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1998 DIGILAW 587 (MP)

Uday (Major) v. L. I. C. of India

1998-08-11

S.KULSHRESTHA

body1998
JUDGMENT The short question raised in this petition by the petitioner is whether in the light of the provision made in the Regulation No. 203 and 204 of the Regulations for the Territorial Army, 1948, the petitioner who is serving under the respondent Life Insurance Corporation of India is entitled to the credit of the leave for the period spent by him from time to time for attending Annual Camp in the Territorial Army? The petitioner joined the service of the respondent Life Insurance Corporation in the year 1958 and during Chinese aggression the petitioner was selected in the Territorial Army as a Commissioned Officer. The petitioner served the territorial Army from 1965 to 1971. The petitioner submits that Regulation 203 makes provision with regard to absence from duty of Government servants enrolled in Territorial Army and Regulation 204 in regard to service of Government servants to be counted towards increment, half pay, etc. when called out or embodies under S. 7(3) of the Territorial Army Act. According to the petitioner, the period spent by him to render the said service entitles him to the credit of leave in his employment under the respondent which stands denied by the said respondent. The petitioner, therefore, seeks a writ of mandamus or a direction or order against the respondent to treat the period spent by the petitioner in the Territorial Army as a period spent on duty and further that the same be treated as on duty for the purpose of civil leave and pension. The respondent has filed its return in which the respondent has pointed out that although the respondent being a statutory corporation is covered within the expression "State" under Art. 12 of the Constitution of India, employees of the respondent on that count cannot be treated to be Government servants. The stand of the respondent is that Regulation 203 and 204 on which reliance has been placed by the petitioner apply only where a person is a Government servant and will, therefore, have no application in the case of employment of the petitioner under the respondent Life Insurance Corporation; he being not a Government servant by virtue of the same. The Territorial Army Act, 1948 in S. 14 empowers the Central Government to make Rules to carry out the purposes of the said Act. The Territorial Army Act, 1948 in S. 14 empowers the Central Government to make Rules to carry out the purposes of the said Act. However, the learned counsel for the petitioner has not been able to point out any provision in the said Act enabling the Central Government to frame Regulations. The Regulations for the Territorial Army, 1948 (1976 Edition) in clause (b) indicate that the said Regulations have been issued under the authority of the Central Government and are, therefore, apparently in the nature of executive instructions. Since the cause has been founded on the construction of Regulation 203 & 204, the same are reproduced hereunder for ready references: "203. Absence from Duty of Government Servants Enrolled in Territorial Army -- When Government servants enrolled in the Territorial Army attend the Annual training or courses of instruction, the period of absence from duty shall not be deducted from any casual or other leave which may be admissible to them, and shall be regarded as duty for the purposes of civil leave and pension. 204. Service of Government Servants to count towards Increment of Pay, etc. -- Government servants, called out or embodied under Section 7(3) of the Act if on incremental salary, will count such military service towards increment in civil pay and also towards civil pension, if they would have counted for that purpose their corresponding service in the civil department but for their deputation to military service. As regards leave will continue to be governed by the civil rules applicable to them before transfer to military service." The real contest between the parties is with regard to the applicability of Regulation 204 of the said Regulations. A bare reading of the Regulation 204 manifests that the said Regulation makes provision in respect of Government servants called out or embodied under S. 7(3) of the Act and admittedly, the petitioner does not belong to the category of Government servants while serving under the respondent Corporation. Learned counsel has pointed out that other statutory and corporate bodies such as Banks have made a provision to grant benefit of Regulation 204 to such employees who periodically serve under the Territorial Army and, therefore, respondent Corporation was also under a duty to grant the benefit of the same to the petitioner. Learned counsel has pointed out that other statutory and corporate bodies such as Banks have made a provision to grant benefit of Regulation 204 to such employees who periodically serve under the Territorial Army and, therefore, respondent Corporation was also under a duty to grant the benefit of the same to the petitioner. Merely because other corporate bodies or statutory bodies have made a provision, it will not create any statutory obligation in so far the respondent Life Insurance Corporation is concerned to grant the same benefit to the employees cif the Corporation. Since the Regulation does not make any provision for the employees of such Corporation but only for the Government servants as is clear from the language used in the Regulation, no relief can be granted to the petitioner on the basis of Regulation 204. The respondent is, however, free to consider the request of the petitioner and to extend the benefit if it so desires keeping in view the purpose and spirit behind the said Regulation. The petition is, therefore, dismissed with no order as to costs. The security deposit, if outstanding, be refunded to the petitioner after due verification.