Service Law – Payment of compensatory allowances – Validity of the clarification made by impugned judgment dated 07.05.2007 of the original judgment of the High Court dated 22.11.2005 – IMTRAT (Indian Military Training Team) personnel filed writ petitions seeking parity between Bhutan Compensatory Allowance (BCA) payable to IMTRAT personnel and Foreign Allowance (FA) payable to their ‘civilian counterparts’ and implementation of the cabinet decision dated 30.11.1999 regarding removal of depression and imposition of charges for free facilities, which had not been implemented – During the pendency of writ petitions, the cabinet decision dated 30.11.1999 was given effect through order of the Ministry of Defence dated 20.09.2005 and the said order was prospective in operation – Writ petitions were allowed by the High Court by order dated 22.11.2005, setting aside the Ministry of Defence order dated 20.09.2005 to the extent it gave relief prospectively – High Court gave effect to the Cabinet decision dated 30.11.1999 from 01.12.1999 – Respondents filed an application for clarification of the original order dated 22.11.2005 on basis that the Union of India was incorrectly interpreting the term ‘Civilian Counterparts’ – Impugned Judgment dated 07.5.2007 by the High Court affirmed parity between the BCA and the FA – Held: 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 (who receive FA), 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 – The Court’s power in a clarificatory proceeding is different from that in revision or appeal – Indian Foreign Service (Pay, Leave, Compensatory Allowance and other Conditions of Service) Rules, 1981.
Partly allowing the appeal, the Court
HELD: 1. After duly considering the material placed on record, the High Court while passing the impugned judgment dated 07.05.2007 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. [Para 25][928-G, H; 929-A-C]
2. The terms of appointment and conditions of service of the IMTRAT and MEA 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 Indian Foreign Service (Pay, Leave, Compensatory Allowance and other Conditions of Service) Rules, 1981. [Para 24][929-C-E]
3. 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. It is noted that the same have been fully complied with by the appellants. [Para 31][931-A-C]
Confederation of Ex-Servicemen Associations v. Union of India (2006) 8 SCC 399 : [2006] 4 Suppl. SCR 872 ; Union of India v. K.P. Singh (2017) 3 SCC 289 : [2017]
1 SCR 492 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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