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Judgment
The petitioners, by way of these three writ petitions, seek directions to the respondents to grant higher rate of Compensatory
allowance/Detachment allowance/Risk/(Hardship) allowance at par with their combatant counterparts like School Teacher/Staff
Nurse/Sister/ANM/VFA/Ministerial Staff etc.
All the petitioners are, admittedly, non-combatant employees of the respondent, Assam Rifles. All the three petitions involve identical question of
law and, therefore, all the petitions are being disposed of by this common judgement.
For the sake of brevity, the facts are being taken from WP(C) No. 365 of 2014. The petitioners seek quashing and setting aside of the orders
dated 12th August, 2014 passed by the Director, Police Finance Wing and order dated 14th August, 2014 passed by the Lt. Colonel
(Administration) whereby the representations of the petitioners were rejected.
Briefly stated, the facts leading to the filing of the present petition, as enumerated in the writ petition are that the petitioners are non-combatant
employees of Assam Rifles.
It is stated by the petitioners that as per the Restructuring Peace Establishment of Assam Rifles, 2003, total number of Assam Rifles are 46
Battalion which include 31 old Battalions and 15 newly approved Battalions. The strength of one Battalion of Assam Rifles is 1250 personnel and
the petitioners are within these 1250 personnel of Assam Rifles.
The petitioners have stated that they are within these 1250 personnel of the Battalion and they are physically present in the Battalion strength and
therefore, they are the member, part and parcel of the force.
It is also stated that the Government of India, Ministry of Home Affairs vide order No. 11011/1/84-FP-IV, dated 2nd February, 1989
sanctioned two Compensatory Allowances i.e Special Compensatory (remote locality) Allowance and Special (Duty) Allowance to all Assam
Rifles Personnel (both combatant and non-combatant) w.e.f. 7th November, 1988 for serving in difficult area/border area of North Eastern Region
without any discrimination.
The Government of India, Ministry of Defence, vide resolution dated 29th August, 2008 had accepted the recommendation of the Sixth Central
Pay Commission relating to structure of emoluments, allowances, conditions of service and retirement benefits in respect of the civilian employees
of Central Government in Groups A, B, C and D. The Central Armed Personnel are also governed by Central Civil Service (Revised pay) Rules,
2008, as well as the purpose of granting various Compensatory Allowance for serving in specific areas at par with the same terms and conditions
of combatant and non-combatant personnel. It is stated that all Assam Rifles Personnel up to the rank of Commandant deployed in difficult
areas/counter insurgency operational areas in Assam Rifles Battalion were allowed to draw the higher rate of Compensatory Allowance
(Risk/Hardship Allowance) as applicable to defence service personnel in the same areas.
The petitioners further stated that the Government of India, Ministry of Home Affairs, (Police Finance Wing) vide Office Memorandum dated
16th April, 2009 sanctioned a new Compensatory Allowance to all Central Armed Police Forces Personnel by withdrawing one of the Special
Compensatory Allowance from the earlier order dated 2nd February, 1989. The petitioners stated that surprisingly Special Compensatory
Allowance was withdrawn from combatant personnel only after granting another set of higher Compensatory Allowance to them and non-
combatant employees working in the same Assam Rifles Battalion were allowed to continue Special Compensatory Allowance being lower rate of
Compensatory Allowance.
It is further stated that no amendment was carried out in the Office Memorandum dated 2nd February, 1989 while withdrawing Special
Compensatory Allowance from the combatant personnel. The petitioners stated that it was deliberately done so that the petitioners could not claim
higher rate of Compensatory Allowance.
The petitioners assailed the validity and legality of the order dated 16th, April, 2009 and claiming higher rate of Compensatory Allowance at
par with the combatant counterparts, by filing a writ petition, being WP(C) No. 155 of 2013. The said writ petition was contested by the
respondents.
The aforesaid writ petition was disposed of by this Court vide order dated 8th April, 2014 directing the Secretary to the Government of India,
Ministry of Home Affairs, North Block, New Delhi to dispose of the representations dated 18th April, 2012 and 31st May, 2012 filed by the
petitioners keeping in view the decision of the Apex Court in Union of India & Ors. v. B. Prasad, B.S.O. & Ors. (1997) 4 SCC 189 within a
period of three months from the date of receipt of certified copy of the judgment and order.
The petitioners have stated that the representations dated 22nd April, 2014 and 30th April, 2014 were rejected by the respondents vide
impugned orders dated 12th August, 2014 and 14th August, 2014. Therefore, the petitioners have again approached this Court by way of the
present petition.
The petition is opposed by the respondents and counter affidavit was also filed.
It is stated by the respondents that the petitioners are civil employees of Assam Rifles and their duties are restricted to their charter of duties on
working days/hours and are not employed in any kind of operational duties. The petitioners are immune from performing duties beyond
offices/hospitals/school hours and on Sundays and Holidays. Thus, they cannot draw an equation with combatants merely by residing in the vicinity
of Assam Rifles camps, as the combatants are subject to Assam Rifles Act, 1941/2006, who are under operational control of Army and are
subject to harsh duties of maintaining peace and security in the area of deployment round the clock.
It is also stated that the petitioners though working in the sensitive areas in the unit, but they are not subject to the risks as the combatants are.
The combatants are deployed inactive combat against the insurgent/militant and are prone to more risk of life, than these civil employees who are
always confined within the Headquarters, which is well secured and guarded. Therefore, they are not entitled to risk/hardship allowance as per the
Government of India order dated 16th April, 2009.
The respondents have also stated that the petitioners are governed by the CCS Rules and not by the Assam Rifles Act, 1941/2006. It is
further stated that these employees are part and parcel of Assam Rifles but certain benefits which are extended to combatant personnel of Assam
Rifles are not applicable to these civilian employees as these employees though working in the sensitive areas in the unit, are not subject to the risks
as the combatants are.
The respondent have further stated that the combatants are deployed in active combat against the insurgent/militants and are prone to more
risks of life, than the civil employees who are always confined within the Headquarters location, which is well secured and guarded, thus, enhancing
their personal security. The President is pleased to convey the approval for introduction of the risk/hardship allowance to combatised CPMF''s
personnel up to the rank of Commandant vide letter dated 16th April, 2009 and not to the civilian employees because they are always located in
well protected garrison and Headquarters. It is also stated that the petitioners are civil employees of the Assam Rifles and as such are enjoying the
privileges equal to other Central Government employees.
Learned counsel for the petitioners contended that the respondents vide the impugned orders rejected the representations without considering
the observations made in paragraphs 5 and 6 of the judgment of the Hon''ble Supreme Court in B. Prasad''s case (supra).
The counsel for the petitioners also contended that rejection of the representations of the petitioners is contrary to the directions issued by this
Court and the impugned orders were passed without applying the mind and thus, the impugned orders are illegal, arbitrary, whimsical, mala fide,
injudicious, capricious and contrary to the judgment and order dated 8th April, 2014 passed by this Court in WP(C) No. 155 of 2013.
Learned counsel for the petitioners also urged that all the Assam Rifles employees both combatant and non-combatant while posted/serving in
Battalions located in the State of Meghalaya, Mizoram and some part of Assam has been sanctioned same set of Compensatory Allowance
considering the fact that these areas had not been notified as counter insurgency operation area or disturbed area. However, surprisingly when both
the category of personnel when posted in the State of Manipur, Nagaland, Tripura, Tirap and Changlang (Arunachal Pradesh), combatant
counterparts of the petitioners like School Teacher/Nursing Staff/Ministerial Staff/VFA/Female Attendant/Aya etc. (who opted combatisation
offer) are allowed to draw higher rate of Compensatory Allowance but the petitioners are granted lower rate of Compensatory Allowance like
Special Compensatory Allowance which is highly discriminatory.
It is further contended on behalf of the petitioners that the petitioners are within the authorised strength of 1250 personnel of Assam Rifles
Standard Battalion and deployed permanently in disturbed area/difficult area/border area/counter insurgency operational area in Nagaland,
Manipur, Tirap and Changlang (Arunachal Pradesh) and working hand in glove with their combatant counterparts like School Teachers/Nursing
Staff/Ministerial Staff etc., who opted combatisation offer, working in the same School/Hospital/Office etc. without exception and facing similar
hardship.
While placing reliance on the judgment rendered in B. Prasad''s case (Supra), the learned counsel for the petitioner contended that the Hon''ble
Apex Court has observed that civilian employees of Defence service deployed in counter insurgency operational areas/difficult areas to support the
operation requirement of Defence Forces is entitled for any one of the Compensatory Allowance like Special Compensatory Allowance or
SCCIA which is more beneficial to them. In the same analogy the petitioners are also working in the counter insurgency operational areas of
Assam Rifles unit under operational control of Army, entitled to any one package of Compensatory Allowance which is more beneficial to them as
made applicable to the petitioners combatant counterparts like School Teachers/Nurses/Female Attendants etc. working in the same Assam Rifles
units.
On the other hand, learned counsel for the respondents submitted that the petitioners are not entitled to the risk/hardship allowance as per the
Government O.M. dated 16th April, 2009 and the order of the Government has to be obeyed by the Government servants as is being done by
other civilian Government servants.
It is also contended by learned counsel for the respondents that the payment of Compensatory Allowances such Duty Allowance etc. is not a
component of pay and allowances of the employees and the withdrawal thereof by the Government on reasonable grounds cannot be resisted by
the employees.
It is vehemently argued on behalf of the respondents that all the posts of the Force has been combatised vide MHA order dated 19th
September, 1989 and 27th November, 2008 but the petitioners have not exercised the option, but they chose to remain in the non-combatised
stream and thus, they now cannot claim the same benefits as is being given to the combatant force.
I have heard learned counsel for both the parties at length. I have also carefully gone through the material placed on record.
The fact remains that through a conscious decision, the Government of India, Ministry of Home Affairs vide the Office Memorandum dated
16th April, 2009 have decided to grant risk/hardship allowance to combatised Central Para Military Forces (CPMF) personnel up to the rank of
Commandant. This allowance was granted to combatised personnel across the forces and is applicable to all CPMF. This allowance is being given
to combatised personnel keeping in mind the risk and the hardship that they face in discharge of their duties.
As directed by this Court vide order dated 8th April, 2014 passed in WP(C) No. 155 of 2013, the respondents have considered the
representations of the petitioners and passed the impugned speaking order. The relevant paragraphs of the order dated 14th August, 2014 are as
under:-
THEREFORE, the additional responsibilities is to carry out duty pertaining to military operations whenever called upon to do so
round the clock are provided under the Act and Rules. The Assam Rifles Act is made applicable to the combatants and they are
governed by the rigors of the Act. The nature of work is distinctly not identical for combatant and civilian employees in the Force. It is
further stated that the combatants are enrolled under Sec. 4 of the Act and their ranks are determined as per Sec. 5. As mentioned,
the combatants are enrolled under the Act by following the procedure prescribed in Rule 12 of the Rules. They undergo rigorous
training both mentally and physically for the operational work under the Commandant. The combatants are covered under the Assam
Rifles Act, 2006 and Assam Rifles Rules, 2010 framed there under, whereas the civilian are covered by the CCS (CCA) Rules. The
provision of the Assam Rifles Act is made applicable to the combatants only as per Constitution of India.
NOW THEREFORE, the risk/hardship allowance was approved by the President for combatised CPMF''s personnel upto the
rank of Commandant and not to the civilian employees of the Assam Rifles vide Government of India, Ministry of Home Affairs
(Police Finance Wing) letter No. II.27012/56/2008-PF.I dated 16th April 2009. Therefore, the ground of discrimination is not
sustainable. The petitioners are civilian employees. They are not expected to be available for duty for 24 hours as is possible in case
of combatants. Terms and service conditions of petitioners is being limited as civilian staff is doing work in the office/hospital/school
and in the office/hospital/school time and same cannot be compared with service of the combatants staff. The contention of the
petitioners is incorrect though the civil employee does stay with the combatants, however they are not prone to the risk as the
combatants are. They do not move out of the post for any operational duties and remain within the HQs, which is well fortified and
guarded. So, the petitioners are more secured and comfortable with reference to the combatants, as per his charter of duties but
combatants are bound to perform their duty 24 hours due to exigency of service.
The petitioners have not stated that while serving in those areas the combatants are the only persons who move out of the
posts/headquarters to fight the insurgents, whereas these petitioners do not move with the combatant counterpart to fight the
insurgents. The civilians who are posted in the Headquarters are administratively in better conditions. Their living conditions and all
such comforts are much higher to the standards of the normal combatants of their equivalent ranks and profile, especially those
combatants who stay and operate from the Company Operating Bases, which are totally isolated from the Headquarters, wherein
these civilians are not posted. Therefore, such statement that they are facing similar risk/hardship equivalent to a combatant is totally
false, baseless and incorrect. It is also brought out that, while they are working in the Battalion Headquarters they are given inherent
protection by the armed guards guarding the Headquarters and other elements. It is also to mention that the risk/hardship allowances
as the name suggests is applicable only to combatants because these combatants go out of their posts with entire weaponry,
ammunitions to fight against the militants, guard the borders at all times in all weather conditions and in all kinds of terrain and
therefore are more susceptible to risk of being wounded/killed in a gunfight or due to hostile terrain conditions. Therefore, the
statement made by the petitioners is false and there is no arbitrary, unfair, and discriminatory treatment. From above it is clear that the
job responsibilities are totally different to each other and the petitioners are not at par with the combatant employees. The
risk/hardship allowances are primarily granted to the combatants keeping their high level of risk in mind while operating against the
militants.
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It is submitted that on implementation of 6th CPC, the pay of the entire staff (combatants and civilian staff) was revised. Grade pay
was introduced for the first time. In the combatant staff, each rank has a specific grade pay. The same rank cannot have two different
grade pay. With the introduction of Grade Pay an anomaly has arisen between the corresponding ranks fixed by the Government to
be granted to civilian staff on combatisation vide letter No. 14012/140/AII/06/AR-PF.IV dated 27 Nov 2008 and the existing grade
pay. It is intimated that civilian staff working in Assam Rifles who are willing and found fit for combatisation and they have already
been combatised vide HQ DGAR letter No. A.Pers/II-7/Combatisation/2011/1167 dated 18 Nov 2011 and they are getting
Risk/Hard allowance as per their entitlement.
NOW THEREFORE, the President is pleased to convey the approval for introduction of the following risk/hardship allowance to
combatised CPMF''s personnel upto the rank of Commandant vide Government of India, Ministry of Home Affairs (Police Finance
Wing) letter No. II.27012/56/2008-PF.I dated 16th April 2009. So that the entitlement to risk/hardship allowance is concerned, the
petitioners are not entitled to risk/hardship allowance as per Government of India OM dated 16 Apr 2009. It is also to mention here
that the work profile of civilian employees is not as risky as the combatant; therefore, the civilians have not been granted risk/hardship
allowances and they are granted SDA/SCA for their posting in the North Eastern Region. Hence, the representations dated 18 Apr
2012, 31 May 2012 and 30 Apr 2014 submitted by the petitioners for grant of risk/hardship allowances has been examined by
Ministry of Home Affairs in consultation with Ministry of Finance and Ministry of Law & Justice vide their letter No II-27012/CF
No. 103441/16/2011-PF-I dated 12 Aug 2014, the claim of the petitioners are devoid of merit and substance and hence, same may
be rejected.
After hearing learned counsel for the parties and going through the order impugned in the present petition, it is clear that in the perception of the
Government, the risk carried out by the combatised personnel during the course of their duties, is higher than the non-combatised personnel and,
therefore, the Government is justified in granting this allowance to the combatised CPMF''s personnel. A reading of the Office Memorandum dated
16th April, 2009 as well as the clarifications placed on record clearly indicate that the risk/hardship allowance at present is meant only for
combatised personnel of Central Para Military Forces posted in difficult locations to compensate for the risk/hardship being faced by them. I am
unable to agree with the contention of the learned counsel for the petitioners that the basis for this allowance is a particular location and not the
duties being carried out by the personnel. I also find it difficult to accept the contention of the petitioners that they run identical risk and hardship
while discharging their duties as done by the combatised personnel.
The petitioners are civilian employees and are not expected to be available on duty for 24 hours as is required in the case of combatants. The
petitioners are having separate job responsibilities and not at par with the combatant employees. The combatants are liable to perform operational
duties like patrolling, ambush, raids etc. whereas the civilians are not susceptible to such onerous duties. The non-combatant personnel are bound
by the Recruitment Rules under which they are recruited and therefore required to serve in any areas as directed by the authorities.
There is no parity between non-combatised personnel and combatised personnel for this purpose on account of different nature of their duties.
This is a reasonable classification having nexus to the object to be achieved. The petitioners being non-combatised personnel are not entitled to the
allowance in question.
A perusal of the record shows that all the posts of the Force have been combatised vide Ministry of Home Affairs order dated 19th
September, 1989 and 27th November, 2008 but the petitioners have not exercised the option. The recruitment in these posts is being undertaken
in combatised ranks only. It has been informed that civilian staff working in the Assam Rifles who are willing and found fit to be combatised has
already been combatised vide HQ DGAR letter dated 18th November, 2011.
A clarification received from the Ministry of Home Affairs vide order dated 11th July, 2011 that Special Duty Allowance is a part of
Compensatory Allowance and the personnel who are receiving Special Duty Allowance are not eligible for risk/hardship based allowance along
with the Special Duty Allowance. A clarification on the subject also received from the Ministry of Home Affairs vide corrigendum dated 23rd
August, 2012 in connection with the letter dated 16th April, 2009 of the Ministry of Home Affairs. The corrigendum dated 23rd August, 2012
(Annexure-R-5 to the counter affidavit) is reproduced herein below:-
No. II.27012/16/2011-PF.I
Government of India
Ministry of Home Affairs
(Police Finance Wing)
North Block, New Delhi
Dated, the 23rd August, 2012
// Corrigendum //
Sub: Clarification on grant of risk/hardship based allowance to CAPF personnel in North Eastern Region - regarding.
In continuation of OM No. II-27012/56/2008-PF.I dated 16th April 2009, the undersigned is directed to convey the sanction of the
President for addition of following in para 4 of the order as under:
The existing package of compensatory allowance in NE Region will also include Special Duty Allowance (SDA) as a part of existing
package of compensatory allowance and hence SDA and Risk/Hardship Allowance cannot be paid simultaneously.
This order will apply with immediate effect.
This issue with the concurrence of IFD vide Diary No. 105876/Fin.II/12 dated 22.8.2012 on the advice of Ministry of Finance
(Department of Expenditure) vide their I.D. No. 11(4)2011-E.II(B) dated 04.08.2012.
Sd/-
(Sreyasl Chaudhuri)
Director (Police Finance)
Differentia treatment of combatised and non-combatised personnel has also been upheld by the Hon''ble Supreme Court in the case of ''Union
of India and Others v. Ram Gopal Agarwal and Others'', (1998) 2 SCC 589. In para 10 of the judgment the Hon''ble Supreme Court held as
under:-
We have heard learned counsel for the parties and we find that there is clear distinction in the terms and conditions of service,
the nature of work and even tenure of service inter se between combatised and non-combatised personnel. The combatised
personnel retire at the age of 53 while the non-combatised personnel retire at the age of 55. The nature of work, so far as combatised
personnel are concerned, is arduous in nature in the operational and sensitive areas. In fact even the non-combatised personnel while
working in the operational areas and such sensitive places are granted the ration allowances. It is only when they are working in static
areas there is no provision for this allowance. Even terms and conditions, service conditions are totally different. The combatised
personnel are governed by the Central Reserve Police Force Act and Rules which is an army rule more stringent in nature while non-
combatised staff is governed by the civilian law, namely, CCS Rules made by the Government of India under Article 309 of the
Constitution. The question of discrimination in the matter of allowances has to be listed differently even inter se between those falling
under class of ""equal pay for equal work"". In cases where some perform overtime duties, night duties, duties in hazardous places, viz.,
mountain terrain at heights or at sensitive border areas an additional allowance is made applicable to the nature of work they perform.
Similarly, when option is given it is with clear intention of there being plus and minus points in the two categories. That by itself
differentiates inter se between the two. Ones not opting to enjoy the benefit, as in the present case, to continue in service of one
category up to larger length of service (55 years) and not to involve in the hazardous nature of duties with stringent service conditions
cannot come forward to claim the benefit of the other category also on the ground of discrimination. In fact, treating unequal to be
equal itself would be discriminatory. Thus, we conclude it is neither a case of ""equal pay for equal work"" nor a case of discrimination
or violation of Articles 14 and 16 of the Constitution of India.
In B. Prasad''s case (Supra) relied upon by learned counsel for the petitioners, the Hon''ble Supreme Court considered the entitlement of
allowances and facilities for civilian employees working in the defence services in the States and Union Territories of the North Eastern Region. In
paras 5 and 6 of the judgment, the Hon''ble Supreme Court observed as under:-
Having regard to the respective contentions, we are of the view that the Government having been extending the benefit of payment
of Special Duty Allowance to all the defence employees working in the North-Eastern region as per the orders issued by the
Government from time to time as on 17-4-1995, they are entitled to both the Special Duty Allowance as well as Field Area Special
Compensatory (Remote Locality) Allowance. The same came to be modified w.e.f. that date. Therefore, irrespective of the fact
whether or not they have been deployed earlier to that date, all are entitled to both the allowances only up to that date. Thereafter, all
the personnel whether transferred earlier to that or transferred from or after that date, shall be entitled to payment of only one set of
Special Duty Allowance in terms of the above modified order.
6.As regards the payment of Special Duty Allowance to the defence civilian personnel deployed at the border area for support of
operational requirement, they face the imminent hostilities supporting the army personnel deployed there. Necessarily, they alone
require the double payment as ordered by the Government but they cannot be deprived of the same since they are facing imminent
hostilities in hilly areas risking their lives as envisaged in the proceedings of the Army dated 13-1-1994. But the Modified Field Area,
in other words, in the Defence terminology, ""barracks"" in that area is a lesser risking area; hence they shall not be entitled to double
payment. Under these circumstances, Mr. P.P. Malhotra is right in saying that the wording of the order requires modification. The
Government is directed to modify the order and issue the corrigendum accordingly.
The case of B. Prasad (Supra) as relied upon by learned counsel for the petitioners is not applicable to the facts of the present case as the said
case pertains to Defence Force i.e. Army and not Para Military Force like Assam Rifles. Moreover, even the said case the Hon''ble Supreme
Court has held that the dual benefits like Special Duty Allowance and Special Compensatory Allowance (Remote Locality) cannot be paid to
civilian employees after modification of the Rules w.e.f. 17th April, 1995.
In the light of the aforesaid discussion, I do not find any ground to interfere with the decision of the respondents. The present petitions being
devoid of any merit are hereby dismissed. No order as to costs.