K. Venugopalan And Others vs Union Of India And Another

All the petitioners in the instant writ petition are serving in General Reserve Engineering Forces (hereinafter referred to as "GREF") and are posted at different locations in the State of Jammu & Kashmir, which have been declared as Counter Insurgency Operational Areas.

In the first round of litigation the petitioners filed three (03) writ petitions, i.e., 1) SWP No. 910/2004, titled "Bhola Nath Vs Union of India and others", decided on 05.08.2005, 2) SWP No. 1511/2004, titled A. Rajendran & ors Vs Union of India, decided on 19.02.2007 & 3) SWP No. 357/2014, titled "K. Venugopalan Vs Union of India and others", decided on 24.02.2014.

The claim of the petitioners was that they are entitled to Special Compensatory Counter Insurgency Operational Allowance. It was stated that the petitioners are performing their duties in the area, which have been declared as Counter Insurgency Operational Areas and therefore, they were entitled to certain allowances, as were being paid to army personnel deployed in such Counter Insurgency Operational Areas. The case set up before the Writ Court was that the GREF personnel were an integral part of armed forces of India. Reliance in this regard was placed upon communication dated 14.08.1995, which was issued by the Government of India in that regard.

Response was filed in the aforementioned writ petitions, wherein a stand was taken that the matter was being considered by a High Level Committee and that a decision would be taken. It was in those circumstances that the petitions came to be decided on various dates as mentioned herein above with a direction to the respondents to accord consideration the case of the petitioners within the prescribed period.

What is important to note here is the fact that the Writ Court in the aforementioned cases had clearly held that the petitioners being an integral part of the armed forces could not be denied the allowances, as were being paid to the armed forces personnel for their posting at the locations notified for the purposes of grant of special allowance. It would be beneficial to reproduce the finding and observation of the Writ Court, which is as under:-

"In so far as the status of the petitioners as integral part of the armed forces is concerned, the same has not been disputed or denied. It is also not disputed that the petitioners are working in different areas and counter insurgency areas along with the armed forces. Under these circumstances, they having been declared as integral part of the armed forces cannot be denied the allowance as are being paid to the armed forces personnel for their posting at the locations notified for the purpose of grant of special allowances. This petition is accordingly disposed of with a direction to the respondents to consider the claim of the petitioners for grant of various compensatory allowances for being posted in the areas notified for grant of special allowances payable to armed forces. Let the consideration be accorded within a period of four months and if the petitioners are found entitled to their claims of allowances payable under the Government policy, be released in their favour within a period of two months thereafter."

Pursuant to the directions so issued, the cases of the petitioners have been considered and finally rejected by virtue of order impugned dated 07.01.2015. On a perusal of the order impugned, it appears that their cases have been rejected on the following grounds:-

i) that the personnel deployed for construction/ maintenance of roads and personnel deployed for counter insurgency operations are not equally circumstances to be treated at par.

ii) that the armed personnel deployed in BRO are more susceptible to the enemy's bullet, as their counterparts in the same area are fighting insurgency.

iii) that the armed personnel while posted to BRO carry their terms and conditions, whereas GREF personnel continue to draw pay and allowance as per their own terms and conditions.

iv) that the other civilian personnel belonging to Central Public Works Department (CPWD), Pradhan Mantri Gram Sadak Yojana (PMGSY) etc working in the same area have not been held entitled to the said allowance.

In the response filed by the the Union of India in the instant petition, the stand taken by the respondents in the earlier order of rejection has been reiterated.

Heard learned counsel for the parties.

It is not denied that GREF is an organization, which is primarily concerned with the maintenance of defence roads, throughout the country, including the State of Jammu & Kashmir, especially in the border areas. It is also not denied that the officers from the armed forces are deployed in the GREF at various levels for ensuring the smooth functioning of the said organization.

If that be so, then it is not understandable as to why an army personnel alone can be held entitled to Special Compensatory Counter Insurgency Allowance, while his counterparts in GREF while working shoulder to shoulder with such army personnel in the same area, which has been declared as Counter Insurgency Operational Areas, should be denied such a benefit. More so, when GREF has been declared to be an integral part of the defence forces. The classification of personnel between the GREF and the army for purposes of denying the benefit of such a allowance, therefore, appears to be totally irrational and arbitrary.

The fact that the civilian officers working in PMGSY Scheme or working in the Public Works Department in the same area are not getting such an allowance is no reason to deny the GREF personnel the said benefit, especially when it is nobody's case that officers working in PMGSY or PWD are an integral part of the defence establishment. Admittedly, the aforementioned two organizations are not an integral part of the defence establishment and, therefore, cannot be held eligible for grant of such a benefit. In my opinion, therefore, the order of rejection holding the petitioners not entitled to the benefits is totally irrational and deserves to be quashed.

Another thing, which requires to be noticed is that in the earlier round of litigation, the Court by virtue of judgments and orders dated 05.08.2005, 19.02.2007 & 24.02.2014 had already held that the respondents could not have been denied the allowances as are being paid to the armed force personnel and, therefore, it was not open to the respondents to reject the cases of the petitioners for grant of such a benefit. The issue infact had been determined already in favour of the petitioners by virtue of judgment and orders aforementioned and it was not open to the respondent at all to reject their cases.

Be that as it may, having considered the matter in its entirety, I am of the opinion that the order of rejection, on the face of it, is bad and illegal and is, accordingly, quashed. Respondents are directed to pay the Special Compensatory Counter Insurgency Allowance to the petitioners, as are being paid to the army personnel.

Disposed of accordingly.