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

Citation: [2019] 3 S.C.R. 913 · Decided: 11-02-2019 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Case Partly allowed

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Judgment (excerpt)

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913
UNION OF INDIA THROUGH CABINET SECRETARY & ORS.
v.
CAPTAIN GURDEV SINGH & ANR.
(Civil Appeal No. 2763 of 2009)
FEBRUARY 11, 2019
[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 –
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
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
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
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
“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
[2019] 3 S.C.R. 913
913
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914                    SUPREME COURT REPORTS            [2019] 3 S.C.R.
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
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
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
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
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]
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
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

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