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Union Of India And Others v. S. Vijayakumar And Others
Factual and Procedural Background
The matter arose from proceedings before a Tribunal concerning entitlement of certain respondents to a “special duty allowance” for civilian Central Government employees serving in the North-Eastern Region. The respondents were residents of the North-Eastern Region but held posts described as having “All India Transfer Liability.” The Tribunal held that the respondents were entitled to the allowance based on Office Memorandum dated 14-12-1983. The Union of India appealed, contending that subsequent Office Memoranda (including 20-4-1987, and an Office Memorandum dated 29-10-1986 referred to therein) clarified that the allowance was intended for employees posted to the North-Eastern Region from outside, not for residents merely because their posts carried All India Transfer Liability.
Legal Issues Presented
- Whether respondents who are residents of the North-Eastern Region are entitled to special duty allowance merely because the posts to which they were appointed carried “All India Transfer Liability,” notwithstanding later clarificatory Office Memoranda.
- Whether denial of the allowance to resident employees (while granting it to non-residents posted to the region) violates Articles 14 and 16 of the Constitution on the basis of the doctrine of equal pay for equal work.
Arguments of the Parties
Respondents' Arguments
- The Office Memorandum dated 14-12-1983 did not contain the restriction later stated in the Office Memorandum dated 20-4-1987; therefore, a “rider” limiting eligibility only to those posted into the North-Eastern Region cannot be added to the 1983 Memorandum.
- Denying the allowance to residents while permitting it to non-residents would violate the doctrine of equal pay for equal work and thus contravene Articles 14 and 16 of the Constitution.
Union of India's Arguments
- Reading the 14-12-1983 Office Memorandum together with subsequent memoranda (including 20-4-1987 and what it quoted from 29-10-1986), the allowance was payable to incumbents posted in the North-Eastern Region carrying All India Transfer Liability, and not to residents of the region merely because their appointment orders contained such a clause.
- The 20-4-1987 Office Memorandum expressly stated that the allowance would not become payable merely because the appointment order contained an All India Transfer Liability clause.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Reserve Bank of India v. Reserve Bank of India Staff Officers' Assn. (1991) 4 SCC 132, (1991) 17 ATC 295 | Grant of special compensatory/remote locality allowance only to officers transferred from outside to a unit (Gauhati), while denying it to local officers posted there, was not regarded as violative of Article 14. | The Court relied on this holding to reject the respondents’ Article 14/16 challenge based on equal pay doctrine, treating the differential allowance as constitutionally permissible in the context of incentives for outside transferees. |
Court's Reasoning and Analysis
The Court agreed with the Union of India’s position for two stated reasons. First, upon close reading of the Office Memoranda dated 14-12-1983 and 20-4-1987 (along with the Office Memorandum dated 29-10-1986 as quoted in the 20-4-1987 Memorandum), the Court concluded that the allowance was designed as an incentive to attract and retain personnel from outside the North-Eastern Region to serve there, given “inaccessibility and difficult terrain.”
The Court supported this interpretation by referring to the language and scheme of the 1983 Memorandum, which began by noting the need for the allowance to “attract and retain” competent officers for service in the North-Eastern Region. The Court also noted an operational feature described in the memoranda: employees on deputation would sometimes return soon after joining by taking leave, and the policy therefore excluded such leave periods from tenure-counting for the two/three-year tenure required to claim the allowance depending on the length of service.
The Court then emphasized that the Office Memorandum dated 29-10-1986 made the intent clear by stating that Central Government civilian employees with All India Transfer Liability would be granted the allowance “on posting to any station to the North-Eastern Region.” The 20-4-1987 Memorandum removed any remaining doubt by stating that the allowance would not become payable merely because an appointment order contained an All India Transfer Liability clause. On this basis, the Court rejected the respondents’ reliance on the 1983 Memorandum’s subject line as sufficient to confer entitlement.
Second, the Court held that the equality-based objection (Articles 14 and 16, equal pay for equal work) was answered by the decision in Reserve Bank of India v. Reserve Bank of India Staff Officers' Assn., which upheld a similar distinction where an allowance was granted only to officers transferred from outside and denied to local officers, without violating Article 14.
Holding and Implications
ALLOWED; TRIBUNAL ORDERS SET ASIDE. The Court held that the respondents were not entitled to the special duty allowance.
As a direct consequence, the impugned judgments of the Tribunal were set aside. However, based on the fair stand taken by the Additional Solicitor General, the Court directed that any amounts already paid to the respondents (and similarly situated employees) towards the allowance would not be recovered. There was no order as to costs. The opinion applied existing principles (including the cited precedent) to the dispute and did not state that it was laying down any new legal rule beyond the case.
B.L Hansaria, J.— The point for determination in this appeal and in the special leave petitions (which have our leave) is whether the respondents are entitled to special duty allowance (hereinafter referred to as “the allowance”), even though they are residents of North-Eastern Region merely because of the posts to which they were appointed were of “All India Transfer Liability”. The Tribunal has answered the question in affirmative. These appeals have been preferred by the Union of India.
2. The Tribunal took the aforesaid view because the Office Memorandum dated 14-12-1983 which is on the subject of “Allowances and facilities for civilian employees of the Central Government serving in the States and Union Territories of the North-Eastern Region — improvement thereof” had stated that allowance shall be payable if the posts be those which have “All India Transfer Liability”. The stand of the Union of India, however, is that this office memorandum, if it is read along with what was stated subsequently in office memorandum dated 20-4-1987, it would become clear that the allowance was required to be paid to those incumbents who had been posted in North-Eastern Region carrying the aforesaid service condition and not to those who were residents of this region. The office memorandum of 1987 has clearly stated that the allowance would not become payable merely because of the clause in the appointment order to the effect that the person concerned is liable to be transferred anywhere in India.
3. Dr Ghosh appearing for the respondents contends that the office memorandum of 1983 having not stated what is contained in the memorandum of 1987, a rider cannot be added to the former that the allowance could be payable only to those who had been given posting in the North-Eastern Region, and not to those who were residents of this Region. It is also contended that denial of the allowance to the residents, while permitting the same to the non-residents, would be violative of doctrine of equal pay for equal work and as such of Articles 14 and 16 of the Constitution.
4. We have duly considered the rival submissions and are inclined to agree with the contention advanced by the learned Additional Solicitor General, Shri Tulsi for two reasons. The first is that a close perusal of the two aforesaid memoranda, along with what was stated in the memorandum dated 29-10-1986 which has been quoted in the memorandum of 20-4-1987, clearly shows that allowance in question was meant to attract persons outside the North-Eastern Region to work in that Region because of inaccessibility and difficult terrain. We have said so because even the 1983 memorandum starts by saying that the need for the allowance was felt for “attracting and retaining” the service of the competent officers for service in the North-Eastern Region. Mention about retention has been made because it was found that incumbents going to that Region on deputation used to come back after joining there by taking leave and, therefore, the memorandum stated that this period of leave would be excluded while counting the period of tenure of posting which was required to be of 2/3 years to claim the allowance depending upon the period of service of the incumbent. The 1986 memorandum makes this position clear by stating that Central Government civilian employees who have All India Transfer Liability would be granted the allowance “on posting to any station to the North-Eastern Region”. This aspect is made clear beyond doubt by the 1987 memorandum which stated that allowance would not become payable merely because of the clause in the appointment order relating to All India Transfer Liability. Merely because in the office memoranda of 1983 the subject was mentioned as quoted above is not enough to concede to the submission of Dr Ghosh.
5. The submission of Dr Ghosh that the denial of the allowance to the residents would violate the equal pay doctrine is adequately met by what was held in Reserve Bank of India v. Reserve Bank of India Staff Officers' Assn. (1991) 4 SCC 132, (1991) 17 ATC 295, to which our attention has been invited by the learned Additional Solicitor General, in which grant of special compensatory allowance or remote locality allowance only to the officers transferred from outside to Gauhati Unit of the Reserve Bank of India, while denying the same to the local officers posted at the Gauhati Unit, was not regarded as violative of Article 14 of the Constitution.
6. In view of the above, we hold that the respondents were not entitled to the allowance and the impugned judgments of the Tribunal are, therefore, set aside. Even so, in view of the fair stand taken by the Additional Solicitor General we state that whatever amount has been paid to the respondents, or for that matter to other similarly situated employees, would not be recovered from them insofar as the allowance is concerned.
7. The appeals are allowed accordingly. There will be no order as to costs.
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