P.C.Sen vs Union Of India & Ors
2013 Latest Caselaw 668 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     LPA 1140/2007
      P.C. SEN                                      ..... Appellant
                          Through :    Mr. P.C. Sen and Ms. Sara Sundaram,
                                       Advs.

                          versus

      UNION OF INDIA & ORS.                                ..... Respondents
                    Through :          None

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN
                     ORDER

% 12.02.2013

The appellant, who was a member of Indian Administrative Service,

was appointed as Managing Director of Indian Airlines, on deputation basis,

with effect from 1.3.1994. The terms and conditions governing the

deputation of the appellant were decided vide communication dated

9.11.1994, issued by the Ministry of Civil Aviation. It appears that Air India

in the meeting of its Board of Directors held on 30.11.1996 resolved to

allow Post Retirement Passage Facility to its Chairman, Part-Time Chairmen

and Managing Director including those appointed from outside or on

deputation. On the said resolution being brought to the notice of

Government of India, the matter was examined by the Ministry of Civil

Aviation, which felt that the said resolution of Air India was in violation of

instructions issued by the said Ministry vide letter dated 27.4.1992 and later

passages. Therefore, the Central Government, in exercise of the powers

conferred by Section 9 of the Air Corporation Act, directed Air India to

adhere to the directions contained in its communication dated 16.12.1994

which inter alia provided that Post Retirement Passage may be allowed on

retirement or on resignation of Managing Director, including those

appointed in acting capacity, provided they had been in continuous

employment with the Corporation for a period of three years. It was further

directed that the said instructions will also be applicable, mutatis mutandis,

to Indian Airlines also. On receipt of the said communication from the

government, Indian Airlines, vide letter dated 21.12.1996, wrote to the

government that as per their understanding of the directions of the

government, full time Managing Director, appointed from outside or on

deputation, was eligible for passages on retirement, resignation or demitting

office, provided he had been in continuous employment with the company

for three years. It was further conveyed to the government that as per the

understanding of Indian Airlines, in case of officers on deputation, the

passages would be admissible on demitting office since resignation does not

arise in their cases. Vide letter dated 28.1.1997, the Government of India,

Ministry of Civil Aviation informed the Indian Airlines that full time

Managing Director appointed on deputation basis would also be liable for

free passages, if admissible under the terms and conditions of their

appointment, issued by the Competent Authority.

2. It would thus be seen that as far as Managing Directors appointed on

deputation basis were concerned, they were to be entitled for free passages,

only if such a facility was admissible to them under the terms and conditions

of their appointment issued by the Competent Authority. Therefore, the next

question which comes up for consideration is as to whether under the terms

and conditions of his appointment as Managing Director in Indian Airlines,

the appellant was entitled to free air passages, on demitting office of the

Managing Director of the said company. A perusal of the appointment letter

dated 9.11.1994 issued by the Government of India, Ministry of Civil

Aviation and Tourism, Department of Civil Aviation, would show that

comprehensive terms and conditions running into as many as 12 pages were

issued by the Government, governing the appointment of the appellant as

Managing Director of Indian Airlines, on deputation basis. There was no

specific term providing for grant of free air passages to the appellant. Clause

(xvii) of the aforesaid letter dated 9.11.1994 reads as under:

"Residuary Matters: In all matters relating to the conditions of service not covered by items (i) to (xvi) above, he will be governed by Rules/Regulations/Orders applicable to a member of the Indian Administrative Services, serving in connection with the affairs of the Union."

3. It would thus be seen that in respect of all matters which were

specifically covered by the letter dated 9.11.1994, issued by Department of

Civil Aviation, the appellant was to be governed by the provisions contained

in various rules/ regulations/orders applicable to the members of Indian

Administrative Services, serving with the Central Government. Admittedly,

there is no rules/regulations/ orders applicable to a member of Indian

Administrative Services which entitles him to grant of free air passages.

Therefore, it cannot be said that the residual clause extracted above, by itself

entitles the appellant to free air passages in terms of communication dated

28.1.1997 issued by the Government.

4. It was contended by the learned counsel for the appellant that the

rules/ regulations/orders applicable to members of Indian Administrative

Service do not prohibit grant of free air passages to a member of the said

service and, therefore, the appellant would be entitled to grant of free air

passages in terms of the residual clause of the appointment letter dated

9.11.1994. We, however, cannot accept the contention advanced by the

learned counsel for the appellant. The aforesaid residual clause entitles the

appellant, in addition to the benefits specifically granted vide letter dated

9.11.1994 only to those facilities which a member of Indian Administrative

Services gets as a matter of right under the rules/ regulations/ orders

applicable to him. There needs to be a specific rule/regulation/order,

entitling a member of Indian Administrative Service to free air passages.

That, admittedly, is not the position. The appellant would not be entitled to

free air passages merely because there is no prohibition against grant of such

facility to a member of Indian Administrative Service. What was necessary,

for entitling the appellant to grant of free air passages was a positive

provision whereby all the members of the Indian Administrative Services

get such a benefit irrespective of the place they are posted and the

organization they are serving. In the absence of a positive

rule/regulation/order entitling the members of Indian Administrative

Services to free air passages, the appellant would not get such a benefit in

terms of residual clause contained in appointment letter dated 9.11.1994.

5. In support of his contention that in the absence of prohibition in the

rules/ regulations/ orders governing members of Indian Administrative

Services, the appellant is entitled to free air passages, the learned counsel for

the appellant relied upon the decision of the Supreme Court in P.C. Wadhwa

Vs. State of Haryana and others 1981 2 SCC 642. We have carefully

examined the decision relied upon by the learned counsel for the appellant.

In the case before the Supreme Court, services of the appellant, a member of

Indian Police Services, allotted to the State of Haryana, were placed at the

disposal of Haryana State Electricity Board, where he was to work as DIG

of Police for Vigilance Work. The terms and conditions settled by the

Haryana Government for his deputation did not mention anything about

payment of deputation allowance to him. He made a representation to the

Central Government for payment of deputation allowance in accordance

with Rule 2(b) of the All India Services (Condition of Service- Residual

Rules), 1960. The representation having been rejected, he filed a writ

petition which came to be dismissed by the High Court. Being aggrieved, he

filed an appeal before the Supreme Court by way of a special leave. The

Supreme Court noted that he being an officer of Indian Police Services, the

appointment was governed by All India Services Act, 1951 and the Rules

made thereunder and insofar as deputation allowance was concerned, he was

governed by residual rules. The provision of Rule (2) of Residual Rules

provided that till Regulations were made by the Central Government to

regulate any matter relating to condition of service, all persons appointed to

All India Service, for which there was no provision in the Rules made or

deemed to have been made under All India Services Act, 1951, such matters

shall be regulated in case of persons serving in connection with the affair 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.

Thus, in terms of Rules applicable to the appellant before the Supreme

Court, he was entitled to a deputation allowance equivalent to that which

was given to the officers of State Civil Services Class-I. The Supreme Court

noted that by virtue of the order issued by Punjab Government, which also

applied to Haryana, the officers of State concerned holding Class-I post

would be entitled to deputation allowance. The Court, therefore, held that

the appellant was entitled to deputation allowance in terms of the aforesaid

order issued by Punjab Government which also applied to State of Haryana.

It was contended on behalf of State of Haryana that since there was no

provision in Rule 6 of IPS (Cadre) Rules, 1954, or in Rule 9 of IPS(I) Rules,

1954 regarding payment of deputation allowance, it should be held that any

officer belonging to IPS Cadre was debarred from getting any deputation

allowance, since there was an express provision in the said Rules. The

contention was rejected by the Apex Court holding that there was nothing in

the Rules prohibiting or barring payment of deputation allowance to officer

of IPS Cadre on deputation to any of the authorities mentioned in the

aforesaid Rule and mere absence of provision for payment of deputation

allowance could not be interpreted to impose an absolute bar to the receipt

of such allowance. However, the facts of the case before us are altogether

different. Unlike in the case before the Supreme Court, there are no rules/

regulations/ orders applicable to a member of Indian Administrative

Services which entitles him to free air passages as a matter of right.

Therefore, the decision relied upon by the learned counsel for the appellant

does not apply to the case before us.

6. It was contended by the learned counsel for the appellant that since

the facility of free air passages was granted to some other members of Indian

Administrative Service, appointed as Managing Director of Indian Airlines,

withholding all such facilities to the appellant would be arbitrary and

discriminatory. We, however, cannot agree with the learned counsel for the

appellant. The Government of India in its wisdom, while approving the

terms and conditions governing deputation of the appellant as Managing

Director of Indian Airlines did not deem it appropriate to provide the facility

of free air passages to him, on his demitting the office of the Managing

Director of Indian Airlines. If the terms and conditions stipulated by the

Government were not acceptable to the appellant, nothing prevented him

from rejecting the same and declining to proceed on deputation as the

Managing Director of Indian Airline. But, having accepted the aforesaid

terms and conditions and having worked with Indian Airlines on those terms

and conditions, he cannot challenge them at a latter date on the ground that

certain facilities provided to other persons who served in the same post,

were not provided to him. Once the appellant accepted the terms and

conditions stipulated by the Government, he is precluded from challenging

those conditions at a later date. In our opinion, no discrimination or

arbitrariness is involved in the government not granting the facility of free

air passages to the appellant on his demitting the office of Managing

Director of Indian Airlines, even if it had in the past provided such facilities

to some other person(s), as part of the terms and conditions of their

appointment. This is not the case of the appellant that other persons who

served as Managing Director of Indian Airlines were granted the facility of

free air passages, after issue of Government of India's letter dated

28.1.1997, without there being a specific term in their appointment letter for

grant of such facilities.

7. No other submission was advanced by the learned counsel for the

appellant. We, therefore, find no merits in the appeal and the same is hereby

dismissed, without there being any order as to costs.

CHIEF JUSTICE

V.K. JAIN, J FEBRUARY 12, 2013 rd