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1985 DIGILAW 77 (GUJ)

STATE OF GUJARAT v. R. BASU

1985-03-29

P.R.GOKULAKRISHNAN, S.B.MAJMUDAR

body1985
P. R. GOKULAKRISHNAN, J. ( 1 ) THE first respondent in the above group of appeals filed Special Civil Applications for issue of a writ of mandamus or a writ in the nature of Mandamus or any other appropriate writ direction or order directing the respondent No. 1 in the Special Civil Application to issue forthwith orders authorising payment of deputation allowance to them as admissible to them from time to time in accordance with two Government Resolutions of 1975 and 1981 and also for further direction to the respondents with whom the first respondents in these appeals were sent on deputation to pay the first respondent herein the amount of deputation pay or allowance as admissible to them from time to time for the relevant Period together with interest at 12% per annum and for consequential reliefs. Number of officers in the I. A. S. cadre have filed such an application before this Honble Court. ( 2 ) THE learned Single Judge of our High Court has allowed these petitions by directing the appropriate respondent in those Special Civil Applications for paying the deputation allowance as prayed for. While passing the order the learned Judge has also held that the Resolution passed by the State Government Which is at Annex. B to the petitioner is beyond the legislative or executive competence for the State Government and as such the same has to be struck down to the extent the Resolution says Similarly these orders will not apply to. the members of All India Services and to appointment to posts whose terms are regulated under specific statutory rules or orders. It is against these orders passed by the learned Single Judge of our High Court that the above group of Letters Patent. Appeals have been filed by the State of Gujarat and also by the Union of India. ( 3 ) MR. S. D. Shah appearing for the Union of India submitted that the Resolution passed in Annexure B referred above is within the legislative competence of the State Government and the State Government can by a Resolution state that the I. A. S. cadre cannot get the deputation allowance payable to the Class I officers of the State service. S. D. Shah appearing for the Union of India submitted that the Resolution passed in Annexure B referred above is within the legislative competence of the State Government and the State Government can by a Resolution state that the I. A. S. cadre cannot get the deputation allowance payable to the Class I officers of the State service. To substantiate his contention the learned counsel read Rule 2 (b) of All India Services (Conditions of service Residuary Matters) Rules 1960 and also the Resolution passed by the State Government on 22/09/1975 the copy of which is annexed at Annexure B to the Special Civil Application. We have carefully gone through these two documents referred above and also the judgment in the case of P. C. Wadhwa v. State of Haryana and others reported in AIR 1981 S. C. 1540. ( 4 ) IN Wadhwas case the Supreme Court had occasion to Consider rule 2 of the above said Rules and held that the State Government cannot by its order or Resolution take away the effect of the Rule 2 (b) of the. said Rules and it can do so only in accordance with such Rule. It will be useful to refer the relevant observation of the Supreme Court in that decision. In that decision the Supreme Court has held:"where the IPS officer was sent on deputation to the Electricity Board which was a body wholly or substantially owned by the State Government the IPS Officer would be entitled under R. 2 (b) to get deputation allowance in view of R. 2 (b) of Residuary Rules. Proviso to R. 9 (6) of IPS Rules would not have the effect of denying the benefit of deputation allowance to an IPS Officer. Indeed R. 2 (b) was enacted by the Central Government so as to enable IPS Officers to get deputation allowance on the same term as Officers of the State Civil Service Class I were getting". Proviso to R. 9 (6) of IPS Rules would not have the effect of denying the benefit of deputation allowance to an IPS Officer. Indeed R. 2 (b) was enacted by the Central Government so as to enable IPS Officers to get deputation allowance on the same term as Officers of the State Civil Service Class I were getting". ( 5 ) FURTHER it could not be said that the letter of Governor not containing any mention of deputation allowance to be given to the IPS Officer should be read as modification made by the Central Government as contemplated by Rule 2 (b) When no evidence 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. Mr. Shah no doubt sees the force of this judgment but nevertheless contends that the State Government has powers to negative the claim of I. A. S. Officers from getting the deputation allowance. Rule 2 (b) reads as follows:" The Central Government may after consultation with the Governments of the State concerned make regulations to regulate any matters relating to condition 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 1951 and until such regulations are made such matters shall be regulated (b) in the case of persons serving in connection with the affairs of the State by the rules regulations and orders applicate 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". As far as the I. A. S. cadre is concerned the Rule 2 (b) squarely applies. From this Rule 2 (b) it is clear that whatever facilities that are applicable to the Class I Officers of the State Government are applicable to the I. A. S. cadre. Hence if the State Government servant is eligible for deputation allowance automatically the people in the I. A. S. cadre if they are sent on deputation to such department are entitled to get such deputation allowance. Hence if the State Government servant is eligible for deputation allowance automatically the people in the I. A. S. cadre if they are sent on deputation to such department are entitled to get such deputation allowance. It can be negatived only when exception are made and such exception can be made only after consulting the Central Government and such modification in the said rule can be made when the Central Government after consulting the State Government by order in writing makes that exception. No such exception passed by the Central Government is shown to this Court and the learned counsel appearing the Central Government is not aware of any such exception made by the Central Government as provided under Rule 2 (b ). In the absence of such exception the State Government cannot by resolution negative the deputation allowance payable to the I. A. S. cadre and say that such deputation allowance is available only to Class I officers of the State cadre. ( 6 ) WE have also carefully gone through the resolution passed by the State Government which is marked as Annexure B to the main Special Civil Application. This resolution after spelling out the advantage to Class I Officers of the State Government in its last paragraph has stated that. . . . these orders will not apply to the members of All India Services and to appointment to posts whose terms are regulated under specific statutory rules or orders. This observation in the resolution in our opinion is in keeping with the provision of Rule 2 (b) which we have extracted in paragraph (supra ). The State Government is careful enough not to disturb the service conditions of the I. A. S cadre nor to go against the spirit of Rule 2 (b) since any exception that has to be made can be done only by the procedure envisaged under Rule 2 (b ). ( 7 ) MR. M. G. Doshit learned counsel appearing for the State of Gujarat has adopted the arguments advanced by Mr. S. D. Shah appearing for the Union of India ( 8 ) IN this view we are of opinion that the Government Resolution stated above does not in any way contravene Rule 2 (b ). ( 7 ) MR. M. G. Doshit learned counsel appearing for the State of Gujarat has adopted the arguments advanced by Mr. S. D. Shah appearing for the Union of India ( 8 ) IN this view we are of opinion that the Government Resolution stated above does not in any way contravene Rule 2 (b ). It is unnecessary for us to discuss this aspect: of the case any further even though the learned Single Judge of our High Court has held that the last portion of the Resolution referred above is beyond the legislative competence of the State Government. Suffice it to say that Rule 2 (h) is applicable to the I. A. S. cadre in spite of the Resolution referred above anal there is absolutely not in the said Resolution to go against Rule 2 (b) nor to negative the deputation allowance payable to the officers in the I. A. S. cadre is concerned. ( 9 ) WE are of the view that the learned Judge has correctly granted the relief in its order dated 21/01/1985 and we are in complete agreement with the same. ( 10 ) FOR all these reasons these appeals are summarily dismissed. Appeals dismissed. .