Comptroller & Auditor General Of ... vs Surajit Panigrahi & Ors.
2009 Latest Caselaw 809 Del

                             Reportable
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             WP (C) No. 9133 of 2008 & CM No. 17558 of 2008

%                                         Reserved on : January, 27, 2009
                                           Pronounced on : March 13, 2009

Comptroller & Auditor General of India & Anr.              . . . Petitioners

                   through :              Mr. K.K. Rai, Sr. Advocate with
                                          Mr. Gaurang Kanth and
                                          Mr. Rahul Kumar, Advocates

              VERSUS

Surajit Panigrahi & Ors.                                  . . . Respondents

                   through :              Mr. S. Bhardwaj with
                                          Mr. Praveen Chaudhary,
                                          Advocates for respondent No.1.

                                          Mr. H.K. Gangwani, Advocate
                                          for the respondent Nos. 2 & 3.


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. Respondent No.1 herein is an employee of the petitioner No.1,

namely, Comptroller and Auditor General of India (hereinafter

referred to as „CAG‟). In the year 2005, he was holding the post of

Assistant Auditor Officer (for short, „AAO‟) in the office of

Accountant General, Sikkim when he was selected for an assignment

posting at the office of Principal Director (Audit), London. Letter

dated 20.7.2005 was addressed by the CAG to the Accountant

General (Audit), Sikkim informing that posting of the respondent

No.1 in the said office at London had been approved as the

incumbent therein was completing his term on 24.11.2005. In this

letter, there was a specific stipulation that this posting was for a

period of three years and willingness of the respondent No.1 to serve

for that term was sought. The respondent No.1 was given the

aforesaid offer and in response he gave the following undertaking

dated 26.7.2005 :-

" UNDERTAKING

With reference to HQ letter no. 3658/GE-I/144/2005, dt. 20.07.2005, I hereby certify that I am willing to work in the HQ office, after return from overseas posting, for three years."

2. Thereupon letter dated 12.8.2005 was issued by the CAG stipulating

the terms of his posting to London office. In paras 3 & 4 thereof it

was mentioned that he would be liable to serve in CAG for a period

of three years after completion of his posting abroad and in case "he

does not return after completion of approved tenure, by reasons of

resignation or otherwise, he will refund to the Government of India

the expenditure incurred on payment of ......" His initial posting

was for a period of two years, extendable by another one year. This

extension was given. The tenure of the respondent No.1 at London

office began on 25.11.2005 and three years period expired on

24.11.2008.

3. Few months before this tenure was to come to an end, the

respondent No.1 moved the application dated 9.8.2008 whereby he

requested for ex-India leave for 272 days, i.e. from 3.12.2008 to

31.8.2009. Ground given was that his son was admitted in a school

in London and was studying in „O-Level of GCSE‟, i.e. 11th Standard in

the current academic year 2008-09. This was equivalent to Class-X

of CBSE standard of India. This academic year is to be completed by

the end of August 2009. He submitted in this application that any

movement at this stage to India would seriously hamper the studies

of his son and he would be compelled to get him enrolled in India in

Class-IX and, thus, in the process he would be losing two years of his

career. He also pointed out that there is difference of teaching

syllabus in UK and Indian system of school education and change at

this crucial stage would be detrimental to his interest. He assured the

CAG that during his stay at London, on the sanction of ex-India

leave, he would support himself and his family out of his personal

savings.

4. The competent authority, after considering the aforesaid application,

agreed to sanction the leave only for a period of one month, i.e.

from 3.12.2008 to 3.1.2009, and sent communication dated

6.10.2008 conveying this approval to the High Commission of India

at London. Obviously, the respondent No.1 was not satisfied with

sanction of only one month leave. He, therefore, challenged the

communication dated 6.10.2008 by filing OA before the Central

Administrative Tribunal. The Tribunal has allowed the request of the

respondent No.1 vide its judgment dated 19.12.2008 directing the

CAG to grant sanction of ex-India leave to the respondent as applied

by him. Assailing that order, present writ petition is filed by the

CAG.

5. In this petition, Union of India is impleaded as respondent No.2 and

High Commission of India at London as respondent No.3. They are

proforma parties and have been impleaded because of the reason

that respondent No.1, in his OA, had impleaded them as parties.

6. Perusal of the judgment of the Tribunal would reveal that the

Tribunal had considered the applicability of CCS (Leave) Rules, 1972

and IFS (PLCA) Rules, 1961, on which the CAG placed reliance and

argued that leave was not a matter of right and it was for the

competent authority to sanction or reject the leave. As per these

Rules, only one month‟s leave could be granted. The Tribunal,

however, held that these Rules were not relevant for the purpose of

addressing the controversy which had arisen in the case. The

Tribunal opined that IFS (PLCA) Rules, 1961 were applicable to those

who were either appointed to the Indian Foreign Service or All India

Service or Central Civil Service Group-A and permanently seconded

to the Indian Foreign Service and the respondent No.1 was not

covered by any of these categories. The Tribunal also examined

MEA Circular No. Q/GA/791/11/86 (EAI 94/1/42) dated 22.8.1994 as

per which upto maximum of one month per annum ex-India leave

can be granted. According to the Tribunal, this circular was not

applicable in the case of the respondent No.1 as it related to those

officials serving in missions/posts abroad, whereas the respondent

No.1 was proceeding on transfer to Delhi after completion of his

period of tenure. The Tribunal also referred to Rule 7(2) of the CCS

(Leave) Rules, on the basis of which contention was raised by the

CAG that leave could not be claimed as of right. The Tribunal noted

that as per that provision, leave applied could be refused "when the

exigencies of public service so require" and observed that in the

present case, the CAG could not show as to what are the exigencies

of service because of which the leave could not be granted to the

respondent No.1.

7. It would be pertinent to mention at this stage that one of the

submissions of the respondent No.1 was that under similar

circumstances leave had been sanctioned to one Mr. A.H. Rao. CAG

had contended that in his case leave was sanctioned under different

circumstances and that could not be quoted as a precedent to be

followed while dealing with the case of the respondent No.1 herein.

The Tribunal quoted para 8 of the preliminary objections raised by

the CAG in its counter affidavit in this behalf wherein it was not

explained as to how said case was different. The Tribunal noted that

in the case of Mr. Rao, leave was sanctioned on the ground of

education of his daughter who was in the similar situation as the

elder son of the respondent No.1 herein. On this basis, the Tribunal

concluded that non-grant of ex-India leave to the respondent No.1

would be discriminatory and directed the CAG to sanction ex-India

leave to the respondent No.1, as applied by him, on the same lines as

was sanctioned to Mr. A.H. Rao.

8. Submission of the learned counsel for the parties remained the same

before us as well. Apart from stating that leave was not a matter of

right, Mr. Rai, learned senior counsel for the CAG/petitioner, placed

heavy reliance upon the undertaking given by the respondent No.1,

as per which he had agreed to work in the HQ office for a period of

three years "after return from the overseas posting". His submission

is that the respondent No.1‟s tenure was initially for a period of two

years, extendable for a period of one year, which was not to be

extended further. Therefore, he knew fully well that such a tenure,

which commenced on 25.11.2005 would positively come to an end

on 24.11.2008 and, therefore, it was the outlook of the respondent

No.1 to make proper arrangements with regard to studies of his

children as he was made aware well in advance that he would have

to return to India on the completion of the said tenure in

November/December 2008 and could seek leave, by one month at

the most.

Learned counsel also submitted that the observations of the

Tribunal that no exigencies for refusing the leave were shown by the

CAG was not correct as the same was specifically pleaded and argued

before the Tribunal. He referred to the reply filed by the CAG

before the Tribunal and submitted that CAG was having limited

number of Assistant Audit Officers (AAOs) and, therefore, could not

afford to give such a long leave to their AAOs as the same would

adversely affect the smooth functioning of the work of the CAG.

The learned counsel also reiterated that the case of Mr. A.H. Rao was

different in the sense that at the time when he was given ex-India

leave there was no exigency since Mr. A.H. Rao was working as a PA

to the Principal Director of Audit in London and was doing only

administrative jobs. On the other hand, the respondent No.1 is an

AAO doing specialized audit job which is also the primary function of

the CAG. Moreover, substitute for the respondent No.1 had already

reached and joined the London office and the post of the respondent

No.1 has been lying vacant in the office of the CAG at Delhi. The

circumstances existing in the case of Mr. Rao‟s daughter, who was

studying in Class-IX in the academic year 2004-05 are also explained

in the writ petition to which emphasis was laid by Mr. Rai. The

submission in this behalf is in the following manner :-

"It is submitted that the leave sanctioned to Mr. Rao is under special circumstances. Mr. Rao‟s daughter was studying in Class X in the academic year 2004-05. She was to appear in Class X examination of CBSE in London through the „Patrachar Vidyalaya‟ under the Govt of NCT of Delhi. Suddenly, from the academic session 2004-05, the Patrachar Vidyalaya was discontinued by the Govt and was replaced by „Open School Exam‟, where the students can register only for Class IX. Shri Rao represented to the Govt. of Delhi. His case was also taken up by the High Commission of India, London wherein the High Commission wrote to the Principal Secretary (Education), Govt. of NCT of Delhi that the High Commission was conducting CBSE Exams for Class X & XII through Patrachar Vidyalaya and that discontinuance would cause hardship as about 15-20 students appear in the said exam every year. However, the Patrachar Vidyalaya refused the said request. It is in these circumstances the request of Shri Rao for ex-India leave was accepted by the Competent Authority. The case of the Respondent No.1 is completely different from Mr. Rao‟s case. Mr. Rao was not aware of the sudden and unanticipated change of the circumstances as mentioned above."

9. Per contra, submission of the learned counsel for the respondent

No.1 was that case of Mr. Rao, who was sanctioned ex-India leave,

was no different as it was done under the identical circumstances. In

this behalf, he drew our attention to the leave application dated

2.6.2005 made by Mr. Rao, wherein the only reason given was:

"My second daughter is in her crucial year of education - the „O‟

level equivalent of 10th Standard in India and a movement now

would seriously hamper her prospects". He, thus, submitted that

identical reason was given by Mr. Rao and there was nothing on

record to show that the reason for grant of ex-India leave was

discontinuance of CBSE exams in Class X and XII by the High

Commission through Patrachar Vidyalaya.

10. We may mention at the outset that the respondent No.1 has not

asked for extension of his tenure in London. Undertaking given by

him before he proceeded for his posting in London was that he

would be willing to work in the HQ office for three years. He has

not asked for waiver of his undertaking. His request is for grant of

ex-India leave, which would mean that the undertaking remains

intact as, if leave is granted, after the expiry of the leave, he is to

return to India and serve with the CAG at his headquarters for three

years as per his undertaking.

11. The issue before us is altogether different, namely, whether refusal of

the petitioner to grant ex-India leave to respondent No.1 was

justified and, thus, whether the direction of the Tribunal that

respondent No.1 be granted ex-India leave is proper or not.

12. Legal position, insofar as grant of leave is concerned, cannot be

disputed. No doubt, it is well-settled principle of law that leave is

not a matter of right. That is the provision contained in Rule 7(1) of

the CCS (Leave) Rules, 1972, which rules are admittedly applicable to

the respondent No.1. In S. Partap Singh v. State of Punjab, AIR 1964

SC 72, the Supreme Court has observed as under on this aspect :-

"4. Rule 8.15 of the 1959 rules reads :-

"Leave cannot be claimed as of right. When the exigencies of the public services so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it."

It follows therefore that the authority granting leave has the discretion to revoke it. There is no restriction on the power of revocation with respect to the time when it is to be exercised. It can be exercised before the officer to whom leave was granted proceeds on leave. It can also be revoked after he has proceeded on leave. Revocation of leave simply means cancelling the leave granted. The exigency necessitating the revocation of leave may arise after the officer has proceeded on leave. Rule 8.3 has no bearing on the question as it provides that the rules following it govern the procedure for making application for leave and for granting leave in India. It deals with the procedure and not with the right of the officer to leave or with the power of the necessary authority to sanction or refuse leave or revoke leave. Rule 8.42 deals with matters incidental to the recall from leave and in no way affects the discretion of the authority to revoke leave. In fact, recall to duty must follow the revocation of the leave with respect to the period not availed of till then."

13. Likewise, this Court in the case of Shakuntla Navani v. Director/

Chairman, IIT, ILR (2003) II Delhi 580, while deciding the issue as to

whether the unauthorized absence from service amounts to

misconduct, observed that while granting or refusing the leave, the

employer is to consider the exigency of service. It is clear from the

following passage in the said judgment :-

"Merely because a person has leave to his credit does not mean that leave can be availed of at the sole discretion of the employee and when he choses to get on leave. Ordinarily leave would not be denied as per wishes of the employee but exigencies of work may require the presence of the employee. Besides, during the leave period, working being performed by the employee has to be entrusted to someone else. This is the reason why leave requires prior sanction. The employer has to reorganize work or make alternative arrangement. Availing of leave without prior sanction or atleast prior intimation is indeed misconduct."

Thus, leave is not a matter of right and can be refused if the

exigency of service so demands.

14. In the present case, the Tribunal observed that the petitioner herein,

namely, CAG, could not point out any circumstances warranting

exigencies, namely, requirement of the respondent No.1 in Delhi.

However, the petitioner/CAG has specifically pleaded that leave was

refused keeping in view the exigency of service, namely, shortage of

AAOs. Ground (c) and (d) of the writ petition may be noted in this

behalf :-

"C. Because the Ld. Tribunal erred in observed that „the Respondent‟s have not shown as to what are the exigencies of service because of which the leave should not be granted to the Applicant.‟ It is most respectfully submitted that the same was specifically pleaded and argued before the Ld. Tribunal. The Petitioners is having limited number of Assistant Audit Officers (AAOs) and hence the Petitioners cannot afford to give such long leave to their AAOs as the same will adversely affect the smooth functioning of the work of the Petitioner No.1 office.

D. Because in the case of Mr. A.K. Rao there was no exigencies since Mr. A.H. Rao was working as PA to the Principal Director of Audit in London. Mr. Rao was doing only administrative jobs. However, the Respondent No.1 is Assistant Audit Officer, doing specialized audit jobs, which is

also one of the primarily functions of Petitioner. Petitioners are having limited number of AAOs. The substitute for the Respondent No.1 had already reached and joined the London office. The Respondent‟s post is lying vacant in the Petitioner No.1 office at Delhi. Because of the exigencies of the work, it was decided by the competent authority of the Petitioners, that the ex-India leave of 272 days cannot be afford and granted to Respondent No.1. The same will disturb the work and timeline of the Petitioner No.1‟s office. Hence the impugned order of the Ld. Tribunal deserves to be set aside."

15. We also find that the explanation given by the CAG sanctioning the

study leave to Mr. A.H. Rao and contention of the petitioner that

the said case is not at par with that of the respondent No.1, is

justified. In this behalf, specific plea raised in reply to OA, which is

repeated in this writ petition as well, is that the Indian High

Commission in London had discontinued conducting of CBSE exams

for Class X and XII through Patrachar Vidyalaya and it was felt that

this discontinuance would have caused hardship to about 15-20

students who appeared in the said exams every year. Further,

Patrachar Vidyalaya refused the request and under these compelling

circumstances, Mr. A.H. Rao was to be given ex-India leave.

Moreover, Mr. Rao was working as PA to the Principal Director of

Audit in London and his absence for the period during which study

leave was granted to him would not have caused much problem.

On the other hand, as per the petitioners, there is a dire need of

AAOs, to which category the respondent No.1 belongs.

16. It is for the employer to judge the exigencies and consider on that

basis as to whether leave is to be granted to a particular employee or

not. It is not the case of the respondent No.1 that decision of the

CAG was actuated with any mala fides or was otherwise tainted.

The competent authority had taken into consideration provisions

contained in IFS (PLCA) Rules, 1961 on the basis of which one month

leave was granted. Whether these rules are applicable or not would

not be relevant at all. However, it would be of interest to point out

that the respondent No.1 in his own OA had relied upon these rules

and proceeded on the basis that such rules are applicable to him.

17. Even in the application submitted by the respondent No.1 for grant

of ex-India leave at London, he had very clearly pointed out that he

would not cause any financial burden to the petitioner‟s department

and that during his stay at London, he would support himself and

family out of his personal savings. At the time of hearing of the writ

petition also, learned counsel for the respondent No.1 stated that he

would be making his own arrangement for stay and would be

vacating the official accommodation within four weeks. Thus, as per

his own showing, respondent No.1 is to arrange his own

accommodation and also bear the expenses of stay of his family

through his personal savings. He wants to remain in London only to

ensure that his son completes his tenure of academic year.

On our pertinent query, learned counsel for the respondent

No.1 conceded that his wife is an educated lady and is in London. It

is a matter of few months and she can take care of her children in

London during the absence of the respondent No.1. This case is not

one of personal hardship where things cannot move in the absence

of the respondent No.1. As against that, his requirement at Delhi is

stated to be paramount. That is the call of duty which he has to

attend. More so, when he had given an undertaking that he would

be returning to India to work in the HQ office for three years after

completing the tenure of his overseas posting.

18. We, therefore, allow this writ petition and set aside the judgment of

the Tribunal and as a consequence the OA filed by the respondent

No.1 herein is dismissed. However, in the facts and circumstances of

the case, we grant one month‟s time to the respondent No.1 for

joining his duties in Delhi. The petitioner may extend his leave upto

that period.

19. Before we part with, it would be necessary to comment that such

problems would keep arising in future as well, as and when postings

to foreign countries are made in mid-sessions. The petitioner as well

as the Government of India should consider this aspect while making

foreign postings and effect such posting, as far as possible, to coincide

with the academic year so that these hardships are not faced by the

persons sent on such assignments.

No costs.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE

March 13, 2009 nsk