 2 of the order uses the words “it is clarified thatallowance would be admissible to the personnels who are actuallyworking in the North East Region”. The Order issued by theGovernment was clarificatory in nature. [Para 16][90-B-C]

1.4 By Government Order dated 31.03.1987 Special (Duty)Allowance was extended to CRPF personnel posted and servingin North East Region who had their Headquarters also in thatregion. Obvious inference was that those personnel posted andserving in North East Region whose Headquarters were not inthat region were not entitled to the benefit. [Para 17][90-C-D]

1.5 Article 14 does not prohibit reasonable classificationbut for passing test of permissible classification there are twoconditions which have been time and again laid down andreiterated. There is no intelligible differentia between two classesof employees posted and serving in North East Region. The policyof law as is clear from the original Government Order dated14.12.1983, it is clear that Government came with the scheme ofSpecial (Duty) Allowance with the object and purpose ofencouraging, attracting and retaining the services of the officersin the North Eastern Region. To differentiate the employees intwo categories-whose Headquarters are within North EasternRegion and whose Headquarters are outside the Region, clearlyindicate that classification is not founded on any intelligibledifferentia. Further the differentia has no rational relation to theobject sought to be achieved. When the purpose is to encourageand retain the personnel in North Eastern Region, to deny thebenefit to those who although posted and serving in North EasternRegion have their Headquarter outside the North East Regiondoes not have any rational nexus with object sought to beachieved. [Paras 18, 20 and 21][90-+F; 91-E-H; 92-A]

Budhan Choudhary v. State of Bihar AIR 1955 SC 191: 1955 SCR 1045; Harakchand Ratanchand Banthiaand others v. Union of India and others AIR 1970 SC1453 : [1970] 1 SCR 479 – referred to.

1.6 The classification as made in the Government Orderdated 31.03.1987 does not pass the twin test. The Governmenthaving itself realised the error has corrected the same by A

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AGovernment Order dated 03.08.2005 permitted the Special (Duty)Allowance to all who are posted and serving in North East Regionirrespective of the facts as whether their Headquarters are withinor outside the North Eastern Region. [Para 22][92-A-B]

1.7 When the earlier classification as envisaged by GO datedB31.03.1987 itself not been valid to deny the benefit to those whowere entitled to the Special (Duty) Allowance on the ground thatGovernment came with the clarification only on 03.08.2005 shallneither be equitable nor shall stand the test of equality beforethe law. When the denial did not pass the twin test of validclassification and was unconstitutional to deny the said benefitCon the premise that Government corrected its error only on03.08.2005, hence, with effect from 03.08.2005 only the benefitshould be given does not appeal to reason. Thus, there is noground to interfere with the judgment of the High Court. [Paras23-25][92-C-E]

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Case Law Reference

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5850Eof 2011.

From the Judgment and Order dated 14.02.2008 of the High Courtof Allahabad in Civil Misc. Writ Petition No.8608 of 2008.

Vikramjeet Banerjee, ASG, Kiran Bhardwaj, Shailender Saini,Ayush Anand, Shubhandu Anand, Ms. Sushma Suri, Advs. for theFAppellants.

Yatish Mohan, Sumit Kr. Jha, Subhash Chandra Sagar (for E.C.Vidya Sagar), Advs. for the Respondents.

The Judgment of the Court was delivered byG

ASHOK BHUSHAN, J. 1. Director-General, CRPF, the Unionof India and Addittional-Director-General, group centre, CRPF, has comeup in this appeal questioning the judgment of Allahabad High Court dated14.02.2008 by which judgment the High Court dismissed Writ Petitionfiled by the appellant upholding the order of Central Administrative H

Tribunal dated 05.11.2007 by which claim of Special (Duty) Allowanceof the respondent was accepted.

2. Brief facts of the case are:

The Government of India, Ministry of Finance vide its OfficeMemorandum dated 14.12.1983 decided to extend certain benefits tothe officers in service in North Eastern Region of the country. One ofthe benefits which was decided to be extended to those employees/officers was to grant Special (Duty) Allowance on posting to any stationin the North Eastern Region. The said benefits were subsequentlyextended to the employees of CRPF. The respondents 2,3 and 4 wereappointed as pharmacists in CRPF on 08.09.1989, 28.06.1988 and11.06.1981 respectively and they were posted in different places in Indiaincluding North Eastern Region. A letter dated 31.03.1987 was issuedby Government of India, Ministry of Home Affairs, according to whichthe benefit of O.M. dated 28.12.1983 read with O.M. dated 29.10.1986is to be extended to BSF, CRPF & CISF personnel posted and serving inNorth Eastern Region having their Headquarters in that region. Therespondents submitted an application regarding sanction of Special (Duty)Allowance. The respondent case was that he is posted in North EasternRegion and is entitled to Special (Duty) Allowance he being posted inunit Johrat in Assam. The representation was replied by letter dated15.04.2005 of office of the commandant stating that since Headquarterof Personnel is in Shivpuri/Gwalior, hence, person is not entitled for Special(Duty) Allowance. Letter from Deputy-Inspector-General of Police dated11.07.2005 was sent to the Commandant, CRPF, informing that althoughDirector-General by his letter dated 12.03.1992 has sent proposal toMinistry of Home Affairs that Special (Duty) Allowance should be givento all the battalions whose Headquarters are not in the North East butthe battalions are deployed in the North East. It was further stated thatthe consent of Ministry of Home Affairs has not yet been received. On3rd August 2005, Government of India, Ministry of Home Affairs issuedan order on the subject:

“No. A-I-3/Inst-Accts-3/PF-III

Government of IndiaMinistry of Home Affairs A

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SUPREME COURT REPORTS

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North Block, New Delhi Dated, the 3[rd] August, 2005

OFFICE MEMORANDUM

SUB: ALLOWANCE AND FACILITIES FOR CIVILIANEMPLOYEES OF THE CENTRAL GOVERNMENTBSERVING IN THE STATES AND UNION TERRITORIES OFNORTH EASTERN REGION, ANDAMAN AND NICOBARISLANDS AND LAKSHADWEEP.”

3. The Order clarified that allowance to be admissible to theCpersonnel who were actually working in the North East Region. Therespondents filed Original Application No.778 of 2006 before CentralAdministrative Tribunal claiming grant of Special (Duty) Allowance asper the Order dated 14.12.1983. The Central Administrative Tribunal byits judgment and Order dated 05.11.2007 directed for sanction of Special(Duty) Allowance to the applicants for the period they have actuallyDworked in the North Eastern Region. Against the Order of Tribunal,appellant filed a Writ Petition in Allahabad High Court which wasdismissed on 14.02.2008 aggreived against which Order the presentappeal has been filed.

4. The issue in this appeal is a very limited issue i.e. whether theErespondents were entitled for Special (Duty) Allowances for the periodduring which they were posted in North Eastern Region from the dateof their posting in the North Eastern Region or only with effect from03.08.2005 when the Office Memorandum was issued by the Governmentof India which allowed the claim of CPF personnels.

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5. Learned Counsel for the appellant submits that the claim ofrespondents for Special (Duty) Allowance was earlier rejected since,although they were working in the North East Region but theirHeadquarters were in Shivpuri/Gwalior. He submits that by GovernmentOrder dated 03.08.2005 it was decided to extend benefits to all whetherGtheir Headquarters are in North Eastern Region or not. Thus, he submitsthat the respondents were entitled for Special (Duty) Allowance onlywith effect from 03.08.2005. Both Tribunal and the High Court committedan error in directing for payment of Special (Duty) Allowance to therespondents for the entire period when they were posted in the NorthEastern Region. The respondents were not eligible for Special (Duty)H

Allowance since as when they were deployed in the North Eastern Regiontheir Headquarters were situated outside of North Eastern Region.

6. The submissions are refuted by learned counsel appearing forthe respondents. It is contended that Special (Duty) Allowance wasgranted to those who were employed in North Eastern Region. There isno dispute that respondents were posted in North Eastern Region. Theirclaim could not have been denied on the ground that although theirbattalions were posted in North Eastern Region but their Headquarterswere out of North Eastern Region. He submits that the GovernmentOrder dated 03.08.2005 is clarificatory which makes it clear that allpersonnels who were posted in North Eastern Region were entitled forthe benefits as per the O.M. dated 14.12.1983 read with O.M. dated29.05.2002.

7. The Office Memorandum dated 03.08.2005 is to the following effect:

Government of India

Ministry of Home Affairs

North Block, New Delhi

Dated, the 3[rd] August, 2005

OFFICE MEMORANDUM

SUB: ALLOWANCE AND FACILITIES FOR CIVILIANEMPLOYEES OF THE CENTRAL GOVERNMENTSERVING IN THE STATES AND UNION TERRITORIES OFNORTH EASTERN REGION, ANDAMAN AND NICOBARISLANDS AND LAKSHADWEEP.

I am directed to refer to the Ministry’s letter no.II–27012/31/85-FP- II dated 31.03.1987 vide which the CPF personnel postedin the North Eastern Region and not having their Headquarter inthe North Eastern Region were not getting Special (Duty)Allowance because of condition that the Headquarters of suchpersonnel should also be in North East.

2. The matter has since been examined in consultation withMinistry of Finance and it has been decided to consider and allow A

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Athe claim of CPF personnel delpoyed in North East Region in thelight of criteria laid down in Finance Minsitry’s O.M.No.20014/3/83-E-IV dated 14.12.1983 read with their O.M.No.11(5)/97-E-II(B) dated 29.05.2002. It is also clarified that the allowance wouldbe admissible only to the personnel who are actually working inthe North East Region.

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3. The issues with the concurrence of Ministry of Finance, Deptt.of Expenditure, E-II(B) Branch vide UO No. 315/05 dated10.08.2005 and integrated Finance Division of this Ministry videtheir Dy. No.748/Fin.11/05 dated 03.08.2005.

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(Ranjanesh Sahai)

Director(Police Finance)”

8. Paragraph 2 of the Office Memorandum indicates that it wasDdecided to allow the claim of CPF personnels deployed in North EasternRegion in the light of criteria laid down in Office Memorandum dated14.12.1983 read with Office Memorandum dated 29.05.2002. It wasfurther clarifiedthat allowance would be admissible only to the personnelswho were actually working in the North Eastern Region.

9. The issue is to whether the benefit of the above OfficeEMemorandum is to be given with effect from 03.08.2005 only or thebenefit of Special (Duty) Allowance is admissible after OfficeMemorandum dated 14.12.1983 was decided to be extended to CRPFpersonnels in the year 1987. The main Office Memorandum by whichSpecial (Duty) Allowance was decided to be granted is dated 14.12.1983.FThe purpose and object for granting the said benefit is explained in openingparagraph of Office Memorandum which is to the following effect:

“ The need for attracting and retaining the services of competentofficers of service in the North Eastern Region comprising theState of Assam, Meghalaya, Manipur, Nagaland and Tripura andGthe Union Territories of Arunachal Pradesh and Mizoram has beenengaging the attention of the Government for some time. TheGovernment had appointed a Committee under the Chairmanshipof Secretary, Department of Personnel & Administrative Reforms,to review the existing allowances and facilities admissible in thevarious categories of Civilian Central Government employees H

serving in this region and to suggest suitable improvements. Therecommendations of the Committee have been carefullyconsidered by the Government and the President is now releasedto decide as following....”

10. Further, Special (Duty) Allowance is sanctioned by sameOffice Memorandum which is to the following effect:

“(iii) Special (Duty) Allowance:-

Central Government civilian employees who have All-Indiatransfer liability will be granted a Special (Duty) Allowance at therate of 25 per cent of basic pay subject to a ceiling of Rs.400/-per month on posting to any station in the North Eastern Region.....”

11. A perusal of the aforesaid clearly indicates that genesis ofgrant of Special (Duty) Allowance was posting of person in North EasternRegion. The said benefits were extended to attract and retain the servicesof the competent officers serving in North Eastern Region.

12. There is no dispute that the said benefit was extended to CRPFpersonnels also. The benefit as extended by Office Memorandum dated14.12.1983 was revised from time to time and by 29.08.1986 revisedorders were issued with effect from 01.10.1986, benefit of which orderswas claimed in the claim petition filed by the respondents before theTribunal.

13. A perusal of the letter dated 15.04.2005 (Annexure-P5)indicates that only reason for denying the Special (Duty) Allowance tothe respondents was that their Headquarters were in Shivpuri/Gwaliori.e. out of North Eastern Region although there was no denial that theirposting was in North Eastern Region.

14. The purpose and object of granting the benefit as noticedabove was to reward the persons who are posted in the North EasternRegion. The Tribunal has directed for granting the benefit to therespondents for the period they have actually worked in the North EasternRegion. When the basis for granting Special (Duty) Allowance wasposting in North Eastern Region, we fail to see that how the respondentswho were posted in the North Eastern Region would have been deniedthe Special (Duty) Allowance on the ground that their Headquarters arein Shivpuri/Gwalior. The benefit is attached to their posting in the NorthEastern Region and denial on the ground that their Headquarters are in A

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AShivpuri/Gwalior has no nexus with their claim. The Tribunal has allowedthat claim which has been affirmed by the High Court.

15. Much emphasis has been given by the counsel for the appellantthat Order dated 03.08.2005 has prospective application only and thebenefit could have given only with effect from 03.08.2005 by whichBperiod some of the respondents were posted out of North Eastern Region.

16. A perusal of the Order dated 03.08.2005 does not indicatethat the said benefit was intended only after 03.08.2005. Paragraph 2 ofthe order uses the words “it is clarified that allowance would be admissibleto the personnels who are actually working in the North East Region”.CThe Order issued by the Government was clarificatory in nature.

17. We have already noticed that by Government Order dated31.03.1987 Special (Duty) Allowance was extended to CRPF personnelposted and serving in North East Region who had their Headquartersalso in that region. Obvious inference was that those personnel postedDand serving in North East Region whose Headquarters were not in thatregion were not entitled to the benefit. Whether such classification forextending the benefit to one class of personnel who were both postedand serving there and had their Headquarter there and those personnelswho were posted and serving there and having their Headquarter outsidethe North East Region is valid or not and passes the test of equalityEbefore law under Article 14 is the question also needs to be considered.

18. Article 14 does not prohibit reasonable classification but forpassing test of permissible classification there are two conditions whichhave been time and again laid down and reiterated. It is useful to refer tothe Constitution Bench judgment of this Court in AIR 1955 SC 191,FBudhan Choudhary versus State of Bihar. In paragraph 5, followinghas been laid down:- “5....It is now well established that while Article 14 forbidsclass legislation, it does not forbid reasonable classificationfor the purposes of legislation. In order, however, to pass thetest of permissible classification two conditions must befulfilled, namely, (i) that the classification must be foundedon an intelligible differentia which distinguishes persons orthings that are grouped together from others left out of thegroup and (ii) that differentia must have a rational relation tothe object sought to be achieved by the statute in question.

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The classification may be founded on different bases; namely,geographical, or according to objects or occupations or thelike. What is necessary is that there must be a nexus betweenthe basis of classification and the object of the Act underconsideration. It is also well established by the decisions ofthis Court that Article 14 condemns discrimination not onlyby a substantive law but also by a law of procedure...”

19. Another judgment which needs to be noticed with regard toArticle 14 is a judgment of this Court in AIR 1970 SC 1453,Harakchand Ratanchand Banthia and others vs. Union of Indiaand others. In paragraph 23, following has been laid down:

“23....When a law is challenged as violative of Article 14 ofthe Constitution it is necessary in the first place to ascertainthe policy underlying the statute and the object intended tobe achieved by it. Having ascertained the policy and objectof the Act the Court has to apply a dual test in examining itsvalidity (1) whether the classification is rational and basedupon an intelligible differentia which distinguishes personsor things that are grouped together from others that are leftout of the group and (2)whether the basis of differentiationhas any rational nexus or relation with its avowed policy andobject...”

20. When we apply the ratio as laid down above we find thatthere is no intelligible differentia between two classes of employees postedand serving in North East Region as noted above. The policy of law asis clear from the original Government Order dated 14.12.1983, it is clearthat Government came with the scheme of Special (Duty) Allowancewith the object and purpose of encouraging, attracting and retaining theservices of the officers in the North Eastern Region. To differentiate theemployees in two categories i.e. (i) whose Headquarters are within NorthEastern Region and (ii) whose Headquarters are outside the NorthEastern Region, clearly indicate that classification is not founded on anyintelligible differentia.

21. Further the differentia has no rational relation to the objectsought to be achieved. When the purpose is to encourage and retain thepersonnel in North Eastern Region to deny the benefit of Special (Duty)Allowance to those who although posted and serving in North Eastern AB

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ARegion have their Headquarter outside the North East Region does nothave any rational nexus with object sought to be achieved.

22. The classification as made in the Government Order dated31.03.1987 does not pass the twin test as noted above. The Governmenthaving itself realised the error has corrected the same by GovernmentBOrder dated 03.08.2005 permitted the Special (Duty) Allowance to allwho are posted and serving in North East Region irrespective of thefacts as whether their Headquarters are within the North Eastern Regionor outside the North Eastern Region.

23. When the earlier classification as envisaged by GovernmentCOrder dated 31.03.1987 itself not been valid to deny the benefit to thosewho were entitled to the Special (Duty) Allowance on the ground thatGovernment came with the clarification only on 03.08.2005 shall neitherbe equitable nor shall stand the test of equality before the law.

24. When the denial as noted above did not pass the twin test ofDvalid classification and was unconstitutional to deny the said benefit onthe premise that Government corrected its error only on 03.08.2005,hence, with effect from 03.08.2005 only the benefit should be givendoes not appeal to reason.

25. In view of foregoing discussions, we do not find any ground toEinterfere with the judgment of the High Court. In the result, the appeal isdismissed.

Nidhi Jain

Appeal dismissed.

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