Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1632 (GAU)

Samir Chandra Kar v. Union of India

2018-11-20

UJJAL BHUYAN

body2018
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. S. Deka, learned counsel for the petitioners and Mr. S.S. Roy, learned Central Govt. Counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of Office Memorandum dated 24.2.2009 issued by the Director (Police Finance), Ministry of Home Affairs (Police Finance Wing), Govt. of India and further seeks a direction to the respondents to extend the benefit of ration money allowance to the petitioners with effect from 01.09.2008. 3. Petitioners are civilian employees serving in the Assam Rifles working as teachers and nursing staff. Their grievance is that while combatment personnel of Assam Rifles are granted ration money allowance, the same has not been granted to them on the sole ground that petitioners are non-combatment personnel of Assam Rifles. Petitioners further allege that they have been discriminated against by the respondents thus violating Article 14 of the Constitution of India. 4. As a matter of fact, petitioners had highlighted their grievance before the authorities of Assam Rifles. Assam Rifles in its recommendations to the 6th Central Pay Commission had recommended that ration money allowance be provided to civilian staff of Assam Rifles too. Notwithstanding the same, grievance of the petitioners has not been redressed; rather, overlooked by issuance of the impugned Office Memorandum dated 24.2.2009. 5. Hence, the writ petition. 6. This Court by order dated 01.11.2010 had admitted the writ petition by issuing Rule. 7. Respondents have filed a common affidavit raising preliminary objection as to the maintainability of the writ petition as well as opposing the prayer of the petitioners on merit In so far preliminary objection is concerned, it is contended that petitioners being civilian employees of Assam Rifles, they were required to approach Central Administrative Tribunal (CAT) for redressal of their grievance as CAT has the jurisdiction to deal with such matters under Section 28 of the Administrative Tribunals Act, 1985. In this connection, it is contended that petitioner No. 1 along with other civilian employees of Assam Rifles had earlier approached CAT, Guwahati for grant of risk/hardship allowance to civilian employees at par with combatant employees which was registered as OA No. 34/2010 and it was disposed of on 22.07.2010. Subject-matter being identical, petitioners ought to have moved CAT, Guwahati. In this connection, it is contended that petitioner No. 1 along with other civilian employees of Assam Rifles had earlier approached CAT, Guwahati for grant of risk/hardship allowance to civilian employees at par with combatant employees which was registered as OA No. 34/2010 and it was disposed of on 22.07.2010. Subject-matter being identical, petitioners ought to have moved CAT, Guwahati. Therefore, filing of the writ petition is not proper and on this count, writ petition should be dismissed. 7.1. On merit, it is contended that petitioners are civilian employees of Assam Rifles having different job responsibilities. Their nature of job and conditions of service are not at par with the combatant employees of Assam Rifles. They are restricted to their charter of duties, that too, on working days and are not engaged in any operational duties like combatants, such as, patrolling, ambush, raid, etc which involves inherent risk to life. Non-combatant civilian employees are not required to perform duties beyond school/office/hospital hours and not on Sundays and holidays. Though civilian employees are working in sensitive areas but they are not subject to risk faced by combatants. Combatants are covered by Assam Rifles Act, 1941 as well as Army Act and Rules. These are not applicable to the civilian employees whose services are governed by Central Civil Services (Control, Classification and Appeal) Rules, 1965. It is finally reiterated that ration/ration money allowance are provided to combatised central paramilitary forces only keeping in mind high degree of risk involved in the operations against militants necessary for maintaining peace and security. Since civilian employees are not involved in any operational duties, they are not granted ration money allowance. 8. Petitioners have filed reply affidavit to the counter-affidavit of the respondents as well as an additional affidavit in reply to which respondents have filed a further affidavit. 9. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 10. As discussed above, short point for consideration in this writ proceeding is the entitlement of the petitioners who are civilian employees in the Assam Rifles to ration money allowance like combatant employees of Assam Rifles. 11. 9. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 10. As discussed above, short point for consideration in this writ proceeding is the entitlement of the petitioners who are civilian employees in the Assam Rifles to ration money allowance like combatant employees of Assam Rifles. 11. Though respondents have raised a preliminary objection as to the maintainability of the writ petition, Court would not like to non-suit the petitioners on this ground more so when the writ petition was formally admitted for hearing way-back on 01.11.2010 and has been awaiting final hearing since then. This Court has held that once a writ petition is admitted for hearing, it should not be dismissed on the ground of availability of alternative remedy. In Manager, Borsapori Tea Estate Vs. Addl. Deputy Commissioner, 1995 (1) GLT 120 : (1995) 1 GLR 203, a Division Bench of this Court held that a writ petition having been admitted, the same has to be adjudicated on merits and cannot be dismissed on the ground of availability of alternative remedy. 12. Coming to the substance of the core issue as noted above, I am afraid the issue is no longer res integra. 13. In Union of India Vs. Ram Gopal Agarwal, (1998) 2 SCC 589 , the issue before the Supreme Court was entitlement of non-gazetted non-combatised staff to ration allowance when posted in static area. Petitioners of that case were members of hospital staff working in Central Reserve Police Force (CRPF). When decision was taken by the authority giving option to the CRPF personnel to opt for combatisation, petitioners declined. CRPF as well as Central Government declined to grant ration allowance to such non-combatised staff but CAT accepted the plea of the petitioners on the principle of "equal pay for equal work." Noticing clear distinction in the terms and conditions of service, nature of work and even tenure of service between combatised and non-combatised personnel, Supreme Court held that both the two groups of CRPF personnel were unequal; treating unequals as equals would be discriminatory. In such a case, principle of "equal pay for equal work" would have no application. Therefore, it was held that claim of the petitioners were not sustainable and that Tribunal fell in error by equating both groups of personnel applying the principle of "equal pay for equal work." 14. In such a case, principle of "equal pay for equal work" would have no application. Therefore, it was held that claim of the petitioners were not sustainable and that Tribunal fell in error by equating both groups of personnel applying the principle of "equal pay for equal work." 14. In the proceeding before the CAT, Guwahati as alluded to hereinabove, grievance of the petitioners was that risk/hardship allowance was not being extended to non-combatized personnel of Assam Rifles. In the course of the proceedings, Central Government took the view that process of combatisation of civilian employees was under process and once it was finalized, those civilian employees who had opted for combatisation, would be absorbed and on such absorption would be provided all the benefits admissible to combatized personnel including risk/hardship allowance. It was clarified that such risk/hardship allowance was payable to only combatized staff and not to civilian employees. In view of the stand taken by the Central Government, OA was disposed of by the Tribunal by requiring the respondents to complete the process of combatisation and upon completion of the process to extend benefits admissible to combatants. 15. Non-sanction of risk/hardship allowance to non-combatant employees of Assam Rifles was agitated before the High Court of Meghalaya at Shillong in W.P.(C) Nos. 120/2014, 365/2014 and 84/2015. All the three writ petitions were dismissed by a Single Bench of the High Court of Meghalaya vide judgment and order dated 15.09.2017. Against such dismissal civilian employees preferred an appeal before the Division Bench which was registered as Writ Appeal No. 2/2018. Division Bench by judgment and order dated 13.06.2018, dismissed the appeal by relying upon the decision in Ram Gopal Agarwal (supra) by holding that there is no scope for accepting the contention of the appellants. 16. I am in respectful agreement with the views expressed by the High Court of Meghalaya in the aforesaid litigation. That apart, petitioners have not placed adequate materials before the Court to apply the principle of "equal pay for equal work" between combatants and non-combatant employees of Assam Rifles. As a matter of fact, Supreme Court in Ram Gopal Agarwal (supra), held that such categories of employees in CRPF cannot be treated at par. 17. That being the position and considering the totality of the facts and circumstances of the case, Court is not inclined to accede to the prayer of the petitioners. 18. As a matter of fact, Supreme Court in Ram Gopal Agarwal (supra), held that such categories of employees in CRPF cannot be treated at par. 17. That being the position and considering the totality of the facts and circumstances of the case, Court is not inclined to accede to the prayer of the petitioners. 18. Consequently, writ petition is dismissed. However, dismissal of the writ petition would not come in the way of the respondents from taking any decision to extend such benefit to the non-combatant employees of Assam Rifles in future. 19. No costs.