Sepoy B.V.Gurao vs Union Of India & Ors.
2012 Latest Caselaw 1901 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 20.03.2012

+                        W.P.(C) No.1125/2012


Sepoy B.V.Gurao                                  ...      Petitioner

                                 versus

Union of India & Ors.                            ...      Respondents

Advocates who appeared in this case:

For the Petitioner       :     Mr.A.K.Panigrahi.
For Respondent           :     Mr.Sumeet Pushkarna & Mr.Gaurav
                               Verma, Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of order dated 19th

January, 2011 passed in O.A No.323/2010 by the Armed Forces

Tribunal, New Delhi and has also sought directions to the respondents

to pay US$ 13,588 to the petitioner along with the interest at 24% per

annum on the amount awarded to the petitioner as well as the cost of

the proceedings.

2. The petitioner had filed an original application before the Armed

Forces Tribunal, Principal Bench contending, inter-alia, that he is a

Sepoy bearing No.14267976 and that he had been in the service of DSC

(MOD). The petitioner as a Sepoy was posted at the Embassy of India,

Dushanbe (Tajikistan) as a personnel of IIMT (AF) with effect from 16th

February, 2007 to 22nd February, 2009 on deputation.

3. According to the petitioner, he was not informed about how much

foreign allowance would be admissible to him nor was he asked to sign

any form/contract before departing to the said destination.

4. Relying on a circular dated 17th November, 2003 of the Ministry of

Defence, Government of India the petitioner had contended that as per

the said circular the Sepoys and NCOs (Non Commissioned Officers)

were entitled for foreign allowance as admissible to security guards.

According to the petitioner, the petitioner, however, is entitled for the

same foreign allowance as admissible to NCOs and he was paid less

foreign allowance compared to what had been paid to the NCOs.

5. The petitioner, therefore, with other similarly situated Sepoys met

the Joint Secretary and the Joint Chief and he alleged that he was

assured that they would be paid the same foreign allowances as was

paid to NCOs. The petitioner also gave a representation to the

Commandant IIMT (AF) and raised a demand of US$ 13,558/-, however,

no action had been taken by the respondents.

6. Petitioner also relied on a letter dated 1st May, 2009 of the Second

Secretary (HOC) wherein it was allegedly admitted that the foreign

allowance for Sepoys and NCOs are the same. In the circumstances, the

petitioner has claimed that the petitioner and other Sepoys have been

discriminated against NCOs since all the Sepoys, including the

petitioner, are entitled for the same foreign allowance as admissible to

NCOs, however, the petitioner has been paid an amount of

US$13,558/- less than the amount he is entitled to, which has been

denied to him without any just and legally acceptable reason. In the

circumstances, the petitioner claimed that an order for recovery of US$

13,588/- be passed in his favor and that the interest at the rate of 24%

per annum be also awarded to the petitioner on the amount which shall

be found due to him.

7. Before the Principal Bench, the Armed Forces Tribunal, the

respondents contested the claim of the petitioner and filed a reply of the

Captain Alifa Akbar working as Additional Officer, Incharge Legal Cell,

Headquarter, Delhi area contending, inter-alia, that there are no arrears

of foreign allowance payable to the petitioner. According to the

respondents, the petitioner as a Sepoy was entitled to foreign allowance

as applicable to a „Security Guard‟ which was also intimated vide

Ministry of External Affairs Office Memorandum WI(AD)/239116/09

dated 15th September, 2010. The respondents denied the date of

induction of the petitioner as alleged by him to be wrong as according to

the respondents he was inducted on 17th February, 2007. The petitioner

was further alleged to have gone on deputation under ITEC norms.

Referring to the circular dated 17th November, 2003 which was relied on

by the petitioner, it was contended that Sepoys in the Army while

posted in Mission abroad on deputation under ITEC, etc. are entitled for

foreign allowance at the rates admissible to a security guard and in case

the Sepoys are posted against authorized vacancies of Sepoys, still they

are entitled for foreign allowance at the rate admissible to a security

guard. The respondents also distinguished the case of NCOs (Non

Commissioned Officers) by contending that in case the NCOs are posted

in missions abroad or on deputation under ITEC, they are entitled to

foreign allowance at the rates as admissible to non gazetted officers

(basic category in MEA), however, if NCOs are posted in missions

abroad against authorized vacancies then they too are entitled for

foreign allowance at the rates admissible to a security guard. The

respondents categorically denied that the Sepoys are entitled to the

same foreign allowance as are admissible to the NCOs. The respondents

emphatically contended that since the entitlement of the petitioner as a

Sepoy is of foreign allowance equivalent to the foreign allowance payable

to a security guard, which in fact has been paid to him, therefore, he is

not entitled for any more foreign allowance at a different rate payable to

the NCOs and thus no arrears are due to the petitioner nor is the

petitioner entitled for any interest. The Armed Forces Tribunal heard

the pleas and contentions of the parties and held that in view of circular

dated 17th November, 2003 the petitioner as a Sepoy was entitled for

foreign allowance at the rate admissible to security guards and

according to the contentions of the respondents the foreign allowance at

the rate as applicable to the security guard has in fact been paid to the

petitioner. The Armed Forces Tribunal, Principal Bench, however, held

that if the calculation has not been made correctly for the payment of

foreign allowance to the petitioner at the rate as applicable to the

security guards and if there is a difference, it ought to be made good

within four weeks. The Tribunal held in the order dated 19th January,

2011 as under:-

"6. In view of the Circular issued on 17th November 2003 by the Ministry of Defence, persons who are going under the aforesaid scheme will be paid foreign allowance at the rate admissible to Security Guards and accordingly the amount has already been released and paid to the petitioner. As per the reply given by respondents, it is clear that petitioners will be entitled to rates as are admissible to Security Guards and the amount is stated to have been paid but if the calculation has not been made correctly then authorities may recalculate the amount payable to the petitioners as admissible to Security Guards and if there is any difference it may be made good to the petitioners within four weeks."

8. The petitioner has challenged the order of the Armed Forces

Tribunal, Principal Bench contending, inter-alia, that NCOs and Sepoys

are covered under the same basic pay scale of Rs.5200-20,200/- as per

the recommendations of the 6th Pay Commission and, therefore, paying

differential foreign allowance to Sepoys and NCOs is in violation of

Article 14 of the Constitution of India and thus, the petitioner as a

Sepoy is entitled to the same rate of foreign allowance as admissible to

NCOs by circular dated 17th November, 2003. Reliance is also placed on

the letter dated 1st May, 2009 allegedly containing the admission by the

respondents, that the Sepoys and NCOs are entitled for the same

foreign allowance.

9. Mr.Sumeet Pushkarna has appeared on behalf of respondents on

advance notice and has emphatically refuted the pleas and contentions

raised by the petitioner. The learned counsel has contended that from

the perusal of the circular dated 17th November, 2003 of Ministry of

Defence, Government of India it cannot be inferred or the same cannot

be construed to mean that the Sepoys are entitled for the same

allowances as are admissible to the NCOs. He also refuted the plea of

the petitioner that since the basic pay scale of NCOs and Sepoys is

Rs.5200-20,200/-, therefore, they are entitled for the same foreign

allowances.

10. Learned counsel contended that no such plea was raised by the

petitioner before the Tribunal and such a plea which had not been

raised before the Tribunal cannot be allowed to be raised for the first

time before this Court while challenging the order of the Tribunal

invoking the power of this Court under Article 226 of the Constitution of

India. The learned counsel also denied that from the letter dated 1st

May, 2009 of the Second Secretary of Embassy of India (HOC),

Dushanbe (Tajikstan), it can be inferred that the Sepoys, including the

petitioner, are entitled to receive the same amount of foreign allowance

as was admissible to NCOs. He contended that the said circular only

contemplated that if NCOs have been paid a higher rate of foreign

allowance then the foreign allowance paid at the higher rate has to be

refunded by them. He contended that the said circular categorically

stipulates that it was not only a case of paying higher rates of foreign

allowance to the Sepoys but perhaps a case of recovery from the NCOs.

11. This Court has heard the learned counsel for the parties in detail.

The circular dated 17th November, 2003 of Ministry of Defence is as

under:-

"Subject: Refixation of pay and consequential adjustment in Foreign Allowance of Defence Service Officers and PBORs serving in Missions/posts abroad.

Sir, This Ministry‟s letter No.4(1)/98/D(Pay/Services) dated 19th May, 1999 is amended as follows:-

The last sentence in para „6‟ of the letter may be omitted and replaced by the following sentence.

"JCOs and NCOs in the Army and their equivalents in Navy and Air Force, while on posting in our missions abroad or on deputation under ITEC etc. would be entitled to Foreign Allowance at the rates as admissible to a non- gazetted official (basic category in MEA). Sepoys in the Army and their equivalents in Navy and Air Force, while on posting in our Missions abroad or on deputation under ITEC etc. would be, as before, entitled to Foreign Allowance at the rates as admissible to a Security Guard. However, NCOs and Sepoys in the Army and their equivalents in Navy and Air Force while on posting in our Missions abroad against authorized vacancies of Sepoys and equivalents will be allowed Foreign Allowance at the rates admissible to a Security Guard."

2. This issues with the concurrence of the Ministry of External Affairs vide their ID No.Q/FD/6910/5/2000 dated 3.11.2003 and 12.11.2003 and with the concurrence of the Finance Division of this Ministry vide their ID No.5/9/2003/1238-AG/PA dated 17.11.2003.

Yours faithfully

(R.K.Grover) Under Secretary to the Government of India

12. Perusal of the said circular unequivocally reflects that JCOs and

NCOs in the Army and other forces and Sepoys in the Army have been

treated differently. JCOs and NCOs in the Army and any other forces on

posting in missions abroad or on deputation under ITEC are entitled to

foreign allowance at the rate as admissible to non gazetted officials

(basic category in MEA) whereas Sepoys on posting in missions abroad

or on deputation under ITEC are entitled for foreign allowance at the

rate admissible to security guards.

13. Though a slight deviation has been made in case of NCOs posted

in missions abroad against the authorized vacancies which makes them

entitled for foreign allowances at the rates admissible to a security

guard, whereas, the Sepoys, whether appointed to the mission abroad

or on deputation to ITEC, etc. or posted to a mission abroad against the

authorized vacancies of Sepoys, are entitled for foreign allowance at the

rates admissible to a security guard.

14. The said circular cannot be construed to mean that the non

commissioned officers of the Army are entitled for the same foreign

allowance as are admissible to the Sepoys. Though the NCOs posted in

the missions abroad against authorized vacancies are entitled for

foreign allowances at the rates admissible to a security guard which is

the rate also admissible to the Sepoys posted in mission abroad on

deputation under ITEC, etc. or posted against the authorized vacancies

at the rate admissible to security guards. However, from this no

inference cannot be drawn that if the NCOs have been paid foreign

allowance at the rate different than the rate payable to the security

guards then the Sepoys shall also be entitled for foreign allowance at

the rate as has been paid to NCOs. The learned counsel for the

petitioner has referred to a representation made by one of the Sepoys,

Yashpal Singh, whose circumstances are similar to that of the petitioner

who has admitted in his representation dated 23rd August, 2007 that

the Sepoys have been paid foreign allowance at the rate of US$ 580

from 16th February, 2007 to September, 2007; US$ 602 from October,

2007 to November, 2008 and US$ 778 from December, 2008 to 16th

February, 2009. Even according to the petitioner if the foreign

allowance has been paid at the said rate, the petitioner as a Sepoy

cannot claim foreign allowance at whatsoever rate paid to NCOs.

According to the allegations of the petitioner, the NCOs have been paid

US$ 1155 for the period 16th February,2007 to September, 2007; US$

1155 from October, 2007 to November, 2008 and US$ 1386 from

December, 2008 to 16th February, 2009. Since there is nothing to show

that the petitioner as a Sepoy was entitled for foreign allowance at the

rate as was admissible to NCOs, therefore, if the NCOs for any reasons

illegal or irregular have been paid foreign allowance in excess, the

petitioner cannot claim the foreign allowance at the same rate as was

paid to the NCOs, which in any case the respondents had taken a

decision to get the refund of the overpaid foreign allowance from such

NCOs.

15. From the circulars relied on by the petitioner, his only plea which

has been established is that he is entitled for foreign allowance

equivalent to foreign allowance admissible to the security guard which

in fact has been paid to him and, therefore, the petitioner cannot have

any grievance in the facts and circumstances. The Tribunal has already

held that in case the calculation is not correct regarding payment of

foreign allowance at the rate admissible to the security guards, the

differential amount between the amount payable to the security guards

and the amount payable to the petitioner, a Sepoy be paid to him within

the time granted by the Tribunal. The petitioner has not denied in the

writ petition that he has been paid foreign allowance at the rate which

is payable to the security guards. In the totality of the facts and

circumstances and for the foregoing reasons, therefore, the learned

counsel for the petitioner has not been able to make out any illegality,

irregularity or perversity in the order of the Tribunal dated 19th

January, 2011 passed in O.A No.323/2010 titled as „Sepoy B.V.Gurao

v. Union of India‟ so as to entail any interference by this Court in

exercise of its jurisdiction under Article 226 of the Constitution of India.

The writ petition is without any merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

March 20, 2012 „k‟