IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 WP(C).No. 5605 of 2005(P) ------------------------------------- PETITIONER: -------------------- A.PRABHAKARAN, PNR EXGS-141413N RESIDING AT VELIYIL HOUSE, KATTOOR P.O., VIA.KALAVOOR, ALAPPUZHA DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SRI.R.SREEDHARAN NAIR SRI.GEORGE T. THACHETT SMT.SABINA JAYAN SRI.M.S.NISHAD RESPONDENTS: ---------------------- 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF ROAD TRANSPORT AND HIGHWAYS B.WING, 4TH FLOOR, SENA BHAVAN NEW DELHI. 2. THE DIRECTOR GENERAL BORDER ROAD, SEMA SADAK BHAVAN RING ROAD DELHI, CANTT, NEW DELHI. 3. THE CHIEF ENGINEER, HQRS.(P) PROJECT VARTAK, C/O. 99 APO. 4. THE CHIEF ENGINEER, HQRS. (P) PROJECT VARTAK, C/O. 99 APO. 5. THE COMMANDER 1644 PNR COY (GRER) C/O. 99 APO. 6. THE OFFICER COMMANDING, 327 SURFACING PLATOON (GREF) CO/O. 99 APO. 7. THE PAO GREF, ADMN. BLOCK C/O. GREF CENTRE, DIGHI CAMP PUNE -15. BY ADV. SRI.BABU KARUKAPADATH ACGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008, ALONG WITH WPC NO. 21754 OF 2004 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5605/2005 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE LETTER NO.PA/1345/NHQ/117/S/D (PAY /SERVICES) DT. 28 AUG 1989 ISSUED BY THE GOVERNMENT OF INDIA. EXT.P2:- COPY OF THE LETTER NO.5006/OP/11/E5 DT. 1.11.03 FROM 5TH RESPONDENT TO THE PETITIONER. EXT.P3:- COPY OF THE LETTER NO.5006/OPP/47/E5 DT. 17.1.04 FROM 5TH RESPONDENT TO THE PETITIONER. EXT.P4:- COPY OF THE LETTER NO.19047/AR/33/C/E1NE DT. 13.1.04 FROM 4TH RESPONDENT. EXT.P5:- COPY OF THE JUDGMENT DT. 18.1.05 IN WPC. NO.19806/04 OF THIS HONOURABLE COURT. EXT.R4(a):- COPY OF THE GOVERNMENT OF INDIA BRDB LETTER NO.F.41/BRDD/88- ESTT/DGBR/E2 (T&C )DT. 24.2.88. EXT.R4(b):- MINISTRY OF DEFENCE LETTER NO.87754/11/AG/P-53(a) 1822-SD (PAY/SERVICES) DT. 2.9.78. EXT.R4(c):- MINISTRY OF DEFENCE LETTER NO.PA/1345/NSQ/12-S/D (PAY)SERVICES) DT. 7.1.88. /TRUE COPY/ P.A. TO JUDGE tss V. GIRI, J. ------------------------------- W.P(C) Nos. 21754, 24247, 30883 of 2004, 5605, 30777, 31333 and 31339 OF 2005 ----------------------------------- Dated this the 1st day of February, 2008 JUDGMENT The issue arising for consideration in these writ petitions is one and the same. Therefore, they have been heard together and are disposed of by a common judgment. 2. I have heard Sri.R.Rajasekharan Pillai on behalf of petitioners, Sri.Somasundaram, on behalf of the Central Government and Sri.Babu Karukapadath on behalf of other respondents. 3. The petitioners were ex-pioneers in the General Reserve Engineer Force, which is part of the armed forces for varying periods during 1988-90. They were deployed overseas. 4. The dispute which arises in the present case relates to the foreign allowance which the petitioners were entitled to. Petitioners have been given such allowances, but they have disputed the quantum of the same. The request made by them for expatriation allowance at the rates claimed by them has not been accepted and hence the writ petitions. WPC No.21754/04 & conns. 2 5. I refer to the pleadings in WP(C) No.5605 of 2005 for the sake of convenience. 6. The petitioner had been sent to Srilanka for foreign assignment, for the period between 10.4.88 to 25.12.89. According to the petitioner he was not given foreign allowances as granted by the Government of India. He refers to Ext.P1 order and submits that for a person drawing pay not exceeding Rs.1,350/-, the foreign allowance payable was Rs.4,450/-. This is subject to a standard deduction provided for by the Ministry's order dt.15.07.87. The order also takes effect from 01.08.89. According to the petitioner, the rates applicable in the case of the petitioner is the rate provided in Ext.P1 which is applicable to the armed personnel also and expatriation allowance at the rates provided therein should be paid to him. He submits that this has not been done notwithstanding a direction which was issued in similar cases by Ext.P5 judgment. Hence the writ petition. The same contentions are reiterated by other petitioners also. 7. In the counter affidavit filed by respondents in WP(C) No. 5605 of 2005, reference is made to Exts.R4(a), (b) and (c) orders. WPC No.21754/04 & conns. 3 As per Ext.R4(a) order dt.24.02.88, the President had sanctioned expatriation allowance at the rates suggested in the letter of the Ministry of Defence dt.02.09.78 which is Ext.R4(b). Under Ext.R4 (b), in respect of Nayik/L.Nayik/Sipoys the expatriation allowance which they are entitled to is as follows: Sl.No. Rank Rates g) Nayik/L.Nayik/Sipoy 50% of the rates of and equivalent expatriation allowance for JCOs, Hav vide (h) as above. Since the above mentioned clause refers to the rates applicable to JCOs/Havildars mentioned in Sub Clause (h) the same is extracted as follows: Sl.No. Rank Rates h) JCOs/Hav. and equivalent 33 1/3% of the Foreign drawing pay exceeding allowance admissible to a Rs.515/- p.m. single civilian Govt. personnel drawing pay above Rs.515/- or more p.m. 8. It is contended that therefore persons like the petitioners are entitled to 50% of the amounts that is payable to a junior WPC No.21754/04 & conns. 4 commissioned officer or Havildar and equivalent, who was drawing pay not exceeding Rs.515/- per month at the relevant time. The quantification of the expatriation allowance that such officers were entitled to, would be done only by referring to the orders of the Ministry declaring the foreign allowance payable to civilians. The two orders which are relevant in this context are Ext.P1 order/letter dt.28.8.89 and Ext.R4(c) letter dt.07.01.88. Ext.P1 was revised as Ext.R4(c) dt.28.8.89. 9. In my view, the dispute centers around the quantification in Sub Clause (j) of Ext.R4(b), namely, “50% of the rates of expatriation allowance for JCOs/Havildars vide clause (h) above.” Learned Standing Counsel for the Central Government submits that once the expatriation allowance, that is allowable for those persons covered by Sub Clause (h) is computed, persons like the petitioners are entitled to 50% of that. It is submitted by the counsel that it is accordingly that the amounts have been calculated in relation to each of the petitioners. Counsel further contended that the claim raised by the petitioners in these cases are highly belated. I am not inclined to consider the contention on WPC No.21754/04 & conns. 5 the ground of delay essentially because no such contention has been raised in the counter affidavit filed by the respondents as such. 10. Having perused the averments in the writ petitions and having considered Exts.R4(a), (b) and (c) and also the contentions take up in the counter affidavit filed by the respondent, I am of the view that the issue requires re-consideration by a competent authority of the respondents. I say so for the reason that, in my view, there is substance in the contention of the petitioners urged at the time of hearing of the writ petition that going by Ext.R4(b) order dt.2.9.78, the expatriation allowance for Naiks and equivalent categories is 50% of the rates of the expatriation allowance applicable to JCOs, i.e., to say that the Naik/L.Naik/Sipoy and equivalent would be entitled to 50% of the rates of allowance that the junior commissioned officers are entitled to. Respondents have proceeded on the premise that the expatriation allowance that persons like petitioners are entitled is a flat 50% of the amount which the junior commissioned officers are entitled to. They have therefore computed the amount WPC No.21754/04 & conns. 6 allowable as expatriation allowance for junior commissioned officer by applying Ext.R4(c) or Ext.P1 as the case may be and then determined the allowance for the petitioners at 50% of the said amount. This is the calculation discernible from the counter affidavit filed by respondents. 11. In my view, the contention that Naik/L.Naik like the petitioners are entitled to expatriation allowance at “50% of the rates” applicable to junior commissioned officers, merits serious consideration at the hands of the respondents. In other words, respondents should consider the benefits that petitioners are entitled to, in terms of Ext.R4(b) letter. Accordingly, computation may be effected. In the result the writ petitions are disposed of directing the 2nd respondent to pass fresh orders as to quantification of expatriation allowance which the petitioners are entitled to, in the light of the observations made above and untrammelled by the earlier computation effected in relation to the petitioners. Fresh orders as directed above shall be passed within a period of six months of the date of receipt of a copy of this judgment. WPC No.21754/04 & conns. 7 Petitioners are entitled to supplement their contentions with any additional representation which they may submit along with a copy of this judgment. V.GIRI, JUDGE btt WPC No.21754/04 & conns. 8