Dr. Kapil Bhalla vs Union Of India And Anr.
2010 Latest Caselaw 3399 Del

R-17
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       W.P.(C)No.4193/1993

                                      Date of Decision : 20th July, 2010

%

      DR. KAPIL BHALLA                  ..... Petitioner
                     Through : Mr. Sanjeev Kumar Sharma,
                               Adv.

                      versus

      UNION OF INDIA AND ANR.             ..... Respondents
                     Through : Mr. Ankur Chhiber, Adv.


CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  NO

3.      Whether the judgment should be                          NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. The present writ petition has been filed by the petitioner

seeking issuance of writ of mandamus to the respondents to

pay the difference in pay on account of implementation of the

recommendations of Fourth Pay Commission with effect from

1st January, 1986 till 11th August, 1987 being the period of his

study leave duly sanctioned by respondent No.1 and for

quashing of the office order dated 7th May, 1993 issued by

respondent No.1 refusing to pay same to the petitioner.

2. The facts giving to the present writ petition are in a

narrow compass and to the extent necessary, are briefly noted

hereafter. The petitioner was employed as a General Duty

Officer (Grade - II) at the M.I. Room of the respondent No.2.

The petitioner had sought two years study leave in 1985 for the

period from 23rd September, 1985 to 22nd September, 1987 for

pursuing a post graduate course of study in M.D. (Bio

Chemistry). There is no dispute that in public interest, by an

order dated 18th February, 1986 this study leave was granted

to the petitioner in accordance with the Central Civil Services

(Leave) Rules, 1972 which govern the subject.

3. After the petitioner proceeded on study leave, the

recommendations of the Fourth Pay Commission were

accepted by the Central Government and were also duly

implemented with effect from 1st January, 1986. The

respondents accordingly, revised the pay scales of all officers

who were on duty and paid salary to them in accordance with

the revision in terms of the report of the Fourth Pay

Commission.

4. The petitioner however submits that he continued to

receive the same salary which he was drawing on 23rd

September, 1985 i.e. when he had proceeded on leave.

5. The petitioner resumed duty with the respondents on 11 th

August, 1987 (A/N). It is noteworthy that while on study leave,

the petitioner earned a promotion and when he rejoined duty,

he was posed as General Duty Officer (Grade - I) at the 29th

Battalion, CRPF, Fatehabad (Pb.).

6. In this background, the petitioner made representation to

the respondents for correct fixation of his pay during the period

of his study leave and payment of the differential amount as

arrears in accordance with the report of the Fourth Pay

Commission. A communication dated 31st October, 1988 has

been placed on record which was addressed by the Director

General of the CRPF to the IGP, Southern Sector, Hyderabad to

the effect that as per Rule 40(1) of the CCS (Leave) Rules,

1972, a Government servant who proceeds on leave is entitled

to leave salary equal to the pay drawn immediately before

proceeding on leave. The petitioner however submitted a

further representation on 5th December, 1988 seeking

reconsideration of the stand taken by the respondents. The

respondents refused to consider the aforesaid position taken by

them on 11th January, 1989 necessitating the filing of the

present writ petition.

7. In support of the writ petition, the petitioner has placed

reliance on Rule 56(2)(a) of the Central Civil Services (Leave)

Rules, 1972 which provided as follows:-

"During study leave availed of in India, a Government servant shall draw leave salary equal to the pay that the Government servant drew while on duty with Government immediately before proceeding on such leave and in addition the dearness allowance and house rent allowance as admissible in accordance with the provisions of Rule 60."

8. Our attention is drawn in the writ petition to the fact that

some scientists working in the Indian Veterinary Research

Institute, Izat Nagar, Uttar Pradesh under the Ministry of

Agriculture had filed an application before the Central

Administrative Tribunal, Principal Bench, New Delhi being

O.A.No.1027/1991 titled Rameshwar Singh vs. Union of

India claiming payment of the arrears of their salary in

accordance with the revised pay scale implemented with effect

from 1st January, 1986 for the period when they were on study

leave. These scientists were similarly placed as the petitioner

and had been denied revised scales of pay during the period

when they were on study leave. This petition was allowed by

detailed judgment of the Principal Bench of the Central

Administrative Tribunal dated 4th February, 1992 whereby

Union of India was directed to pay their salary and dearness

allowance in the revised pay scale with effect from 1 st January,

1986 up to the date when they joined their department on

return from study leave. The operative part of the judgment

dated 4th February, 1992 which has a bearing on the issue

raised by the petitioner deserves to be considered and reads as

follows:-

"We have considered the submissions of the learned counsel for both the parties, the record and the position of rules carefully. Rule 56(2)(a) clearly states government return from study leave shall be paid the salary which he drew while on duty with Government immediately before proceeding on such leave and in addition the dearness allowance as admissible.

On 1.1.1986 not only the pay scales were revised but a revised formula of dearness allowance was also sanctioned. The old dearness formula had its run only upto the dates when the option given by the individual government servant to come over to the revised scale of pay came into operation. The old dearness allowance formula, therefore, ceased to operate w.e.f. 31.12.85 ordinarily when the dearness allowance, as admissible on that date was merged with the basic pay and revised scale brought into effect from 1.1.1986 with a revised formula for dearness allowance. If the contention of the learned counsel for the respondent is accepted the applicants would draw in the pre-revised scale of pay but they would be allowed dearness allowance from 1.1.1986 on the revised rates. This is clearly a proposition which is not feasible nor practicable. The applicants are the holders of the same posts which are held by their counterparts who were in the department and not on study leave. When the pay scale of the post has been revised, the applicants cannot be continued to be paid the pay in a non-operative scale of pay. They shall, therefore, be entitled to the payment of the same pay in the same pay scale, as would have been admissible to them had they not proceeded on study leave consequent to the implementation of the recommendations of the Fourth Central Pay Commission. We order accordingly. The respondents shall pay the applicants salary and dearness allowance as applicable to them in the revised scale w.e.f. 1.1.1986 upto the date they joined their department on return from study leave, as early as possible and preferably within a period of 12 weeks from the date of communication of this order."

9. We find that the respondents had assailed the judgment

dated 4th February, 1992 by way of Special Leave Petition

bearing No.2991/1993 titled Union of India vs. Rameshwar

Singh and Others before the Supreme Court of India which

was rejected by an order dated 15th February, 1993. The

respondents are stated to have thereafter duly implemented

the judgment of the Central Administrative Tribunal in respect

of the employees of the Indian Veterinary Research Institute

noticed hereinabove.

10. The prayer made by the petitioner is identical to the claim

which was made before the Central Administrative Tribunal.

Even otherwise, we find no justification at all as to why the

petitioner could not have been paid revised scales in terms of

the recommendations of the Fourth Pay Commission to which

its contemporaries and colleagues also employed by the

respondents have been found entitled. The respondents have

admittedly given the benefits of the revision in the pay scale to

the petitioner after he re-joined duties. Having regard to the

Rule 56(2)(a) of the Central Civil Services (Leave) Rules 1972,

the petitioner is entitled to the revision in the pay scale which

is effected in the dearness allowance.

11. Accordingly, rule in this matter are made absolute and we

hold and direct as follows:-

(i) The order dated 7th May, 1993 issued by the

respondents is hereby set aside and quashed.

(ii) The respondents are directed to compute the

arrears to which the petitioner would be entitled on

account of implementation of the Fourth Pay

Commission for the period with effect from 1st

January, 1986 when the pay scale came to be

revised till 11th August, 1987 when he resumed duty

with the respondents after completion of the study

leave.

(iii) The computation of the arrears shall be effected by

the respondents within a period of eight weeks from

today and paid to the petitioner within a further

period of six weeks thereafter. The order passed by

the respondents shall include the basis of the

computation and period for which the amounts are

calculated and the same shall be served upon the

petitioner immediately on its passing.

12. This writ petition is allowed in view of the above terms.

GITA MITTAL, J

J.R. MIDHA, J JULY 20, 2010 mk