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ARMED FORCES TRIBUNAL CHANDIGARH BENCH ATCHANDIMANDIR

O.A. No 144 of 2011

Brig A K Bhutani & Ors. .Petitioner

Vs.

U.O.I. & Ors. .. Respondents

ORDER19 .04.2011

Coram: Justice N P Gupta, Judicial Member

Lt Gen H S Panag(Retd), Administrative Member.\

For the petitioner (s) : Mr. Navdeep Singh , Advocate.

For the respondent (s) :Mr. Gurpreet Singh, Sr. Panel Counsel forRespondt Nos 1 and 2.

Mr. Sandeep Bansal, CGC forRespondts Nos 3 to 5.

Lt Gen HS Panag (Retd).

1. The applicants have prayed for the following relief(s) with costs :-

(a) Directions to the respondents to immediately re-start the

release of Counter-Insurgency and/or Field Allowances as

applicable which have been discontinued on the basis of

Demi-Official letter, that is , Annexure A-11 and are being

granted to all other personnel working shoulder to shoulder

with the Applicants in absolutely the same areas and in the

same operations.

(b) With a further prayer that the Respondent No 3 may be

directed to endorse the claims of the allowances as applicable

for admissibility to the Applicants and all similarly situated

defence personnel as per powers granted to the said

Respondent vide Annexure A-7.

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(c) With a further prayer for setting aside communication

Annexure A-11 and all related letter (if any) in the interest of

justice, equity and fair-play.

2. Briefly stated the facts of the case are that the applicants are officers

and men of the Regular Indian Army posted to units of the Border Roads

Organization in the highly volatile insurgency affected areas of J&K. The

instant case is squarely covered by a decision of the Principal Bench of

this Tribunal. The Govt of India, in the year 1994 introduced the concept of

risk related allowances for defence personnel depending upon the areas of

deployment/posting. Accordingly, allowances such as Special

Compensatory (Counter-Insurgency) Allowance were introduced for

defence personnel posted in Counter Insurgency areas and Field/Modified

field compensatory allowances were introduced vide Annexure A-1 and

A-2 in the year 1994. Further the consolidated letter dealing with the

allowances issued in the year 2000 (Annexure A-3) would show that these

are risk related allowances available in designated areas.

Applicants are officers and men of the Corps of Engineers of the Regular

Indian Army who have been posted to military appointments in the Border

Roads Organization (BRO)/General Reserve Engineering Force (GREF)

which is an organization operationalising and developing roads in Border

and Counter-Insurgency Areas for facilitation and conduct of operational

needs of the country. The said organization is headed by an army officer of

the rank of Lt General and is manned both by military personnel such as

the applicants as well as civilian (militarized) personnel who also operate

under the Army Act. Postings to the said organization are not a matter of choice

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or deputation but are mandated by the Army. Regulation 18 of the Boarder

Roads Regulations clearly specifies that military officers shall continue to

be eligible for special concessions admissible in various areas to defence

personnel from time to time(Annexure A-4). Further note initiated by the

Ministry of Defence for the grant of higher pay scale to Lt Cols of the Army

(Annexure A-5) would show that postings to BRO are not considered as

Deputation and are in line with normal military duties which would have

been performed by the Army had these organizations not been in

operation.

3. Though the applicants are posted and deployed in the highly

sensitive and Insurgency infested area in and around Srinagar, their

Counter-Insurgency Allowance has been suddenly discontinued with effect

from the year 2008 on the basis of an objection by the Comptroller and

Auditor General (CAG) that the applicants are not actually employed in

Counter-Insurgency Operations. Even Field Area Allowance is not being

paid to them which is in contravention of the Govt orders which states that

all personnel posted in particular notified areas (including the areas where

the applicants are posted/deployed) shall be entitled to Field Area

Allowance in terms of Govt of India, Ministry of Defence letter No

37269/AG/PS3(a)/90/D(Pay/Services) dated 13 Jan 1994(Annexure A-1)

and the respondents have started recovering the allowances given to all

past retired and present military personnel posted in BRO with

retrospective effect from 01.11.1994.

4. The learned counsel for the petitioner averred that Counter

Insurgency Allowance is granted to personnel operating in Counter-

Insurgency Areas while Field Allowance is granted to those who are posted

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in Field Areas where there are no Counter-Insurgency Operations. The

applicants are being paid neither of the two allowances on the ground that

the Controller and Auditor General (CAG) in its report of the year

2007(Annexure A-6) had raised an objection that military officers posted

with BRO were not actually engaged in Counter-Insurgency Operations and

were not entitled to benefit under the respondents policies since civilian

(GREF) personnel were also not getting the same and the BRO has no role

in Counter-Insurgency and is only engaged in planning and execution of

Border Road Works. No reference has been made by CAG to Regulation

18 of the Border Roads Regulations (Annexure A-4) which protects the

risk allowances of Army personnel when posted to BRO. As a result of this

objection, the respondents discontinued the said allowance and also

started recovering the allowance retrospectively w.e.f. 1994 without

realizing that it was the respondents themselves who were competent to

interpret and apply their policy and the remark of the CAG could not have

led the respondents to ascribe a different meaning to a policy which they

themselves had authored, interpreted and applied all these years. The

military expertise of determining whether or not the applicants are deployed

in Counter-Insurgency lies with the respondents and not with the auditing

staff. Respondent No 3 is authorized by the Govt in law to notify the staff

eligible to receive such allowances as per deployment (Annexure A-7). It

may be important to point out here that the applicants are duly posted in

proper Counter-Insurgency Areas and are deployed in making, maintaining,

operationalising and opening roads and communication lines for Counter

Insurgency Operations. The term actual deployment in Counter

Insurgency Operations cannot by any stretch of imagination be

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deemed to exclude those very troops such as the applicants who practically

operate the roads on which the operations are actually conducted.

5. Applicants further averred that in fact the applicants face a graver

threat than others since sophisticated weaponry is not provided to the

applicants and their units to defend themselves in case of militant threats

and they operate with only basic weapons. In any case, there can be no

mathematical formula of determining such issues in a highly volatile war

zone. Moreover, the respondents have been and are providing the said

allowance to other troops posted on purely administrative jobs within the

secure cantonment of HQ 15 Corps in Srinagar, but have refused the same

to the applicants who are extremely vulnerable to terrorist and militant

strikes and operate in the open in Counter Insurgency Areas. To an

example, the respondents are paying the said allowance to Army Postal

Service and Judge Advocate General staff performing normal secure duties

in proper built up area in Srinagar but are not paying the same to the

applicants who are in the midst of Counter-Insurgency Operations. Even

personnel of the Territorial Army who are part time volunteers and not

regular employees of the Govt are being paid the said allowances even

when attached to the units of the applicants. No Counter-Insurgency

Operations are possible in the area without the applicants and they are an

integral part of such operations.

6. Reply has been filed on behalf of the respondent Nos 1 and 2.

7. It has been admitted that Govt of India, Ministry of Defence vide

letter No CI/AG/PS-3(a)/121/D (Pay/Services) dated 14 Jan 1994 has

sanctioned Special Compensatory (Counter Insurgency) Allowance

(SCCIA) to troops deployed on Counter Insurgency Operations. All Army

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Officers/personnel posted with Border Roads Organisation were drawing

SCCIA as per rate fixed by Ministry of Defence from time to time on the

basis of quarterly Corps Notification issued by 15 and 16 Corps

respectively as authority. During the Test Audit, the Comptroller and

Auditor General of India, Defence services for the year ending 31 Mar 2006

has objected and declared irregular payment of SCCIA to Army

officers/personnel posted to BRO who are not deemed to be actually

involved in Counter Insurgency Operations and ordered to withhold

payment of SCCIA and to recover the amount of Rs. 2.99 crore w.e.f. 1994

to 2006 from the Officers/personnel. The Action Taken Note after due

vetting of Defence (Fin) and DGADS was sent to Ministry of Finance,

Deptt. of Expenditure on 12.08.2008 for placing before PAC of Parliament

The remedial actions contemplated as per Action Taken Note(ATN) were to

stop the Counter Insurgency Allowance and recover the irregular payment

made to Army personnel posted with BRO. However, the allowance

extended are area and task oriented. The allowances are being extended

to the extent possible. The allowances have to vary with the roles

performed by different sections within the Army. Army personnel deployed

for actual CI Ops are entitled for Special Compensatory CI Ops allowance,.

Part II Order regarding deployment of service personnel on CI Operations

should contain a certificate from Sub Area Commander or the Corps

Commander to the effect that they have approved the deployment of

personnel in CI Ops and the said personnel were actually deployed in such

operation. Army personnel deployed for road building and maintenance

cant be considered for CI Ops allowance. The order of Army HQ dated

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01.05.2009 itself disqualifies the Army officials posted to BRO on the

ground that they are not actually involved in CI Ops.

8. Respondents further submitted that Govt of India, Ministry of

Defence vide letter No CI/AG/PS-3(a)/121/D (Pay/Services) dated 14 Jan

1994 has sanctioned Special Compensatory (Counter Insurgency)

Allowance (SCCIA) to troops deployed on Counter Insurgency Operations.

Further Govt. of India, Ministry of Defence vide letter No

37269/AG/PS3(a)/90/D(Pay/Services) dated 13 Jan 1994 has sanctioned

monetary allowances, i.e. Compensatory Field Area Allowance and

Compensatory Modified Field Area Allowance to Army Personnel serving in

Field Areas and Modified Field Areas. The said order dated 14.01.1994

clearly mentions that such deployment has to be area, task and duration

specific. The details of Formations/Units to be deployed for Counter

Insurgency Operations are to be notified by Army HQ. Counter Insurgency

Allowance thus can only be asked if so notified by Army HQ about the task

duration and area and it cant be granted to all.

9. Further stated that Army Officers and personnel who were

posted with BRO in Jammu and Kashmir, were earlier paid SCCIA based

on Corps Notification published by Corps HQ. The CAG in its report

(Annexure R-2/3) raised the objections to the said payment of SCCIA to

the Army officers and personnel posted with BRO, since they are not

actually involved in the Counter Insurgency Operations. Hence, in

pursuance of the objections of the Audit, the order for discontinuing the

insurgency allowance had been issued by Dte Gen BR. Vide Govt of India,

Ministry of Defence letter No 37269/GI/AG/PS-3 (a)/121/D (Pay/Services)

dated 14 Jan 1994 and 1(26)/97/XX/D (Pay/Services) dated 29 Feb 2000

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all Army personnel posted to Formation Headquarters, Army units and

other units like MES which are located in areas declared by respective

Corps HQ as Counter Insurgency Area are entitled to grant of SCCIA.

10. Based on the Audit observations raised by the Audit, the

Additional Director General of Personnel Services, AGs Branch, Integrated

Headquarters of Ministry of Defence vide their letter No

B/37369/CI/DP/AG/PS-3(a) dated 01.05.2009 has intimated that till further

orders, BRO Units will not be included in the Corps Notification issued for

the purpose of grant of SC (CI) Ops allowance and the personnel deployed

for construction/maintenance of roads and personnel deployed for Counter

Insurgency Operations are not equally circumstanced to be treated at par.

There is clear intelligible difference which distinguishes persons who are

deployed for CI Ops and who are not. The major roll assigned to Army

officers and personnel posted to BRO as well GREF officials there is to

construct, maintain and clear the roads and not to fight the insurgents.

There is no comparison in both the allowances as one is area specific and

other is task and deployment specific.

11. Respondents further told that in compliance of order of Honble

High Court, J&K dated 06.04.2010 in contempt petition No 193/2009 arising

out of SWP No 1511/2004 filed by Shri A Rajendran SAO and 12 others

regarding payment of Special Compensatory Counter Insurgency

allowance and having due consideration of order delivered by Armed

Forces Tribunal, Principal Bench, New Delhi on 25.02.2010 in WP No

7856/2008 titled Col G Keshav & Others Vs. UOI for grant of compensatory

Field Area allowance (CFAA) to army personnel posted in Border

Road

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Organization (BRO), order dated 13.09.2010 has been passed with due

approval of Defence Secretary, Ministry of Defence (Annexure R-2/5).

12. It has been admitted that the policy decision of the

Government cannot be interfered, however reliance has been placed on

the Judgment of Honble Supreme Court in (2004) 5 SCC page 232

titled as Union of India Vs Manu Dev Arya, wherein it has been held

that a policy decision of the State unless affects somebodys legal right

cannot be questioned. The question is as to whether certain allowances

would be paid to a section of employees or not and that too at what rate is

basically a question of policy.

13. It is a settled proposition that a policy once formulated is not

immutable. It is perfectly within the competence of the Government to

change it, re-change it, adjust it and re-adjust it and withdraw it from time to

time. It is also well settled that even if a mistake has been committed by

the Government, it is expected that the government would rectify its

mistake and it is not supposed to perpetuate. The respondents also

placed on record the Govt of India, Ministry of Defence letter No

37269/CI/AG/PS-3(a)/121/D(Pay/Service) dated 14 Jan 1994 (Annexure

R-2/1) and 1(26)/97/XX/D (Pay/Service) dated 29 Feb 2000 (Annexure R-

2/2) vide which the Govt has sanctioned Special Compensatory (Counter

Insurgency) Allowance to the troops deployed on Counter Insurgency

Operation. All Army officers/personnel posted with Border Roads

Organization(BRO) were drawing SCCIA as per rate fixed by Ministry of

Defence from time to time on the basis of quarterly Corps Notification

issued by 15 and 16 Corps respectively as authority. During the Test Audit

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(Audit Para 6.2, Report No. 4 of 2007), the Comptroller and Auditor

General of India, Defence Services for the year ending 31 Mar 2006 has

objected and declared irregular payment of SCCIA to Army

Officers/Personnel posted to BRO who are not deemed to be actually

involved in Counter Insurgency Operations and ordered to withhold

payment of SCCIA and to recover the amount Rs 2.99 Crore w.e.f. 1994 to

2006 from Officers/Personnel. The Action Taken Note (ATN) after due

vetting of Defence (Fin) and DGADS was sent to Ministry of Finance,

Deptt. of Expenditure on 12.08.2008 for placing before PAC of Parliament.

The remedial actions contemplated as per ATN were to stop the Counter

Insurgency Allowance and recover the irregular payment made to Army

personnel posted with BRO.

14. Respondents also placed reliance on Para 17 and 18 of Border

Roads Regulations (Reprint 1993) which states as under :

Para 17. Service personnel, Officers and others, belonging to the

Army, Navy and Air Force and civilians of the Defence Services in

Army units, save as otherwise expressly provided by Government

orders, will continue to be governed by the terms and conditions of

service applicable to them in Defence Services.

Para 18 : Apart from basic terms and conditions, certain special

concessions are authorized from time to time, by the Ministry of

Defence for Army personnel in specified areas. These concessions

save as otherwise expressly provided by Government orders are also

admissible to the Service personnel employed on Border Roads

Projects in the respective areas.

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15. It has been further averred that the allowances extended are area

and task oriented. The allowances are being extended to the extent

possible. The allowances have to vary with the roles performed by

different sections within the Army. Army personnel deployed for actual CI

Ops are entitled for Special Compensatory CI Ops Allowance. Part II

order regarding deployment of service personnel on CI Operations should

contain a certificate from Sub Area Commander or the Corps Commander

to the effect that they have approved the deployment of personnel in CI

Ops and the said personnel were actually deployed in such operation.

Army personnel deployed for Road building and maintenance cant be

considered for CI Ops allowance. The order of Army HQ dated

01.05.2009 itself disqualifies the Army officials posted to BRO on the

ground that they are not actually involved in CI Ops.

16 We heard the learned counsel for both the parties and perused

the documents on record.

17. The Applicants in this Original Application are combatant

personnel of the Regular Indian Army posted to Border Roads Organisation

(BRO in short) in and around Srinagar in Jammu & Kashmir. They are

aggrieved by the action of the Respondents vide which their risk related

allowances have been discontinued and recovery has been ordered in

respect of allowances paid to Regular Army personnel posted to BRO from

1994 to 2008 and that too unilaterally without a formal government order or

notice.

18. Before touching the controversy at hand, it would be important

to first recapture the background and the events leading to the present OA.

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19. The BRO is an organisation operationalising and developing

roads in border and Counter-Insurgency Areas for facilitation and conduct

of the operational needs of the country. The BRO is headed by an army

officer of the rank of Lieutenant General who functions as Director General

of BRO and the organisation is manned by both civilian (but uniformed) and

Regular Army personnel. A very pertinent point to be highlighted here is

that postings for Regular Army personnel to BRO are not a matter of choice

but dictated by the Army itself. Postings to BRO are not even considered

deputation and are mandatory in nature.

20. Military personnel are entitled to certain area-specific

allowances (called concessions in military parlance) when serving in the

Army and these very allowances are protected for Army personnel when

they are posted to BRO vide Regulation 18 of Border Roads Regulations

(Annexure A-4) which runs as follows :

18. Apart from the basic terms and conditions,

certain special concessions are authorised fromtime to time by the Ministry of Defence for Armypersonnel in specified areas. These concessions,save as otherwise expressly provided bygovernment orders, are also admissible to theservice personnel employed on Border Roads

projects in the respective areas

21. The intention of the above reproduced Regulation is very clear.

It protects the allowances of Army personnel when posted to BRO and

provides that the concessions admissible to Army personnel in specified

areas shall continue to be provided to Army personnel when posted to

BRO in those very areas.

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22. In the year 1994, the Government of India, Ministry of Defence,

issued a letter governing the allowances admissible to armed forces

personnel in Field Areas (called Field Area concessions) vide Annexure A-

1 which were notified to be of two types, namely Compensatory Field Area

Allowance (CFAA) and Compensatory Modified Field Area Allowance

(CMFAA) depending upon the place of posting (collectively referred to a

Field Allowances hereinafter). The details of areas notified as Field and

Modified Field were appended as Appendices A & B to the said

Government letter.

23. Another letter in the same year was issued (Annexure A-2) for

grant of allowances admissible to troops deployed in Counter-Insurgency

Operations. This allowance was called Special Compensatory (Counter-

Insurgency) Allowance (referred to as Counter-Insurgency Allowance

hereinafter). It was also later clarified by the government vide Paragraph 3

of Annexure A-3 that only one of these allowances out of Field and

Counter-Insurgency Allowances, that is, the one that is higher, shall be

admissible in a designated area. Hence for example, if an area happened

to be a Field Area and also a Counter-Insurgency Area, then only the

Counter-Insurgency Allowance shall be admissible, being higher.

24. Unfortunately, the admissibility of both the above allowances

remained embroiled in controversy as far as Regular Army personnel

posted to BRO is concerned. Though the controversy about the Field

Allowances admissible vide Annexure A-1 now stands settled by the

Principal Bench of this Tribunal, it would still be worthwhile to touch the

same in order to analyze the entire issue holistically.

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25. When Field Allowances vide Annexure A-1 were introduced for

defence personnel, there was no dispute about the admissibility of the

same to Regular Army personnel posted to BRO and they continued to be

paid the same without hindrance. However, the Director General of BRO, in

order to grant House Rent Allowance to civilian personnel posted in BRO,

had issued a letter saying that certain BRO units shall be deemed to be

static units to facilitate the grant of House Rent Allowance (HRA) to civilian

(General Reserve Engineering Force GREF) personnel. This apparently

was in conflict to Paragraph 5(a) of Annexure A-1 which provided that Field

Allowances shall not be admissible to static units. The confusion was

created since while the terminology of static unit was used by Director

General of BRO for civilian personnel for HRA purposes, the auditing staff

took it as a disabling factor for claiming Field Allowances even by Army

personnel. The misunderstanding was then removed by the Director

General of BRO himself vide Annexure A-9 in which he himself clarified

that the static / non-static terminology had no relationship with Field

Allowances of Army personnel and that the said term was exclusively

restricted for HRA purposes of civilian GREF personnel. This however did

not deter the Respondents from stoppage of Field Allowances to Army

personnel on the pretext that the said BRO units had been declared static

by the DG BRO (though DG BRO himself later had clarified about the

context in which the term static was used) and that civilian personnel were

also not being paid the said allowance. This controversy was however

resolved by the Principal Bench of this Tribunal in TA No 87 of 2009 titled

Col GLN Keshav Vs UOIand othersdecided on 25-02-2010 in which

it was held that Regulation 18 of the Border Roads

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Regulations protected the allowances of the Petitioner in that case and that

since the area where he had been posted (Leh) was notified as a Field

Area vide Annexure A-1, there could be no denial of Field Allowances on

the ground of the technical objection of BRO units being static. In a well

reasoned and detailed judgment, the Principal Bench also held that non-

grant of Field Allowances to Army officers posted in BRO while providing

the same to those posted in other units was violative of Article 14 of the

Constitution of India. The Petition was allowed with costs of Rs 25,000 and

with directions that the orders shall also be made applicable to officers

posted in identical situations. We have been informed that the orders qua

the Petitioner in the said case have not been challenged, have attained

finality and have been implemented after examination in consultation with

the Department of Legal Affairs on 29-11-2010. The admissibility of Field

Area concessions thus stands well settled by the orders of the Principal

Bench.

26. The controversy thus now remains narrowed down to the grant

of Counter-Insurgency Allowances to the Applicants which we shall now

proceed to determine.

27. The letter (Annexure A-2) around which the entire controversy

revolves, was issued on 14-01-1994. The letter provides for grant of the

allowance for troops deployed in Counter-Insurgency Operations. On the

basis of this letter, the personnel of the Regular Indian Army posted to BRO

establishments located in Counter-Insurgency Areas were regularly being

paid Counter-Insurgency Allowances. An audit objection (Annexure A-6)

was however raised in the Financial Year 2007 that Army personnel posted

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in BRO units were irregularly being paid Counter-Insurgency Allowances

due to two reasons as becomes clear from Paragraph 3 of the said

objection. The first objection was that personnel of regular Army posted to

BRO had no role in Counter-Insurgency Operations and secondly that

BRO did not pay such allowances to GREF (civilian) personnel working in

the said units. It can be seen from the audit objection that the provisions of

the rules or conditions governing the allowance have neither been

reproduced nor discussed in the said objection and a bald statement has

been made commenting that the organisation has no operational role. On

the basis of the audit objection, a Demi Official (DO) Letter was written by a

Director level officer in the Ministry of Defence to the office of Controller

General of Defence Accounts (CGDA) asking the said office to recover the

allowance from all Army personnel posted in BRO from November 1994

onwards. The Applicants have challenged this very DO letter (Annexure A-

11) and the consequent action of stoppage of the allowance and its

recovery.

28. The Applicants in their OA have raised multiple grounds

challenging the action of the Respondents which in brief are as follows :

(a) That the allowances of Army personnel while posted to

BRO are protected under Regulation 18 hence the stand of the

auditing staff that the applicants should not be paid the

allowances since civilian personnel are not getting the same, is

illegal and in contravention of Regulation 18. The Applicants

have also pointed out that in their own service, civilian

employees are entitled to certain benefits such as double HRA

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and other allowances and schemes which are not applicable to

defence personnel and hence non-grant of existing sanctioned

military benefits to civilians cannot be made a ground for denial

of the same to military personnel.

(b) That the bullets of militants in Counter-Insurgency Areas

do not discriminate between Army personnel posted in BRO

vis--vis those in other establishments and hence it is

unfortunate that Respondents are indulging in discrimination in

grant of allowances to them.

(c) That Army officers posted in other organisations in totally

non-military roles such as the Military Engineering Service

(MES) situated in safe barracks within cantonments are also

being paid the said allowances. Even personnel of Judge

Advocate Generals department (JAG) and those of the Army

Postal Service (APS) are being paid the allowance whereas

practically the risk faced by them is many times lesser than that

faced by the Applicants.

(d) That the expertise in gauging as to which units and

establishments are deployed or engaged in operations has

been cast on military authorities as per the government letter

(Annexure A-2) and auditing staff should not be given this kind

of a leverage that they start commenting on which units are

performing military roles and which are not.

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(e) That the statement of the Respondents that Army officers

posted in BRO are not involved in Counter-Insurgency

Operations is flawed since the BRO is actively involved in

operationalising, maintaining, constructing and opening those

very roads on which Counter-Insurgency Operations are

conducted and if there is no BRO then there would be no

operations in the area.

(f) That Army personnel posted in BRO have long been a

part of Operation Rakshak, a Counter-Insurgency Operation

notified by the Government of India, and many officers and men

have lost their lives in the line of duty in militant attacks and

have also been granted posthumous gallantry awards and

medals related to Operation Rakshak and hence it is highly

discriminatory to disallow benefits to such personnel.

(g) That the auditing staff may not be allowed to interpret a

policy which the Respondents themselves had authored and

applied on the Applicants and that a hyper-technical approach

should not be resorted to while granting beneficial concessions

to the Applicants who were working shoulder to shoulder with

Army officers of other military establishments and facing the

same threats.

29. The Respondents, especially Respondents 1 & 2, have resisted

the claim inter-alia on the following grounds :

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(a) That it is within the competence of the government to

change, re-change, adjust, re-adjust and withdraw a policy from

time to time or to rectify a mistake.

(b) That the allowance is risk and task oriented and only

Army personnel deployed for actual Counter-Insurgency

Operations are entitled to the same when so certified by military

authorities.

(c) That discontinuance of the allowances has been done in

pursuance to an audit objection and that personnel deployed for

construction and maintenance of roads cannot be treated at par

with those deployed for operations and that based on audit

objections, it has been directed that till further orders, BRO

units would not be included in notifications issued by military

authorities for grant of the allowance in question.

30. With this background, it first becomes important to examine the

Government letter which provides for Counter-Insurgency Allowance

(Annexure A-2) and also its amendments on later dates (Annexure A-3).

31. The letter in question, no doubt, provides that Counter-

Insurgency Allowance shall be admissible to troops deployed on Counter-

Insurgency Operations in units actually involved in the said operations and

this point has been vehemently stressed upon by the learned counsel for

Respondents 1 & 2. However, a bare reading of Paragraph 1 (iv) clearly

provides that it is the military authorities who shall identify and notify as to

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which units are involved in Counter-Insurgency Operations and it is not in

dispute that the military authorities had been notifying and declaring that

the units of the Applicants were in fact deployed in Counter-Insurgency

Operational Areas. When the expertise and responsibility of identifying the

tasks in which the units of the Applicants are deployed has been casted

upon military authorities, then it would clearly not be in order to let the

auditing staff comment as to whether the Army personnel posted in BRO

are deployed in Counter-Insurgency Operational Areas or not. Moreover,

the matter does not end here. Even paragraph 1 of the letter loses its

relevance and significance in light of Paragraphs 3.1 and 3.2 of the same

letter which are reproduced as under :

3.1 Two operations, namely Operation Rakshak and

Operation Rhino are currently on. Operation Rakshak was

sanctioned vide this Ministrys letter No 8/1/90/D

(Pay/Services) dated 07-05-1990 and Operation Rhino

vide this Ministrys letter No 8(3)/91-D (Pay/Services)

dated 10-01-1992 and extended vide letter No 8(3)/91-D

(Pay/Services) dated 15-01-1993.

3.2 Troops deployed on these two operations will get

Special Compensatory (Counter-Insurgency) Allowance

at the rates mentioned in Para 2 above but with effect

from 01stApril 1993 (emphasis supplied)

32. It is not denied by the Respondents that the Applicants or

identically placed regular Army combatants posted to BRO units are posted

in areas notified as Operation Rakshak and hence it is not wrong to

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assume that while relying on hyper-technicalities of Paragraph 1, the

Respondents have failed to carry into effect the positive direction contained

in Paragraphs 3.1 and 3.2 which imposes a definite duty on the

Respondents to pay the said allowance to the Applicants. In fact, when the

deployment in Operation Rakshak is not denied by the Respondents and

rather affirmed by the notifications issued from time to time, then it was not

correct to rely on the observations of auditing staff while disregarding a

clear-cut provision in the government letter itself and also the notifications

and declarations by the military authorities who actually had the

competence of determining and declaring as to which units were to receive

the said allowance keeping in view their deployment and risk faced. On this

aspect, the counsel for the Applicants points out two decisions of the

Honble Supreme Court, that is, Commissioner of Police Vs Gordhandas

Bhanji AIR 1952 Supreme Court 16(1

) and State of Punjab Vs Hari

Kishan Sharma AIR 1966 Supreme Court 1081 to contend that once a

particular jurisdiction is conferred on a particular authority, then it cannot be

taken away by some other authority even if it happens to be higher in

hierarchy. We fully agree with the contention raised since once the

expertise or duty to identify troops deployed in Counter-Insurgency Areas

has been imposed on military authorities, then it cannot be usurped by

auditing staff by commenting on the same on a single piece of paper by

ignoring the practical realities being faced by such troops, more so when it

is not in dispute that they are also deployed on Operation Rakshak.

33. The popular meaning of the Counter-Insurgency Allowance and

also other allowances further becomes clear from a reading of Paragraph 3

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of an amended letter (Annexure A-3) issued by the Respondents in the

year 2000 which reads as follows :

3. The matter regarding concurrent applicability of

different risk-related allowances has also been under

consideration by the government. It is clarified that only

one of the risk-related allowances at the highest

rates should be admissible in a designated area

(emphasis supplied)

34. The above clearly goes to show that the allowances are risk-

related and that they are admissible in designated areas. If that be so,

then it fails logic as to how could the respondents have denied the same to

the Applicants when it is not in dispute that they are operating in the same

areas as others and are facing the same risks. The Respondents in their

entire written statement have nowhere denied that the Applicants are facing

the same risk as other military personnel or that other personnel even

posted in the MES or other establishments with much lesser risk, are being

paid the allowance when merely posted in Counter-Insurgency Areas while

the Applicants who are actually operating in the open in such areas are

being denied the same benefits. When a particular area has been declared

as Counter-Insurgency Area, then all Army personnel posted in the said

area need to be treated at par and as facing the same risk since the said

allowance by the Respondents own reasoning in Para 3 of Annexure A-3 is

a risk-related allowance for a designated area. Employing a largely

technical or surgical approach while losing out on the proper spirit of the

policy or the ground realities is not only discriminatory but highly illogical

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and arbitrary and not in consonance with the objectives sought to be

achieved by the policy.

35. The stand taken by the Respondents in Para 3 of the written

statement by innocuously commenting that the Applicants are employed in

construction and maintenance of roads is highly bewildering. It is common

knowledge that BRO personnel are fully employed in operationalising those

very roads and communication links on which Counter-Insurgency

Operations are conducted. It can even be said that such operations are not

only difficult but virtually impossible without the BRO. It has also been

averred in the OA and not denied in the written statement that Army

personnel posted in BRO face a far higher threat than their counterparts

posted in other military establishments since they (BRO) operate in the

open with basic weapons and without the cover of sophisticated weaponry.

It is also not denied that they work shoulder to shoulder with others and

have suffered major casualties from the guns of the militants while

operating in Counter-Insurgency Areas in the North and the North-East.

Hence when there is no discrimination in succumbing to the bullets of

militants, it should have been out of question for the Respondents to deny

such personnel the benefits of such deployment. Duties and privileges

must go hand in hand. The manner in which the allowances have been

discontinued through a DO letter and recovery ordered, allegedly even from

retired personnel, without any show-cause notice leaves no doubt that the

Respondents have acted in a hurried, unfair and illegal manner. The stand

of the Respondents also loses credibility in light of the fact that in the past

the same Respondents vide Annexure A-5 had themselves agreed that the

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duty of Army officers in BRO is military in nature and involves carrying out

of a vital role. Furthermore a perusal of Annexure A-7 shows that

controversies about admissibility of field concessions had emerged in the

past too when ultimately in the year 1997 it had finally been resolved that

besides by Army Formations, concessions would be admissible on

notifications by the DG BRO also. This Annexure also proves the

admissibility of Field and Counter-Insurgency Concessions to Army

personnel posted to BRO which is now being denied by the Respondents.

36. Besides the fact that Army personnel posted in relatively softer

and less risky appointments in the Military Engineering Services who are

involved in construction inside cantonments are being paid the allowance,

the Applicants in the OA have also pointed out that Territorial Army (non-

regular) personnel posted in the BRO units of the Applicants to augment

the BRO manpower are also being paid the said allowance. Details on the

subject provided in Para 4(vii) of the OA remain undenied by the

Respondents. Moreover we have been informed that casualties suffered in

militant attacks have clearly been defined as Battle Casualties in Operation

Rakshak. We have also been shown one such order in respect of the

unfortunate death of IC-52477K Late Lt Col Ajay Varma who was posted in

BRO and who was later awarded posthumously for gallantry. The

unfortunate demise has clearly been shown as a result of militant attack in

Operation Rakshak and hence the natural question that arises is that if for

the purposes of facing casualties in militant attacks the personnel are a part

of Operation Rakshak then why are they not so being considered for

receiving the corresponding benefits ?. It is for this very risk that the

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Counter-Insurgency Allowance has been introduced. The counsel for the

Applicants also points out that Army personnel posted in BRO in J&K and

Counter-Insurgency Areas of the North-East have received many awards

for gallantry and medals for serving in such areas but this need not detain

us much since the Respondents do not deny this fact in their written

statement. It is also pointed out by the counsel of the Applicants that the

Annual Confidential Reports (ACRs) of Army personnel posted in BRO

units located in Srinagar are being enfaced in red with the words

Operation Rakshak / Intense Counter Insurgency Operations Area (J&K)

Valley Sector.

37. To the credit of the Respondents, they have placed on record

an Action Taken Note as Annexure R-2/4 through which they had replied to

the government on the subject of the audit objections. A perusal of the note

however sadly shows that their internal stand on file has been at variance

with the stand taken in their written statement before this Tribunal. In the

said Action Taken Note, the Respondents have put on record their

disagreements to the audit observations which is diametrically opposed to

their stand in the written statement, the same is reproduced as under :

(iv) (b). The law and order situation / security environment

on the border areas of the country especially in North and

North Eastern Regions has been deteriorating since more

than a decade due to anti national activities by the terrorist

groups. To counteract the insurgency, currently two

Counter-Insurgency Operations areas (CI Ops) have been

declared by the govt, i.e., OP Rakshak mainly in Jammu &

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Kashmir and OP Rhino in North East. Considering the extra

risk to life and numerous other difficulties to Armed Forces

personnel in the hazardous border areas, the Govt of India

sanctioned Special Compensatory (Counter-Insurgency)

allowance (SCCIA) to troops deployed in counter

insurgency operations. Accordingly all army service officers

/ personnel serving with BRO took SCCIA based on the

quarterly corps notification issued by the Corps HQrs

indicating the station of area of deployment. Army officers /

personnel are posted to Border Roads Units for Border

Roads specific jobs and also provide security to the

establishment, senior officials / personnel of BRO, work

sites and equipment costing hundred crores of rupees.

Each Border Roads unit has an operational role

integrated with formation headquarters and are called

upon from time to time to perform duties assigned by

the formation HQ. Most of the roads where troops

move for conduct of CI Operations are constructed and

maintained by Border Road Units. Army personnel

serving the Border Road are also trained in all aspects

of CI Operations for protection of roads that are

constructed and maintained by the Border Road units.

They are working alongside the Army so as to keep the

line of communication open for the active formations.

Army personnel posted in the Border Roads units are

more vulnerable to insurgent threat vis--vis Army

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personnel posted in the formation since the units in

which they serve are not authorized arms and

ammunition. All troops in Army of the formations are

not actually involved in active combat, some are

involved in providing necessary logistic and

communication support to the troops involved in

combat zone. Similarly Army officers and personnel

posted to Border Roads Organisation units are

providing necessary security to property and

personnel of BRO units and employed in hostile

environment. All Army personnel posted to formation

headquarters and units, MES and all other units

besides border roads units located in areas declared

by respective Corps HQrs as deployed in Counter-

Insurgency Areas in peace / modified field / Field Areas

are entitled to grant of SCCIA. (Emphasis supplied)

38. In this context, the counsel for the Petitioner points out to Para

20 of Union of India Vs Dineshan KK 2008 (2) SCT 63 (SC) wherein the

Honble Supreme Court had observed that the Government cannot take a

stand contrary to the one admitted by it in writing. It is further pointed out

that when the Respondents have internally come to the conclusion that the

Applicants face similar threat as others and in fact are more vulnerable

while deployed in Counter-Insurgency Areas, then they may not be allowed

to take a contrary stand while resisting the instant OA. It is also observed

that while in the impugned order (Annexure A-11), the Respondents have

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made a statement that the BRO has not been able to certify operational

deployment of its personnel and hence recovery should be made, on the

other hand, the paragraph extracted above shows that the Respondents

have themselves certified the operational role being performed by Army

personnel posted in BRO and the risks being faced by them. It is also

admitted in the action taken report and in the written statement that the

allowances were being paid after due notification and certification by

military authorities of the presence of the concerned BRO units in areas of

Counter Insurgency Operations and hence the statement made in the

impugned order about lack of requisite certification is not only legally, but

also factually incorrect. In the facts and circumstances, it was expected of

the Respondents to defend the grant of the allowance to their personnel

rather than to tow the line of the auditing staff which was both against the

regulations and the practical position on ground. The final decision was to

be taken by the Respondents but rather than defending their own

combatants performing exacting duties in risky Counter-Insurgency

environment, they chose not to hold their hands resulting in an absurd

situation wherein auditors came to a conclusion by which in a few lines they

chose to incorrectly define the role of an entire organisation which since

times immemorial has been performing tasks for the nation which are

operational in every sense of the word and which has not been denied at all

in the written statement. It was the Respondents own policy and the

applicability of the policy to the Applicants had also been decided since the

day of the inception of the policy and the Respondents did not require a

third party interpretation by auditors to analyze the risks faced by their

personnel in Counter-Insurgency environment. This action was also a

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great disservice to the many martyrs of the BRO who had lost their lives in

the line of duty in militancy affected areas.

39. The counsel for the Respondents, on the other hand, has

referred to UOI Vs Manu Dev Arya (2004) 5 SCC 232 in which it was held

by the Honble Supreme Court that a policy decision of the State cannot be

questioned unless it affects somebodys legal right.

40. The counsel for the Applicants has however responded that the

Applicants are not challenging any policy of the Respondents and are also

not seeking any fresh promulgation of policy. The claim of the Applicants is

that they are fully covered by the existing policy the benefits of which have

been denied to them by the Respondents by wrongly relying on audit

observations.

41. The counsel for the Applicants has further referred to decisions

of the Honble Supreme Court and High Courts in various cases.

42. It is pointed out that the Honble Supreme Court in UOI Vs

General Secretary, Karnataka Central Excise and Customs Executive

Officers Association (Civil Appeal No 7320 of 1995 decided on 02-12-

1998) had held that officers of the excise department when performing

rummaging duties on ships on high seas would be entitled to the same

allowance as was being given to custom officers.

43. In UOI Vs B Prasad, BSO and others, 1997(2) SCT 691 (SC),

it was held by the Honble Supreme Court that defence civilians deployed

at borders for operational requirements were also to be granted double

payment of Special Allowances since they also faced imminent hostilities of

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supporting the army personnel. It was held in the same case that single

allowances would be paid to only those people who were in the barracks.

Even recovery of allowances was disallowed by the Honble Supreme

Court. The key to the decision was hence the threat of hostilities which

equally applies to the present case.

44. It was further held by the Honble Supreme Court in State of

Karnataka Vs Karnataka State Patels Sangha and another 2007 (2)

SCT 191 SC) that when two officers are discharging similar duties and

when the Government has treated two posts as equal, then there can be no

discrimination in pay and allowances. Similar view was taken by the

Honble Supreme Court in Bhagwan Dass and others Vs State of

Haryana AIR 1987 Supreme Court 2049 and R D Gupta Vs Lt Governor

Delhi AIR 1987 Supreme Court 2086 and Jaipal and Others Vs State of

Haryana AIR 1988 Supreme Court 1504.

45. In State of Kerala Vs B Renjith Kumar 2008(4) SCT 463

(SC), the Honble Supreme Court had held that a parity recognized for past

many years could not be washed away easily and that the concept of

equal pay for equal work had assumed the status of a fundamental right. It

was also similarly held by the Honble Supreme Court in State of Andhra

Vs G Ramakishan 2001(1) SCT 347 (SC) that departure from a long-

existing parity must be based on some justified rational basis.

46. In Paragraphs 20 and 21 of Mohd Kadir Vs DG Police, Assam

2009 (4) SCT 633 (SC), the Honble Supreme Court while dealing with

parity of Assam Border Organisation with other regular forces, observed

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that benefits should be granted to boost the morale and efficiency of such

personnel.

47. In Nehru Yuva Kendra Sangathan Vs Rajesh Mohan Shukla

AIR 2007 Supreme Court 2509, the Honble Supreme Court held that

allowances should be equally paid even when the source of recruitment is

different while in the instant case the allowances are being denied to the

Applicants even when they are from the same service and cadre as other

Army officers posted in adjoining non-BRO units.

48. The Honble Himachal Pradesh High Court in Nirja Batta Vs

UOI 2004(3) CLJ (HP) 90 had held that the Petitioner in that case could not

be denied the benefit of Special Compensatory Allowance (Remote

Locality) when others in the area were being paid the same.

49. The counsel for the Applicant also points out various judgments

such as Ex-Major NC Singhal Vs Director General Armed Forces

Medical Services AIR 1972 Supreme Court 628 on the issue that service

conditions cannot be altered retrospectively and that allowances cannot be

recovered without a show-cause notice but we need not delve into these

since these principles are well established positions in law.

50. As a result of the foregoing discussion, we therefore conclude

and hold the following :

(a) The military pay and allowances and also risk related

concessions of the Applicants, who are combatants of the

Regular Indian Army, are protected when they are posted by

the Respondents to the Border Roads Organisation in terms of

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Regulation 18. The ground that civilian staff is not being paid

similar allowances cannot be held to be a valid ground to refuse

military allowances to Regular Army personnel posted to BRO

in light of the ibid Regulation as already held by the Principal

Bench in TA No 87 of 2009 allowed on 25-02-2009 and already

implemented by the Respondents.

(b) The Applicants face the same (if not more) threat and

risk to their lives vis--vis other Army personnel in areas where

Operation Rakshak is notified. This becomes even more

prominent in light of the fact that deaths in militant attacks of

Army personnel posted to BRO have clearly been notified as

Battle Casualties and admitted to have occurred in Counter-

Insurgency Operations in Operation Rakshak.

(c) We agree with the contention of the Applicants that if the

bullets of militants do not discriminate between Army personnel

posted in BRO vis--vis Army personnel posted in other

establishments, then it is not correct on the part of the

Respondents to indulge in discrimination as regards the

admissible benefits. The fact that Army personnel posted to

BRO have been killed on duty due to militant attacks and have

also been awarded posthumous gallantry awards goes to show

that they are very much a part of operations in the area and

which is a fact not denied by the Respondents.

(d) The Applicants are entitled to Counter-Insurgency

Allowances at par with other Army personnel while posted in

designated areas where Counter-Insurgency Allowances are

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being paid to the latter. The same is strengthened by the fact

that the Respondents have not denied the payment of the said

allowances to Army personnel posted in Military Engineering

Services (MES) having no direct operational role and also to

officers of the Judge Advocate Generals department and the

Army Postal Service.

(e) The expertise and responsibility of identifying risk for

grant of risk related allowances in designated areas is of

Respondent No 1 in conjunction with military authorities and

such identification and expertise cannot be usurped by auditing

staff. The notifications issued by the military formations, as was

being done in the past, or by the Directorate General of Border

Roads as per Annexure A-7 identifying BRO units situated in

areas designated as Counter-Insurgency Areas for other Army

units shall be sufficient for the purpose. Even in the future, the

military authorities or Directorate General BRO shall evaluate

the risk faced by personnel in designated areas by carrying out

the exercise in an objective manner without being swayed by

extraneous observations. It was incorrect for the Respondents to

have directed the military authorities for discontinuance of

notifications to this effect. Regular Army personnel posted to

BRO shall continue to remain entitled to Counter-Insurgency

Allowance till the time Regular Army personnel of other military

establishments remain entitled to it in the same designated

areas. This assumes even higher significance since it is

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admitted by the Respondents that Army personnel posted in

BRO are even more vulnerable to insurgent threats than those

posted to other formations.

(f) The Respondents may not indulge in a hyper-technical or

surgical approach in identification of troops who are involved in

Counter-Insurgency Operations since such an approach can

lead to absurd and demoralizing consequences. The stand of

the Respondents has been contrary to their own internal position

wherein they had fully agreed on the operational role of the

Applicants and the fact that they are even more vulnerable than

Army personnel posted to non-BRO establishments. It is

observed that the Counter-Insurgency Allowances should be

made admissible in a general area keeping in view the risk

faced and not on technical aspects that abide only to the letter

and not to the spirit of such risk-related allowances.

51. Keeping in view the facts and circumstances of the case, the

application is therefore allowed. Impugned DO letter (Annexure A-11) is

quashed and the Respondents are directed to release the Special

Compensatory (Counter-Insurgency) Allowance to the Applicants till the

time they remain posted in designated areas where the said risk-related

allowance is being released to personnel posted in other Army units,

establishments and formations, with 10% interest per annum. The

Respondents are also directed to refund the recovery made, if any, of the

said allowance to the Applicants at the same rate of interest.

52. Necessary calculations may be undertaken and effectuated

within a period of four months from the date of receipt of a certified copy of

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this order, failing which interest @12% per annum shall be paid until the

final payment is made.

53. Before we part, we expect the Respondents to base their

actions on the touch-stone of judiciousness and fairness while determining

such issues which can have far-reaching consequences on the morale of

the troops operating in difficult conditions. The approach should not be

highly legalistic or ultra-technical but in tune with the practical realities and

in consonance with the actual spirit behind the policy, the primary aim of

which was to boost the morale and motivation level of the men and women

in uniform who ensure our internal and external security in trying and

difficult conditions day in and night out.

(Justice N. P. Gupta)

[ Lt Gen H S Panag (Retd)]

19.04.2011

sns

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