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Judgment
M.N. Rao, J.—This writ appeal is against the order of our learned brother Justice K. M. Agarwal in Writ Petition No. 9430 of 1987 granting the prayer of writ petitioners - respondents 1 and 2 herein for a Mandamus declaring that the deduction made to the compensatory allowance in lieu of residential attenders during the leave period was illegal and arbitrary and for a further direction to extend the consequential benefits to the members of the Associations of the first and second respondents herein.
The facts in brief are as follows :
As far back as 1948 in the erstwhile State of Madras by G. O. Ms. No. 326, Finance Department, dated 5-4-1948, the Government declared certain Officers in the Secretariat to be entitled to have the privilege of a residential attender. Subsequently, the scheme was found to be unworkable and so taking into account the interests of the administration the Government of Andhra Pradesh issued G. O. Ms. No. 1059, General Administration (AC) Department, dated 11-11-1971, confining the privilege of having residential attenders to certain categories of officers specified therein, namely. Heads of Departments, Secretaries to Government, including the Chief Secretary, Regional Officers, District Collectors, Judges, and Executive Engineers and also touring gazetted officers and officers in the Secretariat of the rank of Deputy Secretaries, Under Secretaries and Assistant Secretaries. The Government had taken a decision in the above G. O. to the effect, ".... in principle that the system of providing Government peons at the residences of Officers should be discontinued, and that this should be done gradually as and when vacancies arise in the cadre of peons on account of retirements, creation of new posts, etc., to avoid retrenchment of peons". The Government consequently decided that Officers from whom residential peons are withdrawn, shall be paid a compensatory allowance of Rs. 75/- per month for every residential peon withdrawn, subject to a maximum of Rs. 150/- per month.
From a reading of the above two G. Os. it is clear that certain categories of Officers were allowed to have the privilege of retaining one or two residential peons depending upon the rank of the officer and in respect of certain other categories of officers, who were also enjoying the privilege of having residential peons, the Government wanted to dispense with that system by granting peon compensatory allowance in lieu of the privilege of having a residential peon. By G. O. Ms. No. 304, dated 20-12-1973, the original G. O. Ms. No. 326, Finance, dated 5-4-1948, issued in the composite State of Madras, was amended by adding Note 3, which reads as follows :
"Note 3 - During the period of leave the officers are not entitled to residential Attenders".
We must mention in this context that the scheme of the Government to grant peon compensatory allowance was extended to the members of the Associations of respondents 1 and 2 herein and accordingly they were getting the peon compensatory allowance like any other officer falling within the four corners of the scheme contained in G. O. Ms. No. 1059, dated 11-11-1971. It appears in May, 1986 audit objection was taken by the office of the Accountant General, third respondent herein, that as the officers were not entitled to the privilege of having residential attender during their leave period, corresponding right to peon compensatory allowance should be curtailed and that those officers, who drew such allowance during their leave period, should repay the same. Aggrieved by that decision, the Associations - respondents 1 and 2 herein filed Writ Petition No. 9430 of 1987 in this Court and the same was allowed by our learned brother Justice K. M. Agarwal taking the view -
"Having heard the learned Counsel for the parties, I am convinced that there was no justification for the decision of the third respondent that the officers of the said Associations were not entitled to the said allowance during the period of their leave and/or for directing recovery of the allowance already paid to them and accordingly this petition deserves to be allowed. The orders under which the officers under consideration were getting the said Peon Compensatory Allowance did not indicate any such bar to deprive the said allowance to them during the period of their leave. Further, if the officers were given the services of attenders instead of allowance, those services of attenders could not have been withdrawn from the officers concerned during their leave period. Accordingly the impugned decision and direction of the third respondent to deprive the officers of their said allowance during the leave period are arbitrary and ex facie illegal and, therefore, deserve to be set aside".
Assailing the aforesaid opinion of the learned single Judge, the present writ appeal was brought by the State Government as well as the Pay and Accounts Officer.
It is the contention of the learned Government Pleader that when the officers are not entitled to have the privilege of residential attenders during the period when they are on leave, they cannot have the benefit of peon compensatory allowance for the corresponding period. It is the submission of the learned Government Pleader that the action of the Pay and Accounts Officer in raising an audit objection to the amounts drawn by several officers by way of peon compensatory allowance during the period when they are on leave, is perfectly justified.
We are unable to agree with the contentions of the learned Government pleader. As stated supra, G. O. Ms. No. 326, dated 5-4-1948, issued by the composite State of Madras, provided for the scale at which officers of certain categories were entitled to have residential attenders. That G. O. was modified subsequently by G. O. Ms. No. 1059, dated 11-11-1971, by the Government of Andhra Pradesh doing away with the system of residential attenders gradually and in lieu thereof sanctioned peon compensatory allowance. This was done by the Government after noticing that "the system of residential peons was not proving useful" and therefore, the officers were given compensatory allowance in lieu thereof so as to enable them to employ private domestic servants to work at their residences. By G. O. Ms. No. 105, dated 3-4-1974, the Government clarified that as the officers are not entitled to residential attenders by virtue of the amendment contained in G. O. Ms. No. 304, dated 20-12-1973, "they are also not entitled for the payment of compensatory allowance sanctioned in G. O. 1st cited (G. O. Ms. No. 1059, dated 11-11-1971) in lieu of residential Attenders during the leave period".
We have serious doubts whether the clarification issued by G. O. Ms. No. 105, dated 3-4-1974, continued to be in force till the audit objection was raised in 1983. Had it been in force, it is inexplicable as to why the allowance was continued to be paid without curtailment and why steps were not taken to recover the same from Officers other than those belonging to the Associations of first and second respondents. Even if G. O. Ms. No. 105, dated 3-4-1974, is construed to be still in force, we are of the considered opinion that it is unsustainable in law. When the Government dispensed with the system of residential peons and granted allowance, that should not be made dependent upon the fact whether the officer was availing of leave or was attending to his duties. Even an officer on leave will have to attend to official duties at his residence because he is still in service and will have to respondent to the calls of duty of emergency nature whenever it arises. Not infrequently we come across cases of officers on leave being entrusted with duties or being asked to furnish information or statement with regard to the work turned out by them before they went on leave. We cannot state with any degree of certainty what precisely would be the occasions when the officers on leave would be requiring the assistance of domestic servants at home. Evidently this also weighed with the Government in granting the allowance to the officers so that they may engage their own domestic servants who will be available throughout, whether the officers are on duty or on leave. Linking up the compensatory allowance with the duty period of the officer and denying the same for the period when he is on leave, seems to be irrational, apart from being arbitrary.
One more aspect that needs to be noticed in this context is that when the Government extended the benefit of peon compensatory allowance to the members of the first and second respondent-Associations by G. O. Ms. No. 260, dated 1-5-1982, no limitation was placed as to whether the allowance was confined to duty period. If the clarification issued in G. O. Ms. No. 105, dated 3-4-1974, confining the allowance to duty period only, was really in force, it would have been definitely mentioned in G. O. Ms. No. 260, dated 1-5-1982, when the scheme was extended to the members of the first and second respondent Associations. It is, therefore, not open to the Government now to say that in respect of the members of the first and second respondent-Associations alone the clarification of confining the payment of compensatory allowance to the duty period should be made applicable, leaving aside the other Government officers. Such a consideration on the face of it is discriminatory being violative of Article 14 of the Constitution of India.
In the result, agreeing with the view of the learned single Judge, we dismiss the writ appeal. No costs.