Central Administrative Tribunal - Delhi
Joginder Pal Jyoti vs Secretary on 11 February, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.4335/2013 MA No.3312/2013 With OA No.4365/2013 MA No.3334/2013 Reserved On:02.02.2015 Pronounced On:11.02.2015 Honble Shri G.George Paracken, Member (J) OA No.4335/2013 Joginder Pal Jyoti J-1, Priya Apartment, D Block, Vikas Puri, New Delhi-110018. ..Applicant OA No.4365/2013 Sharad Sharma R/o Flat No.88, Ashirwad Apartment, I.P. Extension, Patparganj, New Delhi-110092. ..Applicant By Advocate: Shri A.K. Ojha. Versus 1. Secretary . Cabinet Sectt., Bikaner House Annexe, Shahjahan Road, New Delhi-110001. 2. Secretary, Ministry of External Affairs, South Block, New Delhi-11011. Respondents By Advocate: Shri Satish Kumar. ORDER
As the facts in both these Original Applications are similar, they are disposed of by this common order.
OA No.4335/20132. The Applicants grievance in this OA is that the Respondent No.1, namely, Secretary (R), Cabinet Secretariat, Bikaner House, New Delhi has not paid him the arrears of Foreign Allowance (local servant allowance component) admissible to him for the period from 27.01.2006 to 01.05.2009 when he was serving as Attache in the Embassy of India, Kathmandu, Nepal.
3. The facts of the case are that the Applicant while serving as a Senior Field Officer in the Cabinet Secretariat was posted as Attache on deputation under cover assignment in the Ministry of External Affairs, Embassy of India, Kathmandu, Nepal from 27.01.2006 to 01.05.2009. According to him, the said post was lower than the post of Senior Field Officer which he was holding in Cabinet Secretariat as on 27.01.2006. The Respondent No.1 has, therefore, paid him the pay and allowances as admissible for the post of Second Secretary but excluding the local servants allowance component. In fact, he was eligible for the said allowance at a higher rate as admissible to his original post of Senior Field Officer as held by him in his parent department in terms of orders dated 07.02.2006, 29.11.2006, 23.08.2007 and 17.11.2008 issued by the Ministry of External Affairs from time to time. According to the order dated 07.02.2006, India based officers and members of the staff in the Embassy of India, Kathmandu are entitled for Indian servant allowance component. The officers in the rank of Second Secretary/Principal Private/Third Secretary are entitled for Foreign Allowance of US$1827/- per month for engaging additional local servants. By orders dated 29.11.2006 and 17.11.2008, the Foreign Allowance for the said period has been raised to US$1939/- and US$2426 respectively. But he was not paid arrears/difference of the said allowance for the period from 27.01.2006 to 01.05.2009 in spite of repeated representations to the Respondent No.1.
4. Further, according to him, he was governed by Rule 134 of the R&AW Rules, 1975 for posting on deputation abroad. The said rule reads as under:-
134. Protection of rank and pay on cover assignment 1. The Head of the Organisation may, for reasons to be recorded in writing, depute an officer of the Organisation to a place abroad to hold a cover post lower than his own in the organization, provided that such officer shall not be of a grade equal to or higher than that of the Head of the Mission of India at such a place.
2. During the period of such deputation, the officer concerned shall be allowed to draw the pay and allowances pertaining to the post held by him during such period.
The amount by which such pay and allowances fall short of the pay and allowances, other than the representational grant and any extra allowance admissible on account of wages of servant, which would have been admissible to him had he been appointed during the cover assignment to a post equivalent to the post held by him in the Organisation, shall be payable to him in Indian currency on his reversion to the Organisation from the cover assignment.
5. Rule 134 (2) was amended vide Cabinet Secretariats OM Number A-76/29/2002-DO-11(A) dated 18.09.2003 as under:-
2. In the Research and Analysis Wing (Recruitment, Cadre and Service) Rules, 1975, for the existing sub-rule (2) to Rule 134, the following shall be substituted namely:-
During the period of such deputation, the officer concerned shall be allowed to draw the pay and allowances pertaining to the post held by him during such period.
The amount by which such pay and allowances fall short of the pay and allowances, other than the representational grant, which would have been admissible to him had he been appointed during the cover assignment to a post equivalent to the post held by him in the Organisation, shall be payable to him in Indian currency on his reversion to the Organisation from the cover assignment. Explanatory Memorandum The amendment in the rules is being given retrospective effect with effect from the 1st January, 1998 as this has been necessitated due to introduction of new indexation of FA (Foreign Allowance) scheme by the Ministry of External Affairs with effect from 1.1.98. It is certified that retrospective effect being given to the rules will not prejudicially or adversely affect the interest of any Government servant.
6. However, the Respondents have paid him Foreign Allowance at the rates as applicable for Second Secretary at the rate of $1624, 1734, 1743 and 2284 respectively whereas he was entitled for the Foreign Allowance including additional local servants at the rates of $1827, 1939, 1939 and 2426 respectively. Therefore, he is entitled for payment of servant allowance admissible to the officers of the rank of Second Secretary in respect of engagement of local servants.
7. The Applicant has also stated that he was restrained from taking any recourse to law by respondent No.1 and hence he could not approach this Tribunal earlier for seeking justice. In this regard, he has referred to para 9.49 of the NGO Hand Book of Administrative instructions which says, no action should be taken under any circumstances, including recourse to courts of law that would directly or indirectly result in breach of security and enable outsiders and unauthorized personnel to come to know about the manner in which our officers are deputed abroad.
8. He has also relied upon an order of this Tribunal in OA No.989/2008 Vinod Kumar Jain Vs. Union of India decided on 05.023.2009 wherein it has been held that the arrears of servant allowance is admissible under Rule 134(2) of R&AW(RC&S) Rules, 1975. The relevant part of the said Order reads as under:-
8. We are not persuaded by the arguments of the Respondents that the Applicant would be entitled to the allowance for employing a servant only if he worked as Second Secretary. It seems that the Respondents have not considered the amendment to Rule 134(2), to which we have made references in the preceding paragraphs. An Office Memorandum dated 14.01.2004 has been placed at Annex R-2 of the counter affidavit, which reads thus:
Sub:- Amendment to Rule 134 (2) of R&AW (RC&S) Rules 1975 - clarification regarding.
With reference to this Secretariat notification of even number dated 18/09/2003 regarding amendment to sub-rule 2 of Rule 143 (2) of R&AW (RC&S) Rules, 1975, the following clarification regarding treatment of allowances admissible on account of wages of Indian servant while calculating the arrears of difference of pay and allowances of R&AW officers posted on special assignment in a below capacity may kindly be taken note of for the said purpose:
The R&AW officers who employ Indian servant on their posting on special assignment and are entitled to Standard Foreign Allowance (SFA), the component of wages of Indian servant as shown in the FA Orders would be deducted from FA admissible (SFA) of the post held by the officer while on special assignment and the post held by him in the Department, had he not gone on special assignment, while calculating the arrears of difference of pay and allowances in terms of Rule 134 (2) ibid.
This is regarding officers who employ Indian servant on their posting on foreign assignment and are entitled to SFA. The Applicant has repeatedly stressed that he had not taken any Indian Servant. He had employed a local servant, for which he would be eligible for the allowance prescribed for Second Secretary in paragraph/table 3 of the Foreign Allowance Order on his reversion to the cadre. As Assistant in the embassy, he was not eligible for keeping a servant. In his post on special assignment he was not eligible for SFA or DFA. The post of the Applicant in his parent cadre is equivalent to Second Secretary as seen from the Order Number Q/FD/6910/1/99 dated 14.05.1999, given by the Respondents, and as also admitted by the Respondents. As Second Secretary he would have been eligible for Foreign Allowance, if he employed local servant, at the rate prescribed in paragraph/table 3 of the Foreign Allowance order. As per the amended Rule 134(2), he is entitled for all allowances except Representational Grant. This leaves no room for doubt about his eligibility for the Foreign Allowance prescribed in paragraph 3 of the order for Foreign Allowance. If it were not so, one could as well ask as to what purpose would the amendment to Rule 134(2) serve. The copy of the notification amending the Rule 134(2) has been produced by the Respondents on our direction, which we have taken on record. There is a noting by the Joint Secretary of R&AW submitted to the Special Secretary (R) stating thus:
May kindly see at dak stage. Quite a number of officers would benefit Obviously, if the interpretation of the Respondents in the counter affidavit is to be accepted, then no one will benefit and the amendment would be rendered meaningless.
9. From the above discussion we have no doubt about the admissibility of Foreign Allowance to the Applicant on the rates as admissible to Second Secretary in paragraph 3 of the Foreign Allowance order. We had directed the Respondents to produce the due and drawn statement in regard to the Applicant, which has been produced by the learned counsel for the Respondents. An amount of Rs.1450/- has been deducted from the Foreign Allowance due. It seems to be the component for Indian servant in paragraph 2 of the Foreign Allowance order. Another amount of Rs.4440/- has been deducted, which has nowhere been explained. The Respondents are directed to re-calculate the Foreign Allowance due to the Applicant on the basis of the rate given in paragraph 3 of the Foreign Allowance orders for the periods, when the Applicant was posted in the embassy of India in Seoul, on the basis of the Applicants eligibility for the allowance for local servant and pay the arrears to him. We reject the Respondents contention that the Applicant was not eligible for allowance due for local servant because he did not work actually as Second Secretary in the Mission at Seoul.
10. The above direction would be complied with within two months from the date of receipt of a certified copy of this order. We also direct the Respondents that a copy of the calculations for arriving at the correct amount of Foreign Allowance would be given to the Applicant. Needless to say the Applicant would be at liberty to challenge the payment of Foreign Allowance, calculated by the Respondents on our direction, if his grievance still survives. No costs.
9. The Applicant has also worked out the servant allowance to the tune of Rs.2,82,423 due to him pertaining to the period from 01.05.2009 and the interest thereon amounting to Rs.1,16,499/- as per the Annexure A-6 Due and Drawn Statement attached with this OA.
MA No.3312/2013 in OA No.4335/2013
10. The Applicant has filed this MA for condonation of delay in filing the OA under sub-section (3) of Section 21 of the Administrative Tribunals Act, 1985. He has stated that the Respondents have wrongly withheld the component of servant allowance for long years and he was restrained by the departmental instructions from disclosing the foreign posting before the court of law. He has also stated that he has made many representations to the Respondents but they have not considered them as per the rules. He has also stated that delay in this case is condonable as his claim is for arrears of pay and allowances which is not barred in terms of the judgments of the Apex Court in the case of M.R. Gupta Vs. Union of India and Others 1995 (5) SCC 628 and in the case of S.R. Bhanrale Vs. Union of India and Others 1996 SCALE (5) 693. In M.R. Gupta (supra), the Apex Court held that the claim to pay the correct salary computed on the basis of proper pay fixation is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. Again, in S.R. Bhanrale (supra), the Apex Court held that it is improper on the part of the Respondents to plead bar of limitation to claim admittedly fell due to him much before his retirement.
OA No.4365/201311. The Applicants grievance in this OA is that the Respondent No.1, namely, Secretary (R), Cabinet Secretariat, Bikaner House, New Delhi has not paid him the arrears of Foreign Allowance (local servant allowance component) admissible to him for the period from 23.08.2004 to 23.10.2007 when he was serving as Attache in the Embassy of India, Washington, USA. He retired from service on 31.10.2011. Thereafter, he has made representations on 29.08.2012 and 15.01.2013 for payment of arrears of servant allowance to the Secretary, R&AW. He has also sent a legal notice to Respondent No.1 on 09.05.2013 but the Respondents has not considered it. He has, therefore, filed this OA seeking a direction to the Respondent No.1, namely, Secretary (R), Cabinet Secretariat, Bikaner House, New Delhi to make the payment of arrears of Foreign Allowance (local servant allowance component) admissible to him for the period from 23.08.2004 to 23.10.2007 at the rates prescribed under para 3 of item VI of various Foreign Allowance orders issued by the Ministry of External Affairs on 28.07.2004, 17.03.2005, 07.02.2006 and 28.11.2008 with interest at the rate of 9% per annum.
12. The Applicant has worked out the servant allowance of Rs.3.75,368 due to him payable from March, 2007 and the interest thereon amounting to Rs.2,05,513 as per the Annexure A-6 Due and Drawn Statement attached with this OA.
MA No.3334/2013 in OA No.4365/2013
13. In this MA, the facts are identical as stated in MA No. 3312/2013. Therefore, the same need not be repeated.
14. The Respondents have filed their reply. They have taken the preliminary objection that this case is hit by the law of limitation. According to them, in the present case, the cause of action has arisen in the year 2009 but the OA has been filed in December, 2013. However, as required under Section 21(1) of the Administrative Tribunals Act, 1985 the OA had to be filed within one and a half year from the date when the cause of action has arisen. In this regard they have relied upon the judgment of the Apex Court in the case of S.S. Rathore Vs. State of M.P. AIR 1990 SC 10 wherein it was held that the aggrieved person must approach this court for relief within one year if no representation or appeal is filed and six months after an appeal or representation has been preferred. They have also relied upon the judgment of the Apex Court in the case of State of Haryana and Others Vs. Miss Ajay Walia JT 1997 (6) SC 592 wherein the Supreme Court held that repeated representation given to various authorities do not give her fresh cause of action to file application. Further, he has relied upon the judgments of the Apex Court in the case of State of Punjab Vs. Gurdev Singh 1991 (4) SCC 1 and Union of India Vs. Ratan Chandra Samanta JT 1993 (3) SC 418 on the same issue. He has also relied upon a recent judgment of the Apex Court in the case of D.C.S. Negi Vs. U.O.I. & Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 held as under:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant .
15. On merits, they have submitted that Applicant in OA No.4335/2013 while holding the post of SFO (GD) in the department was posted on a special assignment as Attache w.e.f. 19.09.2005 to 03.05.2009. Consequent upon the recommendations of the 5th Pay Commission report, the pay scale of SFOs have been upgraded from Rs. 6500-200-10500 to Rs.8000-275-13500 vide Ministry of Finance order dated 06.01.1999 and it was classified as Group A Gazetted post. The Ministry of External Affairs had agreed to the postings of the SFOs with sufficient seniority as Second Secretary in the Indian Missions abroad. Therefore, SFOs when posted on special assignment in lower post as Assistant/Attache were eligible for arrears of pay and allowances including FA attached to the post of Second Secretary under Rule 134(2) of RR&AW (RC&S) Rules, 1975. The arrears of pay and allowances of the post of Second Secretary were paid to the Applicant and other SFOs on the basis of advice of the Finance Division of Ministry of External Affairs. The fact is that the DFA is admissible to only those officers who are posted as RG officers, i.e., Third Secretary and above because they are entitled to employ Indian servants and have the discretion to replace them with local servants. They have also stated that the matter regarding payment of arrears of Foreign Allowance at higher rates, i.e., DFA is under review in consultation with the Ministry of Finance, Ministry of Law, Ministry of External Affairs and DoP&T. Therefore, as of now, the Respondents are not equipped to pay the arrears on the basis of DFA as being claimed by the affected officers till the matter is decided by concerned authority. They have also stated that the affected officers have never been denied their legitimate dues pertaining to the period of special assignment. As such they have been paid difference of pay and allowances including FA attached to the post of Assistant/Attache and Second Secretary. The question of claiming interest on the arrears by the Applicant does not arise as the department has never defaulted with regard to payment of entitled dues. So far as the payment of higher Foreign Allowance is concerned, the matter was examined comprehensively at various levels and as a matter of policy it was decided to review their earlier stand, keeping the larger operational interests in view. Despite the matter being perused vigorously, the department is not equipped to pay till the same is decided by Ministry of Finance.
16. The Applicant in his rejoinder has submitted that he was posted in the lower post which amounts to reduction in rank whereas his pay and allowances were protected as per the Constitutional requirement and cannot be reduced in rank. The Respondents have amended Rule 134 (2) of R&AW (Recruitment Cadre and Service) Rules, 1975 on 18.09.2003 and allowed payment of arrears of pay and allowances which was admissible to the equivalent post held by the deputationist in the organisation. The Respondents have suppressed the information and denied the payment of arrears of Foreign Allowance. The averments of the Respondents that DFA is admissible only to those officers posted as R.G. officer is arbitrary and wrong. They are also estopped from taking other view in the matter of payment of arrears of Foreign Allowance to the Applicant because they have implemented the judgment of the Tribunal in the case of Vinod Kumar Jain (supra). Further he has stated that Rule 134(2), as amended, clearly stipulates payment of arrears of pay and salaries to the Applicant and the advice of the Ministry of External Affairs/Ministry of Finance which is contrary to the same is arbitrary and violative of the statutory provisions. Therefore, the Applicant is entitled for payment of Foreign Allowance equivalent to Group A post held in R&A which was as per the amended provisions of Rule 134(2) ibid. However, the Respondents arbitrarily paid Foreign Allowance to the Applicant on lower post to Attache in Group A post held by him thereby reducing him in rank which is unconstitutional under Article 311 and 312. He has also submitted that the Departments stand that it is not equipped to pay arrears on Foreign Allowance till the matter is decided by the Ministry of Finance is not correct. He has also stated that it was only a internal consultation held in the year 2006.
17. I have heard the learned counsel for the Applicant Shri A.K. Ojha and the learned counsel for the Respondents Shri Satish Kumar. First of all, I do not agree with the Respondents counsel that this case is hit by law of limitation. The Applicant is seeking payment of difference of servant allowance for the period from 27.01.2006 to 01.05.2009. The first Respondents own instructions prohibit the Applicant from approaching the Tribunal. According to para 9.49 of the NGO Hand Book of the Respondents no action should be taken under any circumstances, including recourse to courts of law that would directly or indirectly result in breach of security and enable outsiders and unauthorized personnel to come to know about the manner in which our officers are deputed abroad. Therefore, the only option for the Applicant was to make representations and wait but the Respondents have not considered those representations. He has, therefore, no option but to approach this Tribunal. Therefore, the condonation of delay sought by the Applicants is allowed.
18. On merits, I find that the cases of both the Applicant are squarely covered by the judgment in the case of Vinod Kumar Jain (supra). The Applicant Shri Joginder Pal Jyoti in OA No.4335/3013 was admittedly serving as a Senior Field Officer with the Respondent No.1. He was posted on Foreign assignment/deputation as Attache (Consular) in Embassy of India, Kathmandu, Nepal from 27.01.2006 to 01.05.2009 which was a lower post than his original post held in Cabinet Secretariat. He was paid servant allowance admissible for the post of Attache whereas he was eligible for the same at higher rates admissible to 2nd Secretary equivalent to his original post of Senior Field Officer held in Cabinet Secretariat in the pay scale of Rs.8000-13500. Further, the Rule 134 of R&AW (RC&S) Rules 975 provides for Protection of Rank and Pay on Cover Assignment, and Cabinet Sectt. OM No.A-76/29/2002-DO II(A) dated 18.09.2003 provides for payment of arrears/difference of pay and allowances by R&AW in Indian rupees on the reversion of deputation from foreign assignment. The Applicant Shri Sharad Sharma in OA No.4365/2013 was also serving Senior Field Officer in Cabinet Secretariat and was posted on Foreign assignment/deputation in Embassy of India, Washington from 23.08.2004 to 23.10.2007 which was a lower post that the said post held in Cabinet Secretariat. He was also paid servant allowance admissible for the post of Attache whereas he was eligible for the same at higher rates admissible to 2nd Secretary equivalent to his original post of Senior Field Officer held in Cabinet Secretariat in the pay scale of Rs.8000-13500. I, therefore, allow these OAs. Consequently, I direct the Respondents to pay arrears of Foreign Allowance for the period from 27.01.2006 to 01.05.2009 to the Applicant Shri Joginder Pal Jyati in OA No.4335/2013 and to the Applicant Shri Sharad Sharma for the period from 23.08.2004 to 23.10.2007 in OA No.4365/2013 at the higher rate. Both the Applicants are also entitled for interest on delayed payment at the rate applicable to the GPF deposits. The Respondents shall accordingly calculate the arrears payable to the Applicants along with interest and pay the same within a period of 2 months from the date of receipt of a copy of this order. They shall also furnish a due and drawn statement for the convenience of the Applicants.
19. There shall be no order as to costs.
Let a copy of this order be placed in both the files.
(G. George Paracken) Member (J) Rakesh