R BASU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In all these petitions a common question of law is involved and therefore at the request of the learned counsel for the parties they have been heard together and are disposed of by the common judgment.

(2.) The petitioners in all these petitions are the members of All India Services being officers of Indian Administrative Service (I.A.S.). The petitioners have been allocated to the State of Gujarat where they have been serving. While serving with the State of Gujarat the petitioners have been deputed to the corporations in the State of Gujarat such as Ahmedabad Municipal Corporation Gujarat Electricity Board etc. The common question involved in these petitions is whether these petitioners are entitled to the deputation allowance while they serve on deputation with different corporations. Mr. A. H. Mehta the learned counsel for the petitioners has submitted that as far as pay and allowances of the petitioners are concerned they are governed by the relevant pay rules. But according to him there is no provision with regard to paying them allowance for deputation while they are serving on different corporations. Mr. Mehta relies on sub-rule (2) clause (b) of All India Services (Conditions of Service Residuary Matters) Rules 1960 (hereinafter referred to as Residuary Rules). It is the case of the petitioners that they are entitled to all the benefits which are given to Class-I officers in the State Civil Services which includes the deputation allowance. As regards the deputation allowance payable to Class-I officers in the State Civil Services is governed by resolution No. PTN-1175/1221-J dated 22/09/1975 (hereinafter referred to as the resolution). There has been a previous similar resolution of 1964 and subsequently one of 1981. The provision with regard to the deputation allowance payable to Class-I officers in the State Civil Services is clearly specified at a uniform rate of 20% of the pay and subject to a maximum of Rs. 300.00 per month with a proviso that the pay together with the deputation facts and circumstances of the case mentioned above except that the petitioners allowance shall not exceed Rs. 3000.00 per month. The resolution inter alia provides that it will not apply to the members of All India Services and to appointments to posts whose terms are ergulated under specific statutory rules or orders. Mr. Mehta relying on the judgment of Supreme Court in P. C. Wadhwa v. State of Haryana and others. A.I.R. 1981 S.C. 1540 submils that under Rule 2(b) of the Residuary Rules it is not open to the State Government to deprive the Petitioners of their Right to claim the deputation allowance as is sought to be done by the aforesaid resolution. In the afore mentioned case the Supreme Cutout was considering a similar order made by the Punjab Government on 28/ 31/01/1963. In that case the petitioner was an officer in Indian Police Service allocated to the State of Haryana. The Supreme Court interpreted Rule 2(b) of the Residuary Rules so as to mean that the petitioner was entitled to the deputation allowance which was available to Class-L officers in the State Civil Services. The facts and circumstances in these petitions are almost identical with the facts and circumstances of the case mentioned above except that the petitioners are in the Indian Administrative Service. According to Mr. Mehta the ratio in the aforesaid decision of the Supreme Court is applicable wholly to the present petitions and therefore he has canvassed that the relevant provision in the aforesaid Government Resolution excluding the petitioners and other members of All India Services from being eligible for the deputation allowance deserves to be struck down.

(3.) Mr. S. D. Shah the learned counsel for the Union of India has urged that the provision in the aforesaid resolution is valid and must be upheld. According to him. the Central Government has in effect approved of the stand taken by the State Government in this case and therefore it should be held that the impugned provision in the resolution is as if it were adopted by the Central Government. Mr. R. M. Vin the learned counsel for the State Government has supported Mr. S. D. Shah and argued that it is open to the State Government to exclude the members of All India Services from the benefits which it gives to Class-I officers in the State Civil Services. As regards the respondent Ahmedabad Municipal Corporation Mr. M. A. Panchal learned counsel for the corporation has urged that in fairness it must be stated that Rule 2(b) can only be considered to mean that the benefits which the State Government chooses to give to its Class-I officers must be extended to the members of All India Services who are deputed to the corporations.