Kartar Singh v. Union of India

1. The present petition has been filed by the petitioner, who was working on the post of a Head Constable (GD) in the respondents/ITBP in the year 2002, praying inter alia for directions to the respondents to designate and treat him as a Head Security Guard at the Indian Embassy at Kabul, where he was deputed between 07.11.2002 to 08.10.2005, and pay him Foreign Allowance commensurate to his rank of Head Constable.

2. Stated precisely, the facts of the case are that the petitioner was one of the 36 ITBP personnel, who were deployed in the Indian Embassy at Kabul in the years 2003-2005. Vide order dated 20.01.2002, the petitioner alongwith other ITBP personnel was appointed as a Security Guard, temporarily sanctioned for the Embassy of India at Kabul, as a part of a 36 member contingent deployed for the security of the India Mission in Kabul. Pertinently, neither the petitioner, nor the respondents have placed on record 2016:DHC:2724-DB WP(C) 23053/2005 Page No.2 of 4 a copy of the Administrative Order dated 20.01.2002. However, it is an undisputed position that the said order had stated that the Foreign Allowance shall be admissible to the petitioner as is admissible to an India based Security Guard.

3. The dispute in the present case hinges on the extent of the entitlement of Foreign Allowance to the petitioner. It is the stand of the petitioner that while he was appointed to the post of a Head Constable, when deputed at the Indian Embassy at Kabul, he was being paid Foreign Allowance as is admissible to a Constable, which is contrary to the recommendations made by the Counsellor posted at the Indian Embassy in Kabul. In support of the said submission, counsel for the petitioner had drawn our attention to the letter dated 03.11.2004, addressed by the Counsellor attached to the Indian Embassy at Kabul to the Joint Secretary, Ministry of External Affairs, New Delhi, wherein it was requested that Head Constables be equated with nongazetted officials for the purpose of payment of Foreign Allowance.

4. When the present case was taken up for hearing on 14.03.2016, counsel for the petitioner had stated that the decision taken by the Ministry of External Affairs on the recommendations made by the Counsellor posted at Indian Embassy in Kabul had not been placed on record despite a detailed order dated 19.03.2007, whereunder the respondents were directed to secure the relevant records and state as to whether the proposal/recommendations received from the Embassy in Kabul had been examined by the Government of India and the decision, if any, taken thereon.

5. Vide order dated 14.03.2016, counsel for the respondents was directed to obtain necessary instructions from the Department. Subsequently, on 28.03.2016, counsel for the respondents had handed over a copy of the letter WP(C) 23053/2005 Page No.3 of 4 dated 03.04.2007, addressed by the Ministry of External Affairs to the respondents/ITBP, which was taken on record. A copy thereof has been furnished to the counsel for the petitioner. As per the said letter, while making a reference to the present petition, the Joint Secretary (Personnel), Ministry of External Affairs, UOI had informed the ITBP that the communication dated 03.11.2004 received from the Counsellor posted at the Indian Embassy in Kabul had been examined by the Ministry in detail but the request for grant of Foreign Allowance, to the ITBP Head Constables deployed in the Embassy of India at Kabul equivalent to that being paid to non-gazetted officials, was found to be unjustified on the ground that there was no post of a Head Security Guard ever sanctioned for the Embassy of India in Kabul and the petitioner herein had been posted as a Security Guard against one of the posts of Security Guards sanctioned by the Ministry of External Affairs on 31.10.2002. It was further clarified that the petitioner was drawing his pay in the scale of Rs.3200-4900, which is closer to the scale of Rs.3050-4590, whereas the lowest level of Assistant Personnel and Welfare Officer (AP&WO) is that of Assistant Sub-Inspector, whose scale of pay is Rs.4000-6000, which is equated with the basic category of nongazetted officials of the Ministry comprising of Assistants/Personal Assistants/Clerks/Stenographers. The petitioner, who was Head Constable with the ITBP, was given the rank of a Security Guard when posted to the Embassy of India, Kabul and resultantly, was being paid Foreign Allowance, as was applicable to Security Guards.

6. As far as the contention of the counsel for the petitioner that the petitioner was entitled to Foreign Allowance as was being paid to a Head Constable of the ITBP at the Indian Embassy at Colombo, it has been WP(C) 23053/2005 Page No.4 of 4 averred in para 8 of the counter affidavit filed by the respondents, that in the Embassy of India at Colombo, there was a post of a Head Security Guard whereas in the Embassy of India at Kabul, there was no such post and only the post of Security Guards had been sanctioned. It has been stated that creation of ranks in the mission is a discretionary power of the Union of India exercised in consultation with the Ambassador after considering various factors prevalent in the country in question and merely because the Head Constable posted in the Embassy of India at Colombo was being paid Foreign Allowance, would not entitle the petitioner, who was posted as a Security Guard at the Embassy of India at Kabul, to extension of the same benefit.

7. In view of the aforesaid facts and circumstances and having regard to the explanation offered by the Ministry of External Affairs in its letter dated 03.04.2007, which has now come on record, we do not find any merit in the present petition, which is accordingly dismissed. No order as to costs. HIMA KOHLI, J SUNIL GAUR, J APRIL 01, 2016 rkb/ap