Sanjay Kher & Ors vs Uoi & Ors.
2013 Latest Caselaw 1605 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 2089/1996
%                                                           9th April, 2013

SANJAY KHER & ORS                                          ...... Petitioners
                            Through:     Mr. Subrat Basak, petitioner no.2 in person.


                            VERSUS

UOI & ORS.                                                        ...... Respondents

                            Through:     Mr. Paritosh Budhiraja and Mr. Vikas B.
                                         Pakhiddey, Advocates for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the four petitioners who were the

employees of the respondent no.2-employer namely Rashtriya Pariyojna Nirman

Nigam Ltd. The four petitioners were deputed for different periods by the

respondent no.2 in Iraq. Petitioners claim that the foreign allowances which were

granted to them at the initial stage should be revised upwards not only on account

of increase of the DA granted to the employees in India but also because the Non-

IFS officers of the Government of India who were posted abroad from time to time

received enhancements in the foreign allowances payable to them.

2. On behalf of the petitioner no.2, to dispute the stand of the petitioners

reliance is placed upon Rule 5 of the rules of the respondent no.2 relating to the

terms and conditions of regular employees posted in Iraq and which reads as

under:-

"5. Foreign Allowance: To compensate for the higher cost of living, an employee of the Company serving outside India shall be granted a foreign allowances at such rates and subject to such conditions as may be prescribed by the Company from time to time, provided that such allowances shall not exceed the rates of foreign allowances applicable to Non-IFS officers of the Government of India of the equivalent category, such rates being subject to 5% compulsory economy out and slab deductions prescribed by the Government of India from time to time. The present rates are, however, enclosed as Annexure „A‟.

3. On the basis of the aforesaid Rule-5, it is argued that petitioners are

not entitled to complete parity for payment of foreign allowances as applicable to

Non-IFS officers of the Government of India of the equivalent category and that

the allowances of the employees of respondent no.2 were not to „exceed‟ the

foreign allowances to Non-IFS officers and not for „equal to‟ the Non-IFS officers.

On behalf of respondent no.2, what is contended is that as per the applicable Rule-

5, all that is stated is that the foreign allowances will be granted as per circulars to

be issued from time to time and which will not exceed the foreign allowances

which are paid by the Government of India to its Non-IFS officers posted abroad.

It is argued that the expression of "not exceed" cannot be equated with the

expression "equal to" and petitioners cannot claim that they should be paid foreign

allowances which are from time to time given to the Non-IFS officers of the

Government of India who are posted abroad. It is argued that no policy guidelines

were issued by the respondent no.2 from time to time for enhancing of the foreign

allowances by the respondent no.2 and therefore, the petitioners cannot merely

claim because of the fact that enhanced DA was granted to employees in India or

enhanced foreign allowances were granted to the Non-IFS officers of the

Government of India posted aboard claim enhancement in their foreign allowances.

4. In response the petitioners have placed reliance upon the letter dated

19.1.1980 written by the Director of the respondent no.2 to the Ministry of

External Affairs, and which according to the petitioners shows that the respondent

no.2 had agreed to be bound by the rules for Non-IFS officers posted at the project

sites in Baghdad, Iraq.

5. Before I proceed further in this case, it would be necessary to refer to

the dictum of the Supreme Court in the case of Indian Drugs and

Pharmaceuticals Ltd. vs. Workmen (2007) 1 SCC 408 wherein the Supreme Court

has categorically observed that Courts should not substitute itself for the executive

so as to decide what should be the scales of pay which should be granted to its

officers. The Supreme Court has cautioned against judicial activism inasmuch as

the finances of an employer are considered by the employer so as to decide what

should be the emoluments which should be granted to its employees. Paras 37 and

40 of the said judgment are relevant and the same read as under:-

"37. Creation and abolition of posts and regularization are purely executive functions vide P.U.Joshi v. Accountant General (2003) 2 SCC 632: 2003 SCC (L&S) 191. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to it‟s the powers of the executive or legislature. There is abroad separation of powers under the Constitution, and the judiciary, too, must know its limits.

40. The courts must, therefore, exercise judicial restrain, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc., are all executive or legislature functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case-law and philosophy of judicial restrain has been laid down by the Madras High Court in great detail Rama Muthuramalingam v. Dy. Supdt. Of Police AIR 2005 Mad 1 and we fully agree with the views expressed therein."

6. Therefore, in view of the aforesaid dictum of the Supreme Court,

Courts are not to on the ground of equity or such similar ground, grant a particular

pay-scale or monetary emoluments unless and until the field is covered by the rules

of the employer-organization or by the circulars or policies which are issued from

time to time by the employer-organization.

7. In the present case, I agree with the interpretation urged on behalf of

respondent no.2/employer with respect to Rule 5, that this rule cannot be read to

mean that the foreign allowances of the employees of the respondent no.2

automatically have to be enhanced or are to be all the times equal to foreign

allowances which are payable to Non-IFS officers of the Government of India. If I

do so, it would amount to doing violence to the language of Rule-5 inasmuch as

the rule categorically provides that if there have to be changes, circulars/orders will

be issued by the respondent no.2 from time to time. The very first line of Rule 5

makes this position crystal clear. Also the expression "will not exceed" cannot be

read to mean "will be equal to" for granting the petitioners at all points of time the

same foreign allowances which are paid to the Non-IFS officers of the Government

of India.

8. So far as the letter dated 19.1.1980, relied upon by the petitioners is

concerned, in order to appreciate the same, it is required to reproduce the same and

therefore, it is reproduced in its entirety as under:-

      "5742221                                                    19.1.80

      Shri M.B.Tuli
      Under Secretary (Fin.I),
      Ministry of External Affairs,

       (Finance Division),
       New Delhi.

Sub: Rationalisation of pay and allowances pattern in Public Sector Undertaking functioning abroad.

Dear Sir, Kindly refer to your letter No. 25608(Fin.I) dated 24.12.79, received by me vide D.O.letter No.23(13)/Fin./79 dated 29.12.79 from Shri P.K.Lahiri, Dy. Secretary, Ministry of Energy, New Delhi.

2. We have undertaken the Construction of Grain Sites Project(Lo to4) in Iraq as Associate of M/s KPI. Therefore, as advised by the B.P.E. we have framed our rules for foreign offices based on the terms and conditions as are applicable to Regular Employees of KPI. These rules are, in fact, based on the Rules for Non-IFS officers of the Govt. of India. In addition, our officers and staff posted at the Project sites, outside Baghdad or the city Municipal limits, are entitled to Project Allowance at 900/- p.m. Those employees who are required by the Corporation to proceed alone, keeping their families in India, can also draw House Rent for the stay of their families in India subject to the ceiling the rules as applicable to them had they been posted in India.

3. Copies of Rules relating to Foreign Offices of NPCC and Statement showing emoluments admissible to Regular employees (married) posted to Iraq are enclosed in extuplicates as desired for information and further necessary action.

Thanking you, Yours faithfully,

(S.K.Relan) Director (F).

9. A reading of the aforesaid letter shows that nowhere the respondent

no.2 has used any language therein that at all points of time, the respondent no.2

will grant its employees who were posted in Iraq, the same foreign allowances as

are paid to the Non-IFS officers of the Government of India. This letter refers to

the fact that its rules are based upon the rules for Non-IFS officers and this

language cannot mean that at all points of time the foreign allowances which are

payable to the Non-IFS officers, will be equal to the foreign allowances to be paid

to the employees of the respondent no.2 who are posted in Iraq. Surely Central

Government employees form a different class, and every PSU depending upon its

financial condition can always decide whether or not to adopt the rules of the

Central Government or adopt them in variation or not at all adopt them as stated in

the judgment of the Supreme Court in Indian Drugs and Pharmaceuticals

Ltd.(supra). Courts have no powers to impose upon an employer-organization

directions for fixing of monetary emoluments to its employees.

10. I may note that the monetary emoluments which are paid to officers of

the respondent no.2, who are posted in Iraq, are otherwise considerably higher than

those employees of the respondent no.2 who are posted in India, as per the

arguments as urged before me by the counsel for the respondent no.2. Also, there

was no confined bindingness upon the petitioners to necessarily continue in Iraq,

and if the petitioners were allegedly feeling the pinch of any higher costs, they at

any point of time could have requested for their posting back to India. Obviously,

the petitioners never did this because surely, the emoluments with respect to their

posting in Iraq were far better than the emoluments which were paid to the

employees in India serving the respondent no.2. Therefore, I do not find

petitioners, at this stage can claim any enhancements in the foreign allowances,

much less in the absence of any circulars issued by the respondent no.2 in this

regard.

11. In view of above, there is no merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

APRIL 09, 2013                               VALMIKI J. MEHTA, J.
ib