Manipur High Court
Shri Mangsatabam Ingo Singh vs The Union Of India Through The ... on 11 October, 2022
1
JOHN Digitally signed
by JOHN TELEN
KOM
TELEN Date:
2022.10.12
KOM 16:43:51
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No. 1108 of 2018
Shri Mangsatabam Ingo Singh, aged about 39 years, S/o Shri
M. Damu Singh, resident of Kongpal Kshetri Leikai, PO & PS
Porompat, Imphal East District, Manipur.
....... Petitioner
- Versus -
1. The Union of India through the Secretary, Ministry of Home
Affairs, Government of India, North Block, New Delhi-
110001.
2. The Director General, Central Reserved Police Force,
Govt. of India, New Delhi CGO Complex, Lodhi Road, New
Delhi-110003.
3. The Deputy Inspector General of Police, Signal Range,
Central Reserve Police Force, Satt Lake City, Sector-V,
Kolkata, Govt. of India, Pin-700091.
WP(C) No. 1108 of 2018 Page 1
2
4. The Commandant, 2 Signal Battalion, Central Reserve
Police Force, Chandranayagutta PO-Keshogiri,
Hyderabad-5000005(TS).
.... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr. Sh. Athoi .Adv.
For the Respondents : Mr. S. Vijayanand, Sr. PCCG.
Date of reserved : 04.08.2022
Date of order : 11.10.2022.
JUDGMENT & ORDER
(CAV)
[1] This writ petition has been filed by the petitioner seeking a writ
of mandamus directing the respondents to release the entire amount of
leave salary for the un-utilized earned leave of the petitioner as well as the
amount of gratuity entitled by him in view of the relevant provisions of
Service Rules.
WP(C) No. 1108 of 2018 Page 2
2. Heard Mr. Sh. Athoi, the learned counsel for the petitioner and
Mr.S. Vijayanand Sharma, the learned Central Government Standing
Counsel for the respondents.
3. The case of the petitioner is that he was initially appointed to the
post of Sub-Inspector of Central Reserve Police Force [CRPF] with effect
form 19.12.2005 and thereafter, he was promoted to the post of Inspector
with effect from 4.10.2009. While, he was working in 2-Signal Battalion,
CRPF, he applied for appointment to the post of Officer (Security) of the
Gas Authority of India (GAIL) under due process. On 21.11.2016, the office
of the Commandant also issued no objection certificate to him and another
person for appearing in the recruitment process for the said post.
Thereafter, the petitioner appeared in the process and was selected for
appointment to the post of Officer (Security). In view of the selection, the
petitioner applied for technical resignation from the post of Inspector so that
he can join in the new post. The office of the Commandant had also issued
an order dated 14.11.2017 accepting the resignation tendered by the
petitioner with effect from 20.11.2017 AN. Since the issuance of the order
WP(C) No. 1108 of 2018 Page 3
dated 20.11.2017, the petitioner joined his new post and subsequent to the
joining of new post, the petitioner applied for gratuity for the services
rendered in CRPF.
4. Further case of the petitioner is that the office of the Commandant,
vide order dated 10.1.2018, intimated the petitioner that he resigned from
his post on his request for which he is not entitled to gratuity as the past
services held by him stand forfeited, in view of Rule 26 of CCS (Pension)
Rules, 1972. The petitioner also requested for linking up the past services
rendered by him in the CRPF, however the same was rejected on 7.8.2018.
Thereafter, the petitioner through his counsel issued a legal notice on
15.9.2018 calling upon the respondents to allow him to get the benefit of
entire amount of unutilized earned leave for the period of 300 days as the
same are due to the leave account of the petitioner and also entire amount
of gratuity as authorised under relevant provisions of law.
5. According to the petitioner, the office of the Commandant vide
letter dated 22.10.2018 intimated the counsel for the petitioner that the
petitioner is not entitled to the claim made by him. According to the
WP(C) No. 1108 of 2018 Page 4
petitioner, in view of the office memorandum dated 17.8.2016 of the Ministry
of Personnel, Public Grievances and Pensions, Department of Personnel
and Training, Government of India, the resignation tendered by the
petitioner is technical resignation for which he is entitled to the entire
amount of earned leave for the unutilized earned leave at his credit.
According to the petitioner, he is also entitled to gratuity for the services
rendered by him as provided under the Payment of Gratuity Act, 1972.
However, the respondent authorities have been denying the same. Hence,
the writ petition.
6. The respondents filed affidavit-in-opposition stating that on
25.10.2016, the petitioner submitted an application along with undertaking
requesting to issue no objection certificate to appear to the post of Officer
(Security) in GAIL that he shall resign from the post held by him in CRPF.
After scrutiny, no objection certificate was issued to him on 21.11.2016 on
the condition that he will resign from the existing post and will not liable to
pay three months' pay and allowances or training charges whichever is
higher before leaving the Department unless the post applied for is
exempted from payment of pay and allowances/training charges. It is
WP(C) No. 1108 of 2018 Page 5
stated that consequent upon the selection to the applied post, the petitioner
submitted an application on 31.10.2017 requesting to accept his resignation
from service with effect from 20.11.2017 AN to enable him to join the new
post. Accordingly, the resignation of the petitioner was accepted with effect
from 20.11.2017 by issuing the order dated 14.11.2017. Thereafter, the
petitioner submitted an application and requested to encash his leave
accumulated in the leave account and his case was examined as per the
provision contained in Rule 39 (6)(a)(ii) of CCS Leave Rules, 1972 and
sanction accorded for payment of Rs.2,50,929/- on account of 126 days
earned leave i.e. half of 253 days earned leave in his credit. Since the
petitioner joined GAIL, a public sector undertaking, his past services
rendered in Government Department were not counted with his new service
and he was not given benefits of DCRG.
7. It is stated that aggrieved by the non-consideration of his request,
the petitioner sent a legal notice on 15.9.2018 and copy of the same was
received by the office of the 2nd Signal Battalion from DIG (Comn) Dte.
CRPF on 28.9.2018. According to the respondents, since the petitioner
joined a public sector undertaking, the request of the petitioner to count the
WP(C) No. 1108 of 2018 Page 6
past services was not acceded to. Further, he is not eligible for the benefit
of DCRG. Dissatisfying with the reply of the 2nd Signal, CRPF, the petitioner
has filed this writ petition.
8. Mr. Sh. Athoi, the learned counsel for the petitioner submitted that
the petitioner was selected for the post of Officer (Security) at GAIL while
in the service of the CRPF and after selection for the post of Officer
(Security) of GAIL, he tendered his resignation from the post of Inspector
and that on 14.11.2017, the Commandant accepted the said resignation
with effect from 20.11.2017 AN as provided under Rule 17 of CRPF Rules,
1955 read with letter dated 16.12.1999 of the DIG(ADM). It is stated that
the order further states that the petitioner will stand struck off from the
strength of the unit from the said date.
9. The learned counsel would submit that the petitioner had
completed 10 years regular service in the post on the date of acceptance
of his resignation and he has not offered to pay either three months' pay
and allowances or cost of training charges, whichever is higher and that
since the issuance of the said order, petitioner was free from vigilance angle
WP(C) No. 1108 of 2018 Page 7
and no departmental enquiry was pending or contemplated against him.
The petitioner requested the authority concerned allowing him to enjoy the
gratuity as well as amount of leave salary for the services rendered by him
as Sub-Inspector/Inspector, however, the request was rejected on
10.1.2018 stating that the same as forfeited.
10. It is the submission of the learned counsel for the petitioner that
the amount of leave salary of the petitioner was granted for the half of 253
days by stating that only 253 days unutilized earned leave are in the credit
of the petitioner. According to the learned counsel, the decision of the
respondent authorities have not been changed even by making
representations as well as even serving legal notice.
11. The learned counsel urged that the resignation tendered by the
petitioner from the post of Inspector of CRPF is very much within the
purview of technical resignation as provided in the relevant provisions of
Service Rules, which is also indicated under paragraph 2.1 of the office
memorandum dated 17.8.2016.
WP(C) No. 1108 of 2018 Page 8
12. Drawing the attention to the provisions of the CCS (Pension)
Rules, 1972, the learned counsel submitted that the petitioner is entitled to
the amounts of gratuity for the entire service rendered in the CRPF and the
denial of the same will amounts to violation of the relevant provisions of the
Service Rules as well as the office memorandum issued in this regard.
Thus, a prayer is made to direct the respondents to release the amount of
gratuity as entitled by the petitioner as well as the entire amount of leave
salary after deducting the amount of part leave salary which was already
given to him.
13. Per contra, Mr. S. Vijayanand, the learned Central Government
Standing Counsel for the respondents submitted that consequent upon the
selection of the petitioner to the new post of Officer (Security) in GAIL, his
resignation was accepted with effect from 20.11.2017 and that since the
petitioner completed 10 years of regular service in CRPF on the date of
acceptance of resignation, three months' pay and allowances or training
charges had not been deposited by him.
WP(C) No. 1108 of 2018 Page 9
14. As far as granting of gratuity is concerned, the learned counsel
submitted that the petitioner resigned from the services of CRPF at his own
request, hence, the past services rendered by him stand forfeited as per
the Government of India's Decision No.1 below Rule 26 of CCS (Pension)
Rules, 1972. In fact, on 20.4.2018, the petitioner submitted an application
to the Commandant, 2nd Signal requesting to count his past services
rendered in CRPF with his new service. His case was examined and was
observed that based on undertaking submitted by the petitioner, no
objection was issued to him for appearing in the competitive examination
for the post of Officer (Security) in GAIL and since he has joined in GAIL, a
public sector undertaking and released from CRPF only after accepting his
resignation, his past services rendered in Government could not be counted
with his new service.
15. The learned counsel further submitted that aggrieved with the
non-consideration of the request, the petitioner sent a legal notice on
15.9.2018 and the same was examined and informed that the past services
of the petitioner in CRPF could not be counted with his new service, as he
joined in public sector undertaking. Since the petitioner has resigned and
WP(C) No. 1108 of 2018 Page 10
not retired, he is not eligible for gratuity for the services rendered by him in
CRPF.
16. Drawing the attention of this Court to Rule 36(6)(a)(ii) of CCS
Leave Rules, 1972 along with the office memorandum of the Government
of India dated 7.10.1997 and the clarification issued by the DIG
(Organisation) CRPF dated 1.8.2018, the learned counsel submitted that
when a Government servant resigns/quits the services at his own request,
the lump sum cash only to the extent of half of earned leave at his credit on
the date of cessation from service subject to maximum of 150 days is
payable to him. Thus, the sanction accorded for payment of Rs.2,50,929/-
on account of 126 days earned leave is lawful and there is no violation of
the rules/instructions. Thus, a prayer is made to dismiss the writ petition.
17. This Court considered the rival submissions and also perused
the materials available on record.
18. The grievance of the petitioner is that he should be paid the entire
amount of unutilized earned leave for a period of 300 days and also the
WP(C) No. 1108 of 2018 Page 11
entire amount of gratuity as authorised under relevant provisions of law.
Further grievance of the petitioner is that the resignation tendered by him
is technical resignation and as per the office memorandum dated
17.8.2016, he is entitled to the entire amount of earned leave for the
unutilised earned leave at his credit and that he is entitled to gratuity for the
services rendered by him as provided under the Payment of Gratuity Act,
1972. But the respondent authorities have been denying the same by
giving reasons according to their choice.
19. On the other hand, it is the say of the respondents that since the
petitioner joined GAIL, a public sector undertaking, his past services
rendered in CRPF were not counted with his new service and he was not
given the benefits of DCRG. Further, after examination of the case of the
petitioner as per the provision contained in Rule 39(6)(a)(ii) of CCS (Leave)
Rules, 1992 read with the applicable office memorandum of Government of
India, sanction was accorded for payment of Rs.2,50,929/- on account of
126 days earned leave i.e. half of 253 days earned in his credit.
WP(C) No. 1108 of 2018 Page 12
20. While the petitioner was serving as Inspector of 2-Signal CRPF,
he applied for appointment to the post of Officer (Security) of GAIL through
proper channel, for which the Commandant, 2-Signal, CRPF issued no
objection certificate on 21.11.2016 granting permission to the petitioner to
appear in the recruitment process in GAIL. The petitioner got selected for
appointment to the post of Officer (Security) in GAIL, for which he has to
resign from the post of Inspector, CRPF and accordingly, on 31.10.2017,
the petitioner submitted an application for resignation. According to the
petitioner, he has submitted technical resignation from the said post. On
the contrary, the respondents submitted that the resignation of the petitioner
is not technical resignation and only resignation from the post. In this
regard, it would be appropriate to refer the contents in the application of the
petitioner dated 31.10.2017, which reads thus:
"With due regard, I No.057290236 INSP/RO M.Ingo
Singh presently posted in 86 Bn. CRPF Signal Platoon,
Imphal (Manipur) have the honour to state following few
words for your kind and sympathetic action please.
That Sir, I had applied for the post of security Officer (E-
1 grade pay scale - Rs.20,600 to 46,500/-) in GAIL
WP(C) No. 1108 of 2018 Page 13
which is PSU of Government of India and now, I got
offer of appointment for above post and required to join
by 04/12/2017. In this regard, I already obtained NOC
for attending interview for above post from your good
office vide your office letter No.W.V.2/2016-EC-VI
dated 21/11/2016. Now, I wish to join as Security
Officer in GAIL.
Hence, I therefore requested to you that may kindly
allow technical resignation from the post of
Inspector/RO in CRPF, so that I could able to join above
post in GAIL.
You sympathetic action towards the matter will be
highly appreciated."
21. Pursuant to the application dated 31.10.2017, the Commandant,
2-Signal passed an order on 14.11.2017 accepting the resignation of the
petitioner with effect from 20.11.2016 AN at his own request. In the order,
it has been stated that since the petitioner had completed 10 years of
regular service in the Force on the date of acceptance of his resignation,
WP(C) No. 1108 of 2018 Page 14
the petitioner does not have to deposit either 3 months' pay and allowances
or cost of training charges, whichever is higher as required under rules.
22. On a perusal of application of the petitioner dated 31.10.2017, it
is clear that the petitioner requested the Commandant to allow technical
resignation from the post and by the order dated 14.11.2017, the
Commandant accepted the resignation/discharge of the petitioner from the
post. The said order does not indicate that the resignation is not technical
resignation.
23. At this juncture, it would be relevant to quote Government of
India's Decision No.1 below Rule 26 of the CCS (Pension) Rules, 1972,
which reads thus:
"(1) When resignation a technical formality and
when it subsists. - A Government servant intending to
apply for a post or posts outside his parent
office/department under the Government of India
should have his application forwarded through the
competent authority under whom he was serving at the
time of applying for the post. Such an authority should
WP(C) No. 1108 of 2018 Page 15
either forward the application or withhold it according as
the exigencies of public service may indicate but it
should not forward the application conditionally, for
example, that in the event of the applicant coming out
successful, he will the required to resign his post before
taking up the new one. Once the application has been
forwarded unconditionally and the person concerned is
offered the post applied for, he should be relieved of his
duties to join the new post as a matter of course and
the question of his resigning the post held by him in
such circumstances should not arise. Accordingly the
amended article is intended to cover the cases where
even though the applications were forwarded by the
competent authority, the applicant had been asked for
one reason or the other to resign his post before taking
up the new one. The above position holds good whether
the Government servant held the post in permanent or
temporary capacity, before resigning the post.
Situations may arise where the application of a
Government servant was not forwarded and the
Government servant resigned his appointment of his
own volition with a view to his taking up the new post or
where it was not possible to forward his application in
the public interest but the Government servant had
WP(C) No. 1108 of 2018 Page 16
volunteered to resign his post or where the conditions
of service in an office demand as a matter of policy that
the Government servant should resign his post in the
event of his taking up another post outside. In all such
cases, it has been held that resignation of public service
will subsist and entail forfeiture of past service.
It has been decided that in cases where Government
servants apply for posts in the same or other
departments through proper channel and on selection,
they are asked to resign the previous posts for
administrative reasons, the benefit of past service may,
if otherwise admissible under rules, be given for
purposes of fixation of pay in the new post treating the
resignation as a `technical formality'. The pay in such
cases may be fixed under FR 27.
[G.I., M.F., Letter No. 35 (15)-E. V/60, dated the 21st
September, 1960, to the Secretary to the Government
of Orissa, Finance Department, Bhubaneshwar and
G.I., M.F., O.M. No. 3379-E. III (b)/65, dated the 17th
June, 1965.]
According to M.H.A., O.M. NO. 60/37/63-Ests. (A),
dated the 14th July, 1967 (not printed),
permanent/quasi-permanent Central Government
WP(C) No. 1108 of 2018 Page 17
servant appointed under another Central Government
department has to resign from his parent department
unless he reverts to that Department within a period of
two years (three years in exceptional cases) of his
appointment in the other department. The Government
of India have been considering whether this resignation
should entail forfeiture of past service for purpose of
leave and pension of the Government servant
concerned. It has been decided that such a resignation
should be deemed to be resignation within the meaning
of Article 418 (b) of CSRs [Rule 26 (2) of CCS(P)
Rules,1972] for pension. As a consequence of this
decision, continuity of service benefit should be allowed
in the matter of leave also."
24. The learned counsel for the petitioner contended that the
resignation tendered by the petitioner for joining his new post in a public
sector undertaking namely GAIL shall be treated as technical resignation,
as he applied for the said post with the approval of the competent authority
as provided under the office memorandum dated 17.8.2016 issued by the
Government of India, wherein the term 'technical resignation' is defined as
under:
WP(C) No. 1108 of 2018 Page 18
"2.1 Technical Resignation 2.1.1: As per the Ministry of
Finance OM No. 3379-E.III (B)/65 dated the 17th June,
1965, the resignation is treated as a technical formality
where a Government servant has applied through
proper channel for a post in the same or some other
Department, and is on selection, required to resign the
previous post for administrative reasons. The
resignation will be treated as technical resignation if
these conditions are met, even if the Government
servant has not mentioned the word "Technical" while
submitting his resignation. The benefit of past service,
if otherwise admissible under rules, may be given in
such cases. Resignation in other cases including where
competent authority has not allowed the Government
servant to forward the application through proper
channel will not be treated as a technical resignation
and benefit of past service will not be admissible. Also,
no question of benefit of a resignation being treated as
a technical resignation arises in case of it being from a
post held on ad hoc basis.
2.1.2 This benefit is also admissible to Government
servants who have applied before joining the
Government service and on that account the
application was not routed through proper channel. The
WP(C) No. 1108 of 2018 Page 19
benefit of past service is allowed in such cases subject
to the fulfillment of the following conditions: the
Government servant should intimate the details of such
application immediately on their joining; (ii) the
Government servant at the time of resignation should
specifically make a request, indicating that he is
resigning to take up another appointment under the
Government for which he applied before joining the
Government service; (iii) the authority accepting the
resignation should satisfy itself that had the employee
been in service on the date of application for the post
mentioned by the employee, his application would have
been forwarded through proper channel."
25. Clause 2.2 of the office memorandum dated 17.8.2016 provides
carry forward of leave benefits and same are quoted for ready reference:
"2.2 Carry forward of Leave benefits (i) In terms of Rule
9(2) of the CCS (Leave) Rules, 1972, technical
resignation shall not result in the lapse of leave to the
credit of the Government servant. The balance of
unutilized Child Care Leave (CCL) as well as all other
leaves of the kind due & admissible will be carried
forward. (ii) As per rule 39-D of the CCS(Leave)
Rules,1972, in case of permanent absorption in PSUs/
WP(C) No. 1108 of 2018 Page 20
Autonomous Bodies/ State Government etc., the
Government servant shall be granted cash equivalent
of leave salary in respect of EL & HPL at his credit
subject to overall limit of 300 days."
26. It is pertinent to note that the release of Government servants for
appointment in Central Public Enterprises has been stated in Note No.7 of
the Government of India's Decision No.1 below Rule 26 of CCS (Pension)
Rules, 1972, which reads as under:
"7. Release of Government servants for
appointment in Central Public Enterprises. - A
Government servant who has been selected for a post
in a Central Public Enterprise/Central Autonomous
Body may be released only after obtaining and
accepting his resignation from the Government service.
Resignation from Government service with a view to
secure employment in a Central Public Enterprise with
proper permission will not entail forfeiture of the service
for the purpose of retirement/terminal benefits. In such
cases, the Government servant concerned shall be
deemed to have retired from service from the date of
such resignation and shall be eligible to receive all
retirement/terminal benefits as admissible under the
WP(C) No. 1108 of 2018 Page 21
relevant rules applicable to him in his parent
organization."
27. In the case of hand, the petitioner who was serving in CRPF after
proper approval from his parent Department, joined the service in GAIL, a
public sector undertaking.
28. At this juncture, the learned counsel for the respondents
contended that since the petitioner joined in GAIL, a public sector
undertaking, his past services rendered in CRPF were not counted with his
new service and he was not given the benefits of DCRG and also sanction
accorded for payment of Rs.2,50,929/- on account of 126 days earned
leave i.e. half of 253 days earned leave in his credit.
29. As stated supra, by this writ petition, the petitioner claims release
of entire amount of leave salary for the unutilized earned leave and the
amount of gratuity entitled by him. The counting of past service of the
petitioner rendered in CRPF is not the prayer in this writ petition. Therefore,
counting of past service of the petitioner is not the subject-matter.
WP(C) No. 1108 of 2018 Page 22
Moreover, in his affidavit to the affidavit-in-opposition filed by the
respondents, in paragraph 16, the petitioner stated as under:
"16. ..... It is also very clear that the petitioner is not
entitled to link-up/counting the past services rendered
in the CRPF Organization in the present post as the
post being held by the petitioner is under Public Sector
Undertaking ..."
Since the question falling for consideration in this writ petition is whether
the petitioner is entitled to claim entire amount of leave salary for the
unutilised earned leave and the amount of gratuity, this Court discussed
about the entitlement of the petitioner qua the entire leave salary and
gratuity.
30. On a perusal of the advertisement - Career Opportunities in
Various Disciplines - issued by the GAIL, this Court finds that for the post
"Officer (Security)", the minimum qualification, essential experience and
age limit has been stated in paragraph 1, wherein the minimum essential
experience/credential for the post of Officer (Security) has been stated as
under:
WP(C) No. 1108 of 2018 Page 23
"Minimum 03 (three) years post qualification experience
as Inspector in Central Armed Police Force
Organizations (Assam Rifles, CIF, CRPF, BSF, ITBP,
National Security Guard, Sashtra Seema Bal)
preferably having experience in Security installations
and firefighting/first aid."
31. Thus, from the conditions stipulated in the advertisement it is
clear that the post Officer (Security) called for by the GAIL can be applied
only by persons holding the post of Inspector in Central Armed Police Force
Organisations, which means in-service candidates of CRPF organisations
only. GAIL (INDIA) Limited was incorporated in August 1984 as a Central
Public Sector Undertaking (PSU) under Ministry of Petroleum & Natural
Gas, with the Mission of "accelerating and optimizing the effective and
economic use of Natural Gas and its fractions for the benefit of the national
economy". Government of India now holds 51.76% shares of the company.
GAIL became a Navratna in 1997 and is now one of the ten Maharatna
Public Sector Undertaking, the highest status conferred to any PSU.
WP(C) No. 1108 of 2018 Page 24
32. Rule 49 of the CCS (Pension) Rules, 1972 provides:
"(1) In the case of a Government servant retiring in
accordance with the provisions of these rules before
completing qualifying service of ten years, the amount
of service gratuity shall be calculated at the rate of
half month's emoluments for every completed six
monthly period of qualifying service.
(1A) The dearness allowance admissible on the date of
retirement shall also be treated as emoluments for the
purpose of sub-rule (1.
In the case of a Government servant retiring in
accordance with the provisions of these rules after
completing qualifying service of not less than ten years,
the amount of pension shall be calculated at fifty per
cent of emoluments or average emoluments, whichever
is more beneficial to him, subject to a minimum of three
thousand and five hundred rupees per mensem and
maximum of forty-five thousand rupees per mensem."
33. Rule 39-D of the CCS (Leave) Rules, 1972 provides:
WP(C) No. 1108 of 2018 Page 25
"39-D. Cash equivalent of leave salary in case of
permanent absorption in Public Sector
Undertaking/Autonomous Body wholly or
substantially owned or controlled by the
Central/State Government:
A Government servant who has been permitted to be
absorbed in a service or post in or under a Corporation
or Company wholly or substantially owned or controlled
by the Central Government or State Government or in
or under a body controlled or financed by one or more
than one such Government shall be granted suo
motu by the authority competent to grant leave cash
equivalent of leave salary in respect of earned leave at
his credit on the date of absorption subject to a
maximum of 300 days in addition to the number of days
for which encashment has been allowed along with
Leave Travel Concession while in service]]. This will be
calculated in the same manner as indicated in Clause
(b) of sub-rule (2) of Rule 39.
Note. - The expression 'permanent absorption' used in
rule 39-D shall mean the appointment of a Government
servant in a Public Sector Undertaking or Autonomous
Body, for which he had applied through proper channel
WP(C) No. 1108 of 2018 Page 26
and resigns from the Government service to take up
that appointment."
34. It is apposite to mention that every employee of Government is
entitled to enjoy 20 days half pay leave for every year. There is no dispute
that the petitioner has rendered more than 10 years of service in CRPF.
Thus, applying 20x10-200 days half pay leave, which is equal to 100 days
full pay leave, the petitioner is entitled to the entire amount of leave salary
for the entire period of 300 days. Therefore, the contention of the
respondents that the petitioner is entitled to 126 days i.e. half of 253 days
leave salary is not sustainable. In view of Rule 39-D of the CCS (Leave)
Rules, 1972, the petitioner is entitled to the entire leave salary to over all
limit of 300 days.
35. As per Note 5 of the Government of India's Decision No.1 below
Rule 26 of the CCS (Pension) Rules, 1972, cash equivalent for earned
leave and half pay leave subject to over all limit of 300 days permitted.
Therefore, the petitioner is entitled to the entire amount of leave salary i.e.
WP(C) No. 1108 of 2018 Page 27
the amount of 300 days, as he has 253 days of unutilized earned leave at
his credit as admitted by the respondents.
36. From the Rules quoted above, it is clear that the resignation
made by the petitioner from the post of Inspector of CRPF shall be treated
as "technical resignation" as defined in the office memorandum of the
Government of India.
37. As stated supra, as per Note 7 of the Government of India's
Decision No.1 below Rule 26 of the CCS (Pension) Rules, 1972, a
Government servant shall be deemed to have retired from service from the
date of resignation and shall be eligible to receive all retirement/terminal
benefits as admissible under the relevant rules applicable to him in his
parent orgnaisation. Thus, the resignation tendered by the petitioner shall
be treated/deemed as retire from service and entitled to receive all
retirement/terminal benefits as admissible under relevant rules applicable
to him in his parent organisation.
WP(C) No. 1108 of 2018 Page 28
38. The resignation tendered by the petitioner has to be treated as
technical resignation and shall be given all his entitlements as provided
under Rule 39-D of the CCS (Leave) Rules, 1972. In view of the
discussions held supra, the contention of the respondents that the question
of forfeiture of the services rendered by the petitioner is not applicable.
However, the case of the petitioner is covered by the last but one paragraph
of the said Government of India's Decision No.1 below Rule 26 of the CCS
(Pension) Rules, 1972, as resignation tendered by the petitioner shall be
within the meaning of resignation as a technical formality. Therefore, the
petitioner is entitled to the DCRG as per the provisions of CCS (Pension)
Rules, 1972, including Section 4 of the Payment of Gratuity Act, 1972, as
he has rendered more than 10 years of continuous service against the
continuous service of 5 years in CRPF.
39. It is reiterated that as per the provisions of Service Rules,
including the provisions of CCS (Pension) Rules, 1972 as well as CCS
(Leave) Rules, 1972 and also the Decision of the Government of India
below Rule 26 of the CCS (Pension) Rules, 1972, including the provisions
of Payment of Gratuity Act, 1972 the petitioner is entitled to the benefits of
WP(C) No. 1108 of 2018 Page 29
unutilized earned leave as well as half pay leave which were due under his
leave account while he was serving in the CRPF as well as gratuity as
provided in the Payment of Gratuity Act, 1972. The benefits aforesaid
cannot be denied by the respondents to the petitioner by making
interpretation of the provisions of CCS (Pension) Rules, 1972 and CCS
(Leave) Rules, 1972 according to their choice though the said Rules
provided for allowing the petitioner to enjoy the benefits as claimed by him
in the writ petition.
40. In the result,
(1) The writ petition is allowed.
(2) The respondent authorities are directed to release
the entire amount of leave salary for the unutilized
earned leave of the petitioner i.e. the amount of 300
days as provided under Rule 39-D of the CCS (Leave)
Rules, 1972 as well as the amount of gratuity entitled
by the petitioner as provided under the relevant
provisions of the Service Rules, including the provisions
of CCS (Pension) Rules, 1972.
WP(C) No. 1108 of 2018 Page 30
(3) the said exercise shall be done within a period of
eight weeks from the date of receipt of a copy of this
order.
(4) No costs.
JUDGE
FR/NFR
John Kom
WP(C) No. 1108 of 2018 Page 31
