{"id":75301,"date":"1981-03-05T00:00:00","date_gmt":"1981-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-c-wadhwa-vs-state-of-haryana-ors-on-5-march-1981"},"modified":"2018-08-05T15:42:45","modified_gmt":"2018-08-05T10:12:45","slug":"p-c-wadhwa-vs-state-of-haryana-ors-on-5-march-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-c-wadhwa-vs-state-of-haryana-ors-on-5-march-1981","title":{"rendered":"P. C. Wadhwa vs State Of Haryana & Ors on 5 March, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P. C. Wadhwa vs State Of Haryana & Ors on 5 March, 1981<\/div>\n
Equivalent citations: 1981 AIR 1540, \t\t 1981 SCR (3)\t 84<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nP. C. WADHWA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HARYANA & ORS\n\nDATE OF JUDGMENT05\/03\/1981\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nVARADARAJAN, A. (J)\nSEN, AMARENDRA NATH (J)\n\nCITATION:\n 1981 AIR 1540\t\t  1981 SCR  (3)\t 84\n 1981 SCC  (2) 642\t  1981 SCALE  (1)585\n\n\nACT:\n     All India\tServices  (Conditions  of  Service-Residuary\nMatters) Rules,\t 1960-Rule 2(b)-Scope  of-I.P.S. Officers on\ndeputation, if\tentitled to get deputation allowance-Absence\nof provision  for payment of deputation allowance in Pay and\nCadre Rules,  whether amounts  to a  bar to  the receipt  of\ndeputation allowance.\n\n\n\nHEADNOTE:\n     Rule  2  of  the  All  India  Services  (Conditions  of\nService-Residuary Matters)  Rules, 1960 empowers the Central\nGovernment to  make  regulations  to  regulate\tany  matters\nrelating to conditions of service of persons appointed in an\nAll India  Service for\twhich no  provision is\tmade in\t the\nrules under the All India Services Act, 1951; and until such\nregulations are\t made, such  matters shall  be regulated, in\nthe case  of persons  serving in connection with the affairs\nof a State, by the rules applicable to officers of the State\nCivil Service,\tClass I. By an order issued in 1963 the then\nPunjab Government ordered that officers of the State holding\nClass I\t posts would  be entitled to deputation allowance at\nthe rates  mentioned in\t para (i)  (c) (ii) of the Order. By\nthe application\t of the Punjab Reorganisation Act this order\nbecame applicable  to  officers\t serving  in  the  State  of\nHaryana.\n     The appellant  was an  officer belonging  to the Indian\nPolice Service.\t His services were placed at the disposal of\nthe State  Electricity Board to work as a Vigilance Officer,\na  post\t  which\t was   declared\t equivalent  in\t status\t and\nresponsibilities to  the post of Deputy Inspector General of\nPolice, held by him under the State Government. The order of\ndeputation passed  by the Governor, while protecting the pay\nand other  allowances received by him in the cadre post, did\nnot however mention anything about the payment of deputation\nallowance to him.\n     The appellant  claimed deputation\tallowance under Rule\n2(b) of the Residuary Rules. But his representation had been\nrejected by  the State\tGovernment. He\tthen moved  the High\nCourt for  the issue  of  a  writ;  but\t that  petition\t was\ndismissed in limine.\n     Before this Court the appellant contended that he had a\nstatutory right\t to get\t deputation allowance as provided in\nRule 2(b) of the Residuary Rules.\n     Allowing the appeal\n^\n     HELD:  Rule  2(b)\tof  the\t Residuary  Rules  expressly\napplies to officers of All India Services on deputation. [87\nG]\n85\n     1. The  substratum of  Rule 2(b)  is that an officer of\nthe All\t India Services\t on deputation\twould be entitled to\ndeputation allowance equivalent to that given to Officers of\nthe  State  Civil  Service  Class  I.  This  Rule,  read  in\nconjunction with  para (i)  (c) (ii)  of the Order issued by\nthe erstwhile  Punjab Government,  manifestly  entitles\t the\nappellant  to\tdraw  deputation   allowance  at  the  rates\nmentioned in the Order. [87 H]\n     2. There is nothing in either Rule 6 of the IPS (Cadre)\nRules, 1954  or in Rule 9 of the IPS (Pay) Rules, 1954 which\ndebars\tan   I.P.S.  Officer  from  getting  any  deputation\nallowance  when\t  he  was   on\tdeputation  to\tany  of\t the\nauthorities mentioned  in Rule\t2(i) of the Cadre Rules. The\nmere absence  of  a  provision\tfor  payment  of  deputation\nallowance  in  the  Cadre  Rules  or  Pay  Rules  cannot  be\ninterpreted to\tmean an\t absolute bar to the receipt of such\ndeputation allowance  if other rules permit such a course of\naction. Rule  9 of  the Pay  Rules only\t protects the salary\nadmissible to  I.P.S. Officers on deputation. Sub-rules 1 to\n6 of  Rule 9  of the  Pay Rules\t do not\t prohibit payment of\ndeputation allowance  to officers.  What the proviso to sub-\nrule 6 does is that it protects the pay and allowances of an\nofficer on  deputation so  that he is not adversely affected\nin his emoluments while on deputation. In the absence of any\nexpress rules  made by the Central Government on the subject\nthe Residuary Rules would apply. [89D-G]\n     3. There  is no  substance in the argument of the Board\nthat  since  the  terms\t of  deputation\t sanctioned  by\t the\nGovernor did not speak of payment of deputation allowance to\nthe appellant,\tthe order  of deputation should be read as a\nmodification made  by the Central Government to Rule 2(b) of\nthe Residuary  Rules. Rule  2(b) makes\tan exception only if\nthe Central  Government makes  an order in consultation with\nthe State  Government  modifying  the  rules.  There  is  no\nevidence to  show that\tthe Central Government consulted the\nState Government to take away the effect of Rule 2(b) of the\nResiduary Rules.  Moreover the\torder of the Governor cannot\nbe construed  as an  order passed by the Central Government.\n[90E-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL  APPELLATE\tJURISDICTION  :\t  Civil\t Appeal\t No.
\n1475\/1972.\n<\/p>\n
     Appeal by\tspecial leave  from the\t Judgment and  Order
\ndated 30.3.1972\t of the Punjab & Haryana High Court in Civil
\nWrit Petition No. 1034 of 1972.\n<\/p>\n
     P.C. Wadhwa in person (Appellant.)
\n     K.G. Bhagat and R.N. Podar for Respondent No. 1<\/span>
\n     K.K, Jain,\t Bishamber Lal,\t S.K. Gupta and P. Dayal for
\nRespondent No. 2.\n<\/p>\n
     K.S. Gurumoorthy for Union of India.\n<\/p>\n
86<\/span><\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J. This appeal by special leave is directed
\nagainst an  order dated\t March 30,  1972 of  the Punjab\t and
\nHaryana High Court dismissing the writ petition filed by the
\nappellant in limine.\n<\/p>\n
     The facts\tof the case lie within a very narrow compass
\nand may be stated thus:\n<\/p>\n
     The appellant  was\t an  IPS  officer  allotted  to\t the
\nHaryana State  and before  his services\t were placed  at the
\ndisposal of the Haryana State Electricity Board (hereinafter
\nreferred to as the Board), he was holding a substantive rank
\nof Deputy  Inspector-General of\t Police and  was  Commandant
\nGeneral, Home  Guards and  Director, Civil Defence. On April
\n15, 1969  the appellant\t was  sent  on\tdeputation  and\t his
\nservices were  placed at  the disposal of the Board where he
\nwas to\twork as\t Deputy\t Inspector  General  of\t Police\t for
\nVigilance  Work.  On  July  10,\t 1970  the  post  of  Deputy
\nInspector General  of  Police  in  the\tBoard  was  declared
\nequivalent in  status and  responsibility to  the IPS  Cadre
\npost of\t Deputy Inspector  General of  Police  in  order  to
\nprotect the  pay and  salary and  other\t allowances  of\t the
\nappellant which\t he was\t getting  in  his  post\t before\t his
\ndeputation to  the Board.  In the  Board, the  appellant was
\ndesignated as  Vigilance Officer.  By an  order dated August
\n14, 1970  the appellant’s  terms of  deputation to the Board
\nwere finalized\tby the\tHaryana Government and the same were
\ncommunicated to\t the appellant on August 26, 1970. The terms
\nand conditions on which the appellant was sent on deputation
\nto the\tBoard are  contained in\t the  order  passed  by\t the
\nGovernor of Haryana (Annexure B to SLP It would be seen that
\nthe order  of the  Governor, while  protecting the  pay\t and
\nemoluments that\t the appellant\twas getting, did not mention
\nanything about\tany deputation allowance being given to him.
\nThe  appellant\t made  a   representation  to\tthe  Central
\nGovernment for payment of deputation allowance in accordance
\nwith rule  2 (b)  of the  All India  Services (Conditions of
\nService-Residuary Matters) Rules, 1960 (hereinafter referred
\nto as  the Residuary  Rules) and submitted that he should be
\ngiven the same deputation allowance as was admissible to the
\nofficers of the Haryana State Civil Service holding posts of
\nClass I\t when they  were sent  on deputation  to some  other
\ndepartment or  local body.  The representation\tfiled by the
\nappellant to  Central Government was rejected. The appellant
\nthen filed the writ petition before the High Court which was
\ndismissed in limine, as indicated above. Hence this appeal.\n<\/p>\n
87<\/span><\/p>\n
     After hearing  the appellant  in person and counsel for
\nthe parties,  we are satisfied that this appeal must succeed
\non a  short point,  and we are really surprised why the High
\nCourt dismissed\t the writ petition in limine when the matter
\nmerited\t serious   scrutiny  and   deep\t  examination.\t The
\nappellant, who has argued in person, submitted that being an
\nofficer of  the Indian Police Service, he was governed under
\nAll India  Services Act,  1951 and Rules made therein and in
\nso  for\t as  deputation\t allowance  was\t concerned,  by\t the
\nResiduary Rules.  He had  thus\ta  statutory  right  to\t get
\ndeputation allowance,  as provided  for in  Rule 2(b) of the
\nResiduary Rules. Relevant portion of Rule 2 may be extracted
\nthus:\n<\/p>\n
     “2.   Power of  the Central  Government to\t provide for
\n\t  residuary  matters.-The  Central  Government\tmay,
\n\t  after consultation  with the\tGovernments  of\t the
\n\t  States concerned, make regulations to regulate any
\n\t  matters  relating  to\t conditions  of\t service  of
\n\t  persons appointed  to an  All India  Service,\t for
\n\t  which there  is no  provision in the rules made or
\n\t  deemed to  have been\tmade  under  the  All  India
\n\t  Services Act,\t 1951 (61  of 1951);  and until such
\n\t  regulations  are   made,  such  matters  shall  be
\n\t  regulated:-\n<\/p><\/blockquote>\n
\t  (a)\tin the case of persons serving in connection
\n\t       with the\t affairs of the Union, by the rules,
\n\t       regulations and orders applicable to officers
\n\t       of the Central Services, Class I;<\/p><\/blockquote>\n
\t  (b)\tin the\tcase persons  serving in  connection
\n\t       with the\t Affairs of  a State  by the  rules,
\n\t       regulations and orders applicable to officers
\n\t       of the State Civil Services, Class I, subject
\n\t       to such\texceptions and\tmodifications as the
\n\t       Central Government  may,\t after\tconsultation
\n\t       with the State Government concerned, by order
\n\t       in writing, make;” (Emphasis supplied)
\n     It would  be seen\tthat rule  2(b) expressly applies to
\nthe appellant  or for that matter to the officers of the All
\nIndia Services.\t The substatum\tof the rule is that whenever
\nany officer is sent on deputation, he would be entitled to a
\ndeputation allowance  equivalent to  that which\t is given to
\nofficers of the State Civil Service, Class I. In the instant
\ncase, it  appears that\tby virtue of the Order issued by the
\nPunjab Government  on January 28\/31, 1963 which also applies
\nto Haryana  by the application of Punjab Reorganization Act,
\nit is  clear that  officers of\tthe State  concerned holding
\nClass I posts would
\n88<\/span>
\nbe  entitled   to  deputation  allowance  on  certain  rates
\nmentioned in para (i) (c) (ii) of the order which runs thus:\n<\/p>\n
\t  “The deputation  allowance shall  be at  a uniform
\n     rate of  20 per  cent of  the employee’s  basic pay and
\n     shall be  subject to  a maximum of Rs. 300- per mensem,
\n     provided  that   the  basic  pay  plus  the  deputation
\n     allowance shall,  at no  time  exceed  Rs.\t 3,000-\t per
\n     mensem. This  shall equally  apply in cases of ‘Foreign
\n     Service’ where  at present\t deputation allowance  of 25
\n     per cent  of the  basic pay  is admissible under serial
\n     No. 40  of rule  15.1 of  Punjab C.S.R.  Vol. I Part I,
\n     ‘Basic pay’  for the  above purpose  shall mean the pay
\n     drawn  in\t the  scale   of  pay\tof  the\t officiating
\n     appointment in  an employee’s  parent  cadre,  provided
\n     that the  officiating appointment\tso held was not in a
\n     tenure post  and it  is  certified\t by  the  appointing
\n     authority that  but for  the  deputation  the  employee
\n     would  have   continued   to   hold   the\t officiating
\n     appointment indefinitely.”\n<\/p><\/blockquote>\n
In other  words, the  maximum amount of deputation allowance
\nunder the  order would\tnot exceed  a sum  of Rs.  300\/- per
\nmensem. Reading\t Rule 2(b)  in conjunction with para (i) (c)\n<\/p>\n
(ii) of\t the order  of the Punjab Government, it is manifest
\nthat the  appellant  is\t doubtless  entitled  to  deputation
\nallowance at  the rates mentioned in the order of the Punjab
\nGovernment which  fully applies\t to Haryana Government also.
\nThe  argument\tadvanced  by   the  appellant  therefore  is
\nunanswerable.\n<\/p>\n
     Mr.  Bhagat,   appearing  for  the\t State\tof  Haryana,
\nsubmitted that there is no provision either in Rule 6 of the
\nIPS (Cadre)  Rules, 1954 or in Rule 9 of the IPS (Pay) Rules
\n1954 regarding\tpayment of deputation allowance and hence it
\nshould be  held that  any officer belonging to the IPS cadre
\nwas debarred  from getting  any deputation  allowance unless
\nthere was  an express  provision in the said rules. Relevant
\npart of\t rule 6\t of the\t IPS (Cadre)  Rules may be extracted
\nthus:\n<\/p>\n
\t  “Deputation of Cadre Officers.-(1) A cadre officer
\n     may, with\tthe concurrence\t of the\t State Government or
\n     the  State\t  Governments  concerned   and\tthe  Central
\n     Government be  deputed for\t service under\tthe  Central
\n     Government or  another  State  Government\tor  under  a
\n     company, association  or body  of individuals,  whether
\n     incorporated or  not, which  is wholly or substantially
\n     owned or  controlled by  the Central  Government or  by
\n     another State Government.\n<\/p><\/blockquote>\n
89<\/span><\/p>\n
     (2)   A cadre  officer may\t also be deputed for service
\n\t  under:-\n<\/p><\/blockquote>\n
\t  (i)\t  a  company,\tassociation   or   body\t  of
\n\t       individuals,  whether  incorporated  or\tnot,
\n\t       which is\t wholly or  substantially  owned  or
\n\t       controlled by a State Government, a Municipal
\n\t       Corporation or  a Local\tBody, by  the  State
\n\t       Government on whose cadre he is borne, and\n<\/p><\/blockquote>\n
\t  (ii) … … …\n<\/p><\/blockquote>\n
\t  Provided that ………\n<\/p><\/blockquote>\n
\t  Provided further  that no  cadre officer  shall be
\n\t  deputed under\t sub-rule (i)  or sub  rule (2) to a
\n\t  post carrying\t a prescribed pay which is less than
\n\t  or a pay scale, the maximum of which is less than,
\n\t  the basic  pay he  would have\t drawn in  the cadre
\n\t  post but for his deputation.”\n<\/p><\/blockquote>\n
We are\tunable to read in any of these rules any prohibition
\nor bar\tto the payment of deputation allowance to an officer
\nof the\tIPS Cadre  on deputation  to any  of the authorities
\nmentioned in  rule 2(i)\t above.\t In  the  instant  case\t the
\nappellant was  sent on\tdeputation to  the Board  which is a
\nbody wholly  or substantially owned by the State Government.
\nThe mere  absence of the provision for payment of deputation
\nallowance cannot  be interpreted  to mean an absolute bar to
\nthe receipt  of such  deputation allowance  by an  IPS Cadre
\nofficer, if  other Rules  permit such  a course\t of  action.
\nSimilarly, Rule\t 9 of  the IPS\t(Pay) Rules,  1954  contains
\nvarious clauses\t which merely  protect the  Pay and salaries
\nadmissible to  an IPS officer when sent on deputation. There
\nis no  reference to any allowance or other emoluments in the
\nRule, excepting pay which is clearly set out in Schedule III
\nto those Rules. We have gone through Sub-Rules (1) to (6) of
\nRule 9\tand are\t unable to  find any limitation contained in
\nthese rules  which could  prevent the appellant from getting
\ndeputation allowance.  Reliance was,  however, placed on the
\nproviso to sub-rule (6) which may be extracted thus:\n<\/p>\n
\t  “Provided that the pay allowed to an officer under
\n     this sub-rule and sub-rule (5) shall not at any time be
\n     less than\twhat he\t would have  drawn had\the not\tbeen
\n     appointed to a post referred to in sub-rule (4).”<\/p><\/blockquote>\n
     The dominant object of the proviso is merely to protect
\nthe the pay and salary which an IPS officer was getting when
\nhe was
\n90<\/span>
\nsent on deputation, so that his being sent on deputation may
\nnot cause  any prejudice  to his career or emoluments. There
\nbeing no  Rules on  the subject, it is manifest that in such
\ncases the Residuary Rules would apply. We might mention that
\nthe Residuary Rules were made in 1960, about six years after
\nthe issuance  of IPS  (Cadre) Rules  and IPS (Pay) Rules. It
\nseems to  us that the Central Government realised that, when
\nother officers\tof the\tState Government  on deputation were
\nentitled to  deputation allowance,  there was  no reason why
\nthis privilege\tshould be denied to officers of the cadre of
\nIPS. Perhaps  it was with this essential object in view that
\nRule 2(b) of the Residuary Rules was enacted so as to enable
\nIPS officers  to get  deputation allowance on the same terms
\nas officers  of State  Civil Service  Class I  were getting.
\nThis provision would naturally hold the field in the absence
\nof any\texpress Rules  made by the Central Government, which
\nhave so far not been made.\n<\/p>\n
     Counsel appearing\tfor the\t Board submitted  before  us
\nthat the letter of the Governor dated August 14, 1970 laying
\ndown the  terms of  deputation of  the\tappellant  does\t not
\ncontain any  mention of\t deputation allowance to be given to
\nthe appellant and should therefore be read as a modification
\nmade by\t the Central  Government, as  contemplated by clause\n<\/p>\n
(b) of\trule 2\tof the\tResiduary Rules.  We  are,  however,
\nunable to  agree with  this contention.\t In the first place,
\nRule 2 (b) of the Residuary Rules makes an exception only if
\nthe Central  Government makes  an order\t and that  too after
\nconsultation with  the State  Government concerned modifying
\nthe Rule. There is no evidence in this case to show that any
\norder was  passed by the Central Government after consulting
\nthe State  Government to  modify or  take away the effect of
\nrule 2(b)  of the Residuary Rules. The order of the Governor
\nof Haryana cannot by any stretch of imagination be construed
\nas an  order passed  by the  Central Government.  For  these
\nreasons the  contentions raised\t by the\t respondents must be
\noverruled. For\tthe reasons  given above  we hold  that\t the
\nappellant is  legally entitled\tunder the Statutory Rules as
\nindicated above\t to get\t deputation allowance. The Board was
\ntherefore in  law bound to pay the said deputation allowance
\nto the\tappellant. The\tresult is that the appeal is allowed
\nand order  of the High Court dismissing the writ petition in
\nlimine is quashed. A Writ of mandamus is issued to the Board
\nto pay\tthe deputation\tallowance to  the appellant,  to  be
\ncalculated in terms of para (i) (c) (ii) of the order of the
\nPunjab Government  referred to in this judgment. The payment
\nwould be made for the period the appellant was on depu-\n<\/p>\n
91<\/span><\/p>\n
tation to  the Board. The entire amount shall be paid within
\nthree months.\n<\/p>\n
     The  appellant   would  be\t  entitled  to\t his  costs,
\nquantified at  Rs. 2,000\/-  which also should be paid to the
\nappellant within three months.\n<\/p>\n
P.B.R.\t\t\t\t\t     Appeal allowed.\n92<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P. C. Wadhwa vs State Of Haryana & Ors on 5 March, 1981 Equivalent citations: 1981 AIR 1540, 1981 SCR (3) 84 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: P. C. WADHWA Vs. RESPONDENT: STATE OF HARYANA & ORS DATE OF JUDGMENT05\/03\/1981 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-75301","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP. C. 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