CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO. 929/2008 New Delhi, this the 5th day of March, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Vinod Kumar Jain S/o Sh. Hari Ram Jain R/o 2/133, Arya Nagar, Sonipat, Haryana. Applicant (By Advocate: Sh. Arun Bhardwaj) V E R S U S 1. Union of India through the Secretary (R), Cabinet Secretariat, 7, Bikaner House, Shahjahan Road, New Delhi. 2. Addl. Secretary and Financial Adviser, Ministry of External Affairs, South Block, New Delhi. 3. Director (NGO) Cabinet Secretariat, 7, Bikaner House, Shahjahan Road, New Delhi. Respondents (By Advocate: Sh. T.C.Gupta) ORDER
Honble Shri L.K.Joshi, Vice Chairman (A) Vinod Kumar Jain, the Applicant in this OA, was working under the first Respondent herein in the post of Assistant Foreign Language Examiner (AFLE) in 2001. AFLE is a Group A post in the scale of Rs.8000-13500/-. As per the policy of the first Respondent, the Applicant went on deputation to the Ministry of External Affairs, in a special assignment, in the post of Assistant, in the scale of Rs.5500-9000/-, lower than the post he was holding in his parent cadre. He was posted to the Embassy of India in Seoul on 25.02.2002 and remained posted there till 6.05.2005. The controversy in this OA is regarding the payment of Foreign Allowances (FAs) payable to the Applicant during his posting at Seoul in the embassy of India. Not satisfied with the allowances given to him, the Applicant, who is now working as an Under Secretary in his parent cadre, made a representation on 7.02.2008 to the competent authority. The representation was rejected on the following grounds by a note dated 26.03.2008:
2. Shri Jain, then AFLE served against a non-gazetted post, while on special assignment, as per his written consent and drew allowances prescribed for the said post, during the said period. On reversion he was paid Rs.9,49,234/- as difference of pay and allowances (including foreign allowance) as per his actual entitlement.
3. As already conveyed vide note dated 28.06.07, it is again clarified that the difference of pay and allowances, has been correctly worked out taking into consideration the standard Foreign Allowance admissible to Group A Officers in the pay scale of Rs.8000-13500/-. The order dated 26.03.2008 has been challenged in this OA.
2. The Rules, which need to be interpreted and the facts, which are necessary to be mentioned for adjudication in this matter have been narrated in necessary detail in the following paragraphs.
3. Rule 134 of R&AW (RC&S) Rules 1975 reads thus:
134. Protection of rank and pay on cover assignment 1. The Head of the Organisation may, for reasons to be recorded in writing, depute an officer of the Organisation to a place abroad to hold a cover post lower than his own in the organization, provided that such officer shall not be of a grade equal to or higher than that of the Head of the Mission of India at such a place.
2. During the period of such deputation, the officer concerned shall be allowed to draw the pay and allowances pertaining to the post held by him during such period.
The amount by which such pay and allowances fall short of the pay and allowances, other than the representational grant and any extra allowance admissible on account of wages of servant, which would have been admissible to him had he been appointed during the cover assignment to a post equivalent to the post held by him in the Organisation, shall be payable to him in Indian currency on his reversion to the Organisation from the cover assignment. Rule 134 (2) was amended vide Cabinet Secretariats OM Number A-76/29/2002-DO-11(A) dated 18.09.2003, in which the words any extra allowance admissible on account of wages of servant were deleted. The amended Rule 134 (2) and the relevant portion of the OM has been extracted below:
2. In the Research and Analysis Wing (Recruitment, Cadre and Service) Rules, 1975, for the existing sub-rule (2) to Rule 134, the following shall be substituted namely:-
During the period of such deputation, the officer concerned shall be allowed to draw the pay and allowances pertaining to the post held by him during such period.
The amount by which such pay and allowances fall short of the pay and allowances, other than the representational grant, which would have been admissible to him had he been appointed during the cover assignment to a post equivalent to the post held by him in the Organisation, shall be payable to him in Indian currency on his reversion to the Organisation from the cover assignment. Explanatory Memorandum The amendment in the rules is being given retrospective effect with effect from the 1st January, 1998 as this has been necessitated due to introduction of new indexation of FA (Foreign Allowance) scheme by the Ministry of External Affairs with effect from 1.1.98. It is certified that retrospective effect being given to the rules will not prejudicially or adversely affect the interest of any Government servant. It will thus be seen from the amended Rule 134 (2) that now only Representational Grant (RG) is not payable but extra allowances on account of wages of servant, not admissible under the original Rule, has now been made admissible. The amendment is applicable with effect from 1.01.1998 retrospectively.
4. While the Applicant was working as AFLE in the R&AW, he was selected for a cover assignment in the Indian embassy at Seoul in the lower post of Assistant, in accordance with Rule 134(1) quoted in the previous paragraph. The scale of pay of the Assistant is Rs.5500-9000/-. As per the practice for such assignments, an officer would get his pay and allowances in accordance with the rank in which he is posted in an embassy in a foreign capital and the difference of pay and allowances, which he will get, if he were to be sent to such embassy in a foreign capital, in a post equivalent to his grade in the parent cadre, shall be paid on his reversion from the special assignment. As has been mentioned earlier, the Applicant was also paid an amount of Rs.9,49,234/- as arrears, which, according to the Applicant, is less than what was his due as per the Rules. The allowances pertain to the period 25.02.2002 to 6.05.2005 during which time the Applicant was posted as Assistant at the Indian embassy at Seoul. It is not disputed that the Applicants equivalent rank in the embassy would have been that of second Secretary.
5. The officials posted in the Missions abroad are entitled to certain allowances, which are fixed periodically by the Ministry of External Affairs (MEA). The Foreign Allowance is fixed by the MEA by order dated 12.06.2002. The relevant portion of the aforesaid order is reproduced below:
Subject: Foreign Allowance in respect of India based officers and members of staff in E/1, SEOUL.
In continuation of this Ministrys orders of even number dated 13/08/2001 and 21.2.02 on the above mentioned subject, sanction of the President is hereby accorded to the fixation of the following rates of Foreign Allowance for India based officers and members of staff of the E/1, SEOUL.
SN CATEGORY FA IN US $ P.M I AMBASSADOR 3,127 II MINISTER 2,397 III COUNSELLOR 1,973 IV FIRST SECRETARY/Sr. PPS 1,812 V SECOND/P.PVT/THIRD SECRETARY 1,458 VI NON-REP.GAZETTED OFFICER 1,143 VII NON.GAZETTED OFFICIAL 978 VIII SECURITY GUARD 501 IX GROUP D PERSONNEL 477 2. The above rates of Foreign Allowance in respect of the following categories include, inter-alia, the following complement of Indian servants at the wages indicated against each category, beside provision for employment of local servant(s).
SN CATEGORY INDIAN SERVANT COMPLEMENT I AMBASSADOR Two Indian Servant Rs.2150/- p.m. each II MINISTER/COUNSELLOR One Indian Servant @ Rs, 1750- p.m. III FIRST/Sr.PPS/SECOND/ P.PVT./THIRD SECRETARY One Indian Servant Rs, 1450/- p.m 3. The AMBASSADOR has the discretion to employ, in lieu of one of his/her Indian servants, additional local servant(s). Similarly, the Minister/Counsellor/FS/Sr PPS/SS/PPS/TS have the discretion to employ, in lieu of their only Indian servant, additional local servant(s). In such cases, their respective Foreign Allowance will be as under:-
SN CATEGORY FA IN US $ P.M I AMBASSADOR 3,515 II MINISTER 2,630 III COUNSELLOR 2,211 IV FIRST SECRETARY/Sr. PPS 2,020 V SECOND/P.PVT/THIRD SECRETARY 1,671 Orders, revising these allowances, on 20.05.2003, 28.07.2004 and 17.03.2005 are also placed at Annex A-7 (colly), which may not be necessary to reproduce. The officers in the rank from the Minister to the Third Secretary are entitled to take one Indian Servant and the Ambassador is entitled to take two Indian Servants at the rates indicated in the second table in the order regarding allowances, quoted above. The officers are entitled to employ additional local servant(s) in lieu of their Indian servant. It is not disputed by the Respondents that the allowance given for the Indian servant is called the Standard Foreign Allowance (SFA) and for the local servant, it is called the Discretionary Foreign Allowance (DFA), although these terms do not find mention in the Rule 134 and the order by which the rates of allowances have been fixed.
6. It is the case of the Applicant that he engaged a local servant throughout his posting in the embassy of India at Seoul. It is contended on behalf of the Applicant that he was entitled to payment of allowance admissible to the officers of Second Secretarys rank in respect of local servant, as per the amended Rule 134(2) of R&AW (RC&S) Rules, 1975. The Applicant has not been paid the allowance due to him for the local servant, which he engaged. Such interpretation based on the original Rule 134(2) is patently wrong, contends the learned counsel for the Applicant. It is forcefully urged that the purpose of the amendment was to pay the allowance for local servant also. Otherwise, there could be no purpose in making the amendment to Rule 134(2). It has further been contended that the Applicant would have been entitled to both Representational Grant and allowance admissible on account of servant, had he been posted in his equivalent rank. Since he has been posted in a lower rank, he is entitled to all allowances, except Representational Grant, on his reversion as per the provisions of amended Rule 134(2).
7. The Respondents, pre contra, have contested the claim of the Applicant by filing counter affidavit. The contention of the Respondents is that the DFA is admissible only to the officers of the rank of Ambassador/Minister/Counselor/First Secretary/Second Secretary/Third Secretary who have actually performed the duties of the post. It is their contention that the Applicant was posted to the embassy as Assistant under Rule 134(1) of the aforementioned Rules and never performed the duties of the Second Secretary. He would, therefore, not be eligible for allowance for employing an Indian/local servant. Other allowances prescribed for the post of Second Secretary have been taken into account. It is stated in paragraphs 4.12 and 4.13 of the counter affidavit of the Respondents that the component of Indian Servant is included in the Foreign Allowance mentioned in paragraph/table 1 of the order regarding Foreign Allowance and this amount would be deductible from the allowances given to the Applicant as he was not eligible for employing an Indian or in lieu a local servant, because he was not actually employed as Second Secretary and, therefore, not entitled to employ a servant.
8. We are not persuaded by the arguments of the Respondents that the Applicant would be entitled to the allowance for employing a servant only if he worked as Second Secretary. It seems that the Respondents have not considered the amendment to Rule 134(2), to which we have made references in the preceding paragraphs. An Office Memorandum dated 14.01.2004 has been placed at Annex R-2 of the counter affidavit, which reads thus:
Sub:- Amendment to Rule 134 (2) of R&AW (RC&S) Rules 1975 clarification regarding.
With reference to this Secretariat notification of even number dated 18/09/2003 regarding amendment to sub-rule 2 of Rule 143 (2) of R&AW (RC&S) Rules, 1975, the following clarification regarding treatment of allowances admissible on account of wages of Indian servant while calculating the arrears of difference of pay and allowances of R&AW officers posted on special assignment in a below capacity may kindly be taken note of for the said purpose:
The R&AW officers who employ Indian servant on their posting on special assignment and are entitled to Standard Foreign Allowance (SFA), the component of wages of Indian servant as shown in the FA Orders would be deducted from FA admissible (SFA) of the post held by the officer while on special assignment and the post held by him in the Department, had he not gone on special assignment, while calculating the arrears of difference of pay and allowances in terms of Rule 134 (2) ibid. This is regarding officers who employ Indian servant on their posting on foreign assignment and are entitled to SFA. The Applicant has repeatedly stressed that he had not taken any Indian Servant. He had employed a local servant, for which he would be eligible for the allowance prescribed for Second Secretary in paragraph/table 3 of the Foreign Allowance Order on his reversion to the cadre. As Assistant in the embassy, he was not eligible for keeping a servant. In his post on special assignment he was not eligible for SFA or DFA. The post of the Applicant in his parent cadre is equivalent to Second Secretary as seen from the Order Number Q/FD/6910/1/99 dated 14.05.1999, given by the Respondents, and as also admitted by the Respondents. As Second Secretary he would have been eligible for Foreign Allowance, if he employed local servant, at the rate prescribed in paragraph/table 3 of the Foreign Allowance order. As per the amended Rule 134(2), he is entitled for all allowances except Representational Grant. This leaves no room for doubt about his eligibility for the Foreign Allowance prescribed in paragraph 3 of the order for Foreign Allowance. If it were not so, one could as well ask as to what purpose would the amendment to Rule 134(2) serve. The copy of the notification amending the Rule 134(2) has been produced by the Respondents on our direction, which we have taken on record. There is a noting by the Joint Secretary of R&AW submitted to the Special Secretary (R) stating thus:
May kindly see at dak stage. Quite a number of officers would benefit. Obviously, if the interpretation of the Respondents in the counter affidavit is to be accepted, then no one will benefit and the amendment would be rendered meaningless.
9. From the above discussion we have no doubt about the admissibility of Foreign Allowance to the Applicant on the rates as admissible to Second Secretary in paragraph 3 of the Foreign Allowance order. We had directed the Respondents to produce the due and drawn statement in regard to the Applicant, which has been produced by the learned counsel for the Respondents. An amount of Rs.1450/- has been deducted from the Foreign Allowance due. It seems to be the component for Indian servant in paragraph 2 of the Foreign Allowance order. Another amount of Rs.4440/- has been deducted, which has nowhere been explained. The Respondents are directed to re-calculate the Foreign Allowance due to the Applicant on the basis of the rate given in paragraph 3 of the Foreign Allowance orders for the periods, when the Applicant was posted in the embassy of India in Seoul, on the basis of the Applicants eligibility for the allowance for local servant and pay the arrears to him. We reject the Respondents contention that the Applicant was not eligible for allowance due for local servant because he did not work actually as Second Secretary in the Mission at Seoul.
10. The above direction would be complied with within two months from the date of receipt of a certified copy of this order. We also direct the Respondents that a copy of the calculations for arriving at the correct amount of Foreign Allowance would be given to the Applicant. Needless to say the Applicant would be at liberty to challenge the payment of Foreign Allowance, calculated by the Respondents on our direction, if his grievance still survives. No costs.
( L.K. JOSHI ) ( V.K. BALI ) Vice Chairman (A) Chairman ` sd