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Judgment
Madan B. Lokur, J.
Caveat No. 81/2009
Since learned counsel for the Respondent has put in appearance, caveat stands disposed of.
WP (C) No. 9855/2009
The Petitioner is aggrieved by an order dated 5th March, 2009 passed by the Central Administrative Tribunal, Principal Bench in OA No. 929/2008. The Respondent held a Group ''A'' post of Assistant Foreign Language Examiner (AFLE) in the Cabinet Secretariat. He was sent on deputation to the Ministry of External Affairs from where he was posted as an Assistant in the Indian Embassy in Seoul, South Korea on 25th February, 2002.
While working as AFLE in India, the Respondent was entitled to the pay scale of Rs. 8000/- Rs. 13500/-. However, during his posting in the Embassy, he was placed in the grade of Assistant in a lower pay scale of Rs. 5500/- Rs. 9000/-.
In terms of Rule 134 of the R&AW (Recruitment, Cadre and Service) Rules, 1975 it was provided that in a situation such as the present, where the amount of pay and allowances given fall short of the officer''s entitlement, the shortfall would be payable in Indian currency on the officer''s reversion from the foreign assignment. Rule 134 made two exceptions in this regard. The exceptions pertain to representational grant and any extra allowance admissible on account of wages of a servant. In other words, these two amounts were not payable to an officer even after his reversion to India.
Rule 134 of the R&AW (Recruitment, Cadre and Service) Rules, 1975 was amended on 18th September, 2003 with effect from 1st January, 1998. By the amendment, the provision for extra allowance admissible on account of wages of a servant was deleted. In other words, only the representational grant was not admissible to an officer on his reversion from the foreign assignment.
Rule 134 along with the relevant portion of the Office Memorandum dated 18th September, 2003 reads as follows:-
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 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?
The Respondent completed his assignment in the Indian Embassy in South Korea and returned on 6th May, 2005. He was paid the shortfall of pay and allowances in terms of Rule 134 of the R&AW (Recruitment, Cadre and Service) Rules, 1975. However, the Respondent alleged that he was not paid the extra allowance admissible on account of wages of a servant. The dispute between the parties is limited only to this issue, that is, whether the Respondent is entitled to payment of the extra allowance admissible on account of wages of a servant.
According to the Respondent, since the Rules were amended with retrospective effect from 1st January, 1998 and the prohibition on the extra allowance admissible on account of wages of a servant was deleted, he was entitled to this amount on his reversion to India. However, according to the Petitioner since the Respondent was not entitled to engage a servant while in South Korea (having been posted only as an Assistant), the payment of extra allowance admissible on account of wages of a servant was not permissible. The Tribunal took the view that the Respondent was entitled to the extra allowance in view of the retrospective amendment to Rule 134. This view has been challenged by the Petitioner before us.
Learned counsel for the Petitioner submitted that the Respondent should have actually been posted in a position which would have entitled him to the services of a servant. Since the Respondent was posted as an Assistant (not entitled to a servant), no extra allowance is admissible to him.
In our opinion, the submission made by learned counsel for the Respondent cannot be accepted. The very purpose of Rule 134 is to enable payment of the shortfall in the pay and allowances due to an officer when he is on a foreign assignment on a lower post. Had the Respondent been posted in the Indian Embassy in South Korea on a post equivalent to an AFLE, he would be entitled to engage a servant. In such an eventuality, the applicability of Rule 134 would not even arise. But, since he went on a lower post, he was not entitled to a servant. It is to make up for the hardship caused to an officer in such a situation that Rule 134 provides that the shortfall in pay and allowances will be given to the concerned officer on his reversion to India.
On a plain reading of the relevant Rule (as amended), in our opinion, the Tribunal had taken the correct view in coming to the conclusion that it was not necessary for the Respondent to have worked in a position which would have entitled him to engage a servant. As mentioned above, if the Respondent had in fact worked in such a position, Rule 134 would not have even come into play. It is only when an officer goes to Indian mission on a lower post that Rule 134 comes into play so that the concerned officer is not denied the benefit that would accrue to him had he gone abroad on a post equivalent to what he holds in India. We find no merit in the writ petition. Dismissed.