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Judgment
K.N. Saikia, J.—The precise question raised in this application is whether the expression "traveling allowance as on tour for journeys from head quarters to the referred hospital and back", in Rule 12 of the Assam Medical Attendance Rules, 1976 (herein- after referred to as the Rules) will also include Daily Allowance for the days of halt.
The Petitioner, a member of the Assam Judicial Service appointed as Special Judge. Assam at Gauhati had been suffering from pericardial pain and was recommended for further investigation in the All India Institute of Medical Sciences, New Delhi (hereinafter referred to as the AIIMS), and was granted learned leave and medical and T.A. advances; and he proceeded to the said Institute on 24.12.79 with his wife as his escort (attendant) by pain and was recommended to (attendant) by train and reached New Delhi on 26.12.79 and was treatment in the AIIMS from 27.12.79 to 9.1.80 where after he returned on 10.1.80 and reached Gauhati on 13.1.80 with a break journey at patna for one night on 11.1.80.
The Registrar, Gauhati High Court having been his controlling officer for the purpose of Traveling Allowance bills and Medical Bills, the Petitioner submitted T.A. bills to him claiming the train fare and incidentals and also Daily Allowance (D.A) for himself under Rule 12 of the Rules and actual expenses (sic) train, and incidentals for his escort(wife) under Rule of Rules. In the said bill D.A. for 15 days at the rate Rs. 40/- per day amounting to Rs. 600/-was claimed. No D.A. WAS claimed break journey at Patna for night of 11.1.80. (sic) Amounting to Rs. 120/-for the escort (attendant) was also claimed. On a reference by the Deputy Registrar of the High court as regards the admissibility of the T.A. and D.A. Deputy to the Govt. of Assam, Judicial Department his letter his letter dated 19.3.80 stated that no D.A. was admissible the Petitioner and his attendant under the Rules for the period treatment in the AIIMS, New Delhi; and so the Registrar, Gauhati High Court informed the Petitioner asking him to (sic) his bills accordingly. The Petitioner thereafter submitted a presentation dated 2.4.80 to the Secretary to the Government of Assam, Judicial Department, requesting that the Government decision be reviewed and he be paid D.A. during his stay in New Delhi and also incidentals both to himself and his attempt as, according to him, he would be so entitled under Rules (sic)and 13 of the Rules. The Deputy Secretary, Judicial Department by his letter dated 13.10.80 conveyed to him the decision hereon "that on normal tours, T.A. includes incidentals, hence here may be no difficulty in allowing incidentals in Such cases. (sic) for non-Govt. servant, it is clearly laid down under S.R. (sic) that the escort other than Govt. servant will be entitled to actual expenses, i.e. only the fare and not incidentals during Journey. For Govt. servant escort, incidental may be administrable as this is also treated is T.A. on tour/duty." Hence this" petition.
Mr. P.C. Kataki, the learned Counsel for the Petitioner, submits that the expression "traveling allowance as on tour" Rule 12 of the Rules will also include D.A. for the days halt during treatment, inasmuch as the expression "as on tour" means that the Government servant will be deemed to be on (sic) that D.A, is a kind of T.A. and as such T.A. means includes D.A.; and that this Rule being a beneficial one should be construed towards the benefit of the Government servant.
Considering the general importance of the question invo (sic) we appointed Mr. B. Sarma as Amicus curiae we appointed Mr. B. Sarma as Amicus curiae to assist the court, We record our appreciation for his able assistance Mr. Sarma submits that under Rule 12 the Petitioner was not entitled D.A.; that Rule 12 has not the over-riding effect on the fundamental Rules and Subsidiary Rules; and that T.A. may paid in the form of D.A. under Certain circumstances, but does not mean that T.A. will always include D.A. also. According to him the Petitioner was entitled to actual expenses and to D.A. for the days of halt during treatment.
Rules 12 and 13 of the Rules as well as the relevant Assam Fundamental and Subsidiary Rules may be conveniently referred to at this stage. The Governor of Assam was pleased to make the Assam Medical Attendance Rules, 1976 governing medical treatment of Government servants and pensioners; and the Rules apply to all Assam Government servants while they are on duty or on leave or under suspension and Government pensioners. Rules 12 and 13 of the Rules read:
When a patient is required to travel from his headquarters to a referred hospital on the advice of the Authorized Medical Attendant, as provided in these rules, he shall be entitled, If he is a Government servant to traveling allowance as on tour for journeys from, his Headquarters to the referred hospital and back. If he is not a Government servant, but a member of his family, the patient will be entitled to the same rates of traveling allowance as applicable to the Government servant. If the patient is a Government pensioner, he or his spouse will be entitled to rates of traveling allowance that the pensioner was entitled to on the even of his retirement.
If the Authorized Medical Attendant considers it necessary; he may allow an attendant to accompany the patient from his headquarters to the referred hospital and back. In that event the attendant, if a Government servant shall be entitled to draw traveling allowance as on duty, if not a Government servant, he shall be entitled to actual expenses incurred on the travel.
As defined in Fundamental Rule 9 of the Assam Fundamental Rules ''Traveling allowance'' means an allowance granted to a Government servant to cover the expanses which he incur in traveling in the interests of the public service. It includes allowances granted for the maintenance of conveyances, horses and tents F.R. 44 deals with compensatory allowances and under it " subject to general rule that the amount of a compensatory, allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient, the state Government may grant such allowance to any Government servant under its control and may make rules prescribing their amounts and the conditions under which they may be drawn" , The Subsidiary Rules (shortly S.R.) relating to T.A. are embodied in Section IV to fundamental Rules and Assam Subsidiary Rules.
S.R. 157 enumerates the different kinds of T.A. and it "The following ere the different kinds of traveling allowances which may be drawn in different circumstances by Government servants:
(a) Permanent traveling allowance.
(b) Conveyance or Horse allowance.
(c) Mileage allowance.
(d) Daily allowance.
(e) The actual cost of traveling.
This S.R. clearly shows that T.A. may be drawn on the basis of D.A. under certain circumstances by a Government servant, e.g. when he travels by a Government means of transport, But this does not mean that T.A. always includes D.A....
D.A. has been defined under S.R. 186: "A daily allowance is a uniform allowance for each day of absence from headquarters, which is intended to cover the ordinary daily char (sic) incurred by a Government servant in consequence of such absence". Under S.R. 187 unless in any case it is otherwise expressly provided in these (Fundamental and Subsidiary) Rules, (sic) daily allowance may be drawn while on tour by every Government servant whose duties require that he should travel, and may not be drawn except while on tour. The expression "whose duties require that he should travel" is to be noted. Under S.R. D.A (sic) 188 D.A for journey in Assam are drawn by Government servants of all grades at the rates specified for the service or the in the Schedule under S.R. 153, and the rate of D.A. for all grades of Government servants for halts at places outside the state will be double over the rates admissible to them for (sic) within the State. Under S.R. 212 D.A. may not be drawn continuous halt for more than 10 days at any one place; provided that a competent authority may grant general or indivi (sic)- exemptions, from the operation of this Rule on such conditions it thinks fit, if it is satisfied: (a) that prolonged halts (sic) necessary in the interest of the public service, and (b) that halts necessitate the maintenance of camp equipage or (sic) no camp equipage is maintained, continue. after the first 10 days entail extra expense upon, the halting Government servant.
S.Rs. 279 to 287 deal with journey to obtain medical advice and S.R. 288 deals with journeys in attendance on any incapacitated Government servant. Under S.R. 279 if a Government servant is compelled to leave a station at which be is posted and travel to another station, in order to obtain the advice of the Medical Officer to whose service he is entitled, or who may under departmental rules be consulted on his case, he may, on production of a certificate, from the Medical Officer consulted that the journey was, in his opinion absolutely necessary, draw T.A. for the journey. Under S.R. 287 T.A. under S.Rs. 279, 282, 283 and 285 should be calculated as for a journey on tour, but no allowance may be drawn for halts on the journeys.
Thus, where the journey was covered by S.R. 279 the T.A. will be calculated on the basis of a journey tour, but no allowance may be drawn for the halts on the journey tour, but no allowance may be drawn for the halts on the journey. The state Government has also decided under this S.R. that the Government servants are generally entitled to traveling allowance as on tour (except daily allowance) for journeys undertaken to receive medical attendance/treatment under the existing rules and orders.
From the above F.Rs. and S.Rs. it is clear that a Government servant will not be entitled to D.A. for the halts on the journeys while traveling under circumstances covered by S.R. 279.
The Assam Medical Attendance Rules, 1976, we have seen, will govern medical treatment of Government servants, members of their families and pensioners and their spouses. Admittedly, in the instant case the Petitioner was granted earned leave and he was not required to travel on duty or in the interest of public service. Mr. Kataki''s submission that because the Petitioner was a public servant recommended for treatment he may be treated as traveling on duty and his journeys under taken in the interest of public service, is not acceptable in view of the fact that the Petitioner was on earned leave and his case was covered by Rule 12 and that of his attendant by Rule (sic) of the Rules.
Rule 12 of the Rules does not expressly provide that he shall be deemed to be on duty or that he shall be deemed to have traveled on duty or in the interest of public service, expression "traveling allowance as on tour" does not ipso facto mean that he will be deemed to be on duty tour. The expression "as on tour" means that he shall be entitled to T.A. at the same rate as be would be entitled if he were on tour. Further he shall be entitled to such T.A. for journeys from headquarters to the referred hospital and back. This envisages journeys to and from, and does not necessarily cover the days of halt for treatment. As Rule 12 has not specifically provided for drawing of D.A. for the days of halt for treatment we have to resort to S.Rs. 279 and 287 which clearly le allowance for halts on the journeys and the State Coven''s decision is also to that effect. T.A., we have seen, means an allowance granted to a Government servant to cover the expenses which he incurred in traveling in the interest of public service. The expenses the Petitioner incurred during his of halt for treatment may not reasonably be construed as red in traveling in the interest of public service. True the treatment was necessary for the benefit of the Government servant in whom the State is interested and for this reason the rules have been framed. But unless a specific provision is made in the Rules to take the case out of the purview of F.Rs. and S.Rs. it cannot be said that be shall be so entitled.
We also find that Rule 12 envisages traveling allowance not only to a patient who is a Government servant, but also patient who is not a Government servant but a member of his family, as well as a Government pensioner or his spouse. (sic) the latter categories of patients the question of daily allowance will not arise. "Traveling allowance" has to be given the (sic) interpretation in their cases also. Again while Rule 13 (sic) that an attendant, if a Government servant he shall be entitled draw traveling allowance ''as on duty'', Rule 12 says that patient if he is a Government servant, he shall be entitled traveling allowance ''as on tour''. The two expressions are different.
We appreciate the submissions that Rule. 12 is a beneficial Rule and should be beneficially construed. But a beneficial construction may not reasonably permit an interpretation contrary express provisions of the Rules and F. Rs. and S.Rs. it is for the Rule making authorities to make such a rule but not for the Court to exercise their wisdom.
As regards the amount payable to the attendant, Rule 13 is clear. The attendant being not a Government servant she was entitled to actual expenses incurred on the travel.
In the result, this petition is found, to be without merit and it is dismissed. The Rule is discharged. We, however, retrain making any order as to costs.