Non-Reportable  

IN THE SUPREME COURT OF INDIA

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)

J U D G M E N T

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

order were dismissed by a Division Bench.  Aggrieved, the

Union of India and others have filed these Civil Appeals.   

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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)

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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

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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

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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

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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

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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

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