Central Administrative Tribunal - Gauhati
Gadadhar Bania And Ors. vs Union Of India (Uoi) And Ors. on 31 May, 2005
Equivalent citations: 2005(3)SLJ225(CAT)
ORDER
G. Sivarajan, J. (Vice Chairman)
1. Since all these applications, inter alia, involve one common question regarding entitlement to Special (Duty) Allowance (for short SDA), all these applications are being disposed of by a common order. Since most of the relevant orders and decisions are available in O.A. No. 319 of 1999 we take this case as the leading case and parties and documents are referred to as described therein.
2. The applicants in the first eight cases are aggrieved by a communication dated 10.4.1999 (Annexure-4) issued by the Controller of Defence Accounts, Narangi, the 2nd respondent, directing stoppage and recovery of Field Service Concession (for short FSC) enjoyed by them pursuant to the decisions of this Tribunal as affirmed by the Supreme Court. A Division Bench of this Tribunal, consisting of Mr. Justice D.N. Chowdhury, Vice-Chairman and Mr. M.P. Singh, Administrative Member, by a common order dated 11.12.2000 allowed the first six applications. The impugned order dated 10.4.1999 was set aside. The O.A. Nos. 155 and 201 of 2000 were also disposed of by the same Bench by a separate common order dated 12.12.2000 granting the same relief. Since one other point regarding entitlement to Special Compensatory Allowance (Remote Locality) depended on ascertainment of certain facts for the application of the Supreme Court decision in Civil Appeal No. 1572 of 1997, the respondents were directed to determine the entitlement of the applicants to the said allowance in the light of the Supreme Court decision in the Civil Appeal.
3. The Union of India and other officers, being aggrieved by the said decisions, filed Writ Petitions (Nos. 1685 of 2001, 4226 of 2001 and 4227 of 2001) challenging the said orders before the Hon'ble Gauhati High Court. The said writ petitions were disposed of by a Division Bench presided over by the Hon'ble Chief Justice (Justice P.P. Naolekar as His Lordship then was) by judgment dated 18.9.2002. The orders of this Tribunal impugned in the said writ petitions were set aside and the matter remanded for fresh consideration in the light of the directions contained in the judgment. It was also ordered that the respondents shall not recover the amount from the applicants till the disposal of the applications. Thus, though there was stay of operation of the order dated 10.4.1999 as per orders of the Tribunal the High Court only stayed the recovery part of the said order. In other words, the prospective operation of the order dated 10.4.1999 was not stayed by the High Court. Thus the first eight cases are before us for fresh consideration. O.A. Nos. 360 of 2002, 77 and 103 of 2004 relate to the grant of SDA. Since this issue is there in the first eight cases also we are disposing of all the eleven cases by this common order.
4. Mr. A. Ahmed, learned Counsel for the applicants argued the matter at length and submitted that in view of the Government letters dated. 25.4.1994 and 31.1.1995 the applicants are entitled to Field Service Concession Allowances alongwith Army personnel from 1.4.1993 and that it has been so held by this Tribunal in its earlier order dated 24.8.1995 in O.A. Nos. 124, 125, 217 and 218 of 1995, 1995 GLT 1 (CAT). Counsel further submitted that all the applicants were receiving all the benefits granted by the Tribunal after the said decision was affirmed by the Hon'ble Supreme Court. Counsel further submitted that this Tribunal had granted very same reliefs in other cases also (order dated 12.2.1999 in O.A. No. 275 of 1998) and that similarly situated persons posted at Dimapur, Nagaland in the Canteen Stores Department are still enjoying FSC allowance with non-monetary concessions like free ration etc.
5. Mr. U.K. Nair, learned Counsel for the applicants in O.A. Nos. 155 and 201 of 2000 also supplemented the arguments made by Mr. A. Ahmed and submitted that the letter dated 25.4.1994 clearly extended the benefits to Defence Civilians also who had also faced risk to their life by being side by side with the service personnel in the field area, that the Union of India assailed the grant of relief under various heads granted by this Tribunal before the Hon'ble Supreme Court but without, success and therefore, the impugned order of 10.4.1999 is issued in defiance of the decision of the Supreme Court.
6. Mr. A.K. Chaudhuri, learned Addl. C.G.S.C. assisted by Ms. U. Das, learned Addl. C.G.S.C., submitted that the applicants in all these cases are not entitled to the reliefs sought for in the applications. He made submissions based on the averments made in the written statement filed in these cases a summary of which is contained in a letter dated 12 March, 1999 sent by Government of India, Ministry of Defence, New Delhi to Mr. B.C. Pathak, the then Addl. C.G.S.C. appearing in these cases and placed before the Bench. The standing Counsel further submitted that the Hon'ble High Court in the remand order had issued clear directions regarding the disposal of these cases and therefore the earlier decisions of this Tribunal as affirmed by the Supreme Court will not stand in the way of independent consideration of these applications in the light of the Government letters mentioned in the remand order of the High Court.
7. There are a few decisions of this Tribunal which went up to Supreme Court and merged with the decisions of the Supreme Court on the issue of Field Service Concession and Allowances (O.A. Nos. 124, 125, 217 and 218 of 1995 and earlier cases). This is virtually the second round of litigation. Hence it is desirable to first ascertain the scope of the reliefs sought for in these applications.
8. It is profitable in this context to have the text of the common order of the Tribunal rendered on 11.12.2000 in these first six cases extracted in this order. It reads thus:
"All these cases pertain to Field Service Concession (FSC for short) admissible to Defence Civilian employees pertaining to Groups 'C' and 'D' employees. Since the cases involve common question of facts and common questions of law, all these cases were taken up together for hearing.
2. The applicants are serving in the State of Nagaland and Manipur as Defence Civilian employees. The subject matter that has come up for adjudication were earlier adjudicated upon by this Tribunal in a number of cases, more particularly in O.A. Nos. 124, 125, 217 and 218 of 1995. The Tribunal by Judgment and Order dated 24.8.1995 passed in O.A. Nos. 124 and 125 of 1995 held that FSC was admissible to the applicants with effect from 1.4.1993 and the respondents were directed to extend the FSC to the applicants in the prescribed manner with effect from 1.4.1993.
3. The Tribunal in the aforesaid cases basically dealt with, amongst others, communication No. 16729/GG4 (civ)(d) dated 25.4.1994 issued by Sena Mukhyalaya. The respondent authority thereafter went to the Supreme Court by filing SLP and the Supreme Court granted the leave. The Civil Appeals were finally disposed of by the Supreme Court. The respondents specifically raised the point that the Tribunal committed a grave error by holding that the applicants were entitled for FSC as per Army Headquarters letter dated 25.4.1994 without understanding the contents of the letter. It was raised that the Army Headquarter letter dated 25.4.1994 was addressed to the various Army Commands pertaining to certain proposals for concessions/allowances to Defence Civilians posted in certain areas. The operative portion of the judgment of the Supreme Court is reproduced below:
"Having regard to the respective contentions, we are of the view that the Government having been extending the benefit of payment of Special Duty Allowance to all the defence employees working in the North-Eastern Region as per the orders issued by the Government from time to time as on April 17, 1995, they are entitled to both the Special Duty Allowance as well as Field Area Special Compensatory (Remote Locality) Allowance. The same came to be modified w.e.f. that date. Therefore, irrespective of the fact whether or not they have been deployed earlier to that date, all are entitled to both the allowance only upto that date. Thereafter, all the personnel whether transferred earlier to that or transferred from on or after that date, shall be entitled to payment of only one set of Special Duty Allowance in terms of the above modified order.
As regards the payment of Special Duty Allowance to the defence civilian personnel deployed at the border area for support of operational requirement, they face the imminent hostilities supporting the army personnel deployed there. Necessarily, they alone require the double payment as ordered by the Government but they cannot be deprived of the same since they are facing imminent hostilities in the hilly areas risking their lives as envisaged in the proceedings of the Army dated January 13, 1994. But the Modified Field Area, in other words, in the defence terminology, "barracks" in that area is a lesser risking area; hence they shall not be entitled to double payment. Under these circumstances. Mr. P.P. Malhotra is right in saying that the wordings of the order requires modification. The Government is directed to modify the order and issue the corrigendum accordingly."
4. The judgment rendered by this Tribunal was finally merged with the judgment of the Supreme Court. The respondents by the impugned communication dated 10.4.1999 sought to make distinction between payment of monetary and non-monetary allowance in the FSC and by the direction dated 10.4.1999 they instructed the concerned authorities recover the payments already granted earlier on the basis of Court judgments. The issue in these applications have already been adjudicated upon in O.A. Nos. 124 and 125 of 1995, which went upto the Supreme Court and the determination on these matters has already attained its finality. According to the respondents, which appears from the written statement, the earlier judgment of the Tribunal was based on a misconception of facts, which was relatable to the Army personnel and not to the civilians. It was also averred that there was a lapse on the part of the respondents in placing the matters on record.
5. The controversy relating to FSC has already been adjudicated upon in the aforementioned O.As. by this Tribunal and the Supreme Court finally disposed of the applications as mentioned above. The judgment of this Tribunal delivered earlier has been merged with the judgment of the Supreme Court and it is binding on the parties. If there was any lapse on the part of the respondents in placing the matters in its entirity it was open for the respondents to take appropriate measures, but it was not permissible on the part of the respondents to act in defiance of the order of the Tribunal, which was finally dealt with by the Supreme Court. The finding of the Tribunal in the O.As. as regards the admissibility of the FSC and the SCA(RL) were not disturbed by the judgment of the Supreme Court, in this regard. The FSC as alluded earlier was granted by this Tribunal and not interfered by the Supreme Court and it was not proper on the part of the respondents to modify the same and take a (sic) of FSC was specifically taken in the SLP and the Supreme Court did not accept the pleas. The relief would therefore be deemed to have been refused.
6. Mr. B.C. Pathak, learned Addl. C.G.S.C., referred to the two decisions of the Supreme Court, , State of Orissa v. Durga Charan Das, and , State Haryana and Ors. v. Ram Kumar Mann. Both the cases are decisions on facts pertaining to interpretation of the rules. In State of Orissa v. Durga Charan Das (supra) the Supreme Court observed that the State might have misconstrued the scope and effect of Rule 6 of the Protection Rules, but that would not preclude the authority to interpret the rule justly and reasonably. In State of Haryana v. Ram Kumar Mann (supra) the Court was concerned as to whether a wrong decision rendered by the Government does not preclude them to take a right decision. But, here is a case in which the fact in issue was already adjudicated upon, may be on a wrong premise. It the document was wrongly relied upon which was adjudicated upon, it was not open for the respondents to interpret the same on the face of the judgment of the Tribunal, which was not disturbed by the Supreme Court.
7. In the circumstances the applications are allowed and the impugned orders and/or directions for stoppage and recovery of Field Service Concession are set aside. There shall, however, be no order as to costs."
9. It is also profitable to have the text of the judgment of the Hon'ble Gauhati High Court rendered on 18. 9.2002 in the writ petitions mentioned earlier. It reads thus:
"Heard Mr. D. Sur, learned Addl. C.G.S.C. assisted by Mrs. N. Sharma, learned Addl. C.G.S.C. appearing for the petitioners as well as Mr. A. Ahmed, learned Counsel for the respondents.
2. As common questions of facts are involved in the aforementioned four cases, these are heard analogously and, accordingly, we propose to dispose of the same with the following common judgment and order.
3. After going through the records, we feel that the Tribunal has not taken into consideration the corrigendum dated 17.4.1995 (Annexure -V) as well as office memorandum dated 16.3.1998 (Annexure - VIII) issued by the Under Secretary to the Government of India, Ministry of Defence, New Delhi and also the letter dated 10.4.1999 issued by the Controller of Defence Accounts, Udayan Bihar, Narangi, Guwahati (Annexure - X) before reaching to the conclusion whether the Field Service Concessions Allowance can be retained and are entitled to by the petitioners after 17.4.95 and whether such allowance i.e., Filed Service Concessions allowance includes Compensatory Field Area Allowance (CFAA) or Compensatory Modified Field Area Allowance (CMFAA). The Tribunal shall be required to consider whether these allowances form part and parcel of the Field Service Concession or not. It is only after the Tribunal reaches to the conclusion in regard to these two allowances, an order can be passed by the Tribunal in regard to the retention of the Field Service Concessions Allowance by the petitioners, respondents herein or in regard to the payment of the said amount after 17.2.1997. The office memorandum dated 16.3.1998 (Annexure - VIII) and the letter dated 10.4.1999 (Annexure - X) require considerations by the Tribunal on account of the fact that these documents were not before the Apex Court when the judgment was delivered by the Apex Court on 17.2.1997 in the matter of Union of India and Ors. v. B. Prasad, B.S.O. and Ors., reported in (1997) 4 SCC 189.
For the aforesaid reasons, we set aside the order passed by the Tribunal and remand the matter for consideration afresh of the petitions filed by the petitioners. It is made clear that the Union of India shall not recover the amount from the petitioners, respondents herein till the disposal of the O.As. and in accordance with the direction given therein. The petitions stand disposed of."
10. The applicants in the first six cases are Defence Civilian Groups 'C' and 'D' employees serving in the State of Nagaland and Manipur. This Tribunal in O.A. Nos. 124, 125 of 1995 in its order dated 24.8.1995 held that FSC was admissible to the applicants with effect from 1.4.1993 and directed the respondents to extend the FSC to the applicants in the prescribed manner with effect from 1.4.1993. The Union of India and others took up the matter to the Hon'ble Supreme Court by way of special leave petitions which were later numbered as Civil Appeals. The said appeals were finally disposed. The relevant portion of the Supreme Court judgment is extracted in Para 3 of the Tribunal order extracted hereinabove. Tribunal in that order observed that in the letter dated 10.4.1999 the respondents sought to make a distinction between payment of monetary and non-monetary allowance in the FSC and the concerned authorities were instructed to recover the payments already granted earlier on the basis of Court judgments. The Tribunal observed that the controversy relating to FSC has already been adjudicated upon in O.A. Nos. 124 and 125 of 1995 and attained finality by the decision of the Supreme Court. The Tribunal further observed thus:
"If there was any lapse on the part of the respondents in placing the matters in its entirety it was open for the respondents to take appropriate measures, but it was not permissible on the part of the respondents to act in defiance of the order of the Tribunal, which was finally dealt with by the Supreme Court. The finding of the Tribunal in the O.As. as regards the admissibility of the FSC and the SCA(RL) were not disturbed by the judgment of the Supreme Court, in this regard. The FSC as alluded earlier was granted by this Tribunal and not interfered by the Supreme Court and it was not proper on the part of the respondents to modify the same and take a different conclusion. The plea of admissibility of FSC was specifically taken in the SLP and the Supreme Court did not accept the pleas. The relief would therefore be deemed to have been refused."
11. Here, it is relevant to note the decision of the Division Bench of the Hon'ble High Court quoted (supra). The High Court observed that the Tribunal did not take into consideration the corrigendum dated 17.4.1995 as well as Office Memorandum dated 16.3.1998 issued by the Under Secretary to the Government of India, Ministry of Finance, New Delhi and also the letter dated 10.4.1999 issued by the Controller of Defence Accounts, Narangi, Guwahati before reaching the conclusion whether the Field Service Concession can be retained and are entitled to by the petitioners after 17.4.1995 and whether such allowance i.e. Field Service Concession allowance includes Compensatory Field Area Allowance (CFAA for short) or Compensatory Modified Field Area Allowance (CMFAA for short). The Tribunal shall be required to consider whether these allowances form part and parcel of the Field Service Concessions or not. The Tribunal was accordingly directed to first decide the question regarding the above two allowances and then to decide the question regarding the retention of the Field Service Concession allowance by the petitioners in regard to the payment of the said amounts after 17.2.1997. The High Court specifically directed to consider the Office Memorandum dated 16.3.1998 and the letter dated 10.4.1999 on account of the fact that those documents were not before the Supreme Court while delivering the judgment dated 17.2.1997, Union of India and Ors. v. B. Prasad, .
12. Thus it is clear that the parameters for adjudication of the issues arising in these applications are clearly delineated in the judgment of the High Court thus:
(i) Whether CFAA and CMFAA forms part of the Field Service Concession admissible to Defence Civilians serving in the Defence Department at Nagaland and Manipur?
(ii) Whether the Defence Civilians serving in the field areas of Nagaland and Manipur are entitled to CFAA or CMFAA?
13. Let us now consider the question of entitlement of the applicants to Field Service Concession and Allowances in the light of the Government Memorandum and letters specifically mentioned in the remand order of the High Court.
14. The first question to be decided is as to whether CFAA and CMFAA form part of FSC. A few orders which are relevant for deciding the said question are:
(1) Government of India, Ministry of Defence letter No. A/02584/S/PS3(a)/97/ S/D (Pay/Service) dated 25.1.1964.
(2) Government of India, Ministry of Defence letter No. A/25761/AG/PS-3(b)/ 148/S/2/D (Pay/Services) dated 2.3.1968.
(3) Government of India, Ministry of Defence letter dated 13.1.1994.
(4) Army Head Quarters letter dated 25.4.1994 and letter dated 16.11.1995.
(5) Government of India, Ministry of Defence letter dated 31.1.1995.
(6) Corrigendum dated 17.4.1995.
(7) Corrigendum dated 12.9.1995.
(8) Government of India, Ministry of Defence letter dated 16.3.1998.
15. The Government of India letter dated 25.1.1964 deals with FSC to Army personnel and Defence Civilians in operational areas issued with the Presidential Sanction. Concessions available to Army personnel are detailed in Annexure-A to the letter who are located in the areas defined in Annexure-B thereto. Defence Civilians (both posted and locally recruited) serving in the areas defined in Annexure-B have been allowed Field Service Concessions subject to Para 2 of the letter as detailed in Annexure-C thereto. It is stated that these * concessions are liable to be revised periodically.
16. As per Annexure-C to the letter Defence Civilians serving in the areas specified in Annexure-B are entitled to various non-monetary concessions specified as items (a) to (g) such as Free Rations, Free rented accommodation, Free clothing, etc. which are only non-monetary concessions. Nagaland and Manipur are areas specified in Annexure-B.
17. Government letter dated 2.3.1968 pertains to FSC to Army Personnel and Defence Civilians in operational areas with reference to the Government letter dated 25.1.1964 issued with the Presidential sanction by way of modification. Under Annexure-A to Government letter dated 25.1.1964 the Army personnel were entitled to, in addition to non-monetary benefits, Special Compensatory Allowance also to certain categories of officers. It is this allowance which is revised as per letter dated 2.3.1968 (vide Clause (a) of this letter). By Clause (b) of the said letter FSC with respect to officers and personnel (including civilians paid from Defence Service Estimates) serving in certain areas were discontinued with effect from 1.3.1969. By Clause (c), with respect to the persons mentioned in Clause (b), certain other concessions listed in Appendix-A were made available to Army Officers and personnel to whom the orders referred to in Para 1 of the letter originally applied. We are not concerned with Clauses (b) and (c) of this letter. This letter would however show that Special Compensatory Allowance was available to both army personnel and Defence Civilians under some other order, which was revised as per Clause (a) of this order.
18. Government of India, Ministry of Defence letter dated 13.1.1994 pertains to FSC to Army Personnel by way of implementation of the 4th Central Pay Commission. The Pay Commission had recommended that the existing classification of areas for the grant of FSC and the concessions admissible in Field Areas to Armed Forces personnel should be reviewed by the Government. In implementation of the said recommendation the Government of India has issued this letter with the sanction of the President. By this letter the areas in which FSC are admissible have been classified as Field Areas and Modified Field Areas with following definitions:
"Field Area: Field Area is an area where troops are deployed near the borders for operational requirements and where imminence of hostilities and associated risk to life exists. Troops in such areas are located for reasons of operational considerations alone and are not living in Cantonments.
"Modified Field Area: Modified Field Area is an area where troops are deployed in support of Combat echelons/troops in an operational support role. Degree of operational readiness is slightly lower than that in Field Area, though sustained surveillance continues."
Those areas are separately specified in Appendices-A and B to the letter. Manipur and Nagaland States fall under Field Areas. Para 3.1 provides for concessions--Monetary Allowance. Personnel serving in the Field Areas and Modified Field Areas will be eligible to the grant of CFAA and CMFAA respectively. The rate of allowances and the conditions for the grant were also specified in Paras 3.2 and 3.3 and other Paras. Para 4.3 provides for other concessions which clearly says that concessions in kind at present admissible in Full Field Areas as per details given in Annexure-A to the Ministry's letter dated 25.1.1964 as amended will continue to be admissible in the newly defined Field Areas as defined in Appendix-A to this letter. Similarly concessions admissible in Modified Field Areas as per details in Appendix-A to the Government letter dated 2.3.1968 as amended will be admissible in Modified Field Areas as per Appendix-B to this letter. High Altitude/ Uncongenial Climate Allowance to personnel serving in the Field Areas. Para 9.1 of the letter states that these orders will come in to effect from 1.4.1993. In Para 13 it is clearly stated that the concessions to be admissible to Defence Civilians serving in the newly defined Field Areas will be notified separately.
19. The letter dated 25.4.1994 issued from the Army Headquarters contain proposal for extending the benefits given to Army personnel in the Government order dated 13.1.1994 to Defence Civilians in the Field Area also since they serve side by side with service personnel under similar conditions in the given areas and also required to move with the border areas and also serve dense jungles risking their lives for performing duties assigned to them.
20. The letter dated 16.11.1995 issued from the Army Head Quarters, New Delhi refers to the earlier letter dated 25.4.1994 and observed that the subject matter was examined at a very high level at the Head Quarters and it was decided that no new monetary concessions/ allowances can be granted to the Civilian employees in field areas since the move will result in withdrawal of many compensatory allowances those are admissible at present exclusively by certain employees even in peace areas. It is further stated that now, Defence Civilians employees serving in newly defined Field Areas/Modified Field Areas will continue to be extended the concessions as per Government letter No. B/37269/AG/PSB(a)/165/D(Pay/ Services) dated 31.1.1995 and No. B/37269/AG/PS3(a)/730/D(Pay & Services) dated 17.4.1995.
21. Government of India, Ministry of Defence letter dated 31.1.1995 issued with reference to its earlier letter dated 13.1.1994 conveys the sanction of the President of India to the following Field Service Concessions to Defence civilians in the newly defined Field Areas and Modified Field Areas with effect from 1.4.1993.
"(i) Defence Civilian employees serving in the newly defined Field Areas will continue to be extended the concessions enumerated in Annexure-'C' in Govt. letter No. A/02 501/S/PSS(a)/97-S/D(Pay/Service) dated 25.1.1964, Defence Civilian employees serving in newly defined Modified Field Areas will continue to be extended the concessions enumerated in Appendix 'A' to Govt. letter No. A/25761/AG/P53(b)/146-5/2/D(Pay/Service) dated 2nd March, 1968.
"(ii) In addition to above, the Defence Civilian employees serving in the newly defined Field Areas and Modified Field Areas will be entitled to payment of Special Compensatory (Remote Locality) Allowance and other allowances as admissible to Defence Civilians as per the existing instructions issued by this Ministry from time to time."
22. Thus the Defence Civilian employees serving in the newly defined field area are entitled to get the benefits provided to them in Annexure-C to the letter dated 25.1.1964 and the Defence Civilian employees in the newly defined Modified Field Area will continue to get the concessions enumerated in the Govt. letter dated 2.3.1968. In addition, these two categories are also entitled to payment of Special Compensatory (Remote Locality) Allowances and other allowances admissible to Defence Civilians as per the existing instructions issued by the Ministry of Defence from time to time.
23. A corrigendum was issued on 17.4.1995. This is by way of amendment to the Ministries letter dated 31.1.1995. It directed deletion of Para 1 (ii) extracted above and for substitution of the following:
"The Defence Civilian employees, serving in the newly defined modified Field Areas, will continue to be entitled to the Special Compensatory (Remote Locality) Allowance and other allowances as admissible to Defence Civilians, as hitherto fore, under existing instructions issued by this Ministry from time to time. However, in respect of Defence civilians employed in the newly defined Field Areas, Special Compensatory (Remote Locality) Allowance and other allowances are not concurrently admissible alongwith Field Service Concessions."
24. The aforesaid amendment sought to distinguish the two categories of Defence Civilian employees namely, those working in newly defined 'Modified Field Area' and those working in the newly defined 'Field Area', in that Defence Civilian employees working in the Modified Field Area are entitled to Special Compensatory (Remote Locality) Allowance and other Allowances admissible under the existing instructions issued from time to time but the same set of employees working in the newly defined Field Area are not entitled to get Special Compensatory (RL) Allowance and other allowances concurrently along with Field Service Concessions.
25. There is a further corrigendum dated 12.9.1995 to the letter dated 31.1.95. It directs deletion of Para 2 of the letter dated 31.1.95 and for substituting the following:
"These orders will come into force w.e.f. the date of issue of this letter namely w.e.f. 31.1.95. In others words, no recovery will be made on account of concessions like free rations/free single accommodation etc., already availed of by Defence Civilians as part of Field Service Concessions from 1.4.93 to 30.1.95. Similarly, no payment on account of SDA/SCA/SCA(RL) will also be made from 1.4.93 to 30.1.95."
26. Before dealing with the Government letter dated 16.3.1998 it is necessary to refer to the background for issuing this letter in some detail.
27. A batch of Civil Appeals arising from the orders of this Tribunal were disposed of by the Hon'ble Supreme Court by judgment dated 17.2.1997 Union of India v. B. Prasad (supra). The Defence Civilian employees working in the newly defined Field Area were aggrieved by the order dated 17.4.1995 regarding Field Service Concession Allowance issued to their detriment. Their applications were allowed by the Tribunal. Union of India, being aggrieved, filed special leave petitions before the Hon'ble Supreme Court which were admitted and numbered as Civil Appeals. The contentions of the Counsel for the parties before the Supreme Court are recorded as follows:
"...that the view taken by the Tribunal that they are entitled to both, is not correct and that they would be entitled to either of the allowances. Mr. P.P. Rao, learned Senior Counsel appearing for some of the respondents, has contended that those civilian employees working in the Defence Service at various stations in the North-Eastern Region were given Special Duty Allowance with a view to attract the competent persons and the persons having been deployed, are entitled to the same and the amended concessions would be applicable to those employees who are transferred after 17.4.1975. All those who were serving earlier would be entitled to both. Mr. Arun Jaitley, learned Senior Counsel appearing for some of the respondents, has drawn our attention to the distinction between Field Area and Modified Field Area and submitted that in cases where civilian employees are supporting the field defence persons deployed at the border operational requirements facing the immense hostilities, they will be denied the payment of both the allowances while the personnel working in the Modified Field Area, in other words, in barracks, will be entitled to double benefit of both the allowances. This creates hostile discrimination and unjust results."
28. The Supreme Court considered the said contentions thus:
"Having regard to the respective contentions, we are of the view that the Government having been extending the benefit of payment of Special Duty Allowance to all the defence employees working in the North-Eastern Region as per the orders issued by the Government from time to time as on 17.4.1995, they are entitled to both the Special Duty Allowance as well as Field Area Special Compensatory (Remote Locality) Allowance. The same came to be modified w.e.f. that date. Therefore, irrespective of the fact whether or not they have been deployed earlier to that date, all are entitled to both the allowances only up to that date. Thereafter, all the personnel whether transferred earlier to that or transferred from or after that date, shall be entitled to payment of only one set of Special Duty Allowance in terms of the above modified order.
As regards the payment of Special Duty Allowance to the defence civilian personnel deployed at the border area for support of operational requirement, they face the imminent hostilities supporting the army personnel deployed there. Necessarily, they alone require the double payment as ordered by the Government but they cannot be deprived of the same since they are facing imminent hostilities in hilly areas risking their lives as envisaged in the proceedings of the Army dated 13.1.1994. But the Modified Field Area, in other words, in the Defence terminology, "barracks" in that area is a lesser risking area; hence they shall not be entitled to double payment. Under these circumstances, Mr. P.P. Malhotra is right in saying that the wording of the order requires modification. The Government is directed to modify the order and issue the corrigendum accordingly."
29. Now we will refer to the Office Memorandum No. 4(3)/98/D(Civ.I) dated 16.3.1998. This order is issued as directed by the Supreme Court in Para 6 of the judgment extracted above. Paras 5 and 6 quoted above are extracted in the Government orders.
30. Paragraphs 2 and 3 of the Government order purports to give effect to the directions contained in the judgment as follows:
"The Hon'ble Supreme Court in Civil Appeal No. 3251/93, Union of India v. S. Vijaykumar and Ors. had held that the Special Compensatory Allowance including Special Duty Allowance to Central Government employees in the North-Eastern Region will be admissible to only those who are originally recruited in regions other than North-East and subsequently transferred from such outside region to the North-Eastern Region. Accordingly, I am directed to convey the sanction that Defence Civilians who are working in Field Areas will be entitled, in addition to the Field Service Concessions as applicable, to receive Special Duty Allowance at the applicable rates provided they had been originally recruited outside the North-Eastern Region and have been transferred to the North-Eastern Region from such outside region.
"Any payment made not in accordance with the aforesaid corrigendum dated 17.4.95 read with clarification in the preceding paragraph, will be recovered in so far as they relate to the period beyond 17.4.95. In other words:
(i) No recovery would be made on account of payment made to Defence Civilians in respect of Special Compensatory (Remote Locality) Allowance as well as Special Duty Allowance in respect of personnel posted in North-Eastern Region prior to 17.4.95.
(ii) The Defence Civilians recruited from outside the North-Eastern Region and posted from outside into the North-Eastern Region would be entitled to the Special Duty Allowance in addition to the Field Service Concessions.
(iii) Special Compensatory (Remote Locality) Allowance will not, however be admissible alongwith Field Service Concession in Field Areas beyond 17.4.95 and overpayment made on this account would be recovered."
31. By virtue of this Government order, the Defence Civilians working in Field Areas will be entitled, in addition to the Field Service Concessions as applicable, to receive Special Duty Allowance at the applicable rate provided they had been originally recruited out side the North-Eastern Region and have been transferred to the North-Eastern Region from such out side region. The Defence civilians recruited from out side the NER and posted from outside into NER would be entitled to SDA in addition to FSC. It is made clear that Special Compensatory (Remote Locality) Allowance will not, however, be admissible along with FSC in Field Areas beyond 17.4.1995 and over payment made on this count would be recovered.
32. In view of these Government letters the stand of the respondents is that Defence Civilians are entitled only to concessions mentioned in the Government letters dated 25.1.1964 and 2.3.1968 and that monetary allowances of FSC are not admissible to them as per the existing policy. The FSC directed by the Tribunal, it is contended, can only be the non-monetary FSCs as admissible to them as per policy. Of course, as per the Government letter dated 16.3.1998 the Defence Civilians who satisfies the conditions stated therein are entitled to SDA in addition to FSC.
33. Here, one aspect is worth mentioning. It would appear from the Government letter dated 16.3.1998 that the Government had omitted to consider the specific direction of the Supreme Court contained in the last part of Para 6 in regard to the modifications of the order dated 17.4.1995. The direction in Para 6, as we understand, is that instead of giving double payment to the Defence Civilians serving in the Modified Field Area which is a lesser risky area it must be given to the Defence Civilians working in the Field Area as they face imminent hostilities supporting the Army personnel deployed there. The double payment mentioned in the judgment of the Supreme Court, it must be noted, are Special Duty Allowance and Special Compensatory (RL) Allowance which is continued in the cases of Defence Civilians in the newly defined Modified Field Area. No modification to the above effect is seen made.
34. Now we will consider the impugned letter dated 10.4.1999 issued by the Controller of Defence Accounts. It is stated therein that Defence Civilians serving in Field and Modified Field Areas as reclassified in the letter dated 13.1.1994 are entitled to any the non-monetary FSC envisaged in Annexure-C to the letter dated 25.1.1964 and Annexure-B to the letter dated 2.3.1968 respectively and the same was brought out in the letters dated 31.1.1995, 17.4.95 and 12.9.1995. It is further stated that FSC thus do not include monetary Allowance in the form of CFAA or CMFAA as is applicable to service personnel but a large number of Defence Civilians are being paid CFAA and CMFAA in the form of monetary allowance. The Government letter dated 12.3.1999, it is stated, explains the positions. Accordingly the concerned authorities were instructed to stop payment of CFAA and CMFAA as part of FSC to defence civilians immediately and to recover such payment already made after issuing show cause notices. The letter dated 12.3.1999, as already noted, is the opinion of the department in regard to the payment of FSC (both non-monetary and monetary) as per the various Government letters. Thus it can be said that the subject matter of the first six applications which were remanded for fresh consideration is only as to whether CFAA/CMFAA and FSC are admissible to the applicants. According to the letter dated 10.4.1999 the applicants are entitled to only the non-monetary FSC. In other words the issue relating to SDA and SCA (RL) were not in issue in the letter dated 10.4.1999 impugned in the six applications.
35. Now we will consider as to whether CFAA and CMFAA form part of the Field Service Concessions.
36. Field Service Concessions available to the Defence Civilians working in the area specified in Annexure-B to the Government letter dated 25.1.1964 which includes Nagaland and Manipur are specified in Annexure-C thereto (vide Para 5 of the order dated 25.1.1964). The FSC granted therein are only non-monetary concessions. It does not include any monetary concessions. CFAA and CMFAA were granted to the Defence Personnel only as per Government letter dated 13.1.1994 (vide Para 3.1) subject to conditions. It is clearly stated in Para 13 of the said letter that the concessions to be admissible to Defence Civilians serving in the newly defined Field Areas will be notified separately. This makes the position clear that the benefits granted in the letter dated 13.1.1994 does not apply to Defence Civilians. The Army Head quarters letter dated 25.4.1994 was only a proposal to extend the benefit of CFAA and CMFAA to Defence Civilians working in the newly defined Field Area. However, the said proposal was dropped by the Army Head Quarters itself as conveyed in their letter dated 16.11.1995. That apart, the concessions available to the Defence Civilians in the newly defined Field Area is specified in the orders dated 31.1.1995 as modified by orders dated 17.4.1995 and 12.9.1995. As per the order dated 31.1.1995 (Para 1 thereof) Defence Civilians in the newly defined Field Area will continue to get the FSC specified in the letter dated 25.1.1964. Though in Para (ii) thereof Special Compensatory (Remote Locality) Allowance and other Allowance as admissible to Defence Civilians as per the existing instructions issued by the Defence Ministry from time to time were allowed, by the letter dated 17.4.1995 the simultaneous enjoyment of these allowances along with FSC was taken away. However, the Defence Civilians serving in the newly defined Modified Field Area were not denied the said benefits. The decision of the Supreme Court in B. Prasad's case (supra), it must be noted, does not deal with CFAA and CMFAA at all. From a discussion of the above it is clear that CFAA and CMFAA do not form part of the FSC which is non-monetary in nature and that CFAA and CMFAA are not available to the Defence Civilian employees serving in the newly defined Field Area and Modified Field Area. Accordingly we are of the view that the applicant, in all these cases are not entitled to CFAA or CMFAA since there is no order of the Ministry of Defence granting such benefits to Defence Civilians working in the newly defined 'Field Area' or 'Modified Field Area'. Claim, if any, in that regard is accordingly rejected.
37. Now, coming to the claim for grant of Special (Duty) Allowance (SDA for short) and Special Compensatory (Remote Locality) Allowance [SCA (RL) for short] available to Defence Civilians serving in the newly defined Field Area is concerned this Tribunal had granted both the allowances to them in O.A. Nos. 124 and 125 of 1995 and earlier cases. The Supreme Court in the appeals against the above decisions had considered the matter in B. Prasad's case (supra) with reference to the Government letter dated 31.1.1995 as amended by letter dated 17.4.1995. We have already extracted the relevant portion of the judgment. It was specifically observed therein that upto 17.4.1995 the Defence Civilians who were posted in the NER both locally and from outside are entitled to both SDA and SCA (RL) and thereafter they will be entitled to only one set of Special Allowance. The Supreme Court also observed that after 17.4.1995 both the allowances, if at all, can be enjoyed only by the Defence Civilians in the newly defined Field Areas and not by such persons who are serving in the newly defined 'Modified Field Area' for, they are in safer position then those civilians who work side by side with the Army personnel working in the Field Area and the Government was directed to make necessary amendments in that regard. The Government letter dated 16.3.1998 is crucial in regard to all these matters.
38. Before dealing with the questions regarding the entitlement of the applicants for grant of SDA we will first dispose of the claim of the applicants for grant of SCA (RL). We have already noted that this Hon'ble Tribunal in its various orders have ordered grant of SCA (RL) to Defence Civilians serving in the forward operational 'Field Area'. In O.A. No. 174 of 1993 this Tribunal by order dated 30.8.1994 held that the applicants therein are entitled to receive SCA (RL) from the date the applicants were posted in the NER. This benefits was again directed to be paid to the Defence Civilians in O.A. Nos. 124 and 125 of 1995 decided by this Tribunal on 24.8.1995 following the decision in O.A. No. 174 of 1993 and also the earlier decision in O.A. Nos. 48 and 49 of 1989 decided on 29.3.1994.
39. Here it must be noted that the decision of the Supreme Court in B. Prasad's case (supra) was rendered on appeal against the orders of this Tribunal mentioned (supra). The Supreme Court has clearly stated that till 17.4.1995 all Defence Civilians are entitled to SCA (RL) alongwith SDA and thereafter they are entitled to only one set of special allowance. Ultimately, the Central Government in the Ministry of Finance in the letter dated 16.3.1998 had clearly stated that there is no question of recovery of payment made on account of SCA (RL) for the period up to 17.4.1995 and thereafter SCA (RL) will not be admissible alongwith FSC in Field Areas and overpayment on this count will be recovered.
40. Thus the order dated 16.3.1998 passed by the Government accords with the view taken by the Supreme Court. In view of the decision of the Supreme Court in B. Prasad's case (supra) and the Government order dated 16.3.1998 the applicants are not entitled to SCA (RL) for the period after 17.4.1998. However, as we have already noted the restrictions contained in the Government order dated 31.1.1995 as amended by Corrigendum dated 17.4.1995 and clarified in the Government letter dated 16.3.1998 is applicable to the Defence Civilians serving in the newly defined Field Area only and not to the Defence Civilians serving in the newly defined Modified Field Area. This according to the Supreme Court (Para 6 of the decision in B. Prasad's case (supra)) should have been the other way viz., the restriction should have been only to the Defence Civilians working in the Modified Field Area and not to the Defence Civilians working in the Field Area and the directions by the Supreme Court, according to us, was to set right this anomaly. However, the said anomaly is maintained in the order dated 16.3.1998 (vide Para 3(iii)) and hence the Central Government in the Ministry of Defence is directed to look into the matter and to take a decision with particular reference to the latter part of Para 6 of the decision in B. Prasad's case (supra) within a period of four months from the date of receipt of a copy of this order. Recovery of any SCA (RL) paid to the applicants for the period after 17.4.1995 will be deferred till a decision is taken by the Central Government as directed hereinabove.
41. Now, we come to the last question regarding the entitlement of SDA. The admissibility of this allowance was not considered in the decision of the Supreme Court in B. Prasad's case (supra). However, the said question was considered by the Supreme Court in other cases which we will consider presently.
42. The question regarding the grant of SDA to Central Government Civilian employees serving in the North-Eastern Region of India was the subject matter of decisions both by this Tribunal and by the Hon'ble Supreme Court in a number of cases. This Tribunal had elaborately considered this issue in O.A. No. 174/1993 decided on 30.8.1994, S.C. Omar v. Garrison Engineer and Anr., 1995(1) SLJ (CAT) 74. Again the question was considered by this Tribunal in O.A. Nos. 124 and 125 of 1995. In that case it was specifically noted that in view of the decisions of the Supreme Court the benefit of SDA is admissible only to those employees who are appointed outside the North-Eastern Region and are posted in the North-Eastern Region. An important decision on this issue is the decision of the Supreme Court, in Union of India v. S. Vijay Kumar, 1995 SCC (L&S) 189 : 1995(1) SLJ 139 (SC).
43. The question which arose for consideration there was whether the respondents are entitled to SDA even though they are resident of North-Eastern Region merely because the posts to which they were appointed were of "All India Transfer Liability". The Tribunal answered the question in the affirmative. Considering the arguments addressed by the rival parties the Supreme Court observed thus:
"We have duly considered the rival submissions and are inclined to agree with the contention advanced by the learned Additional Solicitor General, Shri Tulsi for two reasons. The first is that a close perusal of the two aforesaid memoranda, along with what was stated in the memorandum dated 29.10.1986 which has been quoted in the memorandum of 20.4.1987, clearly shows that allowance in question was meant to attract persons outside the North-Eastern Region to work in that Region because of inaccessibility and difficult terrain. We have said so because even the 1983 memorandum starts by saying that the need for the allowance was felt for "attracting and retaining" the service of the Competent Officers for service in the North-Eastern Region. Mention about retention has been made because it was found that incumbents going to that Region on deputation used to come back after joining there by taking leave and, therefore, the memorandum stated that this period of leave would be excluded while counting the period of tenure of posting which was required to be of 2/3 years to claim the allowance depending upon the period of service of the incumbent. The 1986 memorandum makes this position clear by stating that Central Government civilian employees who have All India Transfer Liability would be granted the allowance "on posting to any station to the North-Eastern Region." This aspect is made clear beyond doubt by the 1987 memorandum which stated that allowance would not become payable merely because of the clause in the appointment order relating to All India Transfer Liability. Merely because in the office memoranda of 1983 the subject was mentioned as quoted above is not enough to concede to the submission of Dr Ghosh."
44. The Supreme Court accordingly answered the question in the negative and declined relief to the employees.
45. The Supreme Court in Reserve Bank of India v. Reserve Bank of India Staff Officers Association and Ors., AIR 1992 SC 485, again had occasion to consider a challenge made by an Association of Reserve Bank at Guwahati against a Circular issued by the Reserve Bank of India giving certain incentives and allowances to its officers posted at Guwahati who were not from the North-Eastern Region on the lines the Government of India granted to its employees posted from outside North-Eastern Region on the ground of discrimination. The High Court took the view that the officers from the North-Eastern Region who were posted at Gauhati, either on transfer or otherwise suffered the same hardship as officers from other regions transferred to Gauhati. The Supreme Court after referring to the inconveniences and hardship to be suffered by the officers who are being transferred from other regions to North-Eastern Region Gauhati held that there is no unlawful discrimination.
46. The Supreme Court in Chief General Manager, Telecom, NET Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813 : 1995(2) SLJ 114 (SC) considered a question whether the choice posting available to an employee posted in the NER under the Office Memorandum dated 14.12.1983 is applicable to those officers and employees who belong to NER itself and appointed and posted at any station within the Region. In that context the Supreme Court observed thus:
"A bare reading of the memo dated 14.12.1983 will go to show that it is meant for attracting and retaining the services of Competent Officers in the North-Eastern Region, from other parts of the country and the expression tenure posting will imply the posting of officers in that region from outside the region who have been attracted from other parts of the country and the region other than the North-Eastern Region and not the persons belonging to that very region where they are appointed and posted. The point for consideration in Vijay Kumar's case (supra) was whether the respondents of that case were entitled to special duty allowance even though they are residents of North-Eastern Region merely because of the posts to which they were appointed were of "All India Transfer Liability". After considering various memorandums of the Central Government including the one dated 14.12.1983 which is in question before us and after due consideration this Court took the view that the said memorandum clearly indicated that the allowance was meant to attract persons outside the North-Eastern region to work in the region because of inaccessibility and difficult terrain. This view was taken particularly because even the 1983 memorandum referred to above stated that the need for allowance was felt for "attracting and retaining" the service of Competent Officers for service in North-Eastern Region."
47. Again in Union of India v. Executive Officers Association, Group 'C', 1995 SCC (L & S) 661 the Supreme Court considered the question of entitlement to Special Duty Allowance to Central Government servants posted in the North-Eastern Region. The Supreme Court considered the matter thus:
"A careful perusal of the opening part of the Office Memorandum reproduced above would show that the Government had appointed a Committee under the Chairmanship of the Secretary, Department of Personnel and Administrative Reforms to review the existing allowances and facilities admissible to the various categories of Civilian Central Government employees serving in the North-Eastern Region so that Competent Officers may be attracted and retained in the North-Eastern Region States. The use of words "attracting and retaining in service" are very much significant which only suggest that it means the Competent Officers belonging to a region other than the North-Eastern Region. The question of attracting and retaining the services of Competent Officers who belong to North-Eastern Region itself would not arise. The intention of the Government and spirit behind the office memorandum is to provide an incentive and attraction to the Competent Officers belonging to a region other than the North-Eastern Region to come and serve in the North-Eastern Region. It can hardly be disputed that the geographical, climatic, living and food conditions of people living in North-Eastern Region and the States comprising therein are different from other regions of the country. The North-Eastern Region is considered to be "hard zone" for various reasons and it appears that it is for these reasons that the Government provided certain extra allowances, benefits and other facilities to attract Competent Officers in the North-Eastern Region at least for two to three years of tenure posting. The Ministry's Office Memorandum in question came up for consideration before this Court in Chief General Manager (Telecom) v. Rajendra Ch. Bhattacharjee which was decided by us by judgment dated 18.1.1995 in which this Court took the view that the said office memoranda are meant for attracting and retaining the services of Competent Officers in the North-Eastern Region, from other parts of the country and not the persons belonging to that region where they were appointed and posted. This was also the view expressed by this Court in yet another case reported in Union of India v. S. Vijaykumar. In Vijaykumar the point for consideration was exactly identical, with regard to the entitlement to Special Duty Allowance to those employees/officers who are residents of North-Eastern Region itself. After considering the Memorandum dated 14.12.1983 and other related office memorandums indicated above, it was held that the purpose of the allowance was to attract persons from outside the North-Eastern Region to work in the North-Eastern Region because of inaccessibility and difficult terrain. In the facts and circumstances stated above the view taken by the Tribunal cannot be upheld and deserve to be set aside."
48. The Supreme Court in B. Prasad's case was only concerned with the question whether SCA (RL) and SDA can simultaneously be enjoyed by the respondents therein viz., Defence Civilians serving in the newly defined Field Area alongwith FSC. The question of entitlement to SDA as such was not in issue. However, Government letter dated 13.6.1998 issued by Government of India in the Ministry of Defence (Para 2 thereof) with reference to the decision of the Supreme Court in S. Vijay Kumar's case, (supra) ordered that Defence Civilians who are working in Field Areas will be entitled in addition to the Field Service Concessions as applicable to receive SDA at the applicable rates provided they had been originally recruited outside the North-Eastern Region and have been transferred to the North-Eastern Region from such outside region (underlining ours). It was also provided that the Defence Civilians recruited from outside the North-Eastern Region and posted from outside in to the North-Eastern Region would be entitled to the SDA in addition to the FSC (Para 3(ii) of the Government letter dated 13.6.1998).
49. Thus by virtue of the decisions of the Supreme Court in S. Vijay Kumar's case (supra) and other decisions discussed above Defence Civilians working in the Field Areas of North-Eastern Region are entitled to SDA only if they have been originally recruited from outside the North-Eastern Region and have been transferred to the North-Eastern Region from such outside region. This is what is stated in the Government order dated 16.3.1998 (Para 3(ii). However, from Para 2 of the Government order dated 16.3.1998 it would appear that Defence Civilians originally recruited outside the North-Eastern Region and have been transferred to the North-Eastern Region from such outside region are entitled to SDA in addition to FSC. Does this mean that a resident of North-Eastern Region who is recruited to a Central Government post in an outside region having All India Transfer Liability and All India Common Seniority list and is transferred to the North-Eastern Region he is entitled to SDA under this Government order? Suppose a Defence Civilian belonging to the North-Eastern Region is transferred to a place in another region by virtue of the All India Transfer Liability and promotions are made on All India common seniority list is transferred back to the North-Eastern Region is he entitled to SDA for the reason that he is posted from outside the North-Eastern Region into the North-Eastern Region?
50. In this context, a Cabinet Secretariat U.O. No. 20/12/99-EA.I-1798 dated 2.5.2000 (Annexure-R9) produced by the respondents alongwith their written statement: in O. A. No. 360 of 2002 is relevant. With reference to this communication, in the written statement (Para 1) it is stated thus:
"According to that clarification, an employee belonging to the N.E. Region, posted in the North-Eastern Region having all India transfer liability as a condition of service, shall not be entitled to grant of SDA. But if such employee is transferred out of the N.E. Region and re-posted to N.E. Region on transfer from outside, in that case such employee would be entitled to SDA." (vide b(iii) of Cabinet classification).
51. There is one more Office Memorandum No. F.No. 11 (5)/97-EII(B) dated 29.5.2002 issued by the Government of India, Ministry of Finance, Department of Expenditure (Annexure - II in O.A. No. 360/2002) which throws some light on this issue. This is issued with reference to the decision of the Supreme Court regarding the grant of SDA. Paras 5 and 6 of the said Office Memorandum are extracted below :
"5. In view of the aforesaid judgments, the criteria for payment of Special Duty Allowance as upheld by the Supreme Court, is reiterated as under :
"The Special Duty Allowance shall be admissible to Central Government employees having All India Transfer Liability on posting to North-Eastern Region (including Sikkim) from outside the region."
All cases for grant of Special Duty Allowance including those of All India Service Officers may be regulated strictly in accordance with the above mentioned criteria.
6. All India Ministries/Departments etc., are requested to keep the above instructions in view for strict compliance. Further, as per direction of Hon'ble Supreme Court, it has also been decided that:
(i) The amount already paid on account of Special Duty Allowance to the ineligible persons not qualifying the criteria mentioned in 5 above on or before 5.10.2001, which is the date of judgment of the Supreme Court, will be waived. However, recoveries, if any, already made need not be refunded.
(ii) The amount paid on account of Special Duty Allowance to ineligible persons after 5.10.2001 will be recovered."
52. The position as it obtained on 5.10.2001 by virtue of the Supreme Court decisions and the Government orders can be summarized thus:
Special Duty Allowance is admissible to Central Government employees having All India Transfer liability on posting to North-Eastern Region from outside the region. By virtue of the Cabinet clarification mentioned earlier, an employee belonging to North-Eastern Region and subsequently posted to outside NE Region if he is retransferred to N.E. Region he will also be entitled to grant of SDA provided he is also having promotional avenues based on a common All India seniority and All India Transfer liability. This will be the position in the case of residents of North-Eastern Region originally recruited from outside the region and later transferred to North-Eastern Region by virtue of the All India Transfer Liability provided the promotions are also based on an All India Common Seniority.
53. Further, payment of SDA, if any made to ineligible persons till 5.10.2001 will be waived.
54. The result of the discussions made hereinabove is that the applicants in O.A. Nos. 170, 202 and 319 of 1999 and 179, 276, 224, 155 and 201 of 2000 are entitled to Field Service Concessions provided in Annexure - C to the Government letter dated 25.1.1964 since they are serving in Nagaland and Manipur which fall within Annexure-B thereto even after 17.4.1995 i.e., the date of corrigendum amending Government letter dated 31.1.1995. We have already held in Para 36 (supra) that the applicants in the first eight cases are not entitled to CFAA or CMFAA as part of FSC. They are also entitled to SCA (RL) and SDA till 17.4.1995. SCA (RL) is not admissible to Defence Civilians in the Field Areas beyond 17.4.1995 in view of the Government order dated 13.6.1998 as approved by the Supreme Court in B. Prasad's case (supra). As such the applicants are not entitled to SCA (RL) for the period after 17.4.1995. We have issued a direction to the Government of India, Ministry of Defence in Para 40 (supra) to take a decision with reference to the latter part of Para 6 of the Supreme Court decision in B. Prasad's case (supra) in regard to the grant of double benefit to the Defence Civilians in the field areas within a period of four months from the date of receipt of this order. In view of this, recovery of any payment made on account of SCA (RL) after 17.4.1995 to the applicants will be effected only after a decision is taken by the Government of India as directed above.
55. All the applicants will be entitled to SDA provided their case would fall within the norms/guidelines stated in Para 52 (supra). The question as to whether the applicants in these cases satisfy the same be considered by the Competent Authority amongst the respondents within two months from the date of receipt of this order.
56. This disposes of all the eight cases remanded by the Gauhati High Court for fresh disposal in accordance with the directions issued in the remand order.
57. Now, coming to O.A. No. 360 of 2002 the applicant herein is working as Farm Assistant (T-4) under the 4th respondent in the Office of the Director, Central Plantation Crops Research Institute (RC), (ICAR), Kahikuchi, Guwahati-17. He is a Central Government employee belonging to Group 'C'. He was recruited in Port Blair, Andaman and he was transferred to Kahikuchi (Assam) as per order dated 31.8.1999 (Annexure-1). Relying on the Government orders granting SDA to Central Government Civilian employees having an "All India Transfer Liability" and posted to North-Eastern Region the applicant approached the authorities for grant of SDA by making representations. The said claim was rejected. Hence, this application.
58. The respondents had filed their written statement wherein they have referred to the various decisions regarding entitlement to SDA and the various Government orders on the subject. Referring to a clarification dated 2.5.2000 issued by the Cabinet Secretariat in reply to certain queries made by the Director General of Security, New Delhi it was observed that if an employee belonging to North-Eastern Region is transferred out of N.E. Region and reposted to N.E. Region on transfer from outside, he is entitled to SDA. It is also stated that the applicant is a local resident of village and Post Office, Chhagalia, District Dhubri, Assam and he has been posted from outside on his own request and therefore by applying the test of "to attract and retain the services" the applicant is not entitled to grant of SDA. It is also stated that the applicant has been appointed under technical service rules and the staff those not belonging to combined cadre are not entitled for payment of SDA and that the ICAR in the case of another Technical Staff posted at Andamans has clarified that the Technical Staff are not holding the combined cadre post and therefore do not have All India Transfer Liability. It is stated that the applicant's posting at Port Blair was his initial posting in service and his transfer to Kahikuchi (Assam) was purely on his personal request only and not involving the All India Transfer Liability.
59. In the rejoinder filed by the applicant it is stated that in the transfer order dated 31.8.1999 it is clearly mentioned in Para 02 that Head Quarters will be at CPCRI, Research Centre, Kahikuchi, Assam for the present but liable to work anywhere in the country under ICAR and hence "in practice has All India Transfer Liability" and that it is on that basis the applicant was transferred from Andaman-Nicobar and Lakshadweep to Kahikuchi, Assam.
60. Regarding the combined cadre post it is stated that as per their service conditions their assessment Reports/Proforma and their works are reviewed after five years by the respondents and on the basis of their performance, work, their seniority is fixed and on that basis their promotion also is made and so there are no permanent seniority list on combined cadre and the question combined cadre does not arise.
61. Heard Mr. A. Ahmed, learned Counsel for the applicant and Mr. B.C. Pathak, learned Counsel for the respondents. By virtue of the clarifications issued by the Cabinet Secretariat even the respondents themselves have admitted that an employee belonging to the North-Eastern Region transferred out of North-Eastern Region and reposted to North-Eastern Region on transfer from outside is entitled to SDA. The applicant admittedly belongs to North-Eastern Region. However, so far as the applicant is concerned, he was first appointed outside the North-Eastern Region and then transferred to North-Eastern Region. Even assuming that he will come within the first part of the querie (b) (iii) to the Cabinet clarifications the question is whether the applicant satisfied the other two requirements in the query viz., having a common All India Seniority and All India Transfer Liability. Though the applicant has made an attempt in this regard we are not satisfied that the applicant fulfilled the aforesaid two requirements. Even the Transfer order dated 31.8.1999 (Annexure - F) shows it was an 'Inter-Institutional transfer' and condition No. 01 clearly says "He will be ranked junior to all the Technical Assistants/Farm Assistants at this Institute as on the date of his joining". This itself negates the concept of All India Common Seniority. The All India Transfer Liability is also not a condition of service in the case of applicant. The transfer itself is an Inter-Institutional transfer.
62. The respondents have a further case that the transfer of the applicant from Andaman and Nicobar to Guwahati is one made at his request in special circumstances and not on public interest nor with the object of 'attracting and retaining' Competent Officers in the North-Eastern Region. Since the applicant, as already noted, did not satisfy the twin conditions viz. All India Common Seniority and All India Transfer Liability it is unnecessary to consider whether the transfer of the applicant from Andaman to Guwahati in the North-Eastern Region would attract the norms/guidelines set out in Para 51 supra.
63. Considering all the aspects of the matter, we are of the view that the applicant in O.A. No. 360 of 2002 is not entitled to get SDA under the relevant Government orders and the decisions discussed above. We accordingly dismiss this application. In the circumstances there will be no order as to costs.
64. The applicants in O.A. No. 77 of 2004 are Groups 'C' and. 'D' employees working under the office of the Area Manager, Canteen Stores Department, Army Supply Depot Road, Dimapur, Nagaland under the Ministry of Defence. It is stated that the applicant were posted to the North-Eastern Region from different places like Lucknow, Madhya Pradesh (Mahum Station) Vaipur, Bagdogra and Ahmedabad respectively outside the North-Eastern Region. It is also their case that they are saddled with All India Transfer Liability and their seniority are fixed on All India basis. According to the applicants, they are entitled to Special Duty Allowance in terms of the Government Memo dated 14.12.1983. They also relied on the Cabinet Secretariat letter dated 2.5.2000. It is stated that the 4th respondent in the application had issued letter dated 3.3.2003 (Annexure - D) for payment of Special Duty Allowance to the applicants. They also rely on the judgment dated 19.3.2001 of this Tribunal in O.A. No. 56 of 2000 rendered in similar circumstances (Orders in O.A. Nos. 30 of 2003 and 301 of 2003 Annexures - E, F and G are also relied). The applicants therefore seek for direction to the respondents to grant Special Duty Allowance to the applicants.
65. The respondents have filed their written statement in which they refer to the Government order dated 29.5.2002 wherein various eligibility criteria for Special Duty Allowance as upheld by the Supreme Court is stated. According to the written statement Special Duty Allowance in the North-Eastern Region can be paid only to those who are posted there from outside and not to those locally posted. The applicants, it is stated, are from North-Eastern Region itself. It is also stated that the orders of this Tribunal relied on by the applicants are pending in writ petitions before the Hon'ble High Court and payment of SDA was made to the applicants therein only after getting undertaking from them that it can be recovered from them in case the decision is against them.
66. We have heard the learned Counsel for the parties and have considered the pleadings in the case. We have already held in the common order in this judgment that in view of the Government orders dated 16.3.1998 and the Cabinet clarification dated 2.5.2000 an employee belonging to North-Eastern Region and subsequently posted to outside N.E. Region if he is retransferred to N.E. Region he will also be entitled to grant of SDA provided he is having promotional avenues based on a common All India Seniority and also All India Transfer liability.
67. In this case the applicants are residents of North-Eastern Region. It is not clear as to whether they were originally recruited in the North-Eastern Region from where they were transferred to various places outside the North-Eastern Region mentioned earlier and as to whether they were retransferred from outside the North-Eastern Region to the present station located in the North-Eastern Region. Though the applicants have specifically averred in Para 4.5 of the application that they have All India Common Seniority and All India Transfer liability there is no denial as such in Para 6 of the written statement dealing with the said averment.
68. In the above circumstances we direct the competent respondent among the respondents to consider the claim of the applicants for grant of SDA in the light of principles laid down in this common order after ascertaining the requisite facts from the service records of the applicant, and to pass appropriate orders in accordance with law as stated in this order within a period of four months from the date of receipt of this order.
69. O.A. No. 77 of 2004 is disposed of as above.
70. The applicant in O.A. No 103 of 2004 is an Assistant Engineer in the Central Public Works Department at Silchar. SDA paid to him was discontinued with effect from August 2002. Payments made from 6.10.2001 to July 2002 were also recovered from the salary of the applicant. Representations dated 28.6.2003 and 20.8.2003 filed by him against this were rejected as per letters dated 16.12.2003 and 29.1.2004. The applicant is aggrieved. It is the case of the applicant that similarly situated persons working in the same department and who belongs to North-Eastern Region have been enjoying the said allowance without interruption.
71. We have heard the learned Counsel for the applicant and the learned Addl. C.G.S.C. for the respondents. We find from the letter dated 29.1.2004 (Annexure-F) of the Superintending Engineer addressed to the Executive Engineer by way of clarification as stated in the letter dated 16.12.2003 (Annexure-E) which are in reply to the representations filed by the applicant it is stated thus:
"It is observed that, Sri A.U. Majumdar, Assistant Engineer has been transferred from Guwahati to Silchar (Both places comes under N.E. Region) while Sri Majumdar, Assistant Engineer was posted to Guwahati he was not getting SDA."
72. It is in the above circumstances, it is held that the applicant is not entitled for SDA. There is no denial of the aforesaid facts in the application.
73. We have already specified the guiding principles culled out from the Government orders and from the judicial pronouncement on the issue regarding entitlement, to SDA in Para 52 of this order.
74. On the facts stated the applicant does not satisfy the guiding principles set out in Para 52 (supra). Consequently, the application has only to be dismissed.
75. However, if the applicant has a case that his claim will come under the said principles he is certainly entitled to file a proper representation with supporting facts within six weeks from the date of receipt of the order to the Competent Authority in which case the said authority will dispose of the said representation in the light of the guiding principle set out in Para 52 (supra) within a period of three months thereafter.
76. All the O.As. are disposed of as above. In the circumstances, there will be no order as to costs.