PETITIONER:
P. C. WADHWA
Vs.
RESPONDENT:
STATE OF HARYANA & ORS
DATE OF JUDGMENT05/03/1981
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
SEN, AMARENDRA NATH (J)
CITATION:
1981 AIR 1540 1981 SCR (3) 84
1981 SCC (2) 642 1981 SCALE (1)585
ACT:
All India Services (Conditions of Service-Residuary
Matters) Rules, 1960-Rule 2(b)-Scope of-I.P.S. Officers on
deputation, if entitled to get deputation allowance-Absence
of provision for payment of deputation allowance in Pay and
Cadre Rules, whether amounts to a bar to the receipt of
deputation allowance.
HEADNOTE:
Rule 2 of the All India Services (Conditions of
Service-Residuary Matters) Rules, 1960 empowers the Central
Government to make regulations to regulate any matters
relating to conditions of service of persons appointed in an
All India Service for which no provision is made in the
rules under the All India Services Act, 1951; and until such
regulations are made, such matters shall be regulated, in
the case of persons serving in connection with the affairs
of a State, by the rules applicable to officers of the State
Civil Service, Class I. By an order issued in 1963 the then
Punjab Government ordered that officers of the State holding
Class I posts would be entitled to deputation allowance at
the rates mentioned in para (i) (c) (ii) of the Order. By
the application of the Punjab Reorganisation Act this order
became applicable to officers serving in the State of
Haryana.
The appellant was an officer belonging to the Indian
Police Service. His services were placed at the disposal of
the State Electricity Board to work as a Vigilance Officer,
a post which was declared equivalent in status and
responsibilities to the post of Deputy Inspector General of
Police, held by him under the State Government. The order of
deputation passed by the Governor, while protecting the pay
and other allowances received by him in the cadre post, did
not however mention anything about the payment of deputation
allowance to him.
The appellant claimed deputation allowance under Rule
2(b) of the Residuary Rules. But his representation had been
rejected by the State Government. He then moved the High
Court for the issue of a writ; but that petition was
dismissed in limine.
Before this Court the appellant contended that he had a
statutory right to get deputation allowance as provided in
Rule 2(b) of the Residuary Rules.
Allowing the appeal
^
HELD: Rule 2(b) of the Residuary Rules expressly
applies to officers of All India Services on deputation. [87
G]
85
1. The substratum of Rule 2(b) is that an officer of
the All India Services on deputation would be entitled to
deputation allowance equivalent to that given to Officers of
the State Civil Service Class I. This Rule, read in
conjunction with para (i) (c) (ii) of the Order issued by
the erstwhile Punjab Government, manifestly entitles the
appellant to draw deputation allowance at the rates
mentioned in the Order. [87 H]
2. There is nothing in either Rule 6 of the IPS (Cadre)
Rules, 1954 or in Rule 9 of the IPS (Pay) Rules, 1954 which
debars an I.P.S. Officer from getting any deputation
allowance when he was on deputation to any of the
authorities mentioned in Rule 2(i) of the Cadre Rules. The
mere absence of a provision for payment of deputation
allowance in the Cadre Rules or Pay Rules cannot be
interpreted to mean an absolute bar to the receipt of such
deputation allowance if other rules permit such a course of
action. Rule 9 of the Pay Rules only protects the salary
admissible to I.P.S. Officers on deputation. Sub-rules 1 to
6 of Rule 9 of the Pay Rules do not prohibit payment of
deputation allowance to officers. What the proviso to sub-
rule 6 does is that it protects the pay and allowances of an
officer on deputation so that he is not adversely affected
in his emoluments while on deputation. In the absence of any
express rules made by the Central Government on the subject
the Residuary Rules would apply. [89D-G]
3. There is no substance in the argument of the Board
that since the terms of deputation sanctioned by the
Governor did not speak of payment of deputation allowance to
the appellant, the order of deputation should be read as a
modification made by the Central Government to Rule 2(b) of
the Residuary Rules. Rule 2(b) makes an exception only if
the Central Government makes an order in consultation with
the State Government modifying the rules. There is no
evidence to show that the Central Government consulted the
State Government to take away the effect of Rule 2(b) of the
Residuary Rules. Moreover the order of the Governor cannot
be construed as an order passed by the Central Government.
[90E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1475/1972.
Appeal by special leave from the Judgment and Order
dated 30.3.1972 of the Punjab & Haryana High Court in Civil
Writ Petition No. 1034 of 1972.
P.C. Wadhwa in person (Appellant.)
K.G. Bhagat and R.N. Podar for Respondent No. 1
K.K, Jain, Bishamber Lal, S.K. Gupta and P. Dayal for
Respondent No. 2.
K.S. Gurumoorthy for Union of India.
86
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against an order dated March 30, 1972 of the Punjab and
Haryana High Court dismissing the writ petition filed by the
appellant in limine.
The facts of the case lie within a very narrow compass
and may be stated thus:
The appellant was an IPS officer allotted to the
Haryana State and before his services were placed at the
disposal of the Haryana State Electricity Board (hereinafter
referred to as the Board), he was holding a substantive rank
of Deputy Inspector-General of Police and was Commandant
General, Home Guards and Director, Civil Defence. On April
15, 1969 the appellant was sent on deputation and his
services were placed at the disposal of the Board where he
was to work as Deputy Inspector General of Police for
Vigilance Work. On July 10, 1970 the post of Deputy
Inspector General of Police in the Board was declared
equivalent in status and responsibility to the IPS Cadre
post of Deputy Inspector General of Police in order to
protect the pay and salary and other allowances of the
appellant which he was getting in his post before his
deputation to the Board. In the Board, the appellant was
designated as Vigilance Officer. By an order dated August
14, 1970 the appellant’s terms of deputation to the Board
were finalized by the Haryana Government and the same were
communicated to the appellant on August 26, 1970. The terms
and conditions on which the appellant was sent on deputation
to the Board are contained in the order passed by the
Governor of Haryana (Annexure B to SLP It would be seen that
the order of the Governor, while protecting the pay and
emoluments that the appellant was getting, did not mention
anything about any deputation allowance being given to him.
The appellant made a representation to the Central
Government for payment of deputation allowance in accordance
with rule 2 (b) of the All India Services (Conditions of
Service-Residuary Matters) Rules, 1960 (hereinafter referred
to as the Residuary Rules) and submitted that he should be
given the same deputation allowance as was admissible to the
officers of the Haryana State Civil Service holding posts of
Class I when they were sent on deputation to some other
department or local body. The representation filed by the
appellant to Central Government was rejected. The appellant
then filed the writ petition before the High Court which was
dismissed in limine, as indicated above. Hence this appeal.
87
After hearing the appellant in person and counsel for
the parties, we are satisfied that this appeal must succeed
on a short point, and we are really surprised why the High
Court dismissed the writ petition in limine when the matter
merited serious scrutiny and deep examination. The
appellant, who has argued in person, submitted that being an
officer of the Indian Police Service, he was governed under
All India Services Act, 1951 and Rules made therein and in
so for as deputation allowance was concerned, by the
Residuary Rules. He had thus a statutory right to get
deputation allowance, as provided for in Rule 2(b) of the
Residuary Rules. Relevant portion of Rule 2 may be extracted
thus:
“2. Power of the Central Government to provide for
residuary matters.-The Central Government may,
after consultation with the Governments of the
States concerned, make regulations to regulate any
matters relating to conditions of service of
persons appointed to an All India Service, for
which there is no provision in the rules made or
deemed to have been made under the All India
Services Act, 1951 (61 of 1951); and until such
regulations are made, such matters shall be
regulated:-
(a) in the case of persons serving in connection
with the affairs of the Union, by the rules,
regulations and orders applicable to officers
of the Central Services, Class I;
(b) in the case persons serving in connection
with the Affairs of a State by the rules,
regulations and orders applicable to officers
of the State Civil Services, Class I, subject
to such exceptions and modifications as the
Central Government may, after consultation
with the State Government concerned, by order
in writing, make;” (Emphasis supplied)
It would be seen that rule 2(b) expressly applies to
the appellant or for that matter to the officers of the All
India Services. The substatum of the rule is that whenever
any officer is sent on deputation, he would be entitled to a
deputation allowance equivalent to that which is given to
officers of the State Civil Service, Class I. In the instant
case, it appears that by virtue of the Order issued by the
Punjab Government on January 28/31, 1963 which also applies
to Haryana by the application of Punjab Reorganization Act,
it is clear that officers of the State concerned holding
Class I posts would
88
be entitled to deputation allowance on certain rates
mentioned in para (i) (c) (ii) of the order which runs thus:
“The deputation allowance shall be at a uniform
rate of 20 per cent of the employee’s basic pay and
shall be subject to a maximum of Rs. 300- per mensem,
provided that the basic pay plus the deputation
allowance shall, at no time exceed Rs. 3,000- per
mensem. This shall equally apply in cases of ‘Foreign
Service’ where at present deputation allowance of 25
per cent of the basic pay is admissible under serial
No. 40 of rule 15.1 of Punjab C.S.R. Vol. I Part I,
‘Basic pay’ for the above purpose shall mean the pay
drawn in the scale of pay of the officiating
appointment in an employee’s parent cadre, provided
that the officiating appointment so held was not in a
tenure post and it is certified by the appointing
authority that but for the deputation the employee
would have continued to hold the officiating
appointment indefinitely.”
In other words, the maximum amount of deputation allowance
under the order would not exceed a sum of Rs. 300/- per
mensem. Reading Rule 2(b) in conjunction with para (i) (c)
(ii) of the order of the Punjab Government, it is manifest
that the appellant is doubtless entitled to deputation
allowance at the rates mentioned in the order of the Punjab
Government which fully applies to Haryana Government also.
The argument advanced by the appellant therefore is
unanswerable.
Mr. Bhagat, appearing for the State of Haryana,
submitted that there is no provision either in Rule 6 of the
IPS (Cadre) Rules, 1954 or in Rule 9 of the IPS (Pay) Rules
1954 regarding payment of deputation allowance and hence it
should be held that any officer belonging to the IPS cadre
was debarred from getting any deputation allowance unless
there was an express provision in the said rules. Relevant
part of rule 6 of the IPS (Cadre) Rules may be extracted
thus:
“Deputation of Cadre Officers.-(1) A cadre officer
may, with the concurrence of the State Government or
the State Governments concerned and the Central
Government be deputed for service under the Central
Government or another State Government or under a
company, association or body of individuals, whether
incorporated or not, which is wholly or substantially
owned or controlled by the Central Government or by
another State Government.
89
(2) A cadre officer may also be deputed for service
under:-
(i) a company, association or body of
individuals, whether incorporated or not,
which is wholly or substantially owned or
controlled by a State Government, a Municipal
Corporation or a Local Body, by the State
Government on whose cadre he is borne, and
(ii) … … …
Provided that ………
Provided further that no cadre officer shall be
deputed under sub-rule (i) or sub rule (2) to a
post carrying a prescribed pay which is less than
or a pay scale, the maximum of which is less than,
the basic pay he would have drawn in the cadre
post but for his deputation.”
We are unable to read in any of these rules any prohibition
or bar to the payment of deputation allowance to an officer
of the IPS Cadre on deputation to any of the authorities
mentioned in rule 2(i) above. In the instant case the
appellant was sent on deputation to the Board which is a
body wholly or substantially owned by the State Government.
The mere absence of the provision for payment of deputation
allowance cannot be interpreted to mean an absolute bar to
the receipt of such deputation allowance by an IPS Cadre
officer, if other Rules permit such a course of action.
Similarly, Rule 9 of the IPS (Pay) Rules, 1954 contains
various clauses which merely protect the Pay and salaries
admissible to an IPS officer when sent on deputation. There
is no reference to any allowance or other emoluments in the
Rule, excepting pay which is clearly set out in Schedule III
to those Rules. We have gone through Sub-Rules (1) to (6) of
Rule 9 and are unable to find any limitation contained in
these rules which could prevent the appellant from getting
deputation allowance. Reliance was, however, placed on the
proviso to sub-rule (6) which may be extracted thus:
“Provided that the pay allowed to an officer under
this sub-rule and sub-rule (5) shall not at any time be
less than what he would have drawn had he not been
appointed to a post referred to in sub-rule (4).”
The dominant object of the proviso is merely to protect
the the pay and salary which an IPS officer was getting when
he was
90
sent on deputation, so that his being sent on deputation may
not cause any prejudice to his career or emoluments. There
being no Rules on the subject, it is manifest that in such
cases the Residuary Rules would apply. We might mention that
the Residuary Rules were made in 1960, about six years after
the issuance of IPS (Cadre) Rules and IPS (Pay) Rules. It
seems to us that the Central Government realised that, when
other officers of the State Government on deputation were
entitled to deputation allowance, there was no reason why
this privilege should be denied to officers of the cadre of
IPS. Perhaps it was with this essential object in view that
Rule 2(b) of the Residuary Rules was enacted so as to enable
IPS officers to get deputation allowance on the same terms
as officers of State Civil Service Class I were getting.
This provision would naturally hold the field in the absence
of any express Rules made by the Central Government, which
have so far not been made.
Counsel appearing for the Board submitted before us
that the letter of the Governor dated August 14, 1970 laying
down the terms of deputation of the appellant does not
contain any mention of deputation allowance to be given to
the appellant and should therefore be read as a modification
made by the Central Government, as contemplated by clause
(b) of rule 2 of the Residuary Rules. We are, however,
unable to agree with this contention. In the first place,
Rule 2 (b) of the Residuary Rules makes an exception only if
the Central Government makes an order and that too after
consultation with the State Government concerned modifying
the Rule. There is no evidence in this case to show that any
order was passed by the Central Government after consulting
the State Government to modify or take away the effect of
rule 2(b) of the Residuary Rules. The order of the Governor
of Haryana cannot by any stretch of imagination be construed
as an order passed by the Central Government. For these
reasons the contentions raised by the respondents must be
overruled. For the reasons given above we hold that the
appellant is legally entitled under the Statutory Rules as
indicated above to get deputation allowance. The Board was
therefore in law bound to pay the said deputation allowance
to the appellant. The result is that the appeal is allowed
and order of the High Court dismissing the writ petition in
limine is quashed. A Writ of mandamus is issued to the Board
to pay the deputation allowance to the appellant, to be
calculated in terms of para (i) (c) (ii) of the order of the
Punjab Government referred to in this judgment. The payment
would be made for the period the appellant was on depu-
91
tation to the Board. The entire amount shall be paid within
three months.
The appellant would be entitled to his costs,
quantified at Rs. 2,000/- which also should be paid to the
appellant within three months.
P.B.R. Appeal allowed.
92