1990 SCMR 76 (PLP)

5. In his appeal the respondent has re‑iterated his claim for compensations on account of the deprivation after his transfer from the Federal Service Tribunal, of the facilities of a telephone at residence, use of staff car and services of a household orderly. On its part the Government has challenged the legality if the direction with regard to payment of costs of POL to the respondent.

6. The grievance of the respondent in so far as it relates to the telephone at his residence, is no longer a live issue, for, as already stated, it was conceded by him before the learned Tribunal that either the bills had already been paid or sanction for their payment had been accorded. In view of this statement the learned Tribunal did not consider it necessary to probe into the matter further and it does not appear from its judgment that the respondent insisted upon any further relief on this account. We are therefore not prepared to allow him to reopen this controversy.

7. With regard to the house‑hold orderly, the relevant instructions of the Government are contained in office memorandum No. 13/4/77 F.I. issued by the Establishment Division on 30‑4‑1977. This memorandum runs as follows:‑ "The undersigned is directed to say that it has been decided that, in view of the nature of their duties and responsibilities officers in grade 20 and above may be provided with an orderly at their residence out of the sanctioned strength of peons of the Ministry/Division/Department concerned." A perusal of this memorandum would show that the house‑hold orderlies were to be provided to officers out of the sanctioned strength of the Ministry/ Division/Department concerned. In other words this facility was linked with the availability of peons in the sanctioned strength. The respondent placed no material before the learned Tribunal showing that at the time when he was posted as Officer on Special Duty in the Establishment Division, a peon was available out of the sanctioned strength of peons of that Division and yet the same was not provided to him. To meet this argument, the learned counsel for the respondent contended that it was the usual practice of the Government that whenever a post in grade‑21 was created, a post of peon was concomitantly sanctioned. This is merely an assumption. The, respondent did not place either before the Tribunal or before us the notification by which his post was created to substantiate this assertion. We should therefore think that the learned Tribunal was right in turning down his claim for compensations on account of deprivation of the facility of a household orderly.

8. With regard to the use of staff car, it was contended on behalf of the Government that the respondent was not an Entitled Officer within the definition of the expression as contained in rulc2 (x) of the Use of the Staff‑Cars Rules, 1980. The said definition reads as follows:‑ "Entitled Officers‑"means officers of grade 22 and Additional Secretary of the Federal Government borne on the sanctioned strength of the Division." It was argued that the respondent while serving as Officer on Special Duty in the Establishment Division was not holding any post borne on the sanctioned strength of that Division and as such he was not entitled to have a car for private use. It was also contended that as the respondent had subsequently drawn the car maintenance allowance which was paid to the officers not using the staff cars, his claim for compensations on this account was without any foundation. Both these contentions were rejected by the learned Tribunal with the findings that the respondent was an entitled officer as defined in the Rules for the Use of Staff Cars and since he had drawn the car maintenance allowance under compulsion, it did not affect his right to receive compensations for the failure of his department to provide him with the said facility.

9. The relevant provision relating to the free use of staff cars by the entitled officers is contained in Rule 5 (11) of the Use of Staff Cars Rules, 1980. It reads as follows:‑ "Entitled Officers who forego the car maintenance allowance shall be permitted to free use of staff car for official and private purpose subject to the following conditions:‑ (i) Only one staff car shall be used both for official as well as private use. (ii) Such staff car shall not be used during earned leave, leave preparatory to retirement, or any other kind of leave except casual leave and medical leave upto one month. (iii) * * * * * (iv) * * * * * The words `permitted to free use' as occurring in this rule are significant. They assume the existence of a staff car of which free use may be made by an entitled officer. The language of this rule may be contrasted with that of Rule 3 which relates to Minister and Minister of the State and any other dignatories or office holder notified for such facilities. Clauses (1), (2) and (3) of the Rules are relevant. They read as follows:‑ (1) Each Division shall normally maintain one staff car for use in connection with official business. However additional staff car can be specially authorised by the Cabinet Division. Explanation:‑Any additional staff car which has already been allowed by the Cabinet Division shall be deemed to have been authorised for the purpose of this sub‑rule. (2) In addition to the staff car(s) provided under sub‑rule (1) one staff car shall be provided to each Minister, Minister of State, Advisor and any other dignitary or office holder notified for such facility. (3) The Division concerned (or for one of the Division in the portfolio) will be responsible for provision of staff cars to Minister and Minister of the State and Advisors etc. It will be noticed that whereas Rule 3 creates an obligation against the Division concerned to provide a staff car to the Minister and Minister of State and Advisors etc., Rule 5 (11) merely permits the use of a staff car by the entitled officer. It may also be mentioned that the facility of using the staff car for private use was first allowed to Civil servants by a memorandum issued by the Establishment Division on 30‑4‑1977 which amended the Rules for the `use of Staff Cars, 1975. After amendment, the relevant rule runs as follows:‑ "Grade 22 Officers and Addl. Secretaries who do not draw the car maintenance allowance shall be entitled to free use of staff car for official and private purposes". On 21‑5‑1977, that is, within the month of amendment the Government by another Office Memorandum issued a clarification with regard to the use of this facility. The relevant portion of this memorandum reads as under:‑ "It has, therefore, become necessary to clarify that in the present financial stringency, it is not intention of the Government that additional staff cars should be procured for such officers. They would be entitled to this facility only if the cars are already available. Otherwise, they would continue to draw Car Maintenance Allowance @ Rs.150 per month till the availability of Cars". Although the Rules of 1975 were superseded by the Rules of 1980, it does not appear from a comparison of the different provisions of the new Rules that the Government had changed its decision as reflected in the memorandum of 21‑5‑1977 and had assumed the responsibility of providing additional cars to the Division for the use of the entitled officers.

10. It was not the case of the respondent nor the learned Tribunal has recorded any finding to the effect that a spare car was available in the Establishment Division but the same was not given to him for private use. In the circumstances all that he was entitled to was the car maintenance allowance. This he has already drawn. Consequently, the direction given by the learned Tribunal that he should be paid the cost of POL is without any legal basis. This being the legal position, it is unnecessary to consider whether the respondent was or not an "entitled officer" within the meaning of Rule 2 (x), ibid.

11. For the reasons stated above, we accept the appeal of Government (C.A No. 13 of 1986), set aside the order of the learned Tribunal and dismiss the appeal of the respondent which he preferred before the Tribunal. For the same reasons we dismiss the appeal of the respondent (C.A No. 14 of 1986) which has been preferred from the judgment of the Tribunal. There will be no order as to costs in the two appeals. A.A./F‑145/S Appeal accepted.