BHUGESWAR GOGOI vs THE STATE OF ASSAM AND ORS

HRISHIKESH ROY, J.

Heard Mr. Y.S. Mannan, the learned counsel appearing for the petitioner. Also heard Mr. D. Nath, the learned Addl. Senior Govt. Advocate,

Assam, who appears for the State respondents.

The petitioner served as a Sub-Major and Honorary Captain in the Indian Army and superannuated on 31.10.2010. He was re-employed as Zila

Sainik Welfare Officer, Lakhimpur, under the office order dated 6.5.2002 (Annexure-D), issued by the Director, Sainik Welfare, Assam. The same

authority stipulated under his communication of 20.9.2002 (Annexure-F), that the petitioner will receive salary of Rs.5425/- P.M. but the order on

allowance will follow later.

The petitioner joined service on 10.5.2002, under the State Government and his initial two years tenure was extended by another two years and in

this manner, the petitioner served for four years as Zila Sainik Welfare Officer, under the Assam Government. Notwithstanding the assurance to issue

order on allowance at a later date under the communication of 20.9.2002 (Annexure-F), no order on allowance was passed by the authorities and

accordingly, the aggrieved party filed the WP(C) No.1791/2007, to claim his dues.

In this writ petition, the petitioner projected that when he retired on superannuation on 31.10.2010, as a Sub-Major and Honorary Captain of the

Indian Army, he came across the advertisement published on 9.6.2001, inviting applications from retired Armed Forces Personnel for few vacant

posts of Zila Sainik Welfare Officer. The advertisement stipulated that the appointment will be on tenure basis and pay and allowance are negotiable.

When the petitioner was shortlisted for appointment, he was made to sign the agreement on 6.5.2002 (Annexure-E), which specified that the last

pay drawn from the Armed Forces for the retired personnel will be protected and his pay will be subject to Rule 173 (b) of the Assam Services

(Pension) Rules, 1969 (hereinafter referred to as ‘the 1969 Rules’).

The litigant highlighted his grievance on denial of allowance as per his entitlement and put forward the claim for House Rent Allowance (HRA) and

other such allowances, admissible to Government employees. The discrimination on the emoluments paid to the Zila Sainik. Welfare Officer, employed

in Nagaon and Cachar Districts vis-Ã -vis the petitioner, who was employed in the Lakhimpur District, was also projected in the writ petition. The

learned Judge also noted the recommendation made on 30.7.2003, by the Director, Sainik Welfare, Assam, to the Government, on fixation of pay for

the Zila Sainik Welfare Officer, with strong recommendation for allowing pay and allowance, in terms of the Rule 173 (b) of the 1969 Rules.

After due consideration of the case, projected by the petitioner and the State, the learned Judge under the judgment dated 7.8.2008 (Annexure-P),

issued direction to the competent authorities of the State, to address the grievance of the petitioner, in terms of the recommendation made in the letter

dated 30.7.2003, written by the Director, Sainik Welfare, Assam.

Following the above direction of the Court, the impugned speaking order was passed on 17.11.2008 (Annexure-Q). The Commissioner & Secretary

to the Govt. of Assam, General Administration (A) Department, took the view that the ROP Rules, 1998, does not specify any scale of pay for the

post of Zila Sainik Welfare Officer and salary is to be fixed under Rule 173

 (b) of the 1969 Rules. With this understanding, the authority declared on 17.11.2008 (Annexure-Q) that allowance is not payable to the writ

petitioner, who served as the Zila Sainik Welfare Officer.

9.1. Assailing the legality of the rejection of the claim for allowance, the petitioner contends that he was paid HRA and the medical allowance, when

he was serving in the Army but with superannuation, the HRA is no more payable. However with re-employment under the State Government, the

petitioner is definitely entitled to all permissible allowance, as is being availed by other Government employees.

9.2. The learned counsel Mr. Y.S. Mannan relies on UPSC vs. Girish Jayanti Lal Vaghela reported in (2006) 2 SCC 482, to contend that employment

under the Government is a matter of status and the rights and obligations are not determined by the contract of the two parties but by the statutory

Rules, framed by the Government. The counsel projects that allowance is paid to the Government employees and therefore, in view of the offer of

allowance made in the advertisement and also in the Government communication dated 20.9.2002 (Annexure-F), the denial of allowance is contended

to be a legally unsustainable decision.

9.3. Since the HRA and medical allowance are being paid to the other two Zila Sainik Welfare Officers, serving respectively in Nagaon and Cachar

District, the petitioner projects a case of discrimination, since the nature and responsibilities discharged by the three officers in the three Districts, are

identical in all respect.

10.1. On the other hand, Mr. D. Nath, the learned Addl. Senior Govt. Advocate, Assam submits that the Government is empowered under Rule 173

(b) of the 1969 Rules, to fix the pay and allowance for the former Army Officer, reemployed in a civil job and on this basis, the denial of allowance

under the impugned order dated 17.11.2008 (Annexure-Q), is supported by Mr. Nath.

10.2. It is the further submission of the respondents’ lawyer that two officers in Nagaon and Cachar Districts were appointed prior to enactment

of the ROP Rules and therefore, granting of allowance in addition to pay for these two Zila Sainik Welfare Officers, will not justify a similar claim for

allowance by the petitioner.

Before discussing any other aspect, it is necessary to note that the ROP Rules, 1998, governed the field when the petitioner was appointed on

6.5.2002 and the Rules did not provide for regular pay scale, to the Zila Sainik Welfare Officer. But merely because pay scale in the ROP Rules, 1998

is not specified, would the disbursal of fixed pay without the payable allowance for the Zila Sainik Welfare Officer be justified? In my perception, the

denial of allowance in reference to the ROP Rules, 1998, can have no legal sanction.

In the advertisement issued on 9.6.2001, it was clearly stipulated that the appointee will be entitled to pay and allowance but the same will be

negotiable. It was also mentioned in the appointment offer of 19.4.2002 (Annexure-C), that the pay and allowance of the Zila Sainik Welfare Officer,

will be fixed later by the Government. It is also pertinent to record that the deed of agreement executed on 6.5.2002 (Annexure-E), does not rule out

payment of allowance, for the re-employed army personnel.

On the issue of discrimination, the paragraph-28 of the writ petition, refers to the fact that the two Zila Sainik Welfare Officers, posted

respectively in Nagaon and Cachar Districts, are being paid the allowance, whereas the same is denied for the petitioner, who is serving in similar

capacity, in the Lakhimpur District. This averments corresponds to paragraph-21 of the counter affidavit, which speaks of appointment of the Zila

Sainik Welfare Officers in the Nagaon and Cachar Districts, with regular scale of pay and the non entitlement of scale of pay for the petitioner, who

was appointed under the agreement dated 6.5.2002 (Annexure-E). But these averments do not directly deal with the issue of allowance.

The Supreme Court, while examining the nature of rights, possessed by a Government servant, noted in Girish Jayanti Lal Vaghela (Supra), that

the relationship between the Government and their employees is not like an ordinary contract of service between a master and servant. The legal

relationship is much more than a purely contractual relationship and the duties and status of the parties are fixed by law. The following ratio was laid

down on the nature of employment, under the Government:

It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status

may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the

contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the

Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government

What emerges from above is that the service of the former Armed Force personnel on being re-employed to a civil post under the Government,

will be dictated by Rule 173 (b) of the 1969 Rules. On reading of the provisions, it becomes clear that the Government undoubtedly has the power to

reduce the pay and allowance to a certain degree, in reference to the pension receivable by the appointee. But this Rule nowhere provides that

HRA/Medical Allowance will not be payable. If these allowances are part of the pension package for the retired army personnel, only to the extent of

such receipt, the Government is empowered to reduce the pay and allowance for the re-employed army personnel but allowance cannot be done

away, as has been done for the petitioner.

When the vacancy of Zila Sainik Welfare Officer was advertised on 9.6.2001 (Annexure-A), it was clearly stipulated that the post will carry pay

and allowance, which will however be negotiable. In the appointment offer made to the petitioner on 19.4.2002 (Annexure-C), specific reference to

pay and allowance was made for the appointee. The agreement executed by the petitioner on 6.5.2002 (Annexure-E), also speaks of protection of last

pay drawn, subject to Rule 173 (b) of the 1969 Rules.

None of the above documents or even the Rule 173 (b) of the 1969 Rules, provide for a situation, where allowance would be denied to the re-

employed army personnel. Moreover the petitioner, who was appointed as the Zila Sainik Welfare Officer, Lakhimpur, is being refused the allowance

component of his emoluments, whereas allowances is being paid to his counter parts in the Nagaon and Cachar Districts. Thus equals have been

discriminated in disbursal of allowance. In my opinion, the withholding of allowance from the payable emoluments, infringes the petitioner’s

Fundamental Rights, guaranteed by the Constitution.

Following the above discussion, the impugned speaking order dated 17.11.2008 (Annexure-Q), is found to be legally unsustainable and the same is

quashed. The respondents are accordingly directed to ensure payment of the payable allowance for the petitioner, as was paid to the two Zila Sainik

Welfare Officers, posted in the Nagaon and Cachar Districts. The required exercise for computation of unpaid allowance and disbursal thereof, should

thus be made. To facilitate the exercise, the petitioner will furnish a representation along with a copy of this order and the matter should then be

decided by the competent authority, within three months of receipt of the representation. It is ordered accordingly.

With the above direction, the case stands disposed of, without any order on cost. A copy of this order be furnished to Mr. D. Nath, the learned

Addl. Senior Govt. Advocate, Assam, for necessary communication.