Punjab-Haryana High Court
Mukand Lal And Others vs The State Of Haryana And Others on 6 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.7427 OF 1991 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: FEBRUARY 06, 2014
Mukand Lal and others
.....Petitioners
VERSUS
The State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. R. K. Malik, Sr.Advocate with
Mr. Sangram Malik, Advocate,
for the petitioners.
Mr. D. S. Nalwa, Addl.A.G., Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
An affidavit of Registrar, Cooperative Societies, Haryana (respondent No.3) alongwith documents filed today in Court is taken on record. Copy supplied to counsel for the petitioners.
Petitioners, who are regular employees of Cooperative Department, Haryana, have approached this Court, challenging the letter dated 6.1.1988 (Annexure P-3) vide which deputation allowance, which was earlier admissible to the officials of Cooperative Department of Haryana when sent on deputation with the Cooperative Institutions, was held to be Khurmi Rakesh 2014.02.07 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.7427 OF 1991 :{ 2 }:
not admissible.
Counsel for the petitioners contends that prior to the issuance of impugned letter dated 6.1.1988, all employees of Cooperative Department were entitled to grant of deputation allowance when they were sent on deputation with the Cooperative Institutions. By this impugned letter, a separate category of employees has been carved out, which is in violation of Articles 14 and 16 of the Constitution of India as the employees of other Departments of Government of Haryana when sent on deputation with the Cooperative Institutions are entitled to grant of deputation allowance. This action of the respondents is unsustainable and deserves to be quashed and the petitioners be held entitled to grant of deputation allowance.
Further contention of counsel for the petitioner is that as per Note 1, Rule 10.8 of the Punjab Civil Services Rules, Volume I, Part I (Annexure A) at Page 212, which deals with the amount of remuneration to be granted to a Government employee transferred to foreign service within India clearly stipulates that remuneration to that effect should be granted to the employees who are sent on deputation. He, on this basis, contends that Articles 14 and 16 of the Constitution of India have been violated.
Counsel for the respondents, on the other hand, submits that the petitioners, who are employees of Cooperative Department, are not entitled to deputation allowance and this decision was taken keeping in view the fact that they are granted various additional facilities by the Cooperative Institutions, when they are sent on deputation. He contends that the employee is not sent on deputation by force but is with the consent of the Khurmi Rakesh 2014.02.07 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.7427 OF 1991 :{ 3 }:
concerned employee. If the employee is not willing to go on deputation, then he can refuse the same and the other employees, who are interested in going on deputation, can opt for the same. His further contention is that the terms and conditions of the deputation are clearly specified, when an offer for deputation is made and whosoever volunteers and found suitable for taking up such assignment, is sent on deputation. Once an employee accepts the terms and conditions of the deputation, he is bound by the same and cannot turn around and stake a claim for grant of the allowances, which are neither statutory nor based on any instructions. He further contends that the statutory rules, on which reliance has been placed by the petitioner, although not applicable as it deals with transfer, but even if the said Rule is taken into consideration, it is clearly mentioned therein that the remuneration, which an employee would be entitled to, has to be mentioned therein. It should also be mentioned as to any concession of pecuniary value in addition to his pay proper. A Government employee will also not be permitted to receive any remuneration or enjoy any concession, which is not so specified and if the order is silent as to any particular remuneration or concession, it must be assumed that the intention is that the employee shall not enjoy the same. He states that the terms of transfer also even if taken as a foreign service, the allowance would be one which is specifically provided for in the order and if it is not mentioned therein, the employee shall not be entitled to the same. He, on this basis, contends that the order impugned, being in accordance with the statutory rules, deserves to be sustained.
I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case. Khurmi Rakesh 2014.02.07 10:34 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.7427 OF 1991 :{ 4 }:
It is an admitted position on the part of the counsel that there are no specific statutory rules/instructions dealing therein with the entitlement or otherwise of the deputation allowance. The only statutory rule, which may, to some extent, be for the purpose of relating it with the deputation allowance, finds mentioned in Note 1 to Rule 10.8 of Annexure `A', which reads as under:-
"The amount of remuneration to be granted to a Government employee transferred to foreign service in India should be regulated by the following principles:-
1) When the transfer of a Government employee to foreign service in India is sanctioned the pay which he shall receive in such service must be precisely specified in the order sanctioning the transfer. If it is intended that he shall receive any remuneration or any concession of pecuniary value in addition to his pay proper, the exact notice of such remuneration or concession must be similarly specified. No Government employee will be permitted to receive any remuneration or enjoy any concession which is not so specified, and, if the order is silent as to any particular remuneration or concession, it must be assumed that the intention is that it shall not be enjoyed.
2) The following two general principles must be observed in sanctioning the conditions of transfer:-
a) The terms granted to the Government employee must not be such as to impose an unnecessarily heavy burden on the Khurmi Rakesh 2014.02.07 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.7427 OF 1991 :{ 5 }:
foreign employer.
b) The terms granted must not be so greatly in excess of the remuneration which the Government employee would receive in Government service as to render foreign service appreciably more attractive than Government service."
A perusal of the above would show that prior to sending an employee on a foreign service by transfer, the details with regard to entitlement of remuneration or any concession of pecuniary value, in addition to his pay proper need to be clearly specified therein. In fact, it is in the negative term that no Government employee will be permitted to receive any remuneration or enjoy any concession, which is not so specified. It further goes to say that where nothing is said with regard to any particular remuneration or concession, it must be assumed that the intention was that it should not be enjoyed/granted. If that be the intention of the rule and especially when there are no other statutory rules or instructions, which would grant benefit to the petitioners for deputation allowance, it can only be assumed that the terms of the deputation, which were finalised prior or at the time of their joining, would govern their claim.
It is not in dispute that deputation can neither be claimed as a matter of right nor can an employee be sent on deputation without his consent. It, therefore, means that it is a sweet will of an employee to accept or not to accept the deputation on its terms. If the choice is with the employee, then he cannot, at a later stage, turn around and state that he would be entitled to a particular allowance, which was not specifically granted in the terms of deputation. Merely because earlier benefit of Khurmi Rakesh 2014.02.07 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.7427 OF 1991 :{ 6 }:
deputation allowance was being conferred on the deputationists of the Cooperative Department, would not confer a perpetual right to continue with the same, unless statutory rules/instructions mandate such a thing. If the deputation allowance was granted on an order passed by the Government, then the same authority can withdraw the said benefit as well. In the impugned order, due care has been taken that the order has been made effective from the date of its issuance, meaning thereby that those who have already got the benefit till the said date, would not be put to any prejudice.
The contention of counsel for the petitioner that denial of benefit of deputation allowance to the employees of the Cooperative Department only, when other employees of different Departments if sent on deputation with the Cooperative Institutions, are entitled to the said allowance, would not cut ice in the light of the fact that an allowance, which has been given, was based upon the decision taken by the particular department of the Government. If that authority has competence to withdraw the same, it cannot be termed to be discriminatory vis-a-vis other departments, which have its own terms and conditions and rules governing service of the employees. In any case, no employee can be forced to go on deputation and if the petitioners and other employees of the Cooperative Department are of the opinion that their going on deputation would not be beneficial to them, they can declined the offer of deputation.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
February 06, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.02.07 10:34
I attest to the accuracy and
integrity of this document