in the armed forces tribunal, principal...
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IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH
NEW DELHI
T.A NO. 87 OF 2009 IN WRIT PETITION (C) NO.7856/2008
COL. GLN KESHAV COLONEL (WORKS & PLANNING) HQ CE (P) HIMANK C/O 56 APO. THROUGH: MR. K. RAMESH, ADVOCATE. …PETITIONER VERSUS 1. UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE NEW DELHI – 110 011. 2. CHIEF OF ARMY STAFF THROUGH ADJUTANT GENERAL, ARMY HQ, NEW DELHI – 110 011. 3. HQ DIRECTOR GENERAL BORDER ROADS RING ROAD, DELHI CANTT. NEW DELHI – 110 010. 4. CONTROLLER GENERAL DEFENCE ACCOUNTS, WEST BLOCK – V, R.K PURAM NEW DELHI – 110 066.
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THROUGH: MS. JYOTI SINGH, ADVOCATE WITH MAJ. AJEEN KUMAR .. RESPONDENTS CORAM : HON’BLE MR. JUSTICE S.S KULSHRESHTHA, MEMBER HON’BLE LT. GEN. S.S DHILLON, MEMBER J U D G M E N T Dated : 25.02.2010
1. Col. GLN Keshav, the appellant herein, seeks to quash the
order dated 3.9.2007 passed by the Controller General, Defence Accounts,
New Delhi, which was communicated vide D.O Letter No. AT/I/1216/XIV,
declining to grant Compensatory Field Area Allowance (CFAA). He also seeks
to grant appropriate direction granting him CFAA from the date of his
posting in Leh till date and onwards till being posted out of the sector of Leh
in accordance with the Regulations on the subject.
2. According to the appellant, on 19.12.2006, he was posted as
Colonel (Works & Planning) in HQ Chief Engineer (Project), Himank for laying
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and maintaining the operational efficiency of the strategic roads and passes
in Leh Sector. As per the recommendation of the Fourth Pay Commission,
since the appellant was eligible for CFAA, he made a claim to the Controller
General, Defence Accounts, New Delhi unsuccessfully. The reason for
rejecting his claim was based on the administrative instruction dated
13.4.1994, construing that CFAA is not admissible to CE (P) Himank. The
administrative instruction was issued only for the grant of House Rent
Allowance to Garrison Reserve Engineer Force (Civil Organisation) Officers
and had no relevance with regard to grant of CFAA to army officers as they
are governed by the Defence Service Rules. This was also ruled in the case of
Lt. Col. Surender Singh posted at Field Search Laboratory, Leh being static
unit to whom CFAA was made admissible. Counsel for the petitioner
contends that there appears to be no justified or justifiable reason for the
respondents not to grant CFAA to the appellant when the same has been
granted to other officers placed in the identical situations. Further, there
could be no distinction so far as the admissibility of CFAA is concerned to
persons posted in static or non-static units. The persons posted in the static
unit are also facing the same adverse climatic conditions, isolation and
vagaries of nature, apart from the operational emergency across the border,
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for which CFAA was granted by the Government of India. There could be no
distinguishing feature so far as the service conditions of the officers posted
in the border roads are concerned as they are also, for all purposes, army
officers, posted in border roads and duly entitled to all concessions as are
applicable to army officers posted in different units, in view of Paragraphs 17
and 18 of the Border Roads Regulations. Such regulations would prevail over
the administrative instructions issued by the Director General, Border Roads
declaring the project at Leh to be static unit for the purpose of HRA. It is also
contended that there are a large number of similarly situated officers, and to
avoid multiplicity of proceedings, a specific direction be given to the
respondents for the implementation of the order dated 13.1.1994 in the
matter of all other officers similarly placed.
3. This petition is resisted by the respondents contending that
the Border Road Development Board (BRDB) under the Ministry of Surface
Transport had issued certain directions regulating grant of HRA to GREF
personnel and the petitioner undisputedly falls in that category. It was
further made clear by the BRDB that the admissibility of HRA/ Family
Accommodation to the Border Roads Unit or civilians would be determined
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on the basis of the posting in the static/non-static units. Pursuant to that, the
Director General, vide letter dated 13.4.1994, short-listed the units and the
project at Himank, Leh has been declared by him as one of the static units,
where the petitioner was posted. It was based on that order of the Director
General dated 13.4.1994, CFAA was refused to the petitioner. It is further
submitted that as per the letter dated 13.1.1994, CFAA is granted to the
officers based on the classification of areas as Field Area, Modified Field Area
and Improved Modified Field Area. As per the Border Road Regulations, the
conditions applicable to the personnel of Army, Navy and Air Force will also
apply to GREF.
4. The moot question to be decided in the present petition is,
whether on the basis of the departmental classification, the petitioner, who
is posted in the static unit at Leh, is entitled to CFAA? In order to answer this
moot point, it would be appropriate to take into account the report of the
Fourth Central Pay Commission, relevant portion of which is as under:
“28.97. There is no uniformity between officers and
other ranks in regard to the eligibility for the allowances
in the different types of field areas. While officers are paid
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high altitude/ uncongenial climate area allowance in
addition to separation allowance, personnel below officer
rank are paid special compensatory allowance only. While
officers in modified field areas are given a special ad hoc
allowance or local compensatory allowance as admissible
to civilians, other ranks are eligible for payment of local
compensatory allowance only. Similarly, while in the case
of officers there is distinction in the rates of allowances
admissible in full field areas and improved modified field
areas, there is no such distinction for other ranks. Army
headquarters in their proposals have suggested further
classification of certain areas as hard areas and low
intensity operation areas in addition to the field areas.
Certain norms have been suggested for classification of
areas on the lines suggested by them.
28.98. The present classification of areas into three
types is complex and anomalous and needs to be
rationalized and simplified. We are of the view that armed
forces personnel posted in field areas should be provided
with necessary facilities and given additional
compensation compared to the personnel working in
peace areas. We have separately recommended grant of
compensation when officers posted in field areas do not
avail of the facility of government accommodation at the
last place of posting or the separated family
accommodation at selected stations. Personnel below
officer rank in field areas are also being paid CILQ at the
rates applicable to other towns which we have improved.
We think that field service concessions should be
admissible for operational reasons only in areas declared
as field service areas by government. No other areas
should be eligible for the field service concessions. We
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suggest that the existing classification of areas for grant
of field service concessions may be reviewed by
government. While determining the areas which should
be treated as field service areas, government may also
decide the field service concessions which should be
admissible there taking into account the special
compensatory allowances recommended by us for civilian
employees in such areas.”
5. On the basis of such recommendation, the Government of
India granted CFAA to Army officers vide letter dated 13.1.1994, which reads
as under:
Government of India Ministry of Defence New Delhi-110 011.
Dated the 13th January, 1994
The Chief of the Army Staff Sub : Field Service Concession to Army Personnel implementation of the recommendation of the 4th Central Pay Commission. Sir,
………………………………………… 2.2 Pre-requisites for classifying an area as Field Area and
Modified Field Area will be as follows:
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Field Area : Filed Area is an area where troops are deployed
near the borders for operational requirements and where
Imminence of hostilities and associated risk to life exists.
Troops in such areas are located for reasons of operational
considerations along and are not living in Cantonments.
Modified Filed Area : Modified Filed Area is an area where
troops are deployed in support of Combat echelons/troops in
an operational support role. Degree of operational readiness is
slightly lower than that in Field area, though sustained
surveillance continues.
The defining criteria for Field and modified field area are contained in
Government of India’s letter dated 13.1.1994. Appendix ‘A’ of this letter
specifically identifies Field Area wherein all ranks are entitled to SFAA; same
is appended below:
Appendix A to Govt. of India Ministry of Defence letter
no.37269/AD/PS/3(a)/90/D (Pay/Services) Dated 13 Jan 94 (Refers to para 2.3)
LIST OF FIELD AREAS
1. EASTERN COMMAND
xxxxxxxxxxxx
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2. WESTERN COMMAND
xxxxxxxxxxxx
3. CENTRAL COMMAND
xxxxxxxxxxxx
4. NORTHERN COMMAND
(a) Ladakh Sector : Area North and East of line joining Zozila
MU 3036 Baralachala NE 6672 along the Great Himalayan
Range all inclusive.
(b) Valley Sector All area west of line joining point 1556 in
NR5470 Gulmarg MT 310.5 Naushara MY 3105- Ringapat
MT 2193 Handwara MT 2043-Daingyal MT 2339………..NG
4565 North of Line joining point 8403-Bunakut MT 5453-
Razan NN 2289 Zojila all inclusive.
(c) Jammu-Rajpouri Sector All areas best of line joining Tip of
Chicken Neck RO 7073-Canal junction RD (364 Mawa
Brahmaha RO 6183 Chauki RD 6393 Road junction RD 6499
Baramgala MY 3854 Point 1556 in NR 5470 all inclusive.
Similarly, Appendix B of the same letter i.e. Govt. of India Ministry of
Defence letter no.37269/AD/PS/3(a)/90/D (Pay/Services) Dated 13 Jan
94 wherein modified Field Areas have been specified is appended
below:
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LIST OF MODIFIED FIELD AREAS SOUTHERN AND WESTERN COMMAND
(a) Rajasthan and Punjab Areas West of Line joining Jessai,
Barmer, Jaisalmer, Rokharan, Udasar, Mahajan Ranges,
Suratgarh, Jattan, Abohar, Govindgarh, Fazilka, Jandiala,
Guru, Moga, Dholewal, Beas, Bir, Saranwal, Hussainiwala,
Dera Baba Nanak, Laisain Bulge upto the International Border
all inclusive.
(b) Haryana Satrod (Hissar)
(c) Himachal Pradesh Areas North of line joining Narkhanda,
Keylong upto Field Area line/High Altitude line
EASTERN COMMAND
(a) Assam and Arunachal Pradesh
(i) Cachar and North Cachar Distt. Of Assam including Silchar.
(ii) All areas of Arunachal Pradesh and Assam North of River
Brahmaputra less Tejpur, Mizoram and Tripura.
(b) State of Mizoram and Tripura
(c) Sikkim and West Bengal Areas Northwards of line joining
Sevoke LV 9112 Burdong LV 9850 Sherwani LV 9453 Bagrakot
LW 0113 Damdim LW 1109 New Mal Hasimara OD 7894
Ganga Ram Tea Estate QA 1377 upto the High Altitude
Line/Field Area line/ International Boarder all inclusive.
CENTRAL COMMAND
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Areas North of line joining Uttarkashi, Karan Prayag, Gauchar,
Joshimath, Chamoli, Rudra Prayag, Askote, Charamagad,
Dharchula, Kasauli and Narendra Nagar upto International
Border all inclusive.
NORTHERN COMMAND
(a) Valley Sector Areas West of line joining Pattan, Baramulla,
Kupwara, Drugmula, Ranges Mankes, Buniyar, Pantha Chowk,
Khanabal, Anantnag, Khundru and Khru upto the existing High
Altitude line all inclusive.
(b) Jammu Region Area West of line joining BP-19, Brahmana-di-
Bari, Jindra, Dhansal, Katra, Sanjhi Chatt, Batote, Patni Top,
Ramban and Banihal upto the existing High Altitude line all
inclusive.
As per the appendix, Leh falls in Northern Command Sector and the officers
posted there were made eligible to CFAA.
6. It may be mentioned that the arrangement made in the
Government order or the letter should have to be read as it is, in a natural
manner, plain and straight, without adding, substituting or omitting any
words. While doing so, the words used in the order/ notification should be
assigned natural, ordinary or popular meaning. Its applicability in the matter
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of all those Army officers posted in Leh area would be entitled to CFAA. It
does not cast any difference between static or non-static unit. To attribute a
different meaning would lead to ambiguity, vagueness, uncertainty or
absurdity which was not obviously intended by the 4th Pay Commission and
the Government by issuing the letter dated 13.1.1994. While interpreting the
Government order or letter, one should not substitute or delete the words
so as to change the structure and contents.
7. The petitioner was differentiated with other Army officers by
not making him eligible for CFAA because of the categorisation of the area as
static and non-static made only for the purpose of granting HRA. It is also
contended on behalf of the respondents that there cannot be contradictory
stand with regard to HRA and CFAA. The categorisation of the static unit shall
be taken into consideration for all internal purposes. Once the officers of the
Border Roads are denied HRA, they cannot insist upon for taking altogether a
different stand for making CFAA admissible to them. In this context, it shall
be useful to point out that the Director General, Border Roads, who
categorised the static and non-static units, made it clear vide Letter
No.14307/GEN/DGBR/44/EIB dated 29.6.2005 (Annexure P3) that the
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administrative instruction dated 13.4.1994 had nothing to do with CFAA and
it confined only to HRA. Therefore, he recommended for reviewing the
decision by the Controller General, Defence Accounts whereby they declined
to grant CFAA. As has already been referred, the Controller General
maintained his earlier stand that those who are working in static units are
not eligible for CFAA as there cannot be two different standards - one for
non-admissibility of HRA and the other for CFAA.
8. The material question arises for consideration is, whether the
administrative instruction would override the decision of the Government of
India dated 13.1.1994 with regard to the implementation of the Pay
Commission recommendation. A note of the fact may be taken that the
Central Government have issued the executive instruction letter dated
13.1.1994 under certain provisions of the Constitution providing therefor
such executive instructions have the force of statutory rules. The said
executive order dated 13.1.1994 does not permit the administrative
department to re-define the field area or to make further classification such
as static or non-static for the grant of CFAA. Even otherwise, the
administrative department has no authority to override the decisions of the
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Government. Such administrative decisions being contrary would not have
any force in the eye of law. The delegated authority is not intended to travel
wider than the object of the letter about the admissibility of CFAA. The
delegated function is to serve and promote that object while at all times
being true to it. That is the rule of primary intention. The power conferred on
the delegates/implementing authority does not enable it to either extend
the scope or limit its implementation but is strictly ancillary. It will authorise
only for carrying into effect what is sanctioned. The delegate or
implementing authority cannot limit or curtail the purposes of executive
instructions, to add new meaning of carrying them out or to depart from or
vary its ends (see Section 59, Delegated Legislation on Francis Bennions
Statutory Interpretation, 3rd Edition).
9. Counsel for the respondents, on the other hand, contended
that the administrative instruction was on the basis of the letter dated
12.7.1993 of the Ministry of Surface Transport, Government of India and,
therefore, it cannot be said to be without any authority. The direction in the
said letter dated 12.7.1993 was only in respect of regulating HRA to the
members of the GREF and not for CFAA and the same could be read only in
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the text of HRA and not for any other purpose. The Controller General
appears to have misconstrued the administrative instructions.
10. The services of the petitioner being an officer of the Army
posted on working arrangement at Himank are governed by the Border
Roads Regulations and CDA. As per Regulations 17 and 18, he being an
officer of the Army, shall continue to be governed by the terms and
conditions of the Service Rules applicable to them. Nothing contrary to it has
been provided by the Government order and he shall also be entitled to the
special concessions authorised from time to time by the Ministry of Defence
in specified areas. Leh has been notified as a field area. The Army personnel
are made entitled for CFAA and there could be no reason for depriving the
Army officers posted in Border Roads merely on the ground that the
administrative department categorised certain areas as static and non-static
units for the purpose of HRA. Refusal to grant CFAA is discriminatory and
violative of Article 14 of the Constitution of India. The scope and ambit of
Article 14 was considered by the apex Court about half a century back in
State of West Bengal v. Anwar Ali (AIR 1952 SC 75). Time and again it was
categorically laid down that Article 14 of the Constitution guarantees
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equality of law and confers equal protection. It would be appropriate to note
some of the subsequent decisions. They are: (1) The State of West Bengal
Vs. Gajan Mali (1952 SCR 284), (2) Confederation of Ex. Services and others
v. Union of India and others (2006(8) SCC 399), (3) Arumukam and others v.
Union of India and others (2007(1) SCC 732) and (4) State of Mysore and
another v. P. Narasinga (AIR 1968 SC 349). Article 14 prohibits the State
from drawing person or classes of persons to unequal treatment, provided
they are equal and are similarly situated. It however does not forbid
classification. In other words, what Article 14 prohibits is discrimination and
not classification if otherwise such classification is legal, fair and reasonable.
In the case of Confederation of Ex-servicemen (supra), the apex Court, after
considering all leading cases on equal protection clause enshrined in Article
14 of the Constitution, stated:
“In our judgment, therefore, it is clear that every
classification to be legal, valid and permissible must
fulfill the twin test, namely:
(i) the classification must be founded on an
intelligent differentia which must distinguish
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persons or things that are grouped together
from others leaving out or left out; and
(ii) such a differentia must have rational nexus to
the object sought to be achieved by the statute
or legislation in question”
In the context of the principles enunciated by the apex Court above, it is be
looked into as to how far the order refusing to grant CFAA is sustainable and
whether it fulfills the above two tests. The first test is that the classification
on which it is founded must be based on an intelligible differentia which
distinguishes persons or things grouped together from its left out of the
group. The second test is that the difference in question must have a
reasonable nexus to the object to be achieved by the rule or the statutory
proposition in question. In other words, there must be some rationale nexus
between the basis of classification and object intended to be achieved by the
statute or rule. The Government of India’s letter dated 13.1.1994 does not
make any distinction with regard to the admissibility of CFAA to the officers
posted in the field area. All those who are posted at high altitude
uncongenial climate are entitled to CFAA. Mere attachment with the static or
non-static unit would not make any difference with regard to the high
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altitude of the place (Leh). It would continue to be most inhospitable and
hazardous climatic condition where the officers are posted irrespective of
static or non-static units. The decision to grant CFAA to the Army officers
who are posted in field areas was taken by the Fourth Central Pay
Commission. Normally, such a decision is not interfered with either by the
Executive or by the Judiciary. Here, the administrative instruction issued by
the Director General, Border Roads would not be an eclipse on the decision
of the Government for the grant of CFAA based on the Pay Commission
Recommendation. The case of the petitioner cannot be considered on a
different yardstick and the petitioner shall also be entitled to the same
allowance which had been extended to Lt. Col. Surender Singh, who was
granted CFAA when posted in the static unit.
11. In view of the above discussions, the order passed by the
Controller General, Defence Accounts is violative of Article 14 of the
Constitution of India and discriminatory. The petition is, therefore,
allowed with special cost of Rs.25000/-. The petitioner is entitled to CFAA
at the same rate which is being paid to other Army officers who are posted
at Leh with effect from the date of his posting at Leh till the date and
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onwards till being posted out of Leh. This order shall also be made
applicable to officers who are posted in identical situations.
LT. GEN. S.S DHILLON JUSTICE S.S KULSHRESHTHA MEMBER MEMBER