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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

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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

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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

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         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

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    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

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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