JUDGMENT
G. Ramakrishnan, Member (A)
1. Applicant in this OA is an IPS officer belonging to the Kerala Cadre. He has filed this OA aggrieved by the refusal on the part of the respondents to pay special allowance of 15% of the basic pay from 3.1.96 to 17.10.96 when he was posted as Commandant of State Rapid Action Force (SRAF). Through this OA he has sought relief inter-alia to quash Annexure A3 & A4 and to declare that he is entitled to draw the special allowance of 15% of his basic pay from 3.1.96 to 17.10.96 and for a direction to the respondents to pay the above allowance within a specified period.
2. The facts in brief are as follows:
As per A1 Government order dated 25.8.95 of the first respondent, a special force in Kerala Police known as State Rapid Action Force (referred to as SRAF hereafter) was constituted, As per Clause 8 of A1 Government order, incentive to be given to the personnel of SRAF are as follows:
”Incentives : All police personnel (Police constable to Commandant) will be paid on successful completion of the conversion training.
(i) 15% of basic pay as special allowance, (ii) Special diet allowance of Rs. 250/- per month for officers upto the rank of Armed Police Inspector."
3. As per A2 order dated 23.12.95 sanction was accorded for creation of an ex-cadre post of Commandant of SRAF in the senior scale of IPS for a period of one year. This post was declared equivalent in status and responsibility to the cadre post of Commandant under Rule 9 of IPS (Pay) Rules. Applicant who was working as Commandant, KAP-II Battalion, Palakkad was transferred and posted as the first commandant of SRAF. He joined on 3.1.96. According to the applicant, Director General of Police waived the condition of conversion course for IPS officers (direct recruits) posted as commandant of SRAF. The applicant was transferred from the post of Commandant, SRAF and posted as District Superintendent of Police, Palakkad and accordingly he handed over charge on 17.10.96. He claimed special allowance of 15% of his basic pay of Rs. 10,000 from 3.1.96 to 30.6.96 from the second respondent and again from 1.7.96 to 17.10.96 on his basic pay of Rs. 10,325/-. The applicant was advised by A-4 letter dated 22.8.97 of the Accounts Officer in the office of the second respondent that he was not eligible for the allowance as per A-3 letter dated 30.7.97. By A-3 letter the Government did not consider it necessary to grant a further compensatory allowance. Aggrieved by A-4 letter by which his claim was rejected by the Government, he has approached this Tribunal. According to the applicant, the refusal to pay 15% of the basic pay to the applicant as directed in A-1 Government order was arbitrary, illegal and violative of the right to equality guaranteed under Article 14 of the Constitution.
4. Respondents filed reply statement resisting the claim of the applicant. They
submitted that the post of Commandant, SRAF was not a cadre post borne on the IPS cadre of Kerala. However, the applicant was posted as Commandant by creating an ex-cadre post which was declared as equivalent in status and responsibility to the cadre post of Commandant of AP Battalions under Rule 9 of IPS (Pay) Rules. Cadre officers working outside the cadre were entitled for remuneration with reference to the equation given to the ex-cadre post held by them under Rule 9 of the Pay Rules and accordingly the applicant was entitled to draw pay and allowances and other perks as admissible to the cadre post of Commandant, Armed Police Battalion. They submitted that special allowance to SRAF was in the form of compensatory allowance and no compensatory allowance was admissible to an All India Service Officer serving in connection with the affairs of State unless he had been specifically authorised to draw the same as per Rule 3 of AIS (Compensatory Allowance) Rules 1954, Rule 2 (a) of this Rules defined compensatory allowance as an allowance granted to meet personal expenditure necessitated by the special circumstances in which duty is performed. They added that the special allowance of 15% allowed to SRAF was only an incentive. According to them, the grant of compensatory allowance admissible to a member of the service was to be done by the State Government concerned under Rule 3 of the Compensatory Allowance Rules. In the absence of any such order, the applicant was not eligible for the special allowance of 15% of the basic pay. They also submitted that the applicant’s appointment to SRAF could not be treated as deputation and that as the post was equated to that of a Commandant, he was eligible for the special pay of Rs. 200/- per month and Rs. 500/- per month as special allowance granted to All India Service Officers to ensure parity of pay vis-a-vis officers of State Government, They submitted that there was no question of applicant becoming automatically entitled to the benefits contained in A1 Government Order. They also submitted that the contention of the applicant that A-1 order itself could be treated as general/special order envisaged in Rule 3 of the All India Service Rules was not at all tenable.
5. Applicant filed rejoinder reiterating the points raised in the OA. According to him, by the respondents’ admission in the reply statement, the special allowance of 15% of basic pay allowed to SRAF personnel was an incentive and not a compensatory allowance as defined in Rule 2(a) of All India Services (Compensatory Allowance) Rules, 1954. He further submitted that A-1 Government Order did not make any distinction between IPS and non-IPS officers in the matter of payment of 15% of the basic pay payable as special allowance and hence the Government could not now turn around and say that IPS officers would not be entitled to this special allowance. Applicant pleaded that he was subjected to hostile discrimination for the sole reason that he was an IPS officer.
6. Heard the learned Counsel for the parties. Learned Counsel of the applicant took me through the pleadings made in the OA and the rejoinder. He submitted that it was clear from A-1 order that the nature of the duties of SRAF Commandant was onerous and extremely dangerous and members of the force were exposed to strenuous situations normally handling riots, riotous situations arising out of religious and communal clashes and it was in consideration of the hazardous duty that 15% basic pay allowance was granted to the members as per Clause 8 of A-1 Government Order. He submitted that the special allowance granted as per A-1 order was given as an incentive to SRAF personnel who were vulnerable to extremely dangerous situations. He further submitted that even if it was treated as a compensatory allowance the applicant was entitled to draw the same as per the provisions of Rule 3 of All India Service (Compensatory Allowance) Rules, 1954. Rule 3 of the above Rules State that the grant of compensatory allowance admissible to a member of the service and the conditions subject to which it may be granted should be regulated by such general
or special order of the Government under whom such member was nor the time being serving as may from time to time be made by that Government. He argued that A-1 order was passed by the Government under whom he was serving and the order provided for payment of special allowance and A-l in so far it related to special allowance could be deemed to be an order passed under Rule 3 of All India Service (Compensatory Allowance) Rules and hence he was entitled to special allowance. He also drew my attention to Clause 9 of A-1 according to which the service in SRAF was considered by the Government as deputation and hence he argued that special allowance payable under Clause 8 of A1 was to be treated as deputation allowance and as there was no rule framed to regulate the deputation allowance payable to members of All India Service and hence as per Rule 2 of All India Service (Condition of Service Residuary Matters) Rules, 1960 the rules, regulations and orders applicable to class I officers of the State Civil Service like the applicant should be made applicable to him. Relying on the judgment of the Supreme Court in K.C. Wadhwa v. State of Haryana, AIR 1981 SC 1540=1981(2) SLJ 700 (SC), he submitted that where an IPS officer was sent on deputation he would be entitled to deputation allowance in view of Rule 2 (b) of Residuary Rules. On this ground also A-3 & A-4 were liable to be quashed. He further submitted that when a non IPS officer was posted as Commandant he became entitled to special allowance but when an IPS officer like the applicant was posted he was not eligible for the special allowance and such a treatment was discriminatory.
7. Learned Counsel for the respondents took me through the pleadings in the reply statement and submitted that in view of the Government’s decision that the allowance given to an IPS officer who was posted as Commandant, SRAF was in the nature of compensatory allowance, the applicant was not entitled for the same. He submitted that the OA was devoid of merits and liable to be dismissed.
8. I have given careful consideration to the submissions made by the learned Counsel for the parties and the rival pleadings and perused the documents brought on record. If the intention of the first respondent was that IPS officers posted as Commandant, SRAF would not be eligible for the 15% special allowance then the same should have been specifically slated as such in A-1 order. Having not done so, denying the same to IPS officers like the applicant is discriminatory. Further the contention that the special allowance is a compensatory allowance and hence as per the provisions of All India Services (Compensatory Allowance) Rules, 1954, the applicant is not entitled for the same is without any basis. “Compensatory Allowance” is defined under Rule 2(a) as an allowance granted to meet personal expenditure necessitated by the special circumstances in which duty is performed. In A-1 order in Clause 8, special allowance of 15% of the basic pay has been specifically shown as ‘incentive’ admissible to all personnel in the SRAF from police constables to Commandant and in the reply statement also it has been categorically stated that 15% of the basic pay allowed to SRAF personnel as per A-1 Government Order is an incentive. In view of this and also in the light of the ratio of the judgment in Wadhwa case relied upon by the learned Counsel for the applicant, I am of the view that there is considerable force in the submission made by the learned Counsel of the applicant that as no rule was brought out by the respondents which defined “Special Allowance” and as per A-l order the same being an incentive, the grant or otherwise of this allowance should be governed as per the provisions of All India Service (Conditions of Service Residuary Matters) Rules, 1960. Rule 2 reads as under:
“Power of Central Government to provide for Residuary matters :
The Central Government may after consultation with the State 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 Service 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 of persons serving in connection with the affairs of the 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 consultations with the State Government concerned, by order in writing, make: provided that......"
In terms of the above, till such time separate rules governing payment of ‘Special Allowance’ as ‘Incentive’ for IPS officers posted in SRAF arc made, the regulations and orders applicable to Class I officers of State Police Service are applicable to I.P.S. officers posted as Commandant in SRAF. As there is no dispute that the State Police Officers when posted as Commandant are eligible for the incentive of 15% of the basic pay as special allowance, the applicant is also entitled for similar treatment while working as Commandant, SRAF.
9. In view of the foregoing, the OA succeeds and the applicant is entitled for the reliefs sought for. Accordingly, A-3 and A-4 are set aside and quashed and respondents are directed to pay to the applicant the special allowance of 15% of his basic pay for the period he was posted as Commandant, SRAF, within a period of two months from the date of receipt of a copy of this order.
10. OA is allowed as above with no order as to costs.