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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.  

2. Brief facts of the case are:

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   Dated, the 3rd

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 Dated, the 3rd 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