SANJAY KHER & ORS. Vs. UOI & ORS.

JUDGEMENT

(1.) THIS writ petition is filed by the four petitioners who were the employees of the respondent no. 2 -employer namely Rashtriya Pariyojna Nirman Nigam Ltd. The four petitioners were deputed for different periods by the respondent no. 2 in Iraq. Petitioners claim that the foreign allowances which were granted to them at the initial stage should be revised upwards not only on account of increase of the DA granted to the employees in India but also because the Non -IFS officers of the Government of India who were posted abroad from time to time received enhancements in the foreign allowances payable to them. On behalf of the petitioner no. 2, to dispute the stand of the petitioners reliance is placed upon Rule 5 of the rules of the respondent no. 2 relating to the terms and conditions of regular employees posted in Iraq and which reads as under: -

(2.) ON the basis of the aforesaid Rule -5, it is argued that petitioners are not entitled to complete parity for payment of foreign allowances as applicable to Non -IFS officers of the Government of India of the equivalent category and that the allowances of the employees of respondent no. 2 were not to 'exceed' the foreign allowances to Non -IFS officers and not for 'equal to' the Non -IFS officers. On behalf of respondent no. 2, what is contended is that as per the applicable Rule -5, all that is stated is that the foreign allowances will be granted as per circulars to be issued from time to time and which will not exceed the foreign allowances which are paid by the Government of India to its Non -IFS officers posted abroad. It is argued that the expression of "not exceed" cannot be equated with the expression "equal to" and petitioners cannot claim that they should be paid foreign allowances which are from time to time given to the Non -IFS officers of the Government of India who are posted abroad. It is argued that no policy guidelines were issued by the respondent no. 2 from time to time for enhancing of the foreign allowances by the respondent no. 2 and therefore, the petitioners cannot merely claim because of the fact that enhanced DA was granted to employees in India or enhanced foreign allowances were granted to the Non -IFS officers of the Government of India posted aboard claim enhancement in their foreign allowances.

(3.) BEFORE I proceed further in this case, it would be necessary to refer to the dictum of the Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. vs. Workmen : (2007) 1 SCC 408 wherein the Supreme Court has categorically observed that Courts should not substitute itself for the executive so as to decide what should be the scales of pay which should be granted to its officers. The Supreme Court has cautioned against judicial activism inasmuch as the finances of an employer are considered by the employer so as to decide what should be the emoluments which should be granted to its employees. Paras 37 and 40 of the said judgment are relevant and the same read as under: -