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2017 DIGILAW 1487 (GAU)

Tushar Kanti Paul v. Union of India

2017-11-30

A.K.GOSWAMI, AJIT SINGH, HRISHIKESH ROY

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JUDGMENT : AJIT SINGH, J. A Division Bench of this court, vide order dated 18.6.2008, referred this matter to the Full Bench. The question which requires our consideration reads as under: “Whether after the right of petitioner to receive Special Duty Allowance having been settled by a competent court survives irrespective of different interpretation of law by the Supreme Court on the same issue, but in another proceeding, in which, he is not a party?” 2. In order to answer the question, it is necessary to narrate few relevant facts. On 14.12.1983, the Union of India issued an office memorandum conferring certain rights and privileges in favour of its employees posted in North-Eastern Region of the country. One of the rights, so conferred, was that such employees shall be entitled for a special duty allowance. The petitioner, on the basis of the aforesaid office memorandum, claimed special duty allowance, which was denied to him. He, therefore, filed an original application, namely, OA No. 105/1987 before Central Administrative Tribunal, Gauhati Bench (‘Tribunal’). The Tribunal vide order dated 12.5.1989 allowed the original application pursuant to which the petitioner was being paid special duty allowance. However, subsequently, the aforesaid benefit was withdrawn vide order dated 31.12.1998 issued by the Regional Pay and Accounts Officer, which was subject-matter of challenge in OA No. 7/1999 before the Tribunal. 3. The Tribunal vide order dated 2.11.2000 held that the question of payment of special pay allowance had already been settled and, therefore, the authorities cannot discontinue the same. But, later, by an another order dated 13.5.2004, Respondent No. 5 directed to discontinue special duty allowance to the petitioner. The petitioner, therefore, once again filed OA No. 136/2004 before the Tribunal. However, the same was dismissed vide order dated 9.6.2005. The petitioner then filed an application for review which was also dismissed on 18.8.2005. 4. The petitioner, therefore, challenged both the aforesaid orders in WP(C) No. 2486/2006 on the ground that since the issue with regard to payment of special pay allowance had been settled between the parties by a competent court and relief was granted by the competent court, the same cannot be withdrawn by an executive order in the light of decision of the Supreme Court, to which, he was not a party. It is in this background, the Division Bench has referred the question stated (supra) for consideration by the Full Bench. 5. It is in this background, the Division Bench has referred the question stated (supra) for consideration by the Full Bench. 5. We have heard the learned counsel for the parties at length. Admittedly, by an office memorandum dated 14.12.1983, the employees posted in North-Eastern Region of the country were held entitled to special duty allowance. The aforesaid office memorandum was interpreted by the Supreme Court in Union of India v. Vijay Kumar, 1994 Supp (3) SCC 649, in which, inter alia, it was held that the special duty allowance shall not be payable to the employees posted in North-Eastern Region of country, who belong to the same Region. In view of judgment of the Supreme Court, the Government of India issued a subsequent clarification that benefit of payment of special duty allowance of the office memorandum dated 14.12.1983 shall be limited only to that class of employees, who are ultimately found to be eligible on the basis of interpretation of memorandum by the Supreme Court in the case of Vijay Kumar(supra). Consequently, the petitioner was held not entitled to the benefit of special duty allowance by the Tribunal vide order dated 9.6.2005. 6. It is well settled in law that a decision of the Supreme Court does not create any right but only recognizes the pre-existing right. The right to receive the special duty allowance flows from the office memorandum dated 14.12.1983 which has been interpreted by the Supreme Court in the case of Vijay Kumar (supra) restricting its benefit only to the employees, who are not the residents of North-Eastern Region of country and posted there. Later, the Supreme Court in Sub-Inspector, Sadhan Kumar Goswami v. Union of India, (1997) 2 SCC 225 has further held that the petitioners who had filed subsequent writ petitions claiming the benefit of special duty allowance are bound by the ratio laid down in the case of Vijay Kumar(supra), even though, they were not parties to the same and cannot be permitted to raise new grounds to canvass the correctness of the judgment rendered in the case of Vijay Kumar (supra). In other words, the decision rendered by the Supreme Court in the case of Vijay Kumar (supra) also binds the persons who were not parties to the aforesaid decision. In other words, the decision rendered by the Supreme Court in the case of Vijay Kumar (supra) also binds the persons who were not parties to the aforesaid decision. The judgment of the Supreme Court does not create any right but only recognizes the preexisting right and if the Supreme Court interprets the provision, the same would relate back to the date of such provision — see Lily Thomas v. Union of India, (2000) 6 SCC 224 and Sarwan Kumar v. Madan Lal Aggarwal, (2003) 4 SCC 147 . The legal position of office memorandum dated 14.12.1983 having been settled by the Supreme Court, the petitioner shall obviously be bound by settled legal position. Therefore, the question of his having attained a right to claim special duty allowance does not arise. In any case, it needs to be appreciated that subsequent decision in favour of the petitioner on 2.11.2000 was per incuriam as the same was passed in violation of the law laid down by the Supreme Court in the case of Vijay Kumar (supra) which was binding under article 141 of the Constitution of India on the Tribunal. Thus, the order dated 2.11.2000 passed by the Tribunal is per incuriam and subsequently the Tribunal rightly dismissed the original application preferred by the petitioner by an order dated 9.6.2005. 7. For the aforementioned reasons, we answer the question of law by stating that since the issue with regard to special duty allowance has been settled by the Supreme Court in the case of Vijay Kumar(supra), the claim of the petitioner for grant of special duty allowance does not survive merely on the ground that his claim was settled by a competent court and he was not a party in a decision rendered in the case of Vijay Kumar (supra). Let the matter be placed before the appropriate Bench for orders. 8. Also assuming that principle of res judicata may apply to the fact situation of the case, yet, we need not examine the same as the Supreme Court in Sub-Inspector, Sadhan Kumar Goswami (supra) has already held that even if persons who were not parties to the decision in the case of Vijay Kumar (supra) are bound by the same.