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IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH

NEW DELHI

T.A NO. 87 OF 2009 IN WRIT PETITION (C) NO.7856/2008

COL. GLN KESHAV COLONEL (WORKS & PLANNING) HQ CE (P) HIMANK C/O 56 APO. THROUGH: MR. K. RAMESH, ADVOCATE. …PETITIONER VERSUS 1. UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE NEW DELHI – 110 011. 2. CHIEF OF ARMY STAFF THROUGH ADJUTANT GENERAL, ARMY HQ, NEW DELHI – 110 011. 3. HQ DIRECTOR GENERAL BORDER ROADS RING ROAD, DELHI CANTT. NEW DELHI – 110 010. 4. CONTROLLER GENERAL DEFENCE ACCOUNTS, WEST BLOCK – V, R.K PURAM NEW DELHI – 110 066.

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THROUGH: MS. JYOTI SINGH, ADVOCATE WITH MAJ. AJEEN KUMAR .. RESPONDENTS CORAM : HON’BLE MR. JUSTICE S.S KULSHRESHTHA, MEMBER HON’BLE LT. GEN. S.S DHILLON, MEMBER J U D G M E N T Dated : 25.02.2010

1. Col. GLN Keshav, the appellant herein, seeks to quash the

order dated 3.9.2007 passed by the Controller General, Defence Accounts,

New Delhi, which was communicated vide D.O Letter No. AT/I/1216/XIV,

declining to grant Compensatory Field Area Allowance (CFAA). He also seeks

to grant appropriate direction granting him CFAA from the date of his

posting in Leh till date and onwards till being posted out of the sector of Leh

in accordance with the Regulations on the subject.

2. According to the appellant, on 19.12.2006, he was posted as

Colonel (Works & Planning) in HQ Chief Engineer (Project), Himank for laying

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and maintaining the operational efficiency of the strategic roads and passes

in Leh Sector. As per the recommendation of the Fourth Pay Commission,

since the appellant was eligible for CFAA, he made a claim to the Controller

General, Defence Accounts, New Delhi unsuccessfully. The reason for

rejecting his claim was based on the administrative instruction dated

13.4.1994, construing that CFAA is not admissible to CE (P) Himank. The

administrative instruction was issued only for the grant of House Rent

Allowance to Garrison Reserve Engineer Force (Civil Organisation) Officers

and had no relevance with regard to grant of CFAA to army officers as they

are governed by the Defence Service Rules. This was also ruled in the case of

Lt. Col. Surender Singh posted at Field Search Laboratory, Leh being static

unit to whom CFAA was made admissible. Counsel for the petitioner

contends that there appears to be no justified or justifiable reason for the

respondents not to grant CFAA to the appellant when the same has been

granted to other officers placed in the identical situations. Further, there

could be no distinction so far as the admissibility of CFAA is concerned to

persons posted in static or non-static units. The persons posted in the static

unit are also facing the same adverse climatic conditions, isolation and

vagaries of nature, apart from the operational emergency across the border,

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for which CFAA was granted by the Government of India. There could be no

distinguishing feature so far as the service conditions of the officers posted

in the border roads are concerned as they are also, for all purposes, army

officers, posted in border roads and duly entitled to all concessions as are

applicable to army officers posted in different units, in view of Paragraphs 17

and 18 of the Border Roads Regulations. Such regulations would prevail over

the administrative instructions issued by the Director General, Border Roads

declaring the project at Leh to be static unit for the purpose of HRA. It is also

contended that there are a large number of similarly situated officers, and to

avoid multiplicity of proceedings, a specific direction be given to the

respondents for the implementation of the order dated 13.1.1994 in the

matter of all other officers similarly placed.

3. This petition is resisted by the respondents contending that

the Border Road Development Board (BRDB) under the Ministry of Surface

Transport had issued certain directions regulating grant of HRA to GREF

personnel and the petitioner undisputedly falls in that category. It was

further made clear by the BRDB that the admissibility of HRA/ Family

Accommodation to the Border Roads Unit or civilians would be determined

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on the basis of the posting in the static/non-static units. Pursuant to that, the

Director General, vide letter dated 13.4.1994, short-listed the units and the

project at Himank, Leh has been declared by him as one of the static units,

where the petitioner was posted. It was based on that order of the Director

General dated 13.4.1994, CFAA was refused to the petitioner. It is further

submitted that as per the letter dated 13.1.1994, CFAA is granted to the

officers based on the classification of areas as Field Area, Modified Field Area

and Improved Modified Field Area. As per the Border Road Regulations, the

conditions applicable to the personnel of Army, Navy and Air Force will also

apply to GREF.

4. The moot question to be decided in the present petition is,

whether on the basis of the departmental classification, the petitioner, who

is posted in the static unit at Leh, is entitled to CFAA? In order to answer this

moot point, it would be appropriate to take into account the report of the

Fourth Central Pay Commission, relevant portion of which is as under:

“28.97. There is no uniformity between officers and

other ranks in regard to the eligibility for the allowances

in the different types of field areas. While officers are paid

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high altitude/ uncongenial climate area allowance in

addition to separation allowance, personnel below officer

rank are paid special compensatory allowance only. While

officers in modified field areas are given a special ad hoc

allowance or local compensatory allowance as admissible

to civilians, other ranks are eligible for payment of local

compensatory allowance only. Similarly, while in the case

of officers there is distinction in the rates of allowances

admissible in full field areas and improved modified field

areas, there is no such distinction for other ranks. Army

headquarters in their proposals have suggested further

classification of certain areas as hard areas and low

intensity operation areas in addition to the field areas.

Certain norms have been suggested for classification of

areas on the lines suggested by them.

28.98. The present classification of areas into three

types is complex and anomalous and needs to be

rationalized and simplified. We are of the view that armed

forces personnel posted in field areas should be provided

with necessary facilities and given additional

compensation compared to the personnel working in

peace areas. We have separately recommended grant of

compensation when officers posted in field areas do not

avail of the facility of government accommodation at the

last place of posting or the separated family

accommodation at selected stations. Personnel below

officer rank in field areas are also being paid CILQ at the

rates applicable to other towns which we have improved.

We think that field service concessions should be

admissible for operational reasons only in areas declared

as field service areas by government. No other areas

should be eligible for the field service concessions. We

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suggest that the existing classification of areas for grant

of field service concessions may be reviewed by

government. While determining the areas which should

be treated as field service areas, government may also

decide the field service concessions which should be

admissible there taking into account the special

compensatory allowances recommended by us for civilian

employees in such areas.”

5. On the basis of such recommendation, the Government of

India granted CFAA to Army officers vide letter dated 13.1.1994, which reads

as under:

Government of India Ministry of Defence New Delhi-110 011.

Dated the 13th January, 1994

The Chief of the Army Staff Sub : Field Service Concession to Army Personnel implementation of the recommendation of the 4th Central Pay Commission. Sir,

………………………………………… 2.2 Pre-requisites for classifying an area as Field Area and

Modified Field Area will be as follows:

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Field Area : Filed Area is an area where troops are deployed

near the borders for operational requirements and where

Imminence of hostilities and associated risk to life exists.

Troops in such areas are located for reasons of operational

considerations along and are not living in Cantonments.

Modified Filed Area : Modified Filed Area is an area where

troops are deployed in support of Combat echelons/troops in

an operational support role. Degree of operational readiness is

slightly lower than that in Field area, though sustained

surveillance continues.

The defining criteria for Field and modified field area are contained in

Government of India’s letter dated 13.1.1994. Appendix ‘A’ of this letter

specifically identifies Field Area wherein all ranks are entitled to SFAA; same

is appended below:

Appendix A to Govt. of India Ministry of Defence letter

no.37269/AD/PS/3(a)/90/D (Pay/Services) Dated 13 Jan 94 (Refers to para 2.3)

LIST OF FIELD AREAS

1. EASTERN COMMAND

xxxxxxxxxxxx

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2. WESTERN COMMAND

xxxxxxxxxxxx

3. CENTRAL COMMAND

xxxxxxxxxxxx

4. NORTHERN COMMAND

(a) Ladakh Sector : Area North and East of line joining Zozila

MU 3036 Baralachala NE 6672 along the Great Himalayan

Range all inclusive.

(b) Valley Sector All area west of line joining point 1556 in

NR5470 Gulmarg MT 310.5 Naushara MY 3105- Ringapat

MT 2193 Handwara MT 2043-Daingyal MT 2339………..NG

4565 North of Line joining point 8403-Bunakut MT 5453-

Razan NN 2289 Zojila all inclusive.

(c) Jammu-Rajpouri Sector All areas best of line joining Tip of

Chicken Neck RO 7073-Canal junction RD (364 Mawa

Brahmaha RO 6183 Chauki RD 6393 Road junction RD 6499

Baramgala MY 3854 Point 1556 in NR 5470 all inclusive.

Similarly, Appendix B of the same letter i.e. Govt. of India Ministry of

Defence letter no.37269/AD/PS/3(a)/90/D (Pay/Services) Dated 13 Jan

94 wherein modified Field Areas have been specified is appended

below:

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LIST OF MODIFIED FIELD AREAS SOUTHERN AND WESTERN COMMAND

(a) Rajasthan and Punjab Areas West of Line joining Jessai,

Barmer, Jaisalmer, Rokharan, Udasar, Mahajan Ranges,

Suratgarh, Jattan, Abohar, Govindgarh, Fazilka, Jandiala,

Guru, Moga, Dholewal, Beas, Bir, Saranwal, Hussainiwala,

Dera Baba Nanak, Laisain Bulge upto the International Border

all inclusive.

(b) Haryana Satrod (Hissar)

(c) Himachal Pradesh Areas North of line joining Narkhanda,

Keylong upto Field Area line/High Altitude line

EASTERN COMMAND

(a) Assam and Arunachal Pradesh

(i) Cachar and North Cachar Distt. Of Assam including Silchar.

(ii) All areas of Arunachal Pradesh and Assam North of River

Brahmaputra less Tejpur, Mizoram and Tripura.

(b) State of Mizoram and Tripura

(c) Sikkim and West Bengal Areas Northwards of line joining

Sevoke LV 9112 Burdong LV 9850 Sherwani LV 9453 Bagrakot

LW 0113 Damdim LW 1109 New Mal Hasimara OD 7894

Ganga Ram Tea Estate QA 1377 upto the High Altitude

Line/Field Area line/ International Boarder all inclusive.

CENTRAL COMMAND

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Areas North of line joining Uttarkashi, Karan Prayag, Gauchar,

Joshimath, Chamoli, Rudra Prayag, Askote, Charamagad,

Dharchula, Kasauli and Narendra Nagar upto International

Border all inclusive.

NORTHERN COMMAND

(a) Valley Sector Areas West of line joining Pattan, Baramulla,

Kupwara, Drugmula, Ranges Mankes, Buniyar, Pantha Chowk,

Khanabal, Anantnag, Khundru and Khru upto the existing High

Altitude line all inclusive.

(b) Jammu Region Area West of line joining BP-19, Brahmana-di-

Bari, Jindra, Dhansal, Katra, Sanjhi Chatt, Batote, Patni Top,

Ramban and Banihal upto the existing High Altitude line all

inclusive.

As per the appendix, Leh falls in Northern Command Sector and the officers

posted there were made eligible to CFAA.

6. It may be mentioned that the arrangement made in the

Government order or the letter should have to be read as it is, in a natural

manner, plain and straight, without adding, substituting or omitting any

words. While doing so, the words used in the order/ notification should be

assigned natural, ordinary or popular meaning. Its applicability in the matter

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of all those Army officers posted in Leh area would be entitled to CFAA. It

does not cast any difference between static or non-static unit. To attribute a

different meaning would lead to ambiguity, vagueness, uncertainty or

absurdity which was not obviously intended by the 4th Pay Commission and

the Government by issuing the letter dated 13.1.1994. While interpreting the

Government order or letter, one should not substitute or delete the words

so as to change the structure and contents.

7. The petitioner was differentiated with other Army officers by

not making him eligible for CFAA because of the categorisation of the area as

static and non-static made only for the purpose of granting HRA. It is also

contended on behalf of the respondents that there cannot be contradictory

stand with regard to HRA and CFAA. The categorisation of the static unit shall

be taken into consideration for all internal purposes. Once the officers of the

Border Roads are denied HRA, they cannot insist upon for taking altogether a

different stand for making CFAA admissible to them. In this context, it shall

be useful to point out that the Director General, Border Roads, who

categorised the static and non-static units, made it clear vide Letter

No.14307/GEN/DGBR/44/EIB dated 29.6.2005 (Annexure P3) that the

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administrative instruction dated 13.4.1994 had nothing to do with CFAA and

it confined only to HRA. Therefore, he recommended for reviewing the

decision by the Controller General, Defence Accounts whereby they declined

to grant CFAA. As has already been referred, the Controller General

maintained his earlier stand that those who are working in static units are

not eligible for CFAA as there cannot be two different standards - one for

non-admissibility of HRA and the other for CFAA.

8. The material question arises for consideration is, whether the

administrative instruction would override the decision of the Government of

India dated 13.1.1994 with regard to the implementation of the Pay

Commission recommendation. A note of the fact may be taken that the

Central Government have issued the executive instruction letter dated

13.1.1994 under certain provisions of the Constitution providing therefor

such executive instructions have the force of statutory rules. The said

executive order dated 13.1.1994 does not permit the administrative

department to re-define the field area or to make further classification such

as static or non-static for the grant of CFAA. Even otherwise, the

administrative department has no authority to override the decisions of the

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Government. Such administrative decisions being contrary would not have

any force in the eye of law. The delegated authority is not intended to travel

wider than the object of the letter about the admissibility of CFAA. The

delegated function is to serve and promote that object while at all times

being true to it. That is the rule of primary intention. The power conferred on

the delegates/implementing authority does not enable it to either extend

the scope or limit its implementation but is strictly ancillary. It will authorise

only for carrying into effect what is sanctioned. The delegate or

implementing authority cannot limit or curtail the purposes of executive

instructions, to add new meaning of carrying them out or to depart from or

vary its ends (see Section 59, Delegated Legislation on Francis Bennions

Statutory Interpretation, 3rd Edition).

9. Counsel for the respondents, on the other hand, contended

that the administrative instruction was on the basis of the letter dated

12.7.1993 of the Ministry of Surface Transport, Government of India and,

therefore, it cannot be said to be without any authority. The direction in the

said letter dated 12.7.1993 was only in respect of regulating HRA to the

members of the GREF and not for CFAA and the same could be read only in

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the text of HRA and not for any other purpose. The Controller General

appears to have misconstrued the administrative instructions.

10. The services of the petitioner being an officer of the Army

posted on working arrangement at Himank are governed by the Border

Roads Regulations and CDA. As per Regulations 17 and 18, he being an

officer of the Army, shall continue to be governed by the terms and

conditions of the Service Rules applicable to them. Nothing contrary to it has

been provided by the Government order and he shall also be entitled to the

special concessions authorised from time to time by the Ministry of Defence

in specified areas. Leh has been notified as a field area. The Army personnel

are made entitled for CFAA and there could be no reason for depriving the

Army officers posted in Border Roads merely on the ground that the

administrative department categorised certain areas as static and non-static

units for the purpose of HRA. Refusal to grant CFAA is discriminatory and

violative of Article 14 of the Constitution of India. The scope and ambit of

Article 14 was considered by the apex Court about half a century back in

State of West Bengal v. Anwar Ali (AIR 1952 SC 75). Time and again it was

categorically laid down that Article 14 of the Constitution guarantees

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equality of law and confers equal protection. It would be appropriate to note

some of the subsequent decisions. They are: (1) The State of West Bengal

Vs. Gajan Mali (1952 SCR 284), (2) Confederation of Ex. Services and others

v. Union of India and others (2006(8) SCC 399), (3) Arumukam and others v.

Union of India and others (2007(1) SCC 732) and (4) State of Mysore and

another v. P. Narasinga (AIR 1968 SC 349). Article 14 prohibits the State

from drawing person or classes of persons to unequal treatment, provided

they are equal and are similarly situated. It however does not forbid

classification. In other words, what Article 14 prohibits is discrimination and

not classification if otherwise such classification is legal, fair and reasonable.

In the case of Confederation of Ex-servicemen (supra), the apex Court, after

considering all leading cases on equal protection clause enshrined in Article

14 of the Constitution, stated:

“In our judgment, therefore, it is clear that every

classification to be legal, valid and permissible must

fulfill the twin test, namely:

(i) the classification must be founded on an

intelligent differentia which must distinguish

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persons or things that are grouped together

from others leaving out or left out; and

(ii) such a differentia must have rational nexus to

the object sought to be achieved by the statute

or legislation in question”

In the context of the principles enunciated by the apex Court above, it is be

looked into as to how far the order refusing to grant CFAA is sustainable and

whether it fulfills the above two tests. The first test is that the classification

on which it is founded must be based on an intelligible differentia which

distinguishes persons or things grouped together from its left out of the

group. The second test is that the difference in question must have a

reasonable nexus to the object to be achieved by the rule or the statutory

proposition in question. In other words, there must be some rationale nexus

between the basis of classification and object intended to be achieved by the

statute or rule. The Government of India’s letter dated 13.1.1994 does not

make any distinction with regard to the admissibility of CFAA to the officers

posted in the field area. All those who are posted at high altitude

uncongenial climate are entitled to CFAA. Mere attachment with the static or

non-static unit would not make any difference with regard to the high

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altitude of the place (Leh). It would continue to be most inhospitable and

hazardous climatic condition where the officers are posted irrespective of

static or non-static units. The decision to grant CFAA to the Army officers

who are posted in field areas was taken by the Fourth Central Pay

Commission. Normally, such a decision is not interfered with either by the

Executive or by the Judiciary. Here, the administrative instruction issued by

the Director General, Border Roads would not be an eclipse on the decision

of the Government for the grant of CFAA based on the Pay Commission

Recommendation. The case of the petitioner cannot be considered on a

different yardstick and the petitioner shall also be entitled to the same

allowance which had been extended to Lt. Col. Surender Singh, who was

granted CFAA when posted in the static unit.

11. In view of the above discussions, the order passed by the

Controller General, Defence Accounts is violative of Article 14 of the

Constitution of India and discriminatory. The petition is, therefore,

allowed with special cost of Rs.25000/-. The petitioner is entitled to CFAA

at the same rate which is being paid to other Army officers who are posted

at Leh with effect from the date of his posting at Leh till the date and

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onwards till being posted out of Leh. This order shall also be made

applicable to officers who are posted in identical situations.

LT. GEN. S.S DHILLON JUSTICE S.S KULSHRESHTHA MEMBER MEMBER