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Shailendra Kumar Jaiswal Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citation

Court

Central Administrative Tribunal CAT Kolkata

Decided On

Judge

Reported in

(2003)(2)SLJ267CAT

Appellant

Shailendra Kumar Jaiswal

Respondent

Union of India (Uoi) and ors.

Excerpt:


.....blair base of fishery survey of india. he, therefore, joined at port blair.the case for the applicant is that he is entitled to the islands special duty allowance for service in a & n islands in terms of the memoranda dated 14.12.83, 12.1.96 and 22.7.98. the applicant made a request to the respondents to grant him the islands special duty allowance, but his request was not accepted. his case was forwarded by the senior administrative officer, fishery survey of india to the mechanical marine engineer, respondent no. 4, but no orders were passed. the applicant again made a request of 24.7.2000 to respondent no. 1, but nothing was done and he was only happy to know about the letter/office note dated 110.11.2000 issued by respondent no. 5 indicating that the matter was under consideration. however, nothing was done, hence this o.a. seeking directions to ministry of finance, government of india to grant the islands special (duty) allowance to him.3. in the reply the respondents' case is that the initial appointment of the applicant was in respect of the post of andaman and nicobar islands and therefore, he is not entitled to islands special duty allowance. it is averred that the.....

Judgment:


1. This is an application under Section 19 pf the AT Act, against the purported act of the respondent authorities in not granting Islands special allowance to the applicant in terms of the memorandum dated 12.1.96 issued by the Ministry of Finance, Govt. of India.

2. It is averred that the applicant was offered temporary posting of Service Engineer (Mechanical), Fishery Survey of India under the Ministry of Agriculture Government of India which is in the scale of Rs. 8000-13500/- General Central Service, Group 'A' Gazetted. After accepting the offer, the applicant was asked to take charge of the post of Service Engineer (Mechanical) in the Department vide order dated 9.12.98. The applicant reported on duty in the office of the respondent No. 3 i.e., Director General, Fishery Survey of India, Marine House, Mumbai on 27.1.99. Under the directions of respondent No. 3 the applicant was directed to report of Port Blair base of Fishery Survey of India. He, therefore, joined at Port Blair.

The case for the applicant is that he is entitled to the Islands Special Duty allowance for service in A & N Islands in terms of the memoranda dated 14.12.83, 12.1.96 and 22.7.98. The applicant made a request to the respondents to grant him the Islands Special Duty allowance, but his request was not accepted. His case was forwarded by the Senior Administrative Officer, Fishery Survey of India to the Mechanical Marine Engineer, respondent No. 4, but no orders were passed. The applicant again made a request of 24.7.2000 to respondent No. 1, but nothing was done and he was only happy to know about the letter/office note dated 110.11.2000 issued by respondent No. 5 indicating that the matter was under consideration. However, nothing was done, Hence this O.A. seeking directions to Ministry of Finance, Government of India to grant the Islands Special (Duty) allowance to him.

3. In the reply the respondents' case is that the initial appointment of the applicant was in respect of the post of Andaman and Nicobar Islands and therefore, he is not entitled to Islands Special Duty allowance. It is averred that the applicant was not posted on transfer to Port Blair 'and therefore, he is not entitled to the allowance, in view of the decision of the Hon'ble Supreme Court dated 28.9.94 rendered in Civil Appeal No. 3251 of 1993.

4. In the rejoinder, the applicant has reiterated the facts mentioned in the O.A. It is further stated that the respondent authorities are acting malafide when the Island Special Duty Allowance has not been sanctioned to him.

5. We have head the learned Counsel for the parties and perused the documents placed on record.

6. It may be pointed out that the Special Duty Allowance was granted to the Central Government employees serving in the North Eastern Region vide O.M. No. 20014/2/83-E.IV dated 14.12.83. In the said O.M. under the heading Special Duty Allowance it was provided that Central Government Employees, who had all India transfer liability will be granted Special Duty Allowance at a particular rate on posting to any station in the North Eastern, Region. Thereafter, vide O.M. No.20022/2/8 E.II(B) dated 24.5.89 the Central Government Civilian employees having all India transfer liability and posted to serve in the A and N Islands and Lakshadweep Islands were made entitled to Island Special Allowance at varying rates in lieu of special duty allowance admissible to North Eastern Region. It was stated in the said O.M. that the allowance would continue to be admissible to the specified category of the Central Government employees in the rates prescribed for the specified area in the O.M. dated 24.5.89. It was also made clear that the allowance shall be termed as Island Special Duty allowance. Pursuant to this order, the Central Government employees working in the A and N Island Special Duty allowance.

Pursuant to this order, the Central Government employees working in the A and N Islands started getting the Special Duty Allowance.

7. The question that arise for consideration is whether the applicant is entitled to the Island Special Duty Allowance in terms of the O.M.dated 14.12.83 read with O.M. dated 24.5.89 and further O.M. dated 17.7.98 which was again clarified vide O.M. dated 22.7.98.

8. The Hon'ble Apex Court had occasion to consider the circumstances in which a Central Government employee is entitled to Special Duty Allowance in the under mentioned cases.Reserve Bank of India v. Reserve Bank of India Staff Officer' Association and Ors., (1991)4 SCC 132. In that case it was observed by their Lordships that the Special duty allowance is given to meet the hardship and inconvenience suffered by the Officers who were transferred to the North Eastern Region.

It emerges from the observations made by their Lordships that, the Special Duty allowance is granted for the hardship and inconvenience suffered by an Officer who is transferred to North Eastern Region. It was also observed that such allowance was not granted to the local persons holding the same post and it is not challengeable on the ground of discrimination.Union of India and Others v. S.Vijayakumar and Ors., 1994 Supp (3) SCC 649. In that case the memoranda dated 14.12.83, 29.10.86 and 20.4.87 were considered. It was held that allowance in question was meant to attract persons from outside the North-Eastern Region to work in that Region because of inaccessibility and difficult terrain. It was further observed that the need for the allowance was felt for "attracting the retaining" the service of the competent officers to serve the North-Eastern Region. It was further held that denial of such allowance to the residents of the North-Eastern Region would not violate the equality clause enshrined under Article 14 of the Constitution of India.Chief General Manager, (Telecom), N.E.Telecom Circle and Anr. v. Rajendra Ch. Bhattacharjee and Ors., (1995) 2 SCC 532=1995(2) SLJ 114 (SC). In that case the observations made in the case of S. Vijayakumar (supra) were restored.Union of India and Others v. Executive Officers' Association Group-C, 1995 Supp (1) SCC 757. In that case it was observed at para 8 of the order follows:- "The use of words "attracting and retaining in service" are very much significant which only suggest that it means the competent officers belonging to a region other than the North-Eastern Region.

The question of attracting and retaining the services of competent officers who belong to the North-Eastern Region itself would not arise. The intention of the Government and spirit behind the office memorandum is to provide an incentive and attraction to the competent officers belonging to a region other than the North-Eastern Region to come and serve in the North-Eastern-Region.

It can hardly be disputed that the geographical, climatic, living food conditions of people living in North-Eastern Region and the State Comprising therein are different from other regions of the counter. The North-Eastern Region is considered to be "hard Zone" for various reason and it appears that it is for these reasons that the Government provided certain extra allowance, benefits and other facilities to attract competent officers in the North-Eastern Region at least for two to three years of tenure posting. The Ministry's Office Memorandum in question came up for consideration before this Court in Chief General Manager (Telecom) v. Rajendra Ch.

Bhattacharjee which was decided by us by judgment dated 18.1.1995 in which this Court took the view that the said office memoranda are meant for attracting and retaining the services of competent officers in the North-Eastern Region, from other parts of the country and not the persons belonging to that region where they were appointed and posted. This was also the view expressed by this Court in yet another cases reported In Union of India v. S. Vijayakumar.

In Vijayakumar the point for consideration was exactly identical, with regard to the entitlement of Special Duty Allowance to those employees/Officers who are residents of North-Eastern Region itself.

After considering the Memorandum dated 14.12.1983 and other related office memorandums indicated above, it was held that the purpose of the allowance was to attract persons from outside the North-Eastern Region to work in the North-Eastern because of inaccessibility and difficult terrain. In the facts and circumstances stated above the view taken by the Tribunal cannot be upheld and deserves to be set aside.

The ratio of the above cases is that Special Duty Allowance/Island Special Duty Allowance cannot be claimed by the persons who belong to the N.E. Region Island and are appointed there. The allowance is admissible to the persons who do not belong to the N.E. Region/Islands and are posted from outside.

9. In none of the cases, there are was a situation where the employee belonging to soft zone was appointed for the first time in N.E. Region.

However, on the basis of the principles laid down in the decisions, we will consider the case of the applicant.

10. In the notification inviting applications for the post of Service Engineer (Mechanical), it was stated that the candidates on appointment may be required to work anywhere in India including A and N Island.

11. Thus the applicants owns all India transfer liability. Admittedly, the applicant belongs to Bhopal (Madhya Pradesh). He applied for the post from there. He was selected and offered appointment vide letter dated 19.11.98 addressed to Bhopal. The applicant sent his acceptance and thereafter he was given appointment vide notification, Annexure 'R1' dated 01.3.99. Thereafter orders were issued by the Bombay office of the Fishery Department appointing him at Port Blair. It may be pointed out that prior to the posting of the applicant at Port Blair, there was no post of Service Engineer (Mechanical) at Port Blair. The post was transferred from Mormugao Base to Port Blair vide order dated 3.2.99 (Annexure 'X-5').

12. It is obviously not the case where the applicant is claiming Island Special Duty allowance only on the basis of all India transfer liability. He is claiming Island Special Duty allowance on the ground that he had applied for the post from Bhopal and he joined his duty on 27.1.99 at Bombay office of the Director General, Fishery Survey of India and thereafter he was posted at Port Blair. The respondents have not disputed this fact in the reply that the applicant had joined his duty first at Bombay on 27.1.99. Rather it has been admitted that after the applicant assumed the duty on 27.1.99 an order was issued posting him at Port Blair. It may not be a case of transfer in strict sense, but certainly the effect of the order was that the applicant who had assumed the duty at Bombay on 27.1.99 was transferred to Port Blair. In such circumstances, in our opinion, the applicant cannot be denied Island Special Duty Allowance on the ground that he had not been transferred from mainland to this Island.

13. The only ground on which the respondents deny the allowance to the applicant is that he was not transferred from other region. As already stated, it is not correct. The effect of the two orders was that he was initially appointed in the mainland and was posted by way of transfer to Port Blair.

14. For the reasons stated above, the applicant is entitled to the Island Special Duty Allowance and the respondent authorities have erred in not accepting his claim.

15. Consequently, the O.A. is allowed. The respondent authorities are directed to grant Island Special Duty Allowance to the applicant in terms of the O.Ms. issued on the subject from time-to-time. The arrears of the allowance shall be paid to the applicant within a period of two months from the date of communication of this order.


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