Case: Union Of India Vs. Sh. Sarvendra Singh Chauhan

2. The Respondents are combatised personnel of the Assam Rifles. Their grievance pertains to withdrawal of Special (Duty) Allowance. To understand the controversy, it is relevant to refer to the events that led to the introduction of Special (Duty) Allowance and its withdrawal.By office memorandum dated 14.12.1983, the Government of India introduced payment of Special (Duty) Allowance to Central Government civilian employees who were posted to any station in theregion. The said allowance was extended to personnel working in Assam Rifles on 02.02.1989. On the basis of the recommendations of the 6th Central Pay Commission, the President of India approved the introduction of Risk/Hardship Allowance to Central Para Military Force personnel w.e.f. 01.03.2009. The office memorandum dated 16.04.2009 by which the decision was conveyed to all departments concerned contained a clause which is aspersonnel shall have the option to receiving their existing package of compensatory allowances and detachment allowance or the Risk/Hardship Allowances proposed atand 2 above whichever is beneficial to. By a letter dated 05.06.2009, the benefit of Risk/Hardship Allowance was extended to Combatised Armed Reserved Personnel in Assam Rifles. They were informed that they have an option to claim Special Compensatory Allowance (remote locality) and detachment allowances or risk allowance whichever is beneficial to them.A clarification was sought on the drawal of Risk/Hardship Allowance by the Shashatra Seema Bal (SSB) on 13.12.2010 as to whether the employees posted in theregion were entitled for Risk/Hardship based allowance along with Special (Duty) Allowance. The Government examined the proposal and clarified that the personnel who were getting Risk/Hardship Allowance were not eligible for Special (Duty) Allowance being a compensatory allowance. Consequently, the Director General Assam Rifles passed an order on 12.05.2011 informing the personnel that Special (Duty) Allowance which was being paid along with Risk/Hardship Allowance would be stopped w.e.f. 01.06.2011. The personnel were given an option to choose either Risk/Hardship Allowance or Special (Duty) Allowance. The said order dated 12.05.2011 was challenged by the Respondents in Writ Petition No.147 of 2011 and Writ Petition No. 133 of 2011. A Single Judge of the Guwahati High Court set aside the order dated 12.05.2011 and directed the authorities not to stop the payment of Special (Duty) Allowance until a suitable modification of the notification dated 16.04.2009 is made. The only ground on which the Writ Petitions were allowed was that the Special (Duty) Allowance was given to the personnel by a Presidential sanction whereas its withdrawal was by an order passed by the Director General of Assam Rifles. A Division Bench of the Guwahati High Court affirmed the said judgment of the learned Single Judge. The judgment of the Division Bench of High Court is assailed in these appeals.

Court's reasoning:
8. We have considered the submissions made by the learned Senior Counsels. The office memorandum dated 16.04.2009 by which the Risk/Hardship Allowance was introduced makes it clear that the CPMF personnel will have the option to receive the existing package of compensatory allowances and detachment allowance or Risk/Hardship Allowance. The existing package of compensatory allowance would necessarily include the Special (Duty) Allowance which, in our opinion, is a compensatory allowance. The Special (Duty) Allowance was introduced on 14.12.1983 to all Central Government civilian employees who were posted in the North Eastern region. The contention of the counsel for the Respondents that the Special (Duty) Allowance is not a compensatory allowance is not correct. The submission on behalf of the Respondents that combatised personnel were given an additional benefit of special compensatory allowance which was not available to the non combatised personnel due to which they would be entitled for payment of both the Special (Duty) Allowance and the Risk/Hardship Allowance is also not acceptable. As stated earlier, the Risk/Hardship Allowance is an alternative to the existing package of compensatory allowances which includes Special (Duty) Allowance. Any ambiguity was already cleared by the Government of India in a clarification sought by the SSB.We are not in agreement with the findings recorded by the High Court that the benefit of Special (Duty) Allowance granted with the sanction of the President could not have been withdrawn by the Director General Assam Rifles. The Director General Assam Rifles was only correcting the mistake that was committed earlier and implementing the office memorandum dated 16.04.2009 as clarified by the Government on