DIRECTOR GENERAL ICAR Vs. VICTOR DHKAR

JUDGEMENT

(1.) THE present writ petition under Article 226/227 of the Constitution is directed against the common order dated 29. 11. 2002 passed by the learned Central Administrative Tribunal (CAT) in Original Application No. 63 of 2002 and Original Application No. 71 of 2002.

(2.) WE have heard Mr. K. N. Choudhury, learned senior Counsel assisted by Mrs. R. S. Choudhury, learned Counsel for the writ petitioners. None appears for the respondents when the case was called for hearing. On request of this Court, Mr. M. Chanda, learned Counsel readily agreed to assist the Court in this matter as Amicus Curiae. Accordingly, we have heard Mr. M. Chanda, learned Counsel.

(3.) THE facts, in brief, necessary for disposal of this writ petition are as follows : the applicants of the above mentioned Original Applications are working under the writ petitioners who are presently holding various posts in the office of the writ petitioner No. 2. The grievances of the applicants, the respondents herein, are basically against the orders dated 28. 1. 2002 (Annexure-E) and 25. 2. 2002 (Annexure-F) by which the payment of the Special Duty Allowance (in short, hereinafter referred to as SDA) has been stopped and also a decision has been taken for making recovery of SDA paid to them in excess contrary to the policy. Government of India, Ministry of Finance, Deptt. of Expdt. vide office memorandum No. 20014/3/83-E. IV dated 14. 12. 1983 granted certain incentives to the Central Govt. Civilian Employees serving in the North East Region. In the said memorandum, it has been stated that the SDA would be paid to those who have "all India Transfer Liability". Subsequent to the aforesaid office memorandum, another office memorandum dated 28. 4. 1987 was issued, wherein it was clarified that all the officers with all India transfer liability would get the benefit of SDA if transferred to North Eastern States. The said benefit would be provided considering their recruitment, promotional zone etc. Being aggrieved by the aforesaid memorandums, some officers approached the Central Administrative Tribunal, (for short hereinafter referred to as Tribunal) and the Tribunal upheld the prayer of those officers, applicants in the aforementioned Original Applications, and directed the writ petitioners, respondents therein, to allow SDA to the applicants. Thereafter a few special leave petitions were filed before the Hon'ble Supreme Court against the order of the Tribunal and the Hon'ble Supreme Court vide its judgment passed on 20. 9. 1994 in Civil Appeal No. 3251 of 1993 (Union of India Vs. S. Vijayakumar) along with Civil Appeal Nos. 6163-81 of 1994 reported in 1994 (Suppl) 3 SCC 649 upheld the submissions of the Union of India with its observation that the respondents were not entitled to the SDA, and the impugned judgments of the Tribunal were set aside. The Hon'ble Apex Court in S. Vijayakumar's case (supra) further observed that in view of the fair stand taken by the Additional Solicitor General, whatever amount has been paid to the respondents or for that matter to other similarly situated employees, would not be recovered from them insofar the allowance is concerned. The Hon'ble Apex Court also observed that the grant of this allowance only to the officers transferred from outside the region to this region would not be violative of the provisions contained in Article 14 of the Constitution as well as the equal pay doctrine. In view of the above judgment of the Hon'ble Apex Court, the Government of India, Ministry of Finance, Department of Expenditure issued another office memorandum No. 11 (3)/95-E. II (B) dated 12. 1. 1996 (Annexure B) wherein it has been mentioned that the amount already paid on account of SDA to the ineligible persons on or before 20. 9. 1994 will be waived and the amount paid on account of SDA to the ineligible persons after 20. 9. 1994 (which also includes those cases in respect of which the allowance was pertaining to the period prior to 20. 9. 94, but payments were made after this date i. e. 20. 9. 94) will be recovered. The aforementioned office memorandum dated 12. 1. 1996 was duly endorsed and communicated by the Dy. Director (Finance), Indian Council of Agricultural Research (hereinafter referred to as ICAR for short) to the respective authorities of the ICAR for information, guidance and necessary action vide endorsement dated 26. 4. 1996 (Annexure-C ). On 4. 12. 1996, the Administrative Officer of the ICAR issued a letter (Annexure-D) to the Senior Audit Officer, camp at Barapani wrongly clarifying the aforesaid order dtd. 12. 1. 1996 i. e. the office memorandum issued by the Ministry of Finance, Govt. of India and as a result of such wrong interpretation, some ineligible staffs of the ICAR, Barapani Institute continued to receive payment of SDA on the plea that the ICAR is an autonomous body having its own rules and bye-laws ignoring the facts that the aforesaid office memorandum dtd. 12. 1. 1996 was not only fully applicable to the ICAR, but also binding to it. After detection of such mistake/wrong committed by the Administrative Officer of the ICAR, Barapani Institute, the Under Secretary (NRM), ICAR clarified the stand of the ICAR vide its letter/order dated 28. 1. 2002 (Annexure-E) informing the Director, ICAR, Research Complex for NER Region, Barapani that the direction issued in the office memorandum dated 12. 1. 1996 would be strictly followed and any payment made on SDA to the ineligible staff subsequent to 20. 9. 1994 would be recovered. The said letter/order dated 28. 1. 2002 was duly forwarded to other ICAR Research Complex for NER regions vide letter/order dtd. 25. 2. 2002 (Annexure-F ).