UNION OF INDIA THROUGH CABINET SECRETARY & ORS.versusCAPTAIN GURDEV SINGH & ANR.

                         [2019] 3 S.C.R. 913                              913


UNION OF INDIA THROUGH CABINET SECRETARY & ORS.                           A
                                  v.
               CAPTAIN GURDEV SINGH & ANR.
                   (Civil Appeal No. 2763 of 2009)
                         FEBRUARY 11, 2019                                B
                        [N.V. RAMANA AND
             MOHAN M. SHANTANAGOUDAR, JJ.]
       Service Law – Payment of compensatory allowances – Validity
of the clarification made by impugned judgment dated 07.05.2007
of the original judgment of the High Court dated 22.11.2005 –             C
IMTRAT (Indian Military Training Team) personnel filed writ petitions
seeking parity between Bhutan Compensatory Allowance (BCA)
payable to IMTRAT personnel and Foreign Allowance (FA) payable
to their ‘civilian counterparts’ and implementation of the cabinet
decision dated 30.11.1999 regarding removal of depression and             D
imposition of charges for free facilities, which had not been
implemented – During the pendency of writ petitions, the cabinet
decision dated 30.11.1999 was given effect through order of the
Ministry of Defence dated 20.09.2005 and the said order was
prospective in operation – Writ petitions were allowed by the High
Court by order dated 22.11.2005, setting aside the Ministry of            E
Defence order dated 20.09.2005 to the extent it gave relief
prospectively – High Court gave effect to the Cabinet decision dated
30.11.1999 from 01.12.1999 – Respondents filed an application
for clarification of the original order dated 22.11.2005 on basis
that the Union of India was incorrectly interpreting the term ‘Civilian   F
Counterparts’ – Impugned Judgment dated 07.5.2007 by the High
Court affirmed parity between the BCA and the FA – Held: In the
absence of any argument before the High Court during the hearing
of the writ petitions on the meaning of the term “civilian
counterparts”, and in the absence of any specific finding recorded
by the High Court in the original order to the effect that the term       G
“civilian counterparts” refers to MEA personnel (who receive FA),
the High Court in the impugned judgment should have restricted
itself to the directions actually issued in the original order, which
were limited to the relief of implementing the Cabinet decision dated
30.11.1999 from 01.12.1999 – By granting the relief of parity, the
                                                                          H
                                  913
914                SUPREME COURT REPORTS                   [2019] 3 S.C.R.


A     Court went beyond the relief explicitly granted in the original order
      – It was not open to the Court to interpret the relief granted in such
      a manner so as to expand its scope to include the second relief
      prayed for but not granted – The Court’s power in a clarificatory
      proceeding is different from that in revision or appeal – Indian
      Foreign Service (Pay, Leave, Compensatory Allowance and other
B
      Conditions of Service) Rules, 1981.
            Partly allowing the appeal, the Court
            HELD: 1. After duly considering the material placed on
      record, the High Court while passing the impugned judgment
C     dated 07.05.2007 was not justified in concluding that a legitimate
      case for parity between the BCA payable to IMTRAT personnel
      and the FA payable to MEA personnel can be made out. Of course,
      it cannot be disputed that the purpose of both allowances is
      fundamentally the same, i.e. to meet the higher cost of living
      abroad, but at the same time the requirements that have to be
D     met out of the two are somewhat different. IMTRAT personnel
      benefit to a larger extent compared to MEA personnel in terms
      of getting food and other purchases at a cheaper cost due to the
      provision of facilities such as mess, canteen, etc. Moreover, a
      comparison between the different allowances to which these two
E     classes of personnel are entitled shows that IMTRAT personnel
      are entitled to an additional allowance called “Difficult Area
      Allowance”, and also receive Military Service Pay, in
      addition to Basic Pay which is paid to both MEA and IMTRAT
      personnel according to the respective grades of the personnel.
      [Para 25][928-G, H; 929-A-C]
F
            2. The terms of appointment and conditions of service of
      the IMTRAT and MEA personnel are also completely different.
      This aspect in itself is sufficient to negate the case for parity pled
      by the respondents. The institution of the IMTRAT team for
      Bhutan can be traced to the sanction letter of the Government of
G     India dated 27.8.1962, by which a military team (the IMTRAT)
      was loaned out for training purposes to the Government of Bhutan.
      As indicated by the letter dated 28.01.1985 from the Army
      Headquarters to the IMTRAT containing administrative
      instructions for the team, the IMTRAT is fully under the control
H     of the Government of India and is an integral part of the Indian
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 915


Armed Forces, functioning under the direct command of the Army         A
Headquarters, Government of India. In contrast, MEA personnel
are governed by the Indian Foreign Service (Pay, Leave,
Compensatory Allowance and other Conditions of Service) Rules,
1981. [Para 24][929-C-E]
      3. The clarification made through the impugned judgment          B
is beyond the scope of the original order dated 22.11.2005, but
also that there were no valid grounds for the High Court while
passing the impugned judgment to grant parity between the BCA
payable to IMTRAT personnel and the FA payable to MEA
personnel. The directions made in the original order are only to       C
the effect that the removal of depression on the BCA payable to
IMTRAT personnel, and its replacement with nominal charges
for the erstwhile free facilities, be made effective from
01.12.1999. It is noted that the same have been fully complied
with by the appellants. [Para 31][931-A-C]
                                                                       D
      Confederation of Ex-Servicemen Associations v. Union
      of India (2006) 8 SCC 399 : [2006] 4 Suppl. SCR 872
      ; Union of India v. K.P. Singh (2017) 3 SCC 289 : [2017]
      1 SCR 492 – referred to.
                      Case Law Reference                               E
[2006] 4 Suppl. SCR 872        referred to               Para 27
[2017] 1 SCR 492               referred to               Para 27
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2763
of 2009.                                                               F
      From the Judgment and Order dated 07.05.2007 of the High Court
of Delhi at New Delhi in C.M. No. 12743 of 2006 in W.P. (C)
No. 17184-17185 of 2004.
     Vikramjit Banerjee, ASG, S. S. Ray, Ms. Rekha Pandey,
Ms. Sushma Suri, B. V. Balram Das, Advs. for the Appellants.           G

      V. Giri, Sr. Adv., Ashish Tiwari, Saurabh Aggarwal,
Ms. Svadha Shankar, Ms. Ruby Singh Ahuja, Mrs. Manik Karanjawala,
Advs. for the Respondents.

                                                                       H
916                 SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A           The Judgment of the Court was delivered by
            MOHAN M. SHANTANAGOUDAR, J.
            1. This appeal arises out of the final judgment and order dated
      07.05.2007 passed by the High Court of Delhi in C.M. No. 12743/2006
      in W.P. (C) Nos. 17184-17185/2004, allowing the application filed by the
B     respondents herein for direction and clarification of the order of the
      High Court dated 22.11.2005.
             2. Vide the judgment dated 07.05.2007 (henceforth “the impugned
      judgment”), the appellants herein, i.e. the Union of India and the Ministries
      of Defence, External Affairs and Finance, were directed to award parity
C     between the Bhutan Compensatory Allowance payable to the Indian
      Military Training Team (in short, “the IMTRAT”) posted in Bhutan, and
      the Foreign Allowance payable to Indian diplomatic personnel serving in
      Bhutan under the Ministry of External Affairs, Government of India (in
      short, “the MEA”). It is relevant to mention here itself that the IMTRAT
D     consists of Service Officers and Personnel Below Officer Rank (in short,
      “PBORs”).
            3. The facts leading to the instant appeal are as follows:
                 The instant case revolves around the payment of compensatory
      allowances to three classes of personnel. The first category is that of
E     personnel belonging to the IMTRAT, which has been posted in Bhutan
      to train personnel in the Bhutanese Army. IMTRAT personnel receive a
      compensatory allowance for being posted in Bhutan, called the Bhutan
      Compensatory Allowance (in short, “the BCA”), which used to have a
      depression (i.e. deduction) upon it of 22.5% for Service Officers and
F     10% for PBORs. This was due to the provision of free mess and canteen
      facilities to the Service Officers and free ration, clothing and
      accommodation to the PBORs. The second category of personnel
      constitutes civilian personnel working in various projects in Bhutan (which
      are self-financed or aided by the Government of India) such as the Border
      Road Organisation’s Project Dantak, the Tata Hydroelectric Project,
G     the Central Water Commission, etc. The BCA is payable without any
      depression to such personnel. The third category constitutes MEA
      personnel in Bhutan, who receive a different compensatory allowance
      called the Foreign Allowance (in short, “the FA”), under the Indian Foreign
      Service (Pay, Leave, Compensatory Allowance and other Conditions of
      Service) Rules, 1981 (in short “the IFS Rules”).
H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 917
          [MOHAN M. SHANTANAGOUDAR, J.]

       4. There was a demand by IMTRAT personnel for the removal              A
of the depression being imposed upon the BCA being paid to them, which
was rejected by the Fifth Central Pay Commission. The issue was
thereafter considered by a High Level Committee, which recommended
reconsideration of the demand, which was subsequently considered by
a Group of Officers chaired by the Cabinet Secretary. The Group of
                                                                              B
Officers recommended, vide its report submitted on 05.07.1999, that
IMTRAT service personnel should be paid the BCA at the same rate as
their civilian counterparts, and the existing depression be done away
with, subject to the levy of appropriate charges on the facilities that
were hitherto free. These recommendations of the Group of Officers
were accepted vide the Cabinet decision dated 30.11.1999.                     C
       5. Writ Petition Nos. 17184-85/2004 were filed by two IMTRAT
personnel, posted in Bhutan since 2003-2004, on two counts. Firstly,
they sought parity between the BCA payable to IMTRAT personnel and
the FA payable to their ‘civilian counterparts’, who, according to them,
were the Indian civil personnel/deputationists under the Indian Embassy/      D
MEA in Bhutan (i.e., the third category of personnel mentioned supra).
This was on the ground that parity between the two allowances had
existed for 25 years (from 1973 to 1997), after which the FA for MEA
personnel had been revised regularly, but the BCA had been revised
only twice, once by 25% on 01.01.2001 and once again by 11% on
01.04.2005, and that too in an ad hoc manner, which had still failed to re-   E
establish parity between the two allowances. Secondly, they sought
implementation of the Cabinet decision dated 30.11.1999 regarding
removal of depression and imposition of charges for free facilities, which
had not yet been implemented.
      6. During the pendency of the above writ petitions, the Cabinet         F
decision dated 30.11.1999 was given effect to through an order of the
Ministry of Defence dated 20.09.2005, removing the existing depression
and directing that the payment of the BCA to IMTRAT personnel be
made at the same rates as to their civilian counterparts, subject to the
recovery of nominal charges @ 6% and 4% for Service Officers and              G
PBORs respectively for providing mess facilities, etc. The said order
was prospective in operation.
      7. The writ petitions were allowed by the High Court vide order
dated 22.11.2005 (hereinafter “the original order”), setting aside the
Ministry of Defence order dated 20.09.2005 to the extent it gave relief       H
918                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     prospectively. The High Court gave effect to the Cabinet decision dated
      30.11.1999 from 01.12.1999, after taking into account the two ad hoc
      revisions. It would not be out of place to mention here that the operative
      portions of the Cabinet decision and the Ministry of Defence order were
      identical, except for the important difference that the Cabinet decision
      dated 30.11.1999 did not specify the rates of the nominal charges to be
B
      imposed on the personnel in lieu of the depression, which only came to
      be specified by the Ministry of Defence order dated 20.09.2005. The
      direction in the writ petitions effectively amounted to giving retrospective
      operation to the Ministry of Defence order dated 20.09.2005, which is
      evident from the following observations made in the original order
C     (reproduced from the SLP paper book):
            “14. Accordingly, the writ petition is allowed and the order dated
            20th September, 2005 to the extent it grants the relief prospectively
            to the petitioners is quashed and set aside and the respondents
            are directed to implement the Cabinet decision dated 30 th
D           November, 1999 with effect from 1st December, 1999 in favour
            of the petitioner after taking into account the two ad hoc revisions
            on 1st January, 2001 and 1st April, 2005 and are further directed to
            pay all the arrears consequently payable to the petitioners on or
            before 31st January, 2006.
E           15. The learned counsel for the petitioner pressed for interest in
            view of the fact that the dues were wrongfully withheld. The
            learned counsel for the respondent sought time to obtain instructions
            from the respondent in respect of the interest sought by the
            petitioner consequent to the retrospective operation of the
            communication/letter dated 20th September, 2005 in consonance
F           with the above decision in this petition. However, we are of the
            view that it is appropriate to await the decision of the respondent
            and if the decision is taken by the Government itself to award the
            BCA as approved by the Group of Officers w.e.f. 30th November,
            1999, then interest on the said amount may not be granted by this
G           Court to the petitioner. However, in case the decision is otherwise,
            this Court will consider the prayer for grant of interest at an
            appropriate rate.”
                                                            (emphasis supplied)

H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 919
          [MOHAN M. SHANTANAGOUDAR, J.]

      8. The Union of India sought multiple opportunities to comply           A
with the order, in which interregnum, the Ministry of Defence issued a
corrigendum on 23.02.2006 to its order dated 20.09.2005, directing that
the removal of depression and recovery of charges at the specified rates
be given retrospective effect from 01.12.1999.
       9. However, in its order dated 07.03.2006, the High Court observed     B
that although one part of the directions in the original order had been
complied with, the “remaining part” of the directions was still
unimplemented, and granted further time for such compliance. After
this order, an additional affidavit was filed by the MEA, claiming that
with the issue of the corrigendum making the removal of depression
effective from 01.12.1999, the directions issued in the original order had    C
been effectively complied with. It was further stated that the direction
with respect to periodic revision of the BCA had also been taken note
of, and such revisions would be duly considered from time to time. It
was also placed on record that IMTRAT personnel were being paid the
same BCA as other Indian civilian personnel in Bhutan (i.e. the second        D
category of personnel mentioned supra).
       10. Subsequently, in light of the above affidavit, the respondents
filed an application i.e. CM No. 12743/2006 for direction and clarification
of the original order, on the basis that the Union of India was incorrectly
interpreting the term “civilian counterparts” as referring to persons on      E
deputation with the Royal Government of Bhutan, and seeking a
clarification that the original order directed the maintenance of parity
between the BCA and the FA paid to MEA personnel at the Indian
Embassy in Bhutan. On this application, the impugned judgment was
passed affirming parity between the BCA and the FA, leading to the
instant appeal by the appellants on the ground that the High Court erred      F
in granting the relief of such parity, which was not contemplated in the
directions issued in the original order, and that the BCA could not be held
to be at par with the FA.
       11. This Court is conscious of the fact that the original order was
never challenged by either the appellants or the respondents, and has         G
thus attained finality. The fundamental issue before us, therefore, is
whether the impugned judgment went beyond the scope of the original
order in directing parity between the FA and the BCA payable to IMTRAT
personnel.
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920                 SUPREME COURT REPORTS                       [2019] 3 S.C.R.


A            12. To that end, the appellants submitted that the original order did
      not direct the two allowances to be maintained at par, and while dealing
      with the issue of parity between the two allowances it only contemplated
      that periodic revisions be undertaken to the BCA just like periodic revisions
      had been undertaken for the FA. Furthermore, it was submitted that the
      direction for granting retrospective effect to the removal of the depression
B
      on the BCA, payable to IMTRAT personnel had to be considered in the
      light of the underlying recommendation of the High Level Committee
      and the Group of Officers, and the Cabinet decision dated 30.11.1999.
      These were to the effect that the BCA be paid to the IMTRAT at the
      same rate as their “civilian counterparts”, which did not make any
C     reference whatsoever to the FA paid to MEA personnel, and were only
      meant to ensure parity with civilian deputationists in Bhutan who receive
      the BCA, albeit without any depression.
             13. The respondents, on the other hand, submitted that there were
      two parts to the directions in the original order and only one of them had
D     been complied with by the appellants, i.e. removal of depression and its
      retrospective operation. The impugned judgment in no way went beyond
      the judgment being clarified, as the clarification was in consonance with
      the second part of the directions in the original order in paragraphs 12
      and 13, on the issue of parity between the FA and the BCA. This claim
      was based on the argument that the recommendation of the Group of
E     Officers and the Cabinet decision dated 30.11.1999 to the effect that the
      BCA be paid to the IMTRAT at the same rate as their “civilian
      counterparts” could only mean parity with MEA personnel. It was
      further argued that the appellants themselves had submitted before the
      High Court while the writ petitions were being heard that the grievances
F     of the respondents had been fully met post the removal of depression on
      the BCA, which indicated acceptance of the interpretation of the term
      “civilian counterparts” as MEA personnel; and that in the order of the
      High Court dated 07.03.2006 (already mentioned supra), it had been
      observed that the appellants had not complied with the “remaining part
      of the directions” given in the original order.
G
            14. To determine the validity of the clarification made vide the
      impugned judgment, it is essential to first examine the original order. The
      High Court acknowledged while passing the original order that two
      grievances had been raised by the writ petitioners (the respondents
      herein)—i.e., concerning removal of depression, and concerning parity
H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 921
          [MOHAN M. SHANTANAGOUDAR, J.]

with MEA personnel in the quantum of the respective allowances in the         A
form of the BCA and the FA. With regard to the question of depression,
the grievance was in terms of the non-implementation of the Cabinet
decision dated 30.11.1999. It was contended by the writ petitioners that
the decision needed to be enforced retrospectively from 30.11.1999, when
the Cabinet decision was made, or from 01.08.1997, the date suggested
                                                                              B
by the Group of Officers.
       15. The High Court went on to conclude that the writ petitioners
were justified in claiming retrospective benefit of the Ministry of Defence
order dated 20.09.2005, the prospective operation of which was
arbitrary insofar as it did not disclose any reason for the same, and
unreasonable insofar as it failed to address the lack of parity between       C
the BCA and FA payable to IMTRAT and MEA personnel respectively
between 1997 and 2005, as they had been at par since the institution of
the FA in 1973 until 1997, due to non-revision of the BCA when the FA
was revised. The High Court further reasoned that the writ petitioners’
stance was vindicated by the recommendation of the Group of Officers          D
and the Cabinet decision dated 30.11.1999. On this basis, the High Court
directed that the Cabinet decision dated 30.11.1999 be given effect from
01.12.1999, after taking into account the two ad hoc revisions of the
BCA undertaken previously, and to pay all consequent arrears.
       16. However, it is evident that though the above observations were     E
made by the High Court concerning parity between the two allowances,
no direction was issued to that effect. In this respect, it would be useful
to revisit the directions actually and finally issued in the original order
(reproduced from the SLP paper book):
      “14. Accordingly, the writ petition is allowed and the order dated      F
      20th September, 2005 to the extent it grants the relief prospectively
      to the petitioners is quashed and set aside and the respondents are
      directed to implement the Cabinet decision dated 30th November,
      1999 with effect from 1st December, 1999 in favour of the petitioner
      after taking into account the two ad hoc revisions on 1st January,
      2001 and 1st April, 2005 and are further directed to pay all the        G
      arrears consequently payable to the petitioners on or before 31st
      January, 2006.
      15. The learned counsel for the petitioner pressed for interest in
      view of the fact that the dues were wrongfully withheld. The
      learned counsel for the respondent sought time to obtain instructions   H
922                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A           from the respondent in respect of the interest sought by the
            petitioner consequent to the retrospective operation of the
            communication/letter dated 20th September, 2005 in consonance
            with the above decision in this petition. However, we are of the
            view that it is appropriate to await the decision of the respondent
            and if the decision is taken by the Government itself to award the
B
            BCA as approved by the Group of Officers w.e.f. 30th November,
            1999, then interest on the said amount may not be granted by this
            Court to the petitioner. However, in case the decision is otherwise,
            this Court will consider the prayer for grant of interest at an
            appropriate rate.”
C                                                           (emphasis supplied)
             17. It is clear that the operative portion of the order unambiguously
      states only that the Cabinet decision dated 30.11.1999 has to be given
      effect from 01.12.1999 (i.e. the Ministry of Defence order dated
      20.09.2005 has to be given retrospective effect from 01.12.1999). This
D     direction stands duly complied with after the issuance of the corrigendum
      dated 23.02.2006 to the Ministry of Defence order dated 20.09.2005.
      Evidently, the observations made by the High Court regarding parity
      between the BCA and the FA noted above are based on a conflation of
      two distinct grievances of the writ petitioners, i.e., firstly, removal of
E     the depression from the BCA payable to IMTRAT personnel, and
      secondly, the reinstatement of parity of the BCA with the FA. Such
      conflation, in turn, appears to be based upon the implicit assumption of
      the High Court that the term “civilian counterparts” in the underlying
      recommendations of the High Level Committee and Group of Officers,
      and the Cabinet decision dated 30.11.1999, refers to MEA officials posted
F     in Bhutan, though the term “civilian counterparts” itself has not been
      defined in any of the above recommendations/orders.
              18. The impugned judgment throws light on the lack of
      consideration of this issue by the High Court while disposing of the writ
      petitions. It is noted in the impugned judgment that the Government could
G     not at that stage (i.e. while the High Court was considering the application
      for clarification of the original order) raise the argument regarding non-
      parity between the BCA and the FA, or between IMTRAT and MEA
      personnel, after failing to raise it while the writ petitions were being
      heard. Moreover, while noting in paragraph 4 of the impugned judgment
H     that the Government had specifically submitted before the High Court
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 923
          [MOHAN M. SHANTANAGOUDAR, J.]

earlier that the grievances of the writ petitioners had been met through   A
the Ministry of Defence order dated 20.09.2005, the High Court
articulated the implicit assumption which had been made in the original
order that the civilian counterparts of the IMTRAT personnel referred
to in the report of the Group of Officers, Cabinet decision, etc. were
MEA officials. It would be useful to compare and contrast extracts from
                                                                           B
the relevant paragraphs from the two judgments, i.e. paragraphs 10-13
of the original order and paragraph 4 of the impugned judgment, at this
juncture.
      The relevant extract from paragraphs 10-13 of the original order
(reproduced from the SLP paper book) is as follows:
                                                                           C
      “10. The learned counsel for the respondent Ms. Sangeeta Tomar
      has handed over a decision of the Government dated 20th
      September, 2005 which showed the acceptance of the parity
      claimed by the petitioners to a large extent by the Government
      and records the following:-
                                                                           D
                         “1(9)/2000/D(Pay/Services)
                            Government of India
                             Ministry of Defence
                    New Delhi, the 20th September, 2005
      To,
        The Chief of Army Staff,                                           E
        The Chief of Air Staff,
        The Chief of Naval Staff.
      Subject: Removal of anomalies arising out of the implementation
      of the revised pay scales and allowances consequent to the fifth
      CPC recommendations- Bhutan Compensatory Allowance                   F
      Removal of Depression
      Sir,
      I am directed to refer to this Ministry’s letter No. A/00787/AG/
      PS-3(a)/51-S/D(Pay/Services) dated 17th January, 1974 and No.
      54452/AG/PS-3(a)/1808-S/D(Pay/Services) dated the 14 th              G
      December, 1976 on the above subject and to state that the issue
      regarding certain anomalies arising from the implementation of
      the revised pay scales and allowances consequent to the fifth
      CPC award for Defence Service Officers and Personnel Below
      Officer Rank (PBORs) has been considered by the Government
                                                                           H
924          SUPREME COURT REPORTS                        [2019] 3 S.C.R.


A     in the light of the recommendations of the Committee specially
      constituted on the above subject and it has been decided that the
      depression of 22.5% and 10% for Officers and PBORs
      respectively from the Bhutan Compensatory Allowance may be
      removed and service personnel posted at IMTRAT, Bhutan be
      paid Bhutan Compensatory Allowance at the rates applicable to
B
      their civilian counterparts subject to the condition that full and
      final charges in respect of free facilities provided to them are
      recovered.
      2. The charges in lieu of free facilities at the following rates will
      be recovered from the BCA laid down in this Ministry’s letter No.
C     4(1)/2005/D(Pay/Services) dated 7th September, 2005:-
        (i) Officers 6%
        (ii) Personnel Below Officer Rank 4%
                 X                X                  X
                                                     Yours faithfully
D
                                                   Sd/-
      Under Secretary to the Government of India”
      11. The learned counsel for the respondent Ms. Sangita Tomar
      has thus contended that since the grievance of the petitioner has
E     been met by the order dated 20th September, 2005, nothing survives
      in the present writ petition and therefore, the writ petition should
      be disposed of as having become infructuous. The learned senior
      counsel for the petitioner, Mr. Gaurab Banerji, however, drew our
      attention, what according to him, to the glaring infirmity in the
F     above order. He submitted that the decision in paragraph 4 of the
      communication/letter dated 20th September, 2005 clearly states
      that it was prospective in nature i.e. with effect from 20 th
      September, 2005. He has submitted that while the grievances raised
      in the writ petition have been met in respect of the period
      subsequent to 20th September, 2005, at least from 30th November,
G     1999 the date of the Cabinet Approval, if not from 1st August,
      1997 as recommended by the Group of Officers, the allowances
      as approved by the order dated 20th September, 2005 ought to
      have been paid at least from the 30th November, 1999 when the
      Cabinet approved the said proposal.
H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 925
          [MOHAN M. SHANTANAGOUDAR, J.]

    12. While we do appreciate that the Government has taken a fair          A
    stand in acceding to the demands raised by the petitioners who
    represent the IMTRAT nevertheless there appears to be substance
    in the grievance raised by the learned counsel for the petitioner.
    There appears to be no reason averred or discernible why the
    parity between the MEA and the BCA which was in existence
                                                                             B
    from 1973 to 1997 should not continue right upto 20th September,
    2005. The allowance having been granted for being stationed in
    high cost of living area like Bhutan, there is no reason why it is not
    being paid from 1999 to 2005. The petitioners ought not to be
    deprived of this allowance for the period when the disparity
    between the BCA and the foreign allowance existed. The stand             C
    of the petitioner has indeed been vindicated as far back as 1997
    by the recommendation of the G.O. and the approval of the Cabinet
    on 30th November, 1999. There is no rational cause justifying the
    delay in its implementation and the Government cannot make the
    petitioner the victim of its inaction and lethargy. In so far as the
                                                                             D
    amount deducted towards the free facilities provided is concerned,
    we are satisfied that no anomaly can be found in respect of the
    decision taken by the Ministry of Defence to deduct a lump sum
    of 6% and 4% from the allowance of Officers and PBORs
    respectively. Consequently, the prayer made in the writ petition
    qua the recovery of lump sum charges of 22.5% and 10% for                E
    officers and PBORs respectively no longer survives.
    13. Accordingly, we are of the view that the petitioners are entitled
    to the allowance from 30th November, 1999 when the Cabinet
    approved the proposal of the Group of Officers. The denial of the
    BCA at least from 30th November, 1999 to the petitioners is wholly       F
    arbitrary and no reason whatsoever is discernible from the order
    why it was made prospective only. The prospective operation of
    the order of 20th September, 2005 is not only arbitrary as the order
    does not disclose any reason nor is it reasonable as the parity
    between the BCA payable to the IMTRAT and the foreign
    allowances payable to the personnel of MEA was disturbed due             G
    to the non revision of BCA as and when the foreign allowances
    were revised. Since the anomaly has occurred due to the
    respondent’s inaction the petitioner cannot be made to suffer for
    the fault of the respondents. The action of the respondents in
    denying the parity retrospectively violates Article 14 for               H
926                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A           arbitrariness and unreasonableness, and such action is also violative
            of Article 14 and 16 of the Constitution in so far as foreign
            allowances to MEA personnel have undergone periodic revisions
            without giving such benefits to the petitioners notwithstanding the
            erstwhile parity in force from 1973 to 1997.”
B                                                           (emphasis supplied)
      The relevant extract from paragraph 4 of the impugned judgment
      (reproduced from the SLP paper book) is as follows:
              “4. The Government itself reiterated as recorded in paragraph
            10 of the Judgment that the parity claimed by the Petitioner qua
C           the civilian counter parts in Bhutan, which is naturally the officials
            of MEA was redressed by the decision of the Ministry of Defence
            dated 20th September, 2005 …”
                                                            (emphasis supplied)
              19. It is evident from the original order that no reference was
D     made by the Government to equivalence between the MEA and IMTRAT
      personnel, though they made an implied reference to equivalence between
      the IMTRAT and their civilian counterparts. Despite the same, the High
      Court came to the erroneous conclusion that the Government also impliedly
      conceded that there should be equivalence between IMTRAT and MEA
E     personnel. All through, it was the specific contention of the appellants
      that the BCA payable to IMTRAT personnel should be on par with the
      BCA of their civilian counterparts. As mentioned supra, the Government
      always maintained that “civilian counterparts” means the civilians
      working on projects, etc. but not the diplomatic personnel who come
      under the MEA. However, we hasten to add here itself that the
F     Government’s conduct in the form of certain submissions before the
      High Court may have generated confusion in the mind of the High Court
      while arriving at the conclusion that parity should be maintained between
      the MEA and the IMTRAT. However, the Court should not have confused
      itself based on such conduct.
G           20. The High Court had thus reached the conclusion in the original
      order that the only point of contention between the parties was with
      respect to the retrospectivity of the Ministry of Defence order dated
      20.09.2005, and on this basis the Court further formed the opinion that
      giving effect to the Cabinet decision dated 30.11.1999 from 01.12.1999
      (which essentially amounted to giving retrospective effect to the Ministry
H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 927
          [MOHAN M. SHANTANAGOUDAR, J.]

of Defence order dated 20.09.2005) would lead to reinstatement of parity       A
between the FA and the BCA. In the impugned judgment too, the Court
made the same conflation of the issue of retrospective application of
removal of the depression with the issue of parity between the BCA and
the FA, based on the above interpretation of the term “civilian
counterparts” in the Group of Officers report, the Cabinet decision,
                                                                               B
etc.
        21. In the absence of any argument before the High Court during
the hearing of the writ petitions on the meaning of the term “civilian
counterparts”, and in the absence of any specific finding recorded by
the High Court in the original order to the effect that the term “civilian
counterparts” refers to MEA personnel, the High Court in the impugned          C
judgment should have restricted itself to the directions actually issued in
the original order, which were limited to the relief of implementing the
Cabinet decision dated 30.11.1999 from 01.12.1999. By granting the
relief of parity, the Court went beyond the relief explicitly granted in the
original order. It was not open to the Court to interpret the relief granted   D
in such a manner so as to expand its scope to include the second relief
prayed for but not granted. It must be kept in mind that the Court’s
power in a clarificatory proceeding is different from that in revision or
appeal.
       22. Therefore, in our considered opinion, the argument of the           E
respondents, which effectively is that though the substantive relief of
parity was not specified in the directions issued by the High Court in the
original order, the surrounding discussion reveals the true intent of the
High Court and the same was validly accounted for in the impugned
judgment, cannot be accepted, inasmuch as the High Court has erred in
going beyond the explicit directions issued in the original order.             F

      23. The learned counsel on both sides, incidentally, also argued on
the merits of the matter on the issue of parity/equivalence between the
BCA payable to the IMTRAT and the FA payable to the MEA personnel.
The case of the appellants, in this regard, fundamentally is that the FA
and BCA are incomparable allowances paid to persons whose scope                G
and nature of duties are completely different and whose service conditions
are governed by different sets of rules/terms and conditions. Other notable
arguments put forth by the appellants are that parity between the two
allowances until 1997 was a mere coincidence arising out of similar
methods of calculation and could not be demanded by way of legitimate          H
928                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A     expectation by the IMTRAT personnel since the Government never made
      any promise to that effect; that the parity was discontinued once the FA
      was linked to the United Nations Retail Price Index (in short “the
      UNRPI”); that granting the relief of parity would lead to demands for
      parity between the FA and the compensatory allowances paid to other
      deputationists/defence personnel in various countries and may have grave
B
      financial implications, and may even have security implications due to
      the possible reduction of military personnel in Bhutan; and that the
      difference between civilian and military personnel is anyway a valid
      ground for classification.
             24. On the other hand, the case of the respondents in this regard
C     primarily is that IMTRAT personnel cannot be equated with civilian
      personnel on deputation, who according to them are personnel under the
      control of the Royal Government of Bhutan in various projects aided by
      the Government of India, or those self-financed by the Bhutanese
      Government, whereas both the MEA and IMTRAT personnel work under
D     the direct control of the Government of India, and therefore cannot be
      held at par with deputationists and are inter-se comparable. Other
      important arguments submitted by the respondents, in brief, are that the
      two allowances are of the same nature, i.e. their purpose is to offset the
      higher cost of living in a foreign country; that the BCA should be paid to
      IMTRAT personnel at an equivalent, if not greater, rate compared to the
E     FA since they are working in a difficult terrain and in the deeply hostile
      atmosphere bordering Bhutan and China, with an exorbitant cost of living;
      that parity between IMTRAT and MEA personnel will not create grounds
      for parity between deputationists and the MEA, since the IMTRAT and
      deputationists constitute two separate classes; that there is parity between
F     the compensatory allowances paid to IMTRAT-like teams and MEA
      personnel in other countries; that there was parity between the two
      allowances for 25 years which was arbitrarily discontinued; that the
      linkage of the FA with the UNRPI is not a valid ground for disparity
      since by the admission of the Government even the BCA payable to
      IMTRAT personnel was supposed to be linked to UN indices after 2002.
G
             25. After duly considering the material placed on record before
      us, we are of the opinion that the High Court while passing the impugned
      judgment was not justified in concluding that a legitimate case for parity
      between the BCA payable to IMTRAT personnel and the FA payable to
      MEA personnel can be made out. Of course, it cannot be disputed that
H
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 929
          [MOHAN M. SHANTANAGOUDAR, J.]

the purpose of both allowances is fundamentally the same, i.e. to meet         A
the higher cost of living abroad, but at the same time the requirements
that have to be met out of the two are somewhat different. IMTRAT
personnel benefit to a larger extent compared to MEA personnel in terms
of getting food and other purchases at a cheaper cost due to the provision
of facilities such as mess, canteen, etc. Moreover, a comparison between
                                                                               B
the different allowances to which these two classes of personnel are
entitled shows that IMTRAT personnel are entitled to an additional
allowance called “Difficult Area Allowance”, and also receive Military
Service Pay, in addition to Basic Pay which is paid to both MEA and
IMTRAT personnel according to the respective grades of the personnel.
       26. Moreover, it has not been shown by the respondents that the         C
nature of the work done by the IMTRAT and MEA personnel is one and
the same, or even comparable. The terms of appointment and conditions
of service of the IMTRAT and MEA personnel are also completely
different. This aspect in itself is sufficient to negate the case for parity
pled by the respondents. The institution of the IMTRAT team for Bhutan         D
can be traced to the sanction letter of the Government of India dated
27.8.1962, by which a military team (the IMTRAT) was loaned out for
training purposes to the Government of Bhutan. As indicated by the
letter dated 28.01.1985 from the Army Headquarters to the IMTRAT
containing administrative instructions for the team, the IMTRAT is fully
under the control of the Government of India and is an integral part of        E
the Indian Armed Forces, functioning under the direct command of the
Army Headquarters, Government of India. In contrast, MEA personnel
are governed by the IFS Rules. In Rule 2, the said rules are stated to be
applicable to:
      “(i) all persons who have been, or may hereafter be, appointed to        F
      the Service; and (ii) any other officer of an All India Service or
      Central Civil Service, subject to the option, if any, exercised by
      such officer under the provisions of the Indian Foreign Service
      Rules.”
It is relevant to note that Rule 7 of the same refers to the FA, stating       G
that:
      “A member of the Service serving outside India may be granted a
      foreign allowance at such rates and subject to such conditions as
      may be prescribed by the Government from time to time.”
                                                                               H
930                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


A           27. At this juncture, it would be apt to observe that this Court has
      on several occasions affirmed that the difference between civilian and
      defence personnel is a valid classification. (For instance, see :
      Confederation of Ex-Servicemen Associations v. Union of India,
      (2006) 8 SCC 399; Union of India v. K.P. Singh, (2017) 3 SCC 289).
B            28. Moreover, though it may be true that IMTRAT-like teams in
      other countries like Zambia, Lesotho and Botswana receive compensatory
      allowances at par with the FA paid to the Indian diplomats in those
      countries, it cannot be forgotten that IMTRAT-like teams working in
      certain other countries (except the aforementioned) have been stated to
      be receiving lesser compensatory allowances than the FA paid to MEA
C     personnel posted in those countries. It is for the State to take a pragmatic
      view in the matter of fixing compensatory allowances on a country-to-
      country basis, depending on the facts and circumstances of each case,
      and Courts in such matters generally may not interfere, particularly when
      the decision to be taken by the State in such matters is akin to a policy
D     decision.
            29. Additionally, it is an undisputed fact that parity had existed
      between the two allowances for 25 years, but that does not mean that
      such action of the Government can be taken to mean that the Government
      should continue such parity in the future also. As mentioned supra, it is
E     open for the State to modulate the allowances depending on the attending
      circumstances.
             30. However, we accept the submission of the respondents that
      IMTRAT personnel cannot be termed as deputationists. It is evident
      from the letter dated 26.11.2008 from the Army Headquarters that
F     IMTRAT personnel are not deputationists. Be that as it may, this in itself
      is not a sufficient ground to grant parity between IMTRAT and MEA
      personnel. Even a perusal of the recommendations of the 5th Central
      Pay Commission, the High Level Committee and the Group of Officers,
      as well as the Cabinet decision dated 30.11.1999, do not suggest in any
      manner that the civilian counterparts of the IMTRAT personnel are MEA
G     personnel. The issue before them being the arbitrary depression imposed
      upon the BCA payable to IMTRAT personnel, the reference to “civilian
      counterparts” would naturally mean non-military personnel who are
      receiving the BCA without any depression. It is relevant to note here
      that the 6th and 7 th Central Pay Commissions also recommended
H     maintaining the status quo with respect to the BCA payable to IMTRAT
      personnel.
UOI THR. CABINET SECRETARY v. CAPTAIN GURDEV SINGH 931
          [MOHAN M. SHANTANAGOUDAR, J.]

       31. In view of the above discussion, we hold not only that the           A
clarification made through the impugned judgment is beyond the scope
of the original order dated 22.11.2005, but also that there were no valid
grounds for the High Court while passing the impugned judgment to
grant parity between the BCA payable to IMTRAT personnel and the
FA payable to MEA personnel. The directions made in the original order
                                                                                B
are only to the effect that the removal of depression on the BCA payable
to IMTRAT personnel, and its replacement with nominal charges for the
erstwhile free facilities, be made effective from 01.12.1999. As noted
supra, the same have been fully complied with by the appellants after
the issuance of the corrigendum dated 23.02.2006. It is also pertinent to
note that seven revisions of the BCA payable to IMTRAT personnel                C
have been undertaken between 2007-2017 as per the appellants. However,
having regard to the fact that the IMTRAT personnel are working in
difficult areas of Bhutan bordering China, and as they have to be vigilant
all through in the interest of our nation, they deserve to be provided the
BCA without any depression. Hence, having regard to the totality of the
                                                                                D
facts and circumstances, we direct the Government to remove the
depression of 6% and 4% respectively on the BCA payable to IMTRAT
personnel, being the Service Officers and PBORs, with immediate effect.
       32. Accordingly, we allow the instant appeal in part and set aside
the impugned judgment dated 07.05.2007 with the aforementioned
directions.                                                                     E

Ankit Gyan                                             Appeal partly allowed.




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