Delhi High Court
Dr. Pradeep Garg vs Director, All India Institute Of ... on 12 January, 2016
$~11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 7014/2015
Date of decision: 12th January, 2016
DR. PRADEEP GARG ..... Petitioner
Through Mr. Rajeev Awasthi, Advocate.
versus
DIRECTOR, ALL INDIA INSTITUTE OF MEDICAL
SCIENCES (AIIMS) ..... Respondent
Through Mr. R.K. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J. (ORAL):
Dr. Pradeep Garg vide letter dated 8th August, 2002 after due
selection was appointed as an Assistant Professor (Obstetrics and
Gynaecology) at the All India Institute of Medical Sciences, Delhi in
the pay scale of Rs.11625-325-15200 plus non-practising allowance
and usual allowances as admissible to Central Government Servants.
The appointment was on an ad hoc basis for a period of three months
from the date the petitioner would assume charge or till regular
appointment was made, whichever was earlier.
The letter records the terms and conditions of employment. Clause (3)
of the letter stipulated:-
"3. Other conditions of service such as benefits of
provident fund, leave etc. will be in accordance with the
rules and regulations of the Institute."
Clause 6 of the letter mentions that the petitioner would be eligible for
grant of house rent allowance as admissible to the Central Government
servants of his status provided he would apply for institute
accommodation and the same was not provided to him. The terms
postulated that the petitioner could resign by giving one month notice
or by depositing pay and allowances for the period by which the notice
falls short. Clause 7 of the letter, read:-
"7. He/she should also note that he/she will have to
conform to the rules discipline and conduct prevailing in
this Institute and those imposed by the Institute on all
their employees."
2. The petitioner continued to work as Assistant Professor
(Obstetrics and Gynaecology) till 10th April, 2012. In other words he
had worked for nearly ten years. During this period, he had earned
credit of 108 days of earned leave, having not taken the said
permissible leaves during this period.
3. Thereupon, the petitioner had claimed encashment of earned
leave of 108 days. The prayer was rejected vide letter dated 11th
August, 2012. The petitioner wrote another letter dated 11th August,
2012 drawing attention of the respondents to OM No. 13018/6/86-
Estt.(L), Government of India, DOPT, asserting that the memorandum
accords benefit of encashment of earned leave to ad hoc employees.
When there was silence and failure to respond, the petitioner filed a
writ petition before this Court, which was transferred to the Central
Administrative Tribunal after the All India Institute of Medical
Sciences was notified under Section 14 of the Administrative Tribunals
Act, 1985. The TA No. 5/2014 filed by the petitioner stands dismissed
vide order dated 16th April, 2015, recording that no employee would
be entitled to benefit of encashment of earned leave on termination of
his service. The services of the petitioner were terminated and,
therefore clause 3 of the DOPT‟s OM dated 28th February, 1988 would
not entitle encashment.
4. Having heard learned counsel for the parties, we find it difficult
to accept and agree with the reasoning given by the tribunal. Office
Memorandum dated 28th February, 1988 relates to grant of leave to ad
hoc employees and paragraphs 2 and 3 thereof read as under:-
" 2. The President is now pleased to decide that
employees whose appointment is treated as ad-hoc for
purely technical reasons, may be extended the benefit of
leave as admissible to temporary employees of the
Vacation Department under the CCS (Leave) Rules,
1972. In other cases of ad-hoc appointment of staff
categorised as „Vacation Staff‟ which are of brief
periods, if vacation is allowed with usual pay &
allowances/leave salary, no leave shall be admissible. In
case they are not allowed such vacation, they may be
allowed earned leave @ 2 ½ days per month of service,
as allowed to similar employees in non-vacation
Department, subject to the conditions that:-
(a) Their services are utilised by the Administration
on which they are borne during the period of vacation;
(b) If their services cannot be utilised during vacation
for any reason their services should be terminated on the
commencement of vacation; and
(c) While granting the leave it should be in terms of
full days and not half a day. They will also not be
entitled to the benefit of encashment of earned leave on
termination of their service.
3. Where the ad-hoc appointments made for brief
periods initially, however, for some reasons, continue
beyond a period of three years without break such ad-hoc
employees may be extended the benefits of all kinds of
leave as admissible to temporary employees of the
vacation department, under CCS (Leave) Rules, 1972,
from the date of their initial appointment."
5. The aforesaid paragraphs in clear terms state that the
Government had decided to treat ad-hoc employees at par with
temporary employees of the Vacation Department under the CCS
(Leave) Rules, 1972. It is not disputed or under challenge that the
petitioner being an ad-hoc employee would meet the said requirements
and is not disqualified under the negative stipulations mentioned in
paragraph 2 quoted above. Paragraph 3 of the said OM declares that
ad hoc appointments though initially made for brief periods but
continued beyond the period of three years without any break in
service, would be extended benefits of all kinds of leave as admissible
to temporary employees under the CCS (Leave) Rules, 1972 from the
date of their initial appointment. It is not disputed that under the said
clause, 108 days of earned leaves were credited and due. This period
of 108 days has been calculated strictly in accordance with the OM
dated 28th February, 1988.
6. Sub-clause (c) to paragraph 2 of the circular stipulates that grant
of leave, would be in terms of a full day and not for half a day and
further the ad hoc employees would not be entitled to benefit of
encashment of earned leave on "termination" of the said service. The
word "termination" is significant, and we feel has relevance. The word
"termination" has to contextually understood and interpreted. The said
word has an element of stigma and negative import. This stipulation
should not be broadened to include cases where the ad-hoc
employment comes to an end by efflux of time or when regular
appointment is made.
7. The 2nd sentence in sub-clause (c) of paragraph 2 does not in
plain language state that no leave encashment will be allowed to ad-
hoc employees. It was rather easy to state this position; that no leave
encashment would be allowed or paid to the ad-hoc employees. On the
other hand, stipulation is conditional that leave encashment would not
be permissible in cases of "termination". Necessarily indicating and
meaning, there could be cases where leave encashment would be
allowed. i.e cases where ad-hoc employees employment is not
"terminated". Earned Leave is not encashed or paid during ad-hoc
employment. The expression "termination" in the context of sub-clause
(c) to paragraph 2 as „termination of service‟, has to be read as bearing
and postulating a negative connotation. The word "termination" would
therefore means "termination" of employment for any reason or cause,
excluding cases where ad-hoc employment comes to an end by efflux
of time or when regular appointment is made. It would be apposite to
refer to Shashi Gaur vs. NCT of Delhi & Ors. , (2001) 10 SCC 445,
where the Supreme Court interpreted the term "termination", and has
held that an order of "termination" would be akin to order of dismissal
or removal and can be distinguished from other cases where service
comes to an end by efflux of time. The above-said observation was
made in the context of Sec. 8(3) of Delhi School Education Act, 1973.
8. Earned leave encashment would be justified for it is payment
made for the extra days of work, as the employee could have taken
leave but had worked. Encashment is not gratis or by way of a bounty.
It is payment for work performed and done.
9. It is an accepted position that, the ad hoc appointment had
continued for almost ten years. This was with the concurrence of the
respondent. It is not debated or stated that the petitioner had not
diligently performed his duties. No misconduct/delinquency was
reported or disciplinary proceedings were initiated. Apparently on
regular appointment being made, the petitioner‟s ad hoc appointment
came to an end.
10. In these circumstances, we find merit in the present writ petition
and allow the same. We set aside the order dated 16 th April, 2015 and
also issue directions to the respondent-All India Institute of Medical
Sciences to make payment toward earned leave for a period of 108
days as per DOPT‟s OM dated 28th February, 1988. The said payment
will be made within a period of two months from the date a copy of
this order is communicated. In case the payment is not made within a
period of two months, the petitioner will be entitled to an interest of 8
per cent per annum from the date of this order. The writ petition is
accordingly disposed of.
(SANJIV KHANNA)
Judge
(NAJMI WAZIRI)
Judge
JANUARY 12, 2016
VKR
