NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8294 OF 2009 (Arising out of Special Leave Petition (C) No. 14786 OF 2006)

UNION OF INDIA & ORS.       ….APPELLANT(S)

VERSUS

NARENDRA GUPTA & ORS       ……RESPONDENT(S)

O R D E R

SURINDER SINGH NIJJAR, J.

1. Leave granted.

2. This appeal is directed against the Judgment and Order  

of the Division Bench, High Court of Judicature at Bombay in  

Writ  Petition  No.7301/02  dated  3.2.2006  whereby  the  writ  

petition  filed  by  the  Union  of  India,  appellant  herein  

impugning the order dated 20.12.2001 passed by the Central  

Administrative  Tribunal  (hereinafter  referred  to  as  the  

‘Tribunal’) in Original Application No.669/1997.  By that order

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the respondents have been held entitled to the allowance as  

envisaged in D.O.P.T. letter dated 31.3.1987.  Direction had  

also been issued to grant the allowance to the respondents @  

30 per cent of the emoluments w.e.f. 1.1.1986 and @ 15 per  

cent w.e.f. 9.7.1992.   

3. Before the Tribunal it was the case of the appellants that  

O.M.  dated  31.3.1987  and  consequentially  O.M.  dated  

9.7.1992  were  not  applicable  to  Respondents  as  they  were  

members  of  the  permanent  faculty  of  the  Institute  of  

Armament  Technology.   This  plea  of  the  Appellants  was  

rejected by the Tribunal.  The Tribunal accepted the claim of  

the  respondents  that  they  worked  in  the  Naval  College  of  

Engineering,  as  civilian  employees belonging  to  the  Defence  

Research and Development Services (hereinafter referred to as  

‘DRDS’).  They were aggrieved by the fact that they were not  

being paid training allowance @ 30 per cent of the emoluments  

w.e.f.  1.1.1986 and @ 50 per cent of the emoluments w.e.f.  

9.7.1992 in as much as they were employees in the I.A.T. as  

Scientists  but  are  detailed  as  faculty  members  for  training

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other  government  officials.  It  was claimed that  the  training  

allowance  was  admissible  to  them  as  part  of  an  incentive  

scheme of the Government of India set out in Department of  

Personnel, O.M. dated 31.3.1987.  The Tribunal relied on Part  

2(i) of the aforesaid O.M. which is as follows:      

“2(i) When an employee of Government joins a  training institution meant for  training government  officials,  as  a  faculty  member  other  than  as  a  permanent  faculty  member,  he  will  be  given  a  “training allowance” at the rate of 30 per cent of his  basic  pay drawn from time to time in the revised  scales of pay.”

4. Before  the  Tribunal,  the  appellants  claimed  that  the  

respondents were not entitled to the aforesaid benefit as they  

were  permanent  faculty  members.   The  allowance  was only  

admissible to faculty members other than permanent faculty  

members.   It  was  the  claim  of  the  appellants  that  the  

respondents  held  cadre  posts  included  in  the  DRDS  and  

therefore were not entitled to training allowance.  The Tribunal  

rejected the aforesaid plea.  Therefore, the appellants moved  

the High Court by way of a writ petition under Article 226 of  

the  Constitution  of  India.   The  aforesaid  writ  petition  was

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dismissed  by  the  Division  Bench  with  the  following  

observations:   

“The petitioners have not produced any service  rules to show that IAT has a different cadre or that  the  respondents  were  recruited  by  any  advertisement  for  specific  posts  in  IAT.   No  such  material  was  produced  nor  could  be  produced,  considering  the  various  admissions  made  by  the  petitioners  themselves  that  the  respondents  were  recruited as scientists, in terms of recruitment rules  for  scientists  in  D.R.D.O.  and  have  also  been  promoted under the said rules.  Mere continuation  in the said posts for a long time cannot result in the  posts held by the petitioners becoming permanent  posts in I.A.T.  What clinches the issue is that the  promotion to the respondents were not given under  any rules framed by IAT but the promotions were  based  on  rules  framed  by  DRDO,  like  any  other  employee  in  DRDO.   In  the  circumstances,  the  finding  of  the  fact  recorded  by  the  Tribunal  that  there are no posts in IAT, does not suffer from any  error of law apparent on the face of the record nor it  can be said that the finding is perverse, based on no  material or by ignoring relevant material.”  

5. Learned counsel appearing for the appellants (Union of  

India)  submits  that  the  aforesaid  observations  came  to  be  

made as the provisions of the Defence Research Development  

Service Rules, 1979 (amended and incorporated upto October  

2008)  were  not  brought  to  the  notice  of  the  High  Court.  

Learned counsel has brought to our notice that the aforesaid

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Rules have been made by the President of India in exercise of  

the  powers  conferred  by  the  proviso  to  Article  309  of  the  

Constitution  of  India.   These  Rules  came  into  force  on  

13.1.1979, when they were published in the Gazette of India in  

accordance with the provisions contained in Rule 1, sub-Rule  

2.  Rule 2, sub-Rule 9 defines service to mean the “Defence  

Research  and  Development  Service.”   The  aforesaid  Rule  

provides  that  different  categories  of  scientists  shall  be  

members of the service provided they fall  within any of the  

categories  enumerated in Rule  5.   According to the learned  

counsel  all  the  respondents  would  be  governed  by  the  

provisions of the Rule 5.  A perusal of the observations made  

by the High Court would show that the claim of the appellant  

has been rejected on the ground that the appellant had failed  

to produce any service rules governing the service conditions  

of the respondents.   

6. In our opinion, the observations made by the High Court  

need reconsideration in view of the Rules now produced before  

this Court.  Consequently, we allow this appeal and set aside

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the Judgment and Order passed by the Division Bench in Writ  

Petition No.7301/02 dated 3.2.2006.  The matter is remanded  

back to the High Court for deciding the writ petition afresh on  

merits  after  taking  into  consideration  the Defence  Research  

Development  Service  Rules,  1979.   Parties  are  at  liberty  to  

approach the High Court for filing further pleadings that may  

be  necessary  for  the  complete  adjudication  of  the  issues  

arising in the writ petition.   

7. No costs.     

..……….…………………… ….J

    (TARUN CHATTERJEE)

      ..……………………………… …J

          (SURINDER SINGH NIJJAR)

NEW DELHI DECEMBER 15, 2009