Central Administrative Tribunal - Kolkata
Shyamal Biswas vs Development Of North Eastern Region on 20 February, 2023
et OA 1474/2018 CENTRAL ADMINISTRATIV BE TRIBUNAL | KOLKATA BENCH KOLKATA
0.A./350/01471/2018 Date of Order : 2.9/9)2° 2.5 Coram! Hon'ble Mr. Suchitto Kumar Das, Administrative Member In the matter of:
Shree Shyamal Biswas, Son of Late Keshab Lal Biswas, aged about 65 years, earlier working as the Director of Information & Public Relations (DIPR) mn North Eastern Council, Govt. of India, Shillong, under the Ministry of Development of North Eastern Region (NER) on deputation and presently residing at 2/191, Neli Nagar, Near K. K. Dutta Memorial Club, Kolkata-700078.
cannaeetneenes Applicant VS.
4. Union of India service through Secretary, Ministry of Development of North Eastern Region {NER}, Vigyan Bhawan Annexe, Maulana Azad Road, New Delhi-110011.
9. The Secretary, Govt. of India, North Eastern Council Secretariat {NEC}, Ministry of Development of NER (DoNER}, North Eastern Council Secretariat, Nongrim, Hills, Shillong- 794003-12 .
3. The Director, North Eastern Council Secretariat {NEC}, Ministry of Development of NER (DoNER), North ts) OA 1471/2018 Eastern Council Secretariat, Nongrim, Hills, Shillong-794003-12.
4, The Accounts Officer, North Eastern Council Secretariat (NEC), Ministry of Development of NER (DoNER), North Eastern Council Secretariat, Nongrim, Hills, Shillong-794003-12.
5, The Secretary, UPSC, Dholpur House, Shahjahan Road, New Delhi-
110069.
woneoRespandents 2] For The Applicant(s}: Mr. B. Bhushan, Counsel For The Respondent(s}: Mr. S. Paul, Counsel Mr. A. K. Chattopadhyay, Counsel Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) To pass an order directing the respondent authorities and each of them to forthwith rescind recall and/or withdraw the purported arder 10 February, 2017 passed by respondent in purported reply af the representations furnished by the applicant:
b} Te pass an order directing upon the respondents their men, ageats and/or their subordinates to give the benefits under DoPT's rules to get the double HRA and SDA including interests as per the prevailing rates te the applicant withort any further delay;
c} issue direction upon the respondents and each of thent to forthwitt seree and transmit afl the papers and his Hon'ble Tribunal for kind perusal da conscionable justice to the applicant."
ey fenns No paar OA 1471/2018 ig * 2. This matter is taken up by Single Bench tn view of the revised list dated 04.04.2000 issued under Sub-section (6) of Section $ of the Administrative Tribunals Act, 1985, as ne complicated question of law is involved in this matter, and with the consent of both the parties.
"a
3. Heard Learned Counsel for both sides. Pramined pleadings and documents on record.
4. For the sake of clarity, facts In the case are delineated and discussed hereinunder ;
The applicant was an employee under the Government of West Bengal, He joined as Director in the Information and Public Relation Department of North East Council at Shillong on deputation on 18.10.2006 in the pay scale of Rs, 12,000- 16,500/- on the basis of an appointment letter issued by the respondent authorities dated 21.07.2006. He continued to serve on the same post on deputation upto 2009, During his tenure with the respondent authorities and even after that the applicant made several representations to the respondents to pay him Special Duty Allowance (SDA) and double HRA for serving in the North East region. His request was rejected by the respondents. Last of the rejection letters was issued on 16.02.2017. The petitioner approached this Tribunal against the rejection of his prayer for payment of SDA and double HRA by the respondents on 03.01.2018.
5. Atthe outset, Learned Counsel for the respondents submits that the OA is barred by limitation as the impu gned order was issued in 2015 whereas the applicant approached the Tribunal, by means of this OA, in 2018, Learned Counsel for the applicant pointed out that the last of the official letters communicating the rejection of the applicant's claim is dated 10.02.2017.
Therefore, the matter reached finality on this date and the applicant 4 OA 1471/2018 approached the Tribunal on 03.01.2018. Therefore, the OA has been filed within the prescribed time.
Considering the facts on record, it is held that the OA is not barred by limitation and the case ought to be decided on merits.
6, Learned Counsel for the applicant submits that the only point of adjudication in this matter is whether the benefits admissible to a regular Central Government employee are admissible to a State Government employee on deputation to a post under the Central Government or not. He contends that once the applicant is pasted under the Central Government for a should be as per the current employer, ie, the Central Government for that period.
Learned Counsel for the applicant places reliance on a judgment of the Hon'ble Supreme Court in Civil Appeal No. 7320 of 1995 decided on December 2, 1998 in which the Hon'ble Apex Court has upheld the following order of CAT :-
siweasion such of these officers of the Central Excise Department who are members of the applicant Association and are engaged in preventive wark who are required te perform rummaging duties on ships on high seas should be allawed rummaging allowance at the same rate as is given to customs officials engaged in similar duties, far the period and to the extent they perform such duties." | Learned Counsel for the applicant argues that the ratio laid down in the above judgment is applicable to the case of the applicant who cannot be denied the benefits merely on the ground that he is substantively not a Central Government employee, Learned Counsel further draws attention to para 7.3 of DoPT OM Na. 2/29/91 /Estt. (Pay I dated 05.0 LA994.
"EO In case special day is attached. to the xcale of pay of the ex-cadre post and the employee has opted to draw pay also in that scale, in addition to his pay in that scale, he \ 5 : OA 1471/2018 will also he entitled to draw such special pay. However, such special pay will net be admissible if he was opted to draw grade pay plus deputation allowances,"
Learned Counsel for the applicant submits that the applicant opted to draw pay in the scale of Director and did not opt for deputation allowance.
7. Learned Counsel for the respondents submits that the provisions regarding SDA and double HRA as contained in Department of Expenditure circular no. 11016/1/E.U (B)/84 dated 29.03.1984 and F. No. Hl (5)/97-B U (B) dated 29.05.2002 are admissible only to Central Government employees with All India Transfer Liability and not to other officers who may only be on deputation to Central Government.
He also mentions the judgment of the Hon'ble Supreme Court in Civil Appeal No. 3251 of 1993 (Union of India vs S. Vijaykumar & Ors, wherein the Hon'ble Supreme Court held that the employees posted in North Eastern Region on transfer from within the region are not entitled to SDA and double HRA even if their service conditions provided for All India Transfer Liability. Since the applicant was posted to Shillong from outside the North Eastern Region, judgment of the Hon'ble Apex Court in Civil Appeal No, 3251 of 1993 is not applicable in this case.
| 8. The two OMs from the Department of Expenditure, quoted by the respondents to deny the claim of the applicant on the ground that the provisions are admissible only to the employees of the Central Government, lay down the benefits to be provided to the employees who serve in the North Eastern Region on Central Government posts, These OMs do not specifically debar other Government employees on deputation to such posts for a fixed period, from these benefits. It stands to reason that an employee serving ander Central Government on a regular post even if on deputation, and who has opted for Central Government pay scale during the period of deputation, 5 GA 1471/2018 post irrespective of the fact that such incumbent is on deputation or not, It is t a particular post to an incumbent only on the ground that he is on deputation from State Government and substantially not a Central Government employee. To this extent, ratio laid down by the Hon'ble Supreme parity in allowances with employees in the borrowing department performing similar duties.
a Allowance (SDA) and double HRA to the applicant for the period of his _ deputation with the North Eastern Council within a period of 4 months from the date this order is served on them,
9. OAits accordingly disposed of. No costs.
(Suchitfo Kumar Das} Administhative Member also iniquitous and discri minatory to deny allowances and benefits incidental .
Court in Civil Appeal No. 7320 of 1995 that a deputationist is entitled to.
% ; . to at é In view of the above, the respondents are directed to pay Special Duty