Gauhati High Court
Case Details
WP(C) 5577/2012 BEFORE HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE MR. JUSTICE P.K. MUSAHARY JUDGMENT & ORDER(CAV) (Musahary, J) The writ petitioner, who served as Judge of the Gauhati High Court with effect f rom 4.7.2007 and retired from service, on attaining the age of superannuation, o n 01.11.2011, has filed this writ petition making a grievance that he has been d eprived of certain allowances illegally, which he is entitled to, despite making claim for long. The allowances denied to him are: Special Duty Allowance (SDA, in short) Additional Monetary Incentive Allowance ( AMI, in short) and Remote Locality Allowance/Special Compensatory Allowance (Remote Localit
Legal Reasoning
i) ii) iii) y) Allowance (SCA in short). 2. It is stated by the petitioner that Gauhati High Court c omprises of seven states of the North Eastern region with Principal Seat at Guwa hati and outlying Benches in the States of Nagaland, Meghalaya, Manipur, Tripura , Mizoram and Arunachal Pradesh till separate High Courts have been established in Mach, 2013, for the States of Manipur, Tripura and Meghalaya. Judges of the G auhati High Court were/are required to serve in all the seven Benches throughout the region as per roster and allocation of Benches prepared and issued under th e order of the learned Chief Justice. The service conditions of Judges are simil ar and akin to the officers of All India Services and they are entitled to Speci al Duty Allowance, Additional Monetary Incentive and Special Compensatory (Remot e Locality) Allowance. 3. Like other Judges of the Gauhati High Court, the petitioner was required to serve in all the out-laying Benches throughout the region as per the roster and allocation of Benches for Judges. While he was posted at Aizawl Benc h, he was paid the Remote Locality Allowance, which is also called Special Compe nsatory (Remote Locality) Allowance, for a brief period, but the respondents sto pped payment of the same for some invalid reasons and that he has been pursuing the matter with the respondent departmental authorities and also made correspond ences with the respondent Accountant General through the Registrar of Gauhati Hi gh Court, Aizwal Bench. For him, in this regard, the Examiner of Local Fund Acco unts, Accounts and Treasuries, Mizoram, Aizwal, addressed a letter, dated 17.2.2 011, to the Respondent- Accountant General requesting him to clarify the admissi bility or otherwise of Special Compensatory Allowance to the petitioner as a Jud ge of the High Court, but no reply has been communicated till date. 4. After his retirement, the petitioner sent a notice, dated 6.5.20 12, to the Secretary, Ministry of Law & Justice, Govt. of India, New Delhi, dema nding payment of the aforesaid allowances, but his notice failed to yield any re sult compelling the petitioner to approach this Court by filing this petition wi th prayer for issuing direction to the respondent authorities to pay him the afo resaid allowances. An affidavit-in-opposition has been filed by the Respondent No. 5. 3, Accountant General (Accounts and Entitlements), Assam, presently known as the
Decision
Principal Accountant General (AME), Assam, contending, inter alia, that - 1) The petitioner neither approached nor applied to the office of the responden t claming Special Duty Allowance during his service tenure or prior to the date of filing the writ petition and, hence, question of denial of the said allowance to him does not arise. 2) As per clarification given by the Secretary, Ministry of Law & Justice, vide D.O. letter, dated 15.01.2013, the petitioner is not entitled to any other allow ance of special nature except the special compensatory allowance. 3) Since the SDA (Special Duty Allowance) falls under the category of an allowan ce of special nature, the petitioner’s claim, in terms of the clarification issu ed by the Ministry of Law and Justice, Government of India, is not admissible. 4) For entitlement to Special Compensatory Allowance, whichever was beneficial t o the petitioner, an option was required to be exercised by the petitioner to hi s administrative authority prospectively during his service life as a Judge of t he High Court. No such option was exercised by the petitioner and, hence, the pe titioner can not, at this stage, exercise option retrospectively after his retir ement. 6. We have heard Mr. S.N. Sarma, learned Sr. Counsel, assisted by M r. A. Sarma, learned counsel for the petitioner, Mr. I. Hussain, learned C.G.C., for the respondents No. 1 & 2, Mr. C. Barua, learned Standing Counsel, appearin g for respondent No. 3, and Mr. S.S. Dey, learned Standing Counsel, appearing fo r respondent No. 4. 7. Placing the counter affidavit filed for and on behalf of the res pondent No. 3, Mr. Barua, learned Standing Counsel, submits that although averme nts have been made expressing the reasons for not being able to pay the allowanc es as sought for by the petitioner, respondent No. 3 would abide by the order an d/or direction that may be passed by this Court after hearing the parties concer ned. Similarly, Mr. S.S. Dey, learned Standing Counsel, Gauhati High Court, on i nstructions, submits that the matter was placed and discussed in a meeting of th e Committee on administrative reforms, financial affairs, etc., held on 11.5.201 2 and the said Committee is of opinion that the Judges of this High Court, irre spective of whether they belong to North Eastern States or transferred from Sta tes outside the North Eastern region, shall be entitled to Special Duty Allowanc e (SDA) and Additional Monetary Incentives (AMI) at the applicable rate during t heir posting in any of the North Eastern States within the jurisdiction of this High Court. The respondent, High Court, is, therefore, in favour of providing th e allowances as demanded by the petitioner. Mr. Hussain, learned C.G.C., appearing for the respondent No. 1 8. and 2, has placed various Office Memoranda and orders/notifications issued by th e Government of India from time to time regarding payment of the aforesaid allow ances. The basic submission of Mr. Hussain is that the Special Duty Allowance(S DA) is meant only for the employees hailing from outside the North Eastern State s, who come to serve in any of the States of the North Eastern region, which is considered as (cid:28)hard place (cid:29) of posting due to its peculiar geographical and other conditions and problems. In any case, the people, who are residents of the Nort h Eastern states, are not entitled to the said allowances. The petitioner belong s to the State of Assam and, as such, although he served at Aizwal and other Nor th Eastern States, he is not entitled to the aforesaid allowances. The Chief Jus tice and other Judges, who belong to States other than the North Eastern States, while posted at the Gauhati High Court, are entitled to, and, in fact, are bein g paid the said allowances. 9. We have perused the office memoranda and other official correspo ndences as made available in the pleadings of the parties and we have given our anxious consideration thereto. We have also considered the submissions made by t he learned counsel for the parties. 10. First of all, we would like to deal with the Special Duty Allowa nce (SDA). The Govt. of India, in Finance Department, introduced the said allowa nces vide O.M. No. 20014/3/83-E IV, dated 14.12.83. This allowance was made ava ilable to the Central Govt. civilian employees, who have All India Transfer Liab ility @ 25% of the basic pay, while posted in the North Eastern region subject t o certain conditions. The relevant portion of the said O.M., dated 14.12.1983, p roviding the Special Duty Allowance, is quoted hereunder: (cid:28)Special Duty Allowance : Central Government civilian employees who have All India Transfe r Liability will be granted a Special (Duty) Allowance at the rate of 25 per cen t of basic pay subject in the North Eastern region. Such of those employees who are exempted from payment of income tax will, however, not be eligible for this Special (Duty) Allowance. Special (Duty) Allowance will be in addition to any sp ecial pay and/or Deputy (Duty) Allowance already being drawn subject to the cond ition that the total of such Special (Duty) Allowance plus special pay/Deputatio n(Duty) Allowance will not exceed Rs. 400/- p.m. Special Allowance like Special Compensatory (Remote Locality) Allowance, Construction Allowance and Project All owance will be drawn separately. (cid:29) As stated in the writ petition and not denied by the respondents 11. , the benefit of SDA was also extended to the All India Services(AIS) Officers. 12. When a question arose as to whether the SDA would be admissible to those AIS Officers, who are either posted to NE Region from outside, on tenu re basis, or are posted throughout their service career in North Eastern region , it was clarified by the Government of India, vide its letter No.14017/21/83-A IS II, dated 3.2.1984, that irrespective of posting to the North Eastern region on tenure basis, members of the All India Services, allocated to the cadres of t he States in the region, have to serve in the region for longer period even t o the extent of their entire service career and they are, therefore, entitled to SDA . A copy of the said letter, dated 3.2.1984, was produced by the learned Senior counsel for the petitioner during the course of hearing. 13. By the said letter, issued by the Government of India, in the Mi nistry of Home Affairs, Department of Personnel & A.R. under the signature of th e Deputy Secretary to the Government of India, it is provided, inter alia, as fo llows: (cid:28)The Central Government are of the view that the different conditions in which the members of the All India Services have to serve in the N.E.Region are simil ar as in the case of Central Government employees are posted in the region on a tenure basis, members of the All India Services allocated to the cadres of the S tates in the region have to serve in the region for longer period. In fact, most of them have to serve in these areas for their entire service period except wit h some of them may be on Central deputation outside the North Eastern region. Ob viously the need for improving the service condition of members of All India Ser vices serving in the region cannot be overlooked and if anything those should be better than those who are deputed for only short tenures of 2/3 years. (cid:29) In paragraph-7 of the writ petition, it has been categorically s 14. tated that the AIS Officers, appointed either on direct recruitment or on promot ion and who serve in the North Eastern Region, are getting SDA at the admissible rate. It has also been stated that the members of the AIS officers, serving in North Eastern Region, are getting the benefit of SDA irrespective of the fact wh ether they are from outside the region or are posted in the region itself throug hout their service career, which include the officers hailing from the North Eas tern State/Region. In the counter affidavits filed by the respondents No.1 and 3, t 15. he aforesaid stand of the petitioner has not been disputed or denied. Their only stand in the matter is that the petitioner is entitled to only one allowance, n amely, SCA to the exclusion of other allowances. However, while stating so, they have conveniently overlooked the office memorandum entitling the AIS Officers t o the other two allowances, namely, SDA and AMI. 16. The terms and conditions of SDA for improvement of facilities fo r Central Govt. employees including AIS Officers, serving in the States of North Eastern Region, Andaman Nicobar island and Lakhsyadeep, have been notified from time to time by issuing office memoranda, dated 1.12.1988, 22.7.1998, 29.8.2008 , etc. 17. With the issuance of the office memorandum, dated 29.8.2008, the terms and conditions for receiving SDA stood totally revised. The said office m emorandum provides the benefit of SDA to all the Central Govt. employees having All India transfer liability including AIS Officers posted from outside the Nort h Eastern Region or from another area of the north east region. As per this offi ce memorandum, SDA @12.5% of the revised basic pay+NPA, where applicable, became admissible irrespective of the fact whether the transfer (including on initial appointment) is from outside the North Eastern Region or from another area of th e north eastern region. The condition of All India transfer liability was also d ispensed with. 18. The petitioner, being a Judge of the Gauhati High Court with the condition of All India transfer liability, was also required to serve throughou t the North eastern region from one Bench to another of the Gauhati High Court l ocated at Guwahati (Principal Seat), Shillong, Kohima, Aizawl , Itanagar, Agarta la and Imphal. 19. We are told that the Judges coming to the North Eastern Region a nd joining Gauhati High Court do receive SDA. If that be so, we see no reason as to why the other Judges should be deprived of the same. This position also cut through the plea that the petitioner is entitled to only one allowance in the ca tegory of SCA to the exclusion of the other two allowances i.e. SDA and AMIA. The petitioner, being a Judge of Gauhati High Court, was governe 20. d by the High Court Judges Rules, 1956. Rule 2 of the said Rules provide as foll ows: (cid:28)2. Condition of Service in certain cases. The conditions of service of a judge of a High Court for which no express provision has been made in the High Court J udges (Conditions of Services) Act, 1954, shall be and shall, from the commencem ent of the Constitution be deemed to have been, determined by the rules for the rules for the time being applicable to a member of the Indian Administrative Ser vice holding the rank of Secretary to the Government of the State in the which t he principal seat of the High Court is situated. (cid:29) 21. The provisions, embodied in Rule 2 of the said Rules, clearly co nveys that insofar as the payment of allowances, claimed in this writ petition, are concerned, no provisions having been made in the said Rules of 1956, the pet itioner, as a Judge of this Court, would be entitled to receive the said allowan ces basing on the admissibility of the said allowances to the All India Services Officers. More so, when the said allowances, more particularly, the Special Dut y Allowances, is extended to the Hon’ble Judges on their posting to this region from outside at par with the All India Service Officers. 22. Above being the position, there is absolutely no manner of doubt that the petitioner was entitled to SDA from the date of his appointment as a J udge of the Gauhati High Court. 23. The petitioner, in addition to SDA, has claimed (i) Additional Mo netary Incentives Allowance (AMI) and (ii) Special Compensatory Allowance (Remot e Locality) allowance (SCA). We have already noted the grounds on which the resp ondent authorities have refused to grant the same to the petitioner. 24. The aforesaid two allowances could be paid under the provisions made by the OM, dated 20.7.1998, modified vide Annexure-4 OM, dated 29.8.2008 an d dated 10.2.2009, quoted in paragraph 9 of the writ petition, whereunder the pr ovisions for the said two allowances were made. It is the stand of the responden t authorities that the petitioner, posted in NE region, could exercise option fo r only one of the allowances inasmuch as he was entitled to only one allowance a nd not more than one in the category of SCA, whichever is advantageous. Accordin g to the respondents, the said option has to be exercised in order to claim onl y one of the four allowances as provided under the Government notification GSR 394 (E), dated 1.7.2004, issued by the Government of India, Department of Just ice, in exercise of power conferred by Section 23 read with Section 24 of the High Court Judges(Salaries and Condition of Services) Act, 1954, through which t he High Court Judges Rules were amended adding a proviso to the last proviso t o Rule 2 of the said Rules. The said new proviso is quoted hereunder: (cid:28)Provided further that a judge of the High Court shall also be entitled to any o ne of the following special compensatory allowances, at the same rates as applic able to a member of the Indian Administrative Service holding the rank of Secret ary to the Government of the State in which the principal seat of the High Court situate, with the condition that an option can be exercised to claim only one o f the following Special Compensatory Allowances whichever is advantageous, namel y:- (i) Special Compensatory (Remote Locality) Allowance (ii) Special Compensatory (Hill Area) Allowance (iii) Special Compensatory (Bad Climate) Allowance (iv)Special Compensatory (Scheduled/Tribal Area) Allowance. (cid:29) 25. As per the said Notification, dated 01-07-2004, a High Court Jud ge is entitled to only one allowance subject to option to be exercised by him. A ll the above four allowances are commonly known as ’Special Compensatory Allowan ce’ (SCA). The petitioner, although did not exercise option for any of the afore said allowances, but he used to receive Special Compensatory (Remote Locality) A llowances, while posted at Aizawl Bench, Mizoram, which, however, as stated in p aragraph 13 of the writ petition, had been stopped subsequently and, following t his stoppage, the examiner of Local Fund Accounts and Treasury, Mizoram vide his communication, dated 17.2.2011, (Annexure-5) drew the attention of the AG (A&E) , Assam, to the issue of Special Compensatory (Remote Locality) Allowance to the petitioner. In this connection, the petitioner has made the following statement s in paragraphs 16 and 17 of the writ petition. (cid:28)16. That in view of the above, if the particular allowance is applicable to Al l India Service Officers, the petitioner finds no reason as to why the same shal l not be applicable to and extended to him. Be it stated here that instance is a vailable of the Special Compensatory (Remote Locality) Allowance being extended to a Hon’ble Judge of this Hon’ble Court while was stationed at Aizawl, Mizoram. As such, under no circumstances the petitioner could have been deprived of the said dues. (cid:28)17. That the petitioners begs to state that although different rates are prescr ibed for Special Compensatory (Remote Locality) Allowance for specified areas co vering the North Eastern States, say for example, for Assam it is Rs.400/- and f or Mizoram it is Rs. 1500/- per month, but considering the fact that the Gauhati High Court comprises of seven States and the petitioner was required to hold Co urt in the Benches therein, he was entitled to Special Compensatory (Remote Loca lity) Allowance at the maximum of the rate applicable in Arunachal Pradesh (Part -B) which is Rs. 2100/- (Revised)/ Rs. 1050 (Pre-revised) or at least at the rat e of Rs. 1500/- (Revised)/ Rs. 750/- (Pre-revised). This specification is to be followed in view of the fact that no service condition of one Judge can be less favourable than the other. (cid:29) 26. As noted above, according to the contesting respondents’ own cas e, the petitioner and, for that matter, the Judges of this High Court are entitl ed to anyone of the aforementioned four allowances. The petitioner did not make any claim for other three allowances in the category of SCA. He was provided wit h only SC (Remote Locality) Allowance, which is one of the four allowances; but later on, same was also stopped for which the aforesaid clarification was sought for, but to no avail. 27. The claim, made by the petitioner for SCA, is not outside the pu rview of the notification, dated 1.7.2004, and the High Court Judges Rules, 1956 , as on 1.1.2007) (Annexure-C to the counter affidavit of respondent No. 3) and, as such, his claim is valid unless it is shown otherwise by subsequent notifica tion or order issued by the Govt. modifying or withdrawing the same. 28. There should not be any manner of doubt that the SC (Remote Loca lity) Allowance is one of the special compensatory allowances (SCA), which is no t included in the Special Duty Allowance provided under the initial OM, dated 14 .12.83, and the latest OM, dated 29.8.2008.The respondent authorities have misun derstood and misinterpreted the provisions of the Special Duty Allowance and Com pensatory Allowance and wrongly conveyed that the petitioner is entitled only to the SC (Remote Locality) Allowance and not to Special Duty Allowance. 29. We have, in the above discussion, demonstrated that the Special Duty Allowance is separate from the compensatory allowances granted under four d ifferent heads shown in the notification, dated 1.7.2004. We are of the consider ed view that the petitioner, apart from or in addition to, the Special Duty Allo wance, is also entitled to one of the 4(four) SCAs and as he had been provided S C (Remote Locality) Allowance, without any claim for the other three compensator y allowances, he ought to have been granted and should, now, be granted, the SC (Remote Locality) Allowance, no matter whether he has intimated to the authoriti es concerned about the same in writing or not. Once it is found that the petitio ner is entitled to the said allowance, the respondent authorities cannot deny th e same for non-exercise of option. The respondent authorities are bound to pay t he Special Compensatory (Remote Locality) allowance to the petitioner with effec t from 1.8.1997 or from the date of his joining as a Judge of the Gauhati High C ourt, whichever is applicable to his case. 30. We, now, come to the petitioner’s claim for Additional Monetar y Incentive Allowance (AMIA). From the pleadings of the respondent authorities, it is discernible that they have denied this allowance on the same grounds on wh ich the SDA and Special Compensatory (Remote Locality) Allowance were denied to the petitioner. The respondents have proceeded on the premises that the Addition al Monetary Incentives Allowance is one of the four special compensatory allowan ces mentioned in the notification, dated 1.7.2004.As stated above, the responden ts have taken the stand that the Additional Monetary Incentives Allowances canno t be paid to the petitioner inasmuch as he can opt for one of the special compen satory allowances only in the form of remote locality hill area, bad climate and scheduled /tribal area allowances. We find the stand taken by the respondents u nfounded and in violation of Govt. notification, dated 1.7.2004. The Additional Monetary Incentive Allowance, in our considered v 31. iew, is an independent allowance and it is not included in the special compensat ory allowances. Had it been so, this allowance would have been mentioned and inc luded in the notification, dated 1.7.2004.It would be unjust and unfair to inclu de something, which is not included in the Government’s said notification. We ha ve gone through OM No. F.14017 /4/ 2005 / 4/ 2005 -AIS (II) dated 10.2.2009 (Ann exure B to the affidavit-in-opposition filed by respondent No.3) regarding grant of additional monetary incentive to All India Service Officers belonging to the North Eastern Region/Cadres. It is clearly mentioned in the said OM that the ad ditional monetary incentive allowance would be payable to officers belonging to north east cadres of All India Service Officers, while they were actually workin g in the N.E. Region, @25% of their basic pay ’in addition to other allowances’ presently payable to them and the order would be made effective from the date of issue i.e 10.2.2009. 32. There is no difficulty in appreciating the position that the add itional monetary incentive allowance has been granted by the Government of India in addition to the aforesaid SDA and four special compensatory allowances menti oned in the earlier notification, dated 1.7.2004. Had it been otherwise, it woul d have been mentioned in the OM, dated 10.2.2009, while granting the additional monetary incentive allowance. The respondent authorities have misunderstood and misconstrued the aforesaid position inasmuch as the special compensatory allowan ces, four in types, from which a High Court Judge has to choose or opt for one o f them, is inclusive of the additional monetary incentive allowance. The respond ent authorities have committed a grave error in saying that a Central Government Employee or the All India Service Officers is entitled to only one of the speci al compensatory allowances under notification, dated 1.7.2004, and that they are not entitled to special duty allowances and additional monetary incentive allow ances. 33. In our consideration, the Central Government issued the aforesai d OMs and notifications from time to time to address the grievances of the Centr al Government civilian employees and All India Civil Service Officers by way of granting different allowances, namely, (i) Special Duty Allowance,(ii) Additiona l monetary incentive allowance and (iii) Special compensatory allowances, which include remote locality allowance, at different rates, with effect from differe nt dates as mentioned in the said OMs and notifications . The special duty allow ance is the main and the oldest allowance, next to which the special compensator y allowances, including the remote locality allowance, were introduced and, at l ast, the additional monetary incentive allowance was introduced with effect from the date of issue of the OM, that is, 10.2.2009. There is no basis to hold that once one of the SCAs is paid to a High Court Judge, the Additional Monetary Inc entive Allowance and SDA cannot be paid to him. There is, at least, no such OM/n otification/order or communication from the Central Government that a High Court Judge would be entitled to only one of the SCAs and, in no circumstances, he wo uld be entitled to SDA and Additional Monetary Incentive Allowance (AMIA). 34. As to what is the plea of the respondents in their counter affid avit has been noted above. None of the affidavits has justified denial of the th ree allowances claimed by the petitioner. The plea that the petitioner is not en titled to any other allowances except SCA is absolutely misconceived. As discuss ed above, the said allowance is only one of the allowances mentioned in the Anne xure-C i.e. High Court Judges Rules, 1956 as on 1st January, 2007. Nowhere, in t he said Rules, other two allowances i.e. SDA and AMIA, have been excluded. In fa ct, the said Rules did not take into account or had no occasion to deal with the said two allowances. If the plea of the respondents is to be accepted, the same will disentitle even IAS Officers from receiving the other two allowances i.e. SDA and AMIA. These three allowances being available to the officers of the AIS and the SDA to the Central Govt. employees, we see no reason as to why the petit ioner, who was a Judge of the Gauhati High Court, will not be entitled to SDA an d AMIA in addition to SCA. Rule 2 of the High Court Judges Rules, 1956, makes th e position crystal clear in this regard. 35. In the counter affidavit filed by the respondent No.3, it has be en contended that the petitioner, during his incumbency as a Judge, did not appl y for the said allowances. Such a plea is really unfortunate. As stated in the a ffidavit-in-reply filed by the petitioner, and discussed above, when the petitio ner was denied the benefit of SCA after initially granting the same, corresponde nces were made with the respondents, while the petitioner was posted at Aizawl B ench. That apart, the Registry of the Gauhati High Court had also taken up the m atter with the respondents/authorities concerned; but there was no response from the Ministry concerned. The respondents ought to have paid the allowances to th e petitioner of their own as per his entitlement instead of forcing him to appro ach this Court. Under no circumstances, more particularly, in view of Rule 2 of the High Court Judges Rules, 1956, the petitioner can be deprived of the allowan ces, which are being paid to the AIS Officers, irrespective of the fact whether they are posted to NE Region from outside or belong to NE Region. 36. We, therefore, come to a clear conclusion that the petitioner, s ame as other Judges of this Court is entitled to (i) Special Duty Allowance from the date of his joining as per OM, dated 14.12.1983, clarified by the above quo ted letter, dated 03.02.1984, (ii) Additional Monetary Incentive Allowance w.e. f. 10.2.2009 as per the OM dated 10.2.2009 and (iii) SC (Remote Locality) Allowa nce at the available and maximum rate from the date of his joining as per OM, da ted 20.7.1998, whereunder as many as four special compensatory allowances like r emote locality, hill area, bad climate and scheduled/tribal area allowances have been granted. Taking into account that the petitioner was granted the SC (Remot e Locality) Allowance only from amongst four special compensatory allowances, th e same cannot be denied to him on the ground of non-exercise of option. 37. ands allowed. No order as to cost. With the aforesaid observations and directions, this petition st