SANJAY KHER & ORS. Vs. UOI & ORS.
LAWS(DLH)-2013-4-370
HIGH COURT OF DELHI
Decided on April 09,2013

Sanjay Kher And Ors. Appellant
VERSUS
Uoi And Ors. Respondents




JUDGEMENT

Valmiki J Mehta, J. - (1.)THIS writ petition is filed by the four petitioners who were the employees of the respondent no. 2 -employer namely Rashtriya Pariyojna Nirman Nigam Ltd. The four petitioners were deputed for different periods by the respondent no. 2 in Iraq. Petitioners claim that the foreign allowances which were granted to them at the initial stage should be revised upwards not only on account of increase of the DA granted to the employees in India but also because the Non -IFS officers of the Government of India who were posted abroad from time to time received enhancements in the foreign allowances payable to them. On behalf of the petitioner no. 2, to dispute the stand of the petitioners reliance is placed upon Rule 5 of the rules of the respondent no. 2 relating to the terms and conditions of regular employees posted in Iraq and which reads as under: -
5. Foreign Allowance: To compensate for the higher cost of living, an employee of the Company serving outside India shall be granted a foreign allowances at such rates and subject to such conditions as may be prescribed by the Company from time to time, provided that such allowances shall not exceed the rates of foreign allowances applicable to Non -IFS officers of the Government of India of the equivalent category, such rates being subject to 5% compulsory economy out and slab deductions prescribed by the Government of India from time to time. The present rates are, however, enclosed as Annexure 'A'.

(2.)ON the basis of the aforesaid Rule -5, it is argued that petitioners are not entitled to complete parity for payment of foreign allowances as applicable to Non -IFS officers of the Government of India of the equivalent category and that the allowances of the employees of respondent no. 2 were not to 'exceed' the foreign allowances to Non -IFS officers and not for 'equal to' the Non -IFS officers. On behalf of respondent no. 2, what is contended is that as per the applicable Rule -5, all that is stated is that the foreign allowances will be granted as per circulars to be issued from time to time and which will not exceed the foreign allowances which are paid by the Government of India to its Non -IFS officers posted abroad. It is argued that the expression of "not exceed" cannot be equated with the expression "equal to" and petitioners cannot claim that they should be paid foreign allowances which are from time to time given to the Non -IFS officers of the Government of India who are posted abroad. It is argued that no policy guidelines were issued by the respondent no. 2 from time to time for enhancing of the foreign allowances by the respondent no. 2 and therefore, the petitioners cannot merely claim because of the fact that enhanced DA was granted to employees in India or enhanced foreign allowances were granted to the Non -IFS officers of the Government of India posted aboard claim enhancement in their foreign allowances.
In response the petitioners have placed reliance upon the letter dated 19.1.1980 written by the Director of the respondent no. 2 to the Ministry of External Affairs, and which according to the petitioners shows that the respondent no. 2 had agreed to be bound by the rules for Non -IFS officers posted at the project sites in Baghdad, Iraq.

(3.)BEFORE I proceed further in this case, it would be necessary to refer to the dictum of the Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. vs. Workmen : (2007) 1 SCC 408 wherein the Supreme Court has categorically observed that Courts should not substitute itself for the executive so as to decide what should be the scales of pay which should be granted to its officers. The Supreme Court has cautioned against judicial activism inasmuch as the finances of an employer are considered by the employer so as to decide what should be the emoluments which should be granted to its employees. Paras 37 and 40 of the said judgment are relevant and the same read as under: -
37. Creation and abolition of posts and regularization are purely executive functions vide P.U. Joshi v. Accountant General : (2003) 2 SCC 632 : 2003 SCC (L&S) 191. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to it's the powers of the executive or legislature. There is abroad separation of powers under the Constitution, and the judiciary, too, must know its limits.

40. The courts must, therefore, exercise judicial restrain, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc., are all executive or legislature functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case -law and philosophy of judicial restrain has been laid down by the Madras High Court in great detail Rama Muthuramalingam v. Dy. Supdt. of Police : AIR 2005 Mad 1 and we fully agree with the views expressed therein.



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