Allowed

GO-2518 Shri M.L Agrawal v. the Union of India and 3 Ors.

Gauhati HC8 Mar 2022WP(C)/3226/2014

Case brief

AI extract

What is this about?

Petitioner, a retired GREF civilian officer posted in Bhutan, challenged higher allowance rates in a BRDB letter. Court held GREF officers are deputationists entitled to MEA benefits and directed respondents to pay correct BCA arrears.

What did the court decide?

Impugned letter set aside. Respondents directed to pay BCA @ Rs. 99,608/pm and arrears of all MEA allowances.

GO-2518 Shri M.L Agrawal Vs the Union of… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010226062014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3226/2014

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GO-2518 SHRI M.L AGRAWAL S/O- SHRI KASTUR CHAND AGRAWAL, PERMANENT R/O- GANDHI SAGAR, DIST.- MANDSAUR, MADHYA PRADESH- 458771, INDIA, PRESENTLY SERVING AS JOINT DIRECTOR ADMN AND STATIONED AT H1 CE P DANTAK GREF, PIN- 931708, C/O- 99 APO.

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VERSUS

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THE UNION OF INDIA and 3 ORS, REP. BY THE SECY., MINISTRY OF EXTERNAL AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 110001.

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2:THE SECRETARY MINISTRY OF ROAD TRANSPORT and HIGHWAYS MORTH TRANSPORT BHAWAN PARLIAMENT STREET NEW DELHI- 110001.

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3:THE SECRETARY BORDER ROADS DEVELOPMENT BOARD BRDB ROOM NO. 418 'B' WING 4TH FLOOR SENA BHAWAN NEW DELHI-110011.

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4:DIRECTOR GENERAL BORDER ROADS ORGANIZATION SEEMA SADAK BHAWAN RING ROAD DELHI CANTT. NEW DELHI- 110010

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BEFORE

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HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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For the Petitioner : Mr. D. Bora. ... Advocate

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For the respondents : Mr. R.K. Deb Choudhury …. ASGI. Date of hearing : 23.02.2022 Date of judgment : 08.03.2022

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JUDGMENT AND ORDER (CAV)

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Heard Mr. D. Bora, the learned counsel appearing on behalf of the petitioner. Also heard Mr. R.K. Deb Choudhury, the learned A.S.G.I. for the respondents.

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2. The petitioner, who is a retired civilian officer of the General Reserve Engineering Force (GREF), by way of this writ petition is seeking payment of enhanced rate of allowance, namely the Bhutan Compensatory Allowance (BCA). His further case is that he should have been given all the benefits/allowances that were listed in the Letter No. E.IV/551/9/2001 dated 21.11.2001 issued by the Ministry of External Affairs, Government of India, Northern Division (Bhutan Section).

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3. The petitioner’s counsel submits that the petitioner was posted to HQ CE(P) Dantak, Thimpu, Bhutan vide posting order dated 07.06.2013 and the petitioner joined the said post as Joint Director (Admn.) on

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26.07.2013. He remained in Dantak, Bhutan till May 2016. The petitioner has subsequently retired as Director (Admn.), GREF on 30.11.2021.

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4. The petitioner’s case is that he was entitled to payment of BCA @ Rs.93,031/- per month in terms of the order dated 01.05.2012 issued by the Ministry of External Affairs, Northern Division. However, the petitioner was given BCA @ Rs.82,119/- per month in terms of the impugned letter dated 23.11.2012 issued by the Government of India, Ministry of Road Transport & Highways, Border Roads Development Board, even though the BCA payable to officers drawing Grade Pay of Rs. 6,600/- per month and above, but less than Rs. 8,700/- per month was Rs. 93,031/- per month, in terms of the order/letter dated 01.05.2012. The further grievance of the petitioner is that the various benefits/allowances which officers of the Central & State Government of India, who were deputed for service in Bhutan, were entitled to receive in terms of the letter dated 21.11.2001 was not given to the petitioner. The petitioner was provided only the benefit of leave which was provided in paragraph 11 of the letter dated 21.11.2001, by way of the Office Memorandum dated 16.12.2009 issued by the Ministry of External Affairs, Northern Division (Bhutan Section).

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5. The petitioner’s counsel submits that the impugned letter dated 23.11.2012 provides for payment of BCA in accordance with the order/letter dated 01.05.2012 issued by the Ministry of External Affairs, Northern Division. Thus, even though the BCA payable to officers

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drawing Grade Pay of Rs. 6,600/- per month and above, but less than Rs. 8,700/- per month was Rs. 93,031/- per month, in terms of the order/letter dated 01.05.2012, the impugned letter dated 23.11.2012 has wrongly provided that the BCA payable would be @ Rs. 82,119/- per month. He also submits that the Government of India, Ministry of Defence had written a letter dated 04.07.2012, which provides that the BCA amounting to Rs. 93,031/- per month, payable in terms of the order dated 01.05.2012 issued by the Ministry of External Affairs, Northern Division would be applicable only to Defence Service officers and personnel below officer rank serving with the Border Road Project, Dantak in Bhutan. He submits that the said letter dated 04.07.2012 has given no reason for not including payment of BCA in terms of the letter dated 01.05.2012 to civilian officers of the Border Roads Project, Dantak in Bhutan, which includes the petitioner. He submits that the same being discriminatory, the same cannot be acted upon.

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6. The counsel for the petitioner has also referred to the letter dated 07.01.2014 issued by the Deputy Secretary (Bhutan-Eco) & CPIO, Ministry of External Affairs, South Block (Room No.265), which is a reply to RTI questions and which states at paragraph 2(b) that the Ministry of External Affairs Office Order No.E-IV/235/3/2006 dated 01.05.2012 was applicable to all categories of officials posted to Dantak (Army/GREF) with regard to applicability of BCA. The counsel for the petitioner thus submits that the petitioner was to have been given BCA @ Rs.93,031/- per month during his stint at Dantak, Bhutan.

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7. The further grievance of the petitioner is with regard to the petitioner not being given all the benefits/allowances in terms of Letter No. E.IV/551/9/2001 dated 21.11.2001 issued by the Ministry of External Affairs, Government of India, Northern Division (Bhutan Section). He submits that numerous benefits/allowances have been provided in the said letter dated 21.11.2001 to officers of the Central & State Government of India, who have been deputed for service in Bhutan. However, the petitioner and the officers of Dantak have been provided only with benefit/allowance mentioned in paragraph 11 of the letter dated 21.11.2001, which pertains to Leave.

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8. The petitioner has also referred to the letter dated 16.12.2013 issued by the Deputy Secretary (Bhutan-Eco) & CPIO, Ministry of External Affairs, South Block (Room No.265), which is a reply to RTI questions, wherein the CPIO states at paragraph 2(d) that all Central/State Government personnel who are working in Bhutan in various offices of the Government of India i.e. IMTRAT/DANTAK/other India Govt. aided projects in Bhutan, are treated on deputation to Bhutan and covered under the MEA Officer Order No. E-IV/551/9/2001 dated 21.11.2001 and that the above office order is not applicable to personnel posted in Indian Embassy, Thimpu.

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The petitioner’s counsel thus submits that Government servants, who are posted outside India are said to be on deputation in the said country and the word transfer would only be applicable to embassy/consulate officials. He further submits that the above RTI reply dated 16.12.2013 clearly proves that the benefits/allowances

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provided in the order/letter dated 21.11.2001 would be applicable to officers of the Central & State Government, who are deputed for service in Bhutan would logically include the petitioner, who is posted in Dantak, Bhutan.

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9. The counsel for the petitioner submits that the petitioner could not be denied all the other allowances provided in the letter dated 21.11.2001, as letter dated 07.01.2014 issued by the Deputy Secretary (Bhutan-Eco) & CPIO, Ministry of External Affairs, South Block (Room No.265) in his reply/letter to RTI questions has again stated in paragraph 2(c) that the MEA Office Order No.E-IV/551/9/2001 dated 21.11.2001 is applicable to all categories of officials posted to Dantak (Army/GREF) with regard to applicability of other allowances. The petitioner’s counsel thus submits that in view of the above reasons, the petitioner should be provided all the benefits/allowances in terms of the letter dated 21.11.2001.

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10. The petitioner’s counsel thus prays that the impugned Letter No. BRDB/03/71/2010/GE-I dated 23.11.2012 should be set aside and the petitioner should be given his arrear BCA, by calculating his monthly BCA in terms of the order/letter dated 01.05.2012, which states that BCA would be @ Rs. 93,031/- for officers drawing Grade Pay of Rs. 6,600/- per month and above, but less than Rs. 8,700/- per month w.e.f. 01.04.2011. He further prays that all the benefits/allowances provided in the Government of India, Ministry of External Affairs’ Letter No.E-IV/551/9/2001 dated 21.11.2001 should be extended to the

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petitioner and all the arrear allowances payable to him under various heads should be paid to him.

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11. Mr. R.K. Deb Choudhury, learned ASGI on the other hand submits that the petitioner has not been sent on deputation to the Government of Bhutan, but has been posted from one place to another within the same organization, i.e. GREF. He also submits that the personnel of GREF were initially under the control and supervision of the Ministry of Road Transport & Highways. However, they are now under the Ministry of Defence and accordingly, all orders and notifications issued by the Ministry of Defence, including the letter dated 04.07.2012 would be applicable to officers of GREF. He submits that the orders issued by the Ministry of External Affairs could only be made applicable to the GREF, if the Ministry of Defence makes a notification or order adopting the same.

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12. The learned ASGI submits that the order dated 01.05.2012 issued by the Ministry of External Affairs, Northern Division regarding the rate of BCA payable would not be applicable to the petitioner, who was a Joint Director in Dantak, Bhutan, in view of the letter dated 04.07.2012 issued by the Ministry of Defence, Government of India, which states that the letter dated 01.05.2012 would mutatis mutandis be applicable to Defence service officers/personnel below officer rank serving with Border Road Projects in Dantak, Bhutan. He submits that the said letter has excluded civilian officers of Dantak, Bhutan from being given BCA as per the rate provided in the said letter dated 01.05.2012.

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13. The learned ASGI, while referring to Annexure R-2 of the affidavit submitted by the respondent No. 1 submits that in terms of the Letter No.BRDB/03/71/2010/GE-I dated 06.04.2015 issued by the Under Secretary to the Government of India, Ministry of Defence, Department of Defence, Border Roads Wing, the BCA payable to officers drawing Grade Pay of Rs. 6,600/- per month and above, but less than Rs. 8,700/- per month was Rs. 89,561/- per month and the same was enhanced to Rs.99,608/- per month w.e.f. 01.04.2013.

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The learned ASGI also submits that in terms of the above letter dated 06.04.2015, the slab deduction prescribed in the Ministry of Defence letter No. BRDB/03/71/92/GE-I dated 01.12.1999 has been removed from BCA vide MEA Order No. E.IV/235/3/2010 dated 14.07.2014, corrigendum No. E.IV/235/3/2010 dated 21.07.2014 as conveyed vide BRDB letter No. BRDB/03/71/2010/GE-I dated 02.03.2015.

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14. The learned ASGI also submits that as officers/personnel of GREF are posted in a GREF unit located in Bhutan, as per Government policy in national interest and as they are not sent on deputation to Bhutan, they would not be covered by the letter dated 21.11.2001, which provides for benefits/allowances for officers of the Central and State Governments during deputation of their service in Bhutan.

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15. I have heard the learned counsels for the parties.

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16. The order dated 01.05.2012 issued by the Ministry of External Affairs, Northern Division clearly shows that the BCA payable to Central and State Government deputationist to Bhutan, for officers drawing Grade Pay of Rs. 6,600/- per month and above but less than Rs. 8,700/- per month w.e.f. 01.04.2011 would be Rs. 93,031/-. The letter dated 23.11.2012 issued by the Ministry of Road Transport & Highways, Border Road Development Board states that the adhoc increase in BCA w.e.f. 01.04.2011 payable to GREF employees serving in Bhutan under Project Dantak in accordance with Government of India, Ministry of External Affairs letter No. E/IV/235/3/2006 dated 01.05.2012 and even No. Dated 24.05.2012 for officers of the Central and State Government of India during service on deputation to Bhutan would be as per the chart given. As per the chart given in the letter dated 23.11.2012, the BCA rate per month w.e.f. 01.04.2011, for officers drawing Grade Pay of Rs. 6,600/- per month and above but less than Rs. 8,700/- per month is Rs. 82,119/- per month. A perusal of the two different figures given for BCA, in terms of the order dated 01.05.2012 and letter dated 23.11.2012 shows that a mistake seems to have been made in the letter dated 23.11.2012.

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17. In view of the fact that the order No. E-IV/235/3/2006 dated 01.05.2012 has provided that the BCA should be Rs. 93,031/- and the same has been accepted in the letter dated 23.11.2012 issued by the Ministry of Road Transport & Highways, the BCA rate payable to the petitioner w.e.f. 01.04.2011 cannot be Rs. 82,119/-. It should have been Rs. 93,031/- per month.

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18. Be that as it may, the letter No. BRDB/03/71/2010/GE-I dated 06.04.2015 issued by the Under Secretary to the Government of India, Ministry of Defence, Department of Defence, Border Roads Wing, which is Annexure R-2 of the affidavit filed by the respondent No. 1, states that the President of India has sanctioned the adhoc increase in BCA w.e.f. 01.04.2012 payable to GREF employees serving in Bhutan under Project Dantak in Bhutan in accordance with the Government of India, Ministry of External Affairs letter No. E.IV/235/3/2006 dated 05.06.2014 for officers of the Central and State Governments of India during service on deputation to Bhutan. The letter further stated that revised rates of BCA @ 8% w.e.f. 01.04.2012 and @ 10% w.e.f. 01.04.2013 for different categories, would be as per the chart provided in the letter. As per the chart, in respect of officers drawing Grade Pay of Rs. 6,600/- per month and above, but less than Rs. 8,700/- per month, the BCA rate per month w.e.f. 01.04.2012 would be Rs. 89,561/- and the BCA rate per month w.e.f. 01.04.2013 would be Rs. 99,608/-. As the petitioner had joined his post at Dantak, Bhutan on 26.07.2013 and had remained in the said post till May, 2016, the petitioner would have to be paid his BCA @ Rs. 99,608/- per month. Further, if there had been any enhancement of BCA subsequent to 01.04.2013, the petitioner should have been given the benefit of the same. However, the petitioner has apparently not been given his due entitlement.

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19. In view of the above reasons, the respondents are directed to pay the petitioner his BCA allowance @ Rs. 99,608/- per month in terms of the letter dated 06.04.2015, including any subsequent enhancement

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made prior to May, 2016, after adjusting the BCA amount that has already been paid to him.

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20. With respect to the petitioner’s claim that he was entitled to the benefit of all the benefits/allowances provided in the letter No. E.IV/551/9/2001 dated 21.11.2001 issued by the Ministry of External Affairs, Government of India, Northern Division (Bhutan Section), it is seen that the said allowances provided in the said letter is for officers of the Central and State Governments of India, who have been deputed for service in Bhutan. The various benefits/allowances provided in the letter dated 21.11.2001 are as follows:-

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(1) Grade Pay including Special Pay

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(2) Bhutan Compensatory Allowance (BCA)

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(3) Children Education Allowance

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(4) Outfit Allowance

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(5) Travelling Allowance

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(6) Winter Allowance

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(7) Field Advance

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(8) Language Allowance

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(9) Accommodation

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(10) Medical Facilities

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(11) Leave

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(12) Leave Travel Concession

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(13) Children Holiday Passage

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(14) Difficult Area Allowance

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(15) Income Tax

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(16) Rations

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(17) Pension

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(18) Leave Salary and Pension Contribution

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(19) Contributory Provident Fund

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(20) Counting of increment during deputation

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(21) General Provision.

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The copy of the above letter dated 06.04.2014 had been provided to various Ministries, Departments and also to the Directorate General of Border Roads, who is listed at Sl. No. 41.

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21. The Under Secretary to the Government of India, Ministry of External Affairs, Northern Division, Bhutan Section had issued Office Memorandum No. E-IV/551/9/2001 dated 16.12.2009, stating that paragraph No. 11 of the Letter No. E.IV/551/9/2001 dated 21.11.2001 issued by the Ministry of External Affairs, Government of India about LEAVE contained in paragraph No. 11 would be equally applicable to all groups of employee and that entitlement of BCA during leave was clearly laid down in paragraph No. 11(b). However, all the other benefits and allowances mentioned in the Letter No. E.IV/551/9/2001 dated 21.11.2001 was not provided to the petitioner. No reason is forth-

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coming from the respondents as to why all the benefits/allowances mentioned in the letter dated 21.11.2001 had not been made applicable to the petitioner, except for paragraph No. 11 concerning leave.

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22. Be that as it may, the Letter No. E.IV/551/12/2013 dated 07.01.2014 and Letter No. E.IV/551/12/2013 dated 16.12.2013 issued by the Deputy Secretary (Bhutan-Eco) & CPIO, Ministry of External Affairs, South Block (Room No.265), which is a reply to questions under the RTI Act, states that the Ministry of External Affairs office order No. E-IV/551/9/2001 dated 21.11.2001 was applicable to all categories of officials posted to Dantak (Army/GREF), with regard to applicability of other allowances. The extract of Letter No. E.IV/551/12/2013 dated 07.01.2014 and Letter No. E.IV/551/12/2013 dated 16.12.2013 issued by the Deputy Secretary (Bhutan-Eco) & CPIO, Ministry of External Affairs, South Block (Room No.265) are reproduced below:-

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“ No. E.IV/551/12/2013 dated 07.01.2014

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“ Subject: Information sought under RTI Act, 2005 by Shri V. Murugan seeking rate of Bhutan Compensatory Allowance (BCA) to officials of various Central/State Government posted in Bhutan.

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Sir,

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Please refer to your RTI application dated 26.12.2013, received in Northern Division, Ministry of External Affairs on 03.01.2014 on the above subject.

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2. Point-wise reply to your RTI application dated 26.12.2013 are as follows:

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(a) A copy of MEA Office Order No. E-IV/235/3/2006 dated 1^st May, 2012 was sent along with our letter No. E.IV/551/05/2013 dated 16.12.2013.

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(b) Yes, copy of MEA Office Order No. E-IV/235/3/2006 dated 1^st May, 2012 is applicable to all categories of officials posted to DANTAK (Army/GREF) with regard to applicability of BCA.

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(c) Yes, MEA Office Order No. E.IV/551/9/2001 dated 21.11.2001 is applicable to all categories of officials posted to DANTAK (Army/GREF) with regard to applicability of other allowances.

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No. E.IV/551/12/2013 dated 16.12.2013

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Subject: Information sought under RTI Act, 2005 by Shri V. Murugan seeking rate of Bhutan Compensatory Allowance (BCA) to officials of various Central/State Government posted in Bhutan.

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Sir,

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Please refer to your RTI application dated 05.12.2013, received in Northern Division, Ministry of External Affairs on 12.12.2013 on the above subject.

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2. Information as available with the Northern Division of the Ministry of External Affairs is furnished below:

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(d) All Central/State Government personnel who are working in Bhutan in various offices of the Government of India i.e. IMTRAT/DANTAK/other India Govt. aided projects in Bhutan, are treated on deputation to Bhutan and covered under the MEA Officer

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Order No. E-IV/551/9/2001 dated 21.11.2001 and that the above office order is not applicable to personnel posted in Indian Embassy, Thimpu. In case you have a query with regard to your transfer to Bhutan, you may like to ask for a clarification from the authorities who have issued yours transfer orders.”

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23. In view of the above reasons, which clearly shows that the benefits/allowances mentioned in the order/letter dated 21.11.2001 was to be applicable to civilian officers of GREF posted to Dantak (Army/GREF), Bhutan, the petitioner could not have been denied the benefits/allowances provided therein. Accordingly, the benefits and allowances provided therein and arrears, if any, should be given to the petitioner by the respondents.

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24. The respondents are accordingly directed to pay the petitioner BCA @ Rs. 99,608/- per month for his period of service in Dantak, Bhutan, alongwith any enhancement of BCA made prior to May, 2016, after adjusting the amount already paid to him. The petitioner should also be given all his arrear allowances in respect of the order/Letter No. E.IV/551/9/2001 dated 21.11.2001. The payment of the above amounts should be made within a period of 3 (three) months from the date of receipt of a certified copy of this order. Consequently, the impugned office Letter No. BRDB/03/71/2010/GE-I dated 23.11.2012 is set aside.

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25. The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

GO-2518 Shri M.L Agrawal v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

GO-2518 Shri M.L Agrawal v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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