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WITH CIVIL APPEAL NO. 4484 OF 1998 (Arising out of SLP(C) No. 20753 of 1997) J U D G M E N T S. SAGHIR AHMAD, J.

Leave granted.

2. S.L.P. (C) 10372 of 1997 has been filed by the appellant (hereinafter referred to as 'NBCC') against the judgment and order dated 13.9.96 of the Delhi High Court by which C.W.P. No. 1464 of 1992 in which the respondents' prayer for directions to NBCC to pay the Foreign Allowance @ 125% of the basic pay, as revised by a the Fourth Pay Commission, w.e.f. 1.1.1986 while they were still in foreign service in a Foreign Country, was allowed, payment of Deputation (Duty) Allowance was also allowed by another order dated 25.7.97 passed in CM 8287/96 filed in the same Civil writ. The other S.L.P. namely, S.L.P. (Civil) No. 20753 of 1997 arises out of C.W.P. No. 472 of 1994 filed by the respondents in that case for the same reliefs. this writ petition has also been allowed by the Delhi High court by judgment and order dated 25.7.97 in which the earlier judgments dated 13.9.96 and 25.7.97 have been followed. The questions involved in both the appeals are the same with the only difference that in the first petition there are 11 respondents while in the 2nd there are 5, out of whom one is the window of a deceased respondent.

particularly when it has been found, as a fact, by the High Court itself that Foreign Allowance was not covered by the terms of the contract which contemplated only a Deputation (Duty) Allowance. It is also contended that NBCC had taken a policy decision that Foreign Allowance will be payable only on the basis of pre-revised basic pay and not on the basis of basic pay as revised in terms of the recommendations of the Fourth Pay Commission and, therefore, the doctrine of "Legitimate Expectation" stood excluded. Moreover, the High Power Committee had not, it is further contended, recommended any increase in the Foreign Allowance and had, on the contrary, followed the principle contained in FR 51(2) in respect of perquisites and, therefore, the residuary perks as also their quantum was left to the discretion of the Corporation and it was for the Corporation to allow or not to allow any of the residuary perks. It is also pointed out that the doctrine of "Legitimate Expectation" was not pleaded in the Writ Petition and no foundation was laid for applying this doctrine to the facts of the present case and, therefore, it was not open to the High Court to entertain this plea at the stage of arguments and to decide the question on that basis.
" No doubt, foreign allowance is not one of the allowances mentioned in terms of deputation but the same is akin to the deputation (duty) allowance referred to in clause (1) of the terms of deputation. When the same was made intrinsically linked with the basic pay and in the past there has been correspondingly increase on every revision of pay on the same percentage basis, there i no reason forthcoming that why the same now stands frozen on the pre-revised basic pay and why it is not allowed at the same percentage on the revised basic pay. In the absence of any justifiable reasons this act of the respondents will have to be held to be illegal and arbitrary. Petitioners legitimately expected that on revision of the basic pay, the foreign allowance would also correspondingly stand enhanced on percentage basis. Foreign allowance, which is akin to and deputation (duty) allowance has to be regulated as per the rates specified for the purpose, namely, on percentage basis of the basic pay and in case there has been a revision of basic pay, it would automatically stand revised. The deputation (duty) allowance is also an allowance payable on percentage basis and on revision of pay, it is payable on percentage basis on the revised basic pay."

33. Foreign Allowance could also not be treated as a salary component or akin to Deputation (Duty) Allowance as it was in the nature of a residuary perk regulated by the provisions of F.R. 51(2).

34. Fundamental Rule 51 provides as under:-

" F.R. 51. (1) When a Government servant is, with proper sanction, temporarily deputed for duty out of India either in connection with the post held by him in India or in connection with any special duty on which he may temporarily be place, he may be allowed by the President to draw during the period of deputation the same pay which he would have drawn had he remained on duty in India: