Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5850 OF 2011
DIRECTOR GENERAL, CRPF & ORS. ...APPELLANTS
VERSUS
JANARDAN SINGH & ORS. ...RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN,J.
1. DirectorGeneral, CRPF, the Union of India and
AddittionalDirectorGeneral, group centre, CRPF, has
come up in this appeal questioning the judgment of
Allahabad High Court dated 14.02.2008 by which
judgment the High Court dismissed Writ Petition filed
by the appellant upholding the order of Central
Administrative Tribunal dated 05.11.2007 by which
claim of Special (Duty) Allowance of the respondent
was accepted.
Signature Not Verified
2. Brief facts of the case are:
Digitally signed by
ASHWANI KUMAR
Date: 2018.07.02
16:07:46 IST
Reason:
The Government of India, Ministry of Finance
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vide its Office Memorandum dated 14.12.1983 decided
to extend certain benefits to the officers in service
in North Eastern Region of the country. One of the
benefits which was decided to be extended to those
employees/officers was to grant Special (Duty)
Allowance on posting to any station in the North
Eastern Region. The said benefits were subsequently
extended to the employees of CRPF. The respondents
2,3 and 4 were appointed as pharmacists in CRPF on
08.09.1989, 28.06.1988 and 11.06.1981 respectively
and they were posted in different places in India
including North Eastern Region. A letter dated
31.03.1987 was issued by Government of India,
Ministry of Home Affairs, according to which the
benefit of O.M. dated 28.12.1983 read with O.M. dated
29.10.1986 is to be extended to BSF, CRPF & CISF
personnel posted and serving in North Eastern Region
having their Headquarters in that region. The
respondents submitted an application regarding
sanction of Special (Duty) Allowance. The respondent
case was that he is posted in North Eastern Region
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and is entitled to Special (Duty) Allowance he being
posted in unit Johrat in Assam. The representation
was replied by letter dated 15.04.2005 of office of
the commandant stating that since Headquarter of
Personnel is in Shivpuri/Gwalior, hence, person is
not entitled for Special (Duty) Allowance. Letter
from DeputyInspectorGeneral of Police dated
11.07.2005 was sent to the Commandant, CRPF,
informing that although DirectorGeneral by his
letter dated 12.03.1992 has sent proposal to Ministry
of Home Affairs that Special (Duty) Allowance should
be given to all the battalions whose Headquarters are
not in the North East but the battalions are deployed
in the North East. It was further stated that the
consent of Ministry of Home Affairs has not yet been
received. On 3rd August 2005, Government of India,
Ministry of Home Affairs issued an order on the
subject:
"No. AI3/InstAccts3/PFIII
Government of India
Ministry of Home Affairs
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North Block, New Delhi
rd
Dated, the 3
August, 2005
OFFICE MEMORANDUM
SUB: ALLOWANCE AND FACILITIES FOR
CIVILIAN EMPLOYEES OF THE CENTRAL
GOVERNMENT SERVING IN THE STATES AND
UNION TERRITORIES OF NORTH EASTERN
REGION, ANDAMAN AND NICOBAR ISLANDS AND
LAKSHADWEEP.”
3. The Order clarified that allowance to be
admissible to the personnel who were actually working
in the North East Region. The respondents filed
Original Application No.778 of 2006 before Central
Administrative Tribunal claiming grant of Special
(Duty) Allowance as per the Order dated 14.12.1983.
The Central Administrative Tribunal by its judgment
and Order dated 05.11.2007 directed for sanction of
Special (Duty) Allowance to the applicants for the
period they have actually worked in the North Eastern
Region. Against the Order of Tribunal, appellant
filed a Writ Petition in Allahabad High Court which
was dismissed on 14.02.2008 aggreived against which
Order the present appeal has been filed.
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4. The issue in this appeal is a very limited issue
i.e. whether the respondents were entitled for
Special (Duty) Allowances for the period during which
they were posted in North Eastern Region from the
date of their posting in the North Eastern Region or
only with effect from 03.08.2005 when the Office
Memorandum was issued by the Government of India
which allowed the claim of CPF personnels.
5. Learned Counsel for the appellant submits that the
claim of respondents for Special (Duty) Allowance was
earlier rejected since, although they were working in
the North East Region but their Headquarters were in
Shivpuri/Gwalior. He submits that by Government Order
dated 03.08.2005 it was decided to extend benefits to
all whether their Headquarters are in North Eastern
Region or not. Thus, he submits that the respondents
were entitled for Special (Duty) Allowance only with
effect from 03.08.2005. Both Tribunal and the High
Court committed an error in directing for payment of
Special (Duty) Allowance to the respondents for the
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entire period when they were posted in the North
Eastern Region. The respondents were not eligible for
Special (Duty) Allowance since as when they were
deployed in the North Eastern Region their
Headquarters were situated outside of North Eastern
Region.
6. The submissions are refuted by learned counsel
appearing for the respondents. It is contended that
Special (Duty) Allowance was granted to those who
were employed in North Eastern Region. There is no
dispute that respondents were posted in North Eastern
Region. Their claim could not have been denied on the
ground that although their battalions were posted in
North Eastern Region but their Headquarters were out
of North Eastern Region. He submits that the
Government Order dated 03.08.2005 is clarificatory
which makes it clear that all personnels who were
posted in North Eastern Region were entitled for the
benefits as per the O.M. dated 14.12.1983 read with
O.M. dated 29.05.2002.
7. The Office Memorandum dated 03.08.2005 is to the
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following effect:
" No. AI3/InstAccts3/PFIII
Government of India
Ministry of Home Affairs
North Block, New Delhi
rd
Dated, the 3 August, 2005
OFFICE MEMORANDUM
SUB: ALLOWANCE AND FACILITIES FOR
CIVILIAN EMPLOYEES OF THE CENTRAL
GOVERNMENT SERVING IN THE STATES AND
UNION TERRITORIES OF NORTH EASTERN
REGION, ANDAMAN AND NICOBAR ISLANDS AND
LAKSHADWEEP.
I am directed to refer to the
Ministry's letter no.II–27012/31/85FP
II dated 31.03.1987 vide which the CPF
personnel posted in the North Eastern
Region and not having their Headquarter
in the North Eastern Region were not
getting Special (Duty) Allowance
because of condition that the
Headquarters of such personnel should
also be in North East.
2. The matter has since been examined
in consultation with Ministry of
Finance and it has been decided to
consider and allow the claim of CPF
personnel delpoyed in North East Region
in the light of criteria laid down in
Finance Minsitry's
O.M.No.20014/3/83EIV dated 14.12.1983
read with their O.M.No.11(5)/97EII(B)
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dated 29.05.2002. It is also clarified
that the allowance would be admissible
only to the personnel who are actually
working in the North East Region.
3. The issues with the concurrence of
Ministry of Finance, Deptt. of
Expenditure, EII(B) Branch vide UO No.
315/05 dated 10.08.2005 and integrated
Finance Division of this Ministry vide
their Dy. No.748/Fin.11/05 dated
03.08.2005.
Sd/
(Ranjanesh Sahai)
Director(Police Finance)”
8. Paragraph 2 of the Office Memorandum indicates
that it was decided to allow the claim of CPF
personnels deployed in North Eastern Region in the
light of criteria laid down in Office Memorandum
dated 14.12.1983 read with Office Memorandum dated
29.05.2002. It was further clarified that allowance
would be admissible only to the personnels who were
actually working in the North Eastern Region.
9. The issue is to whether the benefit of the above
Office Memorandum is to be given with effect from
03.08.2005 only or the benefit of Special (Duty)
Allowance is admissible after Office Memorandum dated
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14.12.1983 was decided to be extended to CRPF
personnels in the year 1987. The main Office
Memorandum by which Special (Duty) Allowance was
decided to be granted is dated 14.12.1983. The
purpose and object for granting the said benefit is
explained in opening paragraph of Office Memorandum
which is to the following effect:
" The need for attracting and
retaining the services of competent
officers of service in the North
Eastern Region comprising the State of
Assam, Meghalaya, Manipur, Nagaland
and Tripura and the Union Territories
of Arunachal Pradesh and Mizoram has
been engaging the attention of the
Government for some time. The
Government had appointed a Committee
under the Chairmanship of Secretary,
Department of Personnel &
Administrative Reforms, to review the
existing allowances and facilities
admissible in the various categories
of Civilian Central Government
employees serving in this region and
to suggest suitable improvements. The
recommendations of the Committee have
been carefully considered by the
Government and the President is now
released to decide as following...."
10. Further, Special (Duty) Allowance is sanctioned
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by same Office Memorandum which is to the following
effect:
"(iii) Special (Duty) Allowance:
Central Government civilian
employees who have AllIndia transfer
liability will be granted a Special
(Duty) Allowance at the rate 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 of grant of Special (Duty) Allowance was
posting of person in North Eastern Region. The said
benefits were extended to attract and retain the
services of the competent officers serving in North
Eastern Region.
12. There is no dispute that the said benefit was
extended to CRPF personnels also. The benefit as
extended by Office Memorandum dated 14.12.1983 was
revised from time to time and by 29.08.1986 revised
orders were issued with effect from 01.10.1986,
benefit of which orders was claimed in the claim
petition filed by the respondents before the
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Tribunal.
13. A perusal of the letter dated 15.04.2005
(AnnexureP5) indicates that only reason for denying
the Special (Duty) Allowance to the respondents was
that their Headquarters were in Shivpuri/Gwalior i.e.
out of North Eastern Region although there was no
denial that their posting was in North Eastern
Region.
14. The purpose and object of granting the benefit
as noticed above was to reward the persons who are
posted in the North Eastern Region. The Tribunal has
directed for granting the benefit to the respondents
for the period they have actually worked in the North
Eastern Region. When the basis for granting Special
(Duty) Allowance was posting in North Eastern Region,
we fail to see that how the respondents who were
posted in the North Eastern Region would have been
denied the Special (Duty) Allowance on the ground
that their Headquarters are in Shivpuri/Gwalior. The
benefit is attached to their posting in the North
Eastern Region and denial on the ground that their
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Headquarters are in Shivpuri/Gwalior has no nexus
with their claim. The Tribunal has allowed that claim
which has been affirmed by the High Court.
15. Much emphasis has been given by the counsel for
the appellant that Order dated 03.08.2005 has
prospective application only and the benefit could
have given only with effect from 03.08.2005 by which
period some of the respondents were posted out of
North Eastern Region.
16. A perusal of the Order dated 03.08.2005 does not
indicate that the said benefit was intended only
after 03.08.2005. Paragraph 2 of the order uses the
words "it is clarified that allowance would be
admissible to the personnels who are actually working
in the North East Region". The Order issued by the
Government was clarificatory in nature.
17. We have already noticed that by Government Order
dated 31.03.1987 Special (Duty) Allowance was
extended to CRPF personnel posted and serving in
North East Region who had their Headquarters also in
that region. Obvious inference was that those
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personnel posted and serving in North East Region
whose Headquarters were not in that region were not
entitled to the benefit. Whether such classification
for extending the benefit to one class of personnel
who were both posted and serving there and had their
Headquarter there and those personnels who were
posted and serving there and having their Headquarter
outside the North East Region is valid or not and
passes the test of equality before law under Article
14 is the question also needs to be considered.
18. Article 14 does not prohibit reasonable
classification but for passing test of permissible
classification there are two conditions which have
been time and again laid down and reiterated. It is
useful to refer to the Constitution Bench judgment of
this Court in AIR 1955 SC 191, Budhan Choudhary
versus State of Bihar . In paragraph 5, following has
been laid down:
"5....It is now well established
that while Article 14 forbids class
legislation, it does not forbid
reasonable classification for the
purposes of legislation. In order,
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however, to pass the test of
permissible classification two
conditions must be fulfilled, namely,
(i) that the classification must be
founded on an intelligible differentia
which distinguishes persons or things
that are grouped together from others
left out of the group and (ii) that
differentia must have a rational
relation to the object sought to be
achieved by the statute in question.
The classification may be founded on
different bases; namely, geographical,
or according to objects or occupations
or the like. What is necessary is that
there must be a nexus between the
basis of classification and the object
of the Act under consideration. It is
also well established by the decisions
of this Court that Article 14 condemns
discrimination not only by a
substantive law but also by a law of
procedure..."
19. Another judgment which needs to be noticed with
regard to Article 14 is a judgment of this Court in
AIR 1970 SC 1453, Harakchand Ratanchand Banthia and
others vs. Union of India and others . In paragraph
23, following has been laid down:
“23....When a law is challenged as
violative of Article 14 of the
Constitution it is necessary in the
first place to ascertain the policy
underlying the statute and the object
intended to be achieved by it. Having
ascertained the policy and object of
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the Act the Court has to apply a dual
test in examining its validity (1)
whether the classification is rational
and based upon an intelligible
differentia which distinguishes
persons or things that are grouped
together from others that are left out
of the group and (2)whether the basis
of differentiation has any rational
nexus or relation with its avowed
policy and object..."
20. When we apply the ratio as laid down above we
find that there is no intelligible differentia
between two classes of employees posted and serving
in North East Region as noted above. The policy of
law as is clear from the original Government Order
dated 14.12.1983, it is clear that Government came
with the scheme of Special (Duty) Allowance with the
object and purpose of encouraging, attracting and
retaining the services of the officers in the North
Eastern Region. To differentiate the employees in two
categories i.e. (i) whose Headquarters are within
North Eastern Region and (ii) whose Headquarters are
outside the North Eastern Region, clearly indicate
that classification is not founded on any
intelligible differentia.
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21. Further the differentia has no rational relation
to the object sought to be achieved. When the purpose
is to encourage and retain the personnel in North
Eastern Region to deny the benefit of Special (Duty)
Allowance to those who although posted and serving in
North Eastern Region have their Headquarter outside
the North East Region does not have any rational
nexus with object sought to be achieved.
22. The classification as made in the Government
Order dated 31.03.1987 does not pass the twin test as
noted above. The Government having itself realised
the error has corrected the same by Government Order
dated 03.08.2005 permitted the Special (Duty)
Allowance to all who are posted and serving in North
East Region irrespective of the facts as whether
their Headquarters are within the North Eastern
Region or outside the North Eastern Region.
23. When the earlier classification as envisaged by
Government Order dated 31.03.1987 itself not been
valid to deny the benefit to those who were entitled
to the Special (Duty) Allowance on the ground that
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Government came with the clarification only on
03.08.2005 shall neither be equitable nor shall stand
the test of equality before the law.
24. When the denial as noted above did not pass the
twin test of valid classification and was
unconstitutional to deny the said benefit on the
premise that Government corrected its error only on
03.08.2005, hence, with effect from 03.08.2005 only
the benefit should be given does not appeal to
reason.
25. In view of foregoing discussions, we do not find
any ground to interfere with the judgment of the High
Court. In the result, the appeal is dismissed.
..........................J.
( ADARSH KUMAR GOEL )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
JULY 02, 2018