Full Judgment
$~8 (Common Order) * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
23. d September, 2013 % + W.P.(C) 5051/2012 HARISH CHANDER ..... Petitioner Through : Mr. Dhiraj, Adv. versus UNION OF INDIA AND ORS ..... Respondent Through : Mr. Rajeeve Mehra, ASG. AND $~9 + SATWINDER SINGH W.P.(C) 5336/2012 ..... Petitioner Through : Mr. Dhiraj, Adv. versus UNION OF INDIA AND ORS ..... Respondent Through : Mr. Rajeeve Mehra, ASG. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA GITA MITTAL, J (Oral) 1. These two writ petitions have been preferred by the petitioners being aggrieved by the non-payment of Bhutan Compensatory Allowance (hereinafter referred to as “BCA”) by the respondents.
2. The brief facts giving rise to the writ petitions are noted hereafter. The petitioner in W.P.(C) 5051/2012 namely Sh. Harish Chander was recruited on 1st June, 1989 in GREF (Border Roads Organization) and was posted to 504 SS & TC under project “DANTAK‟ from HQCE (P) where he reported on 2nd August, 1997. The petitioner joined there on 2nd August, 1997 and rendered service in the aforesaid project upto 4th January, 2001.
3. Sh. Satwinder Singh, the petitioner in W.P.(C)5336/2012 was also recruited in GREF and was posted to 504 SS & TC project „DANTAK‟ from HQCE (P) HIRAK. He joined the said project on 16th May, 1998 and rendered service at the project upto 13th May, 2001.
4. The petitioner/Satwinder Singh claims in the writ petition that despite having served in the project “DANTAK‟ in Bhutan upto 13 th May, 2001, he has been given the Bhutan Compensatory Allowance only for 89 days contrary to the applicable rules and regulations. It is undisputed that the petitioner retired from services on 31st July, 2008 without making any grievance/representation on the above aspect.
5. The writ petitions No.5051/2012 & 5336/2012 have been preferred/filed only on 17th July, 2012 and 17th August, 2012 respectively and deserve to be rejected on the sole ground of unexplained delay and laches. However, the petitioners have placed reliance on an order dated 27th October, 2010 passed by this court in a matter titled as Amar Nath Prasad v. Union of India and others. It is stated that the petitioners Satwinder Singh and Harish Chaander are similarly situated to the petitioner/Amar Nath in LPA 618/2002 who was granted Bhutan Compensatory Allowance (BCA) in similar circumstance.
6. We have, therefore, considered the instant writ petitions on the merits of the rival contentions.
7. The respondents have filed counter affidavits as well as additional affidavits explaining the circumstances under which the employees are entitled to Bhutan Compensatory Allowance. It has been pointed out that postings of personnel are short listed based on criteria enumerated in HQDGDR Policy letter No.13001/POL/POs/DGBR/EIA dated 24th February, 1998.
8. It is further stated that the petitioner/Satwinder Singh was posted to the location of Jaigaon, West Bengal, India. Hence no BCA was applicable to him and therefore it was not paid to him. The petitioner/Satwinder Singh was paid BCA for the period for which he remained on temporary attachment with HQ 19 BRTF (GREF), BCA area located at Phuentsholing, Bhutan for a period of 89 days w.e.f. 18th August, 1998 to 14th November, 1998.
9. It is submitted that the petitioner did not fulfil the eligibility criteria for posting to BCA. The petitioner neither posted to 504 SS & TC under BCA criteria nor physically served in the area where BCA was applicable. The petitioner was paid BCA as per actual period of attachment with 19 BRTF i.e. for 89 days which is the actual period of days of physical service rendered by the petitioner in Bhutan. The Attendance Register filed in support of the petition is a non auditable document and purely administrative in nature. This Register only ensures that the official was on duty on a given date. Moreover, being a part of Project „DANTAK‟ per se does not qualify the individuals to Bhutan Compensatory Allowance.
10. Similarly petitioner/Harish Chander was posted from 510 SS & TC (P) (Project) Pushpak to 504 SS & TC (GREF) (General Reserve Engineer Force) (P) „DANTAK‟ under Non-Bhutan Compensatory Allowance Area (Non-BCA area criteria) also located at Jaigon, West Bengal, India. The petitioner/ Harish Chander remained temporarily posted/attached with HQ 19 BRF (GREF), BCA located at Phuentsholing, Bhutan for a period of 46 days. The details of such postings are enumerated below : i ii 29.8.1997 to 1.9.1997 iii 9.6.1998 to 13.6.1998 iv 11. 16.8.1997 to 17.8.1997 7.11.1998 to 11.12.1998 The counter affidavit filed by the respondents discloses that the petitioner/Harish Chander also actually received the Bhutan Compensation allowance @ Rs.14417/- per month for the above period. The petitioner was neither posted to 504 SS & TC under BCA criteria nor physically served in the area where BCA was applicable. The petitioner was posted to HQ 504 SS & TC (GREF) in non BCA area located in Jaigaon, West Bengal in India a normal posting, as he lacked the eligibility criteria for posting to the area where BCA is applicable. The personnel posted on non-BCA criteria, as and when deployed in Bhutan due to exigencies of service, were given BCA. The petitioner was also paid BCA as and when he was deployed in BCA area.
12. Both these petitioners after completion of the normal tenure in 504- SC & TC were transferred and posted with other platoons of the organization.
13. The above factual narration is not disputed by the petitioners.
14. For the period for which the petitioners were serving in the location at Jaigaon, West Bengal in terms of the applicable policy, they were entitled to payment of Dearness Allowance and House Rent Allowance. The respondents have submitted that these amounts were paid to them and have been duly received by both the petitioners without any objection. It is admitted before us that if Dearness Allowance and House Rent Allowance were paid, BCA would not be admissible.
15. We may advert to the submissions made by the learned counsel for the petitioner to the fact that this court was pleased to accept a similar plea made by Amar Nath in LPA 618/2002 vide pronouncement dated 27 th October, 2010. A perusal of the order dated 27th October, 2010 would show that petitioner/ Amar Nath was posted under non-BCA criteria but rendered his service physically in Bhutan along with those personnel who were posted under BCA criteria. The petitioners/Harish Chander and Satwinder Singh were neither posted to 504 SS & TC under BCA criteria nor physically served in the area where BCA was applicable for their entire posting. Hence the judgment delivered by this court in case entitled as Amar Nath Prasad v. Union of India is of no avail to the petitioners.
16. The judgment rendered in Amar Nath(supra) was perused. We were not called upon to consider any plea by the respondents that Amar Nath was temporarily attached in Bhutan and not posted there for the entire period of his posting. We were not called upon to effect adjudication on the issue raised herein . In the factual background placed before us, we had decided that Amar Nath was entitled to the Bhutan Compensation Allowance for the period for which he remained posted in Bhutan alone. We have not held that Amar Nath was entitled to Bhutan Compensatory Allowance for any period for which he was serving in India. Therefore, this judgment does not provide assistance and support to Harish Chander and Satwinder Singh.
17. It is noteworthy that the petitioners were posted out from West Bengal as back as in the year 2001. Admittedly, no complaint was initiated by the petitioners while they were receiving the amounts of Dearness Allowance (DA) and House Rent Allowance (HRA). No grievance/representation was made before any authority at any stage that the petitioners were entitled to Bhutan Compensation Allowance. The petitioners never made any representation from the year 1998 till the year 2012 , when the judgment in the case titled Amar Nath v. Union of India was delivered by this court. It was only after the pronouncement in Amar Nath that the instant writ petitioners filed the writ petitions.
18. For all the reasons discussed above, we find that these writ petitions are devoid of merits. The writ petitions are hereby dismissed. GITA MITTAL, J DEEPA SHARMA, J SEPTEMBER 23 2013 j