Gs. No. 180368HNTD Mahender Singh Vs the Union of India and 3 Ors.

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GAHC010182562024

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2025:GAU-AS:10170

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IN THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

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WP(C) NO. 4576 OF 2024

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G.S. No. 180368HNTD Mahender Singh,

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Age-55 years, S/o. Late Sawal Das, R/o.- Rowshan Bihar,

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Lakshmi Nagar, Dist- Mathura, Uttar Pradesh, PIN-281001, Presently posted at 91 RCC, GREF, C/o-99 APO, Chief Engineer H.Q., Project Vartak, Tezpur, PIN-784001.

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……..Petitioner

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-Versus-

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1. The Union of India, Through the Secretary to Govt. of India, Ministry of Defence, R.No. 101-A, South Block, New Delhi-110011.

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2. The Joint Secretary (Border Roads), Ministry of Defence, “B” Wing, 4^th Floor, Sena Bhawan, Delhi Cantt., New Delhi-110011.

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3. The Director General of Border Roads, Headquarter DGBR, Seema Sadak Bhawan, Ring Road, New Delhi-110011.

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4. The Chief Engineer (Project) Vartak, C/o 99 APO, Tezpur, Assam, PIN-931716.

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……..Respondents

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WP(C) No.4576/2024

– B E F O R E –

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

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For the Petitioner : Mr. I.H. Saikia, Advocate. For the Respondents : Mr. M.R. Adhikari, CGC. Date of Hearing : 05.08.2025. Date of Judgment : 05.08.2025 .

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JUDGMENT & ORDER (ORAL)

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Heard Mr. I.H. Saikia, learned counsel appearing for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC appearing for the respondents.

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2. By way of this petition under Article 226 of the Constitution of India, the petitioner is claiming benefit under the Bhutan Compensatory Allowance (hereinafter referred to as BCA) posting rate (while working in Bhutan) against the work performed by the petitioner as Driver in Bhutan for the year 2006-2009 (26 months).

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3. The brief facts of the case are that the petitioner was initially appointed as Driver in GREF Centre and Records, Dighi Camp, Pune, on 21.01.1999, and later on, the petitioner was posted as Driver at GREF under the control of Chief Engineer, Project Vartak, Tezpur, wherein he is presently working.

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4. It is the specific case of the petitioner that during the course of service, he was transferred from GREF Centre and

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Records, Dighi Camp, Pune to the office of Officer Commanding, 529 SS & TC (GREF), Guwahati and while he was working as Driver in the office of Officer Commanding, 529 SS & TC (GREF), Guwahati, he was ordered to work as a Driver in Bhutan by the direction and policy issued by the Ministry of Defence, Government of India in the year 2006 and was detailed from the office of Officer Commanding, 529 SS & TC (GREF), Guwahati (State of Assam), India to the office of Officer Commanding, 63 RCC (GREF), Dantak (Bhutan) in the year 2006 and the petitioner assumed his duty as Driver in Project Dantak, (Bhutan) in the year 2006.

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5. It is the further case of the petitioner that after the petitioner joined the aforesaid office in Bhutan, he discharged his duties as driver of the vehicles namely Tata TPR (vehicle no. 98E-66288X) and Tata Load Carrier (Tralla) (vehicle no. 04E-60117X), for the supply of construction materials from India to Bhutan and within the territory of Bhutan during the years 2006-2009 (around 26 months).

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6. It is the further case of the petitioner that since he was discharging his duties as a driver for supplying the material to Bhutan, he is entitled to be paid the payment as per the BCA rate posting , i.e., the payment that should be given to any personnel who has discharged his duties outside India, i.e., in Bhutan. However, since the petitioner was given the salary as per the normal rate for the drivers in India, he filed an application on 22.08.2023 before the respondent authorities to provide the arrears of payment to the petitioner for performing his duties as a driver in the

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WP(C) No.4576/2024

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foreign country for the years 2006-2009 (around 26 months) as per the BCA Rate. However, since the aforesaid application did not bear any fruit, the present writ petition has been filed.

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7. Mr. I.H. Saikia, learned counsel appearing for the petitioner, submits that since the petitioner has been regularly travelling to Bhutan by driving the official vehicle as per the office order for delivery of construction materials from India, he is entitled to the compensatory allowance as claimed.

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8. In support of the claim, he relies upon the decision of the Division Bench of the Delhi High Court in the case of Amarnath Krishan Vs. Union of India in CM No. 3954/2007 and LPA No. 618/2002 to contend that the Hon’ble Delhi High Court has granted the BCA posting to similarly placed personnel. He further submits that though the aforesaid order was challenged by the Union of India before the Apex Court, the same was dismissed.

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9. He further places a notification dated 21.11.2001 during the course of the argument to show that in case of long-term temporary duties within Bhutan, full admissible daily allowance shall be applicable up to 7 days, 75% of full admissible DA for the next 7 days, and 50% of full admissible DA thereafter.

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10. Per contra, Mr. M.R. Adhikari, learned CGC appearing for the respondents, submits that the claim of the petitioner for BCA posting is absolutely frivolous and baseless,

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inasmuch as the petitioner at no relevant point of time was permanently posted at Bhutan. He further submits that the applicable rules clearly indicate that it is only on permanently posting in a foreign country, i.e., Bhutan, that the BCA posting is applicable to such personnel.

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11. He further submits that in view of the fact that the petitioner has been awarded 2 (two) minor punishments within 10 (ten) years of his last posting, he is not entitled to the compensation claimed in the writ petition in terms of the posting policy.

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12. He further submits that since the petitioner was appointed on 21.01.1999, on that score also he is not covered under the subject posting policy, which is only applicable to personnel who were appointed on or before 01.05.1995. Hence, he submits that the petitioner does not even come within the zone of consideration of the aforesaid policy.

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13. He further submits that the submission of the learned counsel appearing for the petitioner as regards the claim for daily allowance as per the Notification dated 21.11.2001 has neither been pleaded nor claimed in the instant writ petition.

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14. I have given my prudent consideration to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record and have considered the case laws cited at the bar.

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15. The short issue that falls for consideration in the instant writ proceeding is whether the petitioner is entitled to receive the benefit under the BCA posting rate as claimed. It is an admitted position that the petitioner, at no relevant period of time, was permanently posted in Bhutan. However, while the petitioner was posted in 529 SS & TC (GREF), Guwahati, from 05.12.2005 - 05.01.2009, he was temporarily deployed from 529 SS & TC (GREF) to 63 RCC (GREF), Darranga , in India from 24.06.2007 to 23.12.2008 for his trade work. It appears that during the aforesaid temporary deployment of the petitioner at Darranga, he had driven the office vehicle to Bhutan to deliver trade goods as and when he was ordered.

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16. In order to determine the issue in hand, apt to refer to the criteria for posting to BCA/MCA areas, which is extracted hereunder for ready reference:-

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“Criteria for posting to BCA/MCA areas

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4. The number of vacancies available for Bhutan Compensatory Area (BCA)/Myanmar Compensatory Area (MCA) being restricted, it is near impossible to consider all personnel in the BRO for each vacancy, as and when the same arises. It is, therefore, necessary to short list personnel based on some criteria before final selection is carried out.

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5. A minimum criteria is required to be applied for short listing of GREF personnel for BCA/MCA postings. These may be diluted only in most exceptional cases with prior approval of the DGBR, when adequate eligible personnel are not available. The minimum criteria to be applied, is as follows:-

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(a) HAA Tenure: Should have physically served in a HAA for a minimum period of 22 months.

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(b) Viable Tenure: Should have completed a minimum viable tenure of 2 years in the present unit to qualify for consideration.

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(c) Minimum service: Should have completed a minimum service of 10 years.

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(d) Age limit at entry into BCA/MCA area:

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(i) GREF personnel other than Pioneers: 53 years.

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(ii) Pioneers: 50 years of age

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(e) Medical Category: Medical category of personnel will be GREF 1

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(f) Punishment: No major punishment during the entire service and no minor punishment during the last ten years.

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(g) ACR Gradings: An individual should have earned a minimum of three "VERY GOOD" and two "GOOD" gradings in the last five years of service.

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(h) Vigilance Clearance: No vigilance/disciplinary cases should be pending or contemplated against the individual.

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Factors Debarring Consideration:

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6. Factors debarring a person from being considered for posting to BCA/MCA areas are as follows-

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(a) Has had an earlier tenure in foreign country.”

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17. Reading of the aforesaid posting policy for BCA, it is apparent that the numbers of vacancies in BCA posting are restricted. Hence, a minimum criteria is fixed under the BCA posting for the personnel to be eligible and qualified to be considered for BCA posting. It is further apparent that it is only in the event the personnel is eligible and qualified for BCA posting, upon vacancy arising, that the case of such personnel can be considered for BCA posting. It is thus a condition precedent for the personnel to be permanently

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posted in Bhutan area in order to be entitled for BCA posting. It further appears that in the event any major punishment is awarded during the entire service of the concerned officer, the personnel shall be disentitled for being posted in BCA. It further appears that in the event any minor punishment is awarded during the last 10 years of the concerned officer’s service, the personnel shall also be disentitled for being posted under the aforesaid posting policy. It is thus established that in order to be entitled for BCA posting rate, one must be posted permanently in BCA.

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18. Apt at this juncture to refer to the relevant paragraphs of the affidavit-in-opposition filed before this Court on behalf of the respondent Nos. 1 to 4 on 21.02.2025, which reads as hereunder:-

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“5. That with regard to the statements made in Paragraph 2 of the writ petition, the answering deponent while partially agreeing to the same begs to state that based on available records, the petitioner was appointed as DVRMT (O) by GREF Centre and Records, Dighi Camp, Pune on 21 Jan 1999 and further posted in 476 RMPL/91 RCC (GREF). The petitioner reported to Unit on 25 March, 1999. The petitioner was awarded 14 days' pay fine by then OC 91 RCC for an offence under AA Sec 48 & AA Sec 63 vide 91 RCC Part-II order No. 0/032/0014/2001 dated 26 Jun 2001. The petitioner was again awarded 14 days' pay fine by then OC 91 RCC for an offence under AA Sec 63 vide 91 RCC Part-II order No. 0/064/0001/2001 dated 19 December, 2001. As per existing policy, posting order to Bhutan is applicable only to those employees who have never been awarded major punishment during the entire service (and minor punishment during the last ten years of service, which clearly disqualified the petitioner from being posted to Bhutan to avail the Bhutan Compensatory Area.

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Extract of orders imposing fine on the petitioner dated 26-06-2001 and 19-122001 are annexed herewith and marked as ANNEXURE R-1 and R-2 respectively.

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The policy guide lines for Bhutan Compensatory Area (BCA)/ Myanmar Compensatory Area posting is annexed herewith and marked as ANNEXURE R- 3

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6. That with regard to the statements made in Paragraph 3 of the writ petition, the answering deponent while partially agreeing to the same begs to state that based on available records GS-180368H DVRMT Mahender Singh was posted to 529 SS&TC vide GREF Records PO No. 905/GP-II/MTD/FA5 dated 28 Sep 2005 and physically reported on 17 Dec 2005 and taken on posted strength vide 529 SS&TC Part-Il Order No. 0/149/0004/2005 dt 24 Dec 2005 with regards to detailment/deployment with 63 RCC (GREF), GS-180368H DVRMT Mahender Singh of 529 SS&TC(GREF) as a part of his duties was temporarily deployed with 63 RCC (GREF)/Darranga (in India) for the period from 24 Jun 2007 to 23 Dec 2008. During the period, he had performed his trade work including shifting of Government stores from 63 RCC (GREF)/Darranga (in India) to various detachments under 63 RCC (GREF)/located in India and Bhutan and detachments under 64 RCC (GREF) on requirement basis, which was completely a part of his routine trade work.

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A copy of record sheet showing posting of the petitioner to 529 SS & TC dated 28-09-2005 and physical reporting of the petitioner on 17-12-2005 and taking of the petitioner on posted strength vide 529 SS&TC Part-II Order No. 0/149/0004/2005 dated 24-12-2005 is annexed herewith and marked as ANNEXURE R-4

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7. That with regard to the statements made in Paragraph 4 of the Writ Petition, the answering deponent while partially agreeing to the same begs to state that the petitioner was in posted strength of 529 SS&TC (GREF) (Non BCA) from 05 Dec 2005 to 05 Jan 2009. He was temporarily deployed from 529 SS&TC(GREF) to 63 RCC (GREF)/Darranga (in India) w.e.f. 24 Jun 2007 to 23 Dec 2008 for trade work.

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From 12 May 2008 to 23 Dec 2008, he was detailed as a driver of Tata Load Carrier BA No. 04E-60117X for shifting of Govt Stores from 63 RCC (GREF)/Darranga (India) to various detachments under 63 RCC (GREF) on requirement basis which was completely a part of his routine trade work.

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8. That while denying the correctness of the statements made in Paragraphs 5 to 8 of the Writ Petition, the answering deponent begs to state that the petitioner was in posted strength of 529 SS&TC (GREF) from 05 Dec 2005 to 05 Jan 2009. He was temporarily deployed from 529 SS&TC (GREF) to 63 RCC (GREF)/Darranga (in India) w.e.f. 24 Jun 2007 to 23 Dec 2008 for his trade work and as such the petitioner is not entitled to Bhutan Compensatory Allowance (BCA). As per existing posting policy, GREF Personnel permanently posted to HQ CE (P) Dantak and units under command located in Bhutan by GREF Records for a prescribed period are only entitled for grant of Bhutan Compensatory Allowance (BCA).

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9. That while denying the correctness of the statements made in paragraph 9 of the Writ Petition, the answering ARJEE deponent begs to state that no record of receipt of such a AS respondents. Additionally, no assurance of any kind for the payment of the Bhutan Compensatory Allowance was given to the petitioner. However, as per records available, Legal Notice dated 18 Aug 2023 was received from Shri Neeraj Gupta, Advocate, District Court Udhampur (J&K) on behalf of his client Shri Mahender Singh (GS180368H DVRMT) for payment of arrears for performing the duties in foreign or for his posting in foreign Country. The Legal Notice had been replied vide 63 RCC (GREF) vide their letter No. CF/GS-180368H DVR/MS/LN/14/1 dated 17 Nov 2023.

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A copy of such legal notice dated 18-082023, received from Shri Neeraj Gupta, Advocate is annexed herewith and marked as ANNEXURE R-5

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10. That while denying the correctness of the statements made in Paragraph 10 of the Writ Petition, the answering deponent begs to state that no records of receipt to such request from the petitioner are available with Project/TF/Unit. However, as per records available, Legal Notice dated 18 Aug 2023, was received from Shri Neeraj Gupta, Advocate, District Court Udhampur (J&K) on behalf of his client

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Shri Mahender Singh (GS-180368H DVRMT) for payment of arrears for performing the duties in foreign or for his posting in foreign Country. The Legal Notice had been replied vide 63 RCC (GREF) vide their letter No. CF/GS-180368HDVR/MS/LN/14/1 dated 17 Nov 2023.

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A copy of such reply to legal notice is annexed herewith and marked as ANNEXURE R-6.

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12. That while denying the correctness of the statements made in Paragraph 12 of the Writ Petition, the answering deponent begs to state that as per the existing posting policy, GREF personnel fulfilling all eligibility criteria and on merit basis are being posted by GREF Records to avail foreign posting, i.e. Bhutan Compensatory allowance (BCA) posting for a prescribed period. In compliance with the above policy, GREF Personnel of trade of MT Driver (to which the petitioner also belongs), who were appointed on or before 01 May 1995, have come up in the panel for consideration in the quarter ending Jun 2023 based on their merits and fulfilling all eligibility criteria Accordingly, eligible persons in the above panel have been posted to BCA, whereas, GS-180368H (MT Driver) Mahender Singh was appointed on 21 Jan 1999 and as such the petitioner is not entitled to permanent foreign posting and hence, the question of payment of Bhutan Compensatory Allowance to the petitioner does not arise.”

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19. Reading the aforesaid paragraphs, it is apparent that firstly, the petitioner was never posted in Bhutan; however, while the petitioner was temporarily deployed at Darranga in India, w.e.f. 24.06.2007 to 23.12.2008, he used to travel to Bhutan in connection with the trade work assigned to him by the office.

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20. It is further apparent that the petitioner, during his last 10 years of service, was awarded 2 (two) minor punishments, once by the then OC, 91 RCC, for an offence under AA Section 48 & AA Section 63 vide 91 RCC Part-II

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Order No. 0/032/0014/2001 dated 26.06.2001 and again by the then OC 91 RCC for an offence under AA Section 63 vide 91 RCC Part-II Order No. 0/064/0001/2001 dated 19.12.2001.

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21. It is further apparent that the aforesaid posting policy is further applicable only to the officers who were appointed on or before 01.05.1995. Hence, it appears that the petitioner, being appointed on 21.09.1999, does not come within the zone of consideration.

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22. Pertinent that the petitioner filed its re-joinder against the aforesaid affidavit-in-opposition filed by the respondents on 13.05.2025. Relevant paragraphs of the said are extracted hereunder for ready reference:-

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“5. That as regards the averments made under paragraph 2 of the affidavit-in-opposition, the deponent begs to state that he had been approaching the respondent authorities and running from pillar to post since 2010 till date for getting the arrears of salary of 26 months of the year 2006-09 during working in Bhutan as Driver, but the petitioner was given only lame excuses and his claim is still pending for consideration before the respondent authorities. It is further submitted that the deponent ventilated his grievances by submitting an application to the respondent authorities through registered post on 22.08.2023 stating therein to provide the arrears of payment to the petitioner for performing his duties as Driver in the Foreign country for the year 2006-

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8. That as regards the averments made under paragraph 5 of the affidavit-in-opposition, the deponent begs to state that he was not posted, but as the work meant for Bhutan posting was executed through him for which he is claiming the financial benefits.

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10. That as regards the averments made under paragraph 7 of the affidavit-in-opposition the deponent begs to state that another vehicle being Tata TPR (vehicle no. 98E-66288X) was driven by the deponent

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for the supply of construction materials from India to Bhutan and within the territory of Bhutan during the year 2006-09 (for around 26 months) during his posting at Darranga.

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11. That as regards the averments made under paragraph 8 of the affidavit-in-opposition the deponent while reiterating the contents of paragraph 5 to 8 of the Writ Petition, begs to state that the Respondent authorities without posting him at Dantak, made him worked at Bhutan which clearly indicates the arbitrary actions of the Respondents and therefore he is entitled for the financial benefits for the work executed through him in Bhutan.”

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23. Reading the aforesaid paragraphs, it is apparent that the petitioner admits that he was not posted in Bhutan, but as the work meant for the Bhutan posting was executed through him, he is claiming the financial benefits.

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24. Apt in this regard to refer to the relevant portion of the Duty Slip, which is extracted hereunder for ready reference:-

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“GOVERNMENT TRANSPORT DUTY SLIP PART-I

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MTD Mahindar Singh KPL-03

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TCR Rules: Indent Unit 63 RCC (GREF)

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The Following will report as under:

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Make & Type TATA TPR

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BA/EM NO.98E-66288X To proceed to as per as and when required

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Period of duty slip 16/08/07 to 32/08/07

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True an details duration on duty time the exact nature

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Station: C/o 99 APO

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Dated:..

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Date	Kms Out	Kms Run	In Tank Out	POL drawn	Consumed
	186706		152
21.8.07		12			24
22.08.07		52			17
23.08.07		48		42	16
24.08.07		72			24
25.08.07		60			20
27.08.07		60		42	20
28.08.07		60			20
29.08.07		48			16
30.08.07
				42
				126

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Previous tank Balance KMs/Hrs run during the period: POI drawn during the period: Consumed during the fortnightly: 222 Balance: 56”

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25. It thus appears that while the petitioner was posted at Darranga, he was required to go to Bhutan to supply construction materials as and when required as per the direction of the respondent authorities.

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26. Thus, what crystallizes from a careful perusal of the aforesaid is that the petitioner, at no relevant point of time, was permanently posted at Bhutan. However, the petitioner was only going to Bhutan in terms of the direction of the respondent authorities to deliver construction materials as and when he is required during the period in question.

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27. That apart, in view of the fact that 2 (two) minor punishments were awarded to the petitioner, he is not qualified and entitled to BCA posting. Further, the petitioner, having been appointed on 21.01.1999, does not come within the zone of consideration for BCA posting. It is worthwhile to mention that posting in BCA being restricted; the same cannot be claimed as a matter of course for delivery of construction materials to Bhutan from India while being posted at India for delivery of trade items. In short, a person has to be first eligible and qualified to come within the zone of consideration for BCA posting. Secondly, a person coming within the zone of consideration may be given a BCA posting subject to the availability of a vacant post in Bhutan. It is only upon fulfillment of the aforesaid conditions that a person can be said to be entitled to the compensation granted under the BCA posting. In the present case, the petitioner at the relevant point of time, being posted at Darranga in India, is not entitled to the compensation granted under the BCA posting as claimed for the subject period. Hence, the petitioner has failed to make out any case whatsoever for grant of compensation under the BCA posting rate.

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28. As regards the decision of the Division Bench of the Hon’ble Delhi High Court, wherein the Hon’ble Delhi High Court granted compensation as per the Bhutan Compensatory Area (BCA), it is in the context wherein the appellant was posted as per the documents on 22.06.1998 in Bhutan. It further appears that the aforesaid posting of

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the appellant therein at Bhutan was also not disputed by the respondents. Be that as it may, the decision of the Division Bench of another High Court is only persuasive and is not binding before this Court. Furthermore, decisions are only contextual. That being so, the said judgment rendered by the Delhi High Court does not fit in the context of the present case.

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29. As regards the daily allowance in terms of the Notification dated 21.11.2001 submitted by the learned counsel for the petitioner during the course of the argument, the same being neither pleaded nor claimed in the writ proceedings in hand, this Court is not required to go into the same in the said proceedings.

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30. In view of the above, this Court finds no merit whatsoever in the writ petition.

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31. Accordingly, the writ petition stands dismissed.

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No cost.

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JUDGE

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Comparing Assistant

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