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J&K High Court · body

2002 DIGILAW 214 (JK)

A. K. Sadhu v. State Of J. &K.

2002-07-16

T.S.DOABIA

body2002
As the nature of controversy involved in these petitions is similar, therefore, these shall stand disposed of vide this common judgment. Petitioners in this case are claiming limited relief. This relief is to the effect that as migrant employees they are entitled to get House Rent Allowance and City Compensatory Allowance. It is submitted that as they are being treated as migrants and are being paid the salary which is termed as migrant salary, therefore, whatever salary is being given to others should be given to them also. It is not in dispute that the petitioners migrated from Kashmir to Jammu. It is also not in dispute that they are entitled to the salary in terms of various orders issued by the General Administration Department from time to time. It is also not in dispute that whenever any increase was made in the Dearness Allowance, the benefit of that was also given to these employees, in some case, the category of such employees was unable to reach Jammu. They had continued to remain in Kashmir valley but were not performing the actual duties. The period was more than 120 days. Notwithstanding this, the Government order was issued on 26th June 91. This was to the effect thatceiling of 120 days prescribed in Rule 26(2) of the Jammu and Kashmir Civil Service (Leave) Rules 1979, would not be applicable to such employees. In a nutshell, what is being submitted in that when the migrant employees are being treated as the employees in service and when in the matter of giving promotion and other benefits, their claims are being considered, then denial of House Rent Allowance and City Compensatory Allowance is not justifiable. The stand by the respondents is that in terms of SRO 76 of 1992 and more particularly Regulation 41(1), House Rent Allowance and City Compensatory Allowance can be allowed for a period of four months and this is the maximum period which is available to an employee who is on leave. It is on account of this Rule, the petitioners are being denied House Rent Allowance and City Compensatory Allowance. It is on account of this Rule, the petitioners are being denied House Rent Allowance and City Compensatory Allowance. Order dated 14th June 2001, passed by the Finance department has been placed on the record as Annexure R. C. Thus, the short question which is required to be gone into is as to whether SRO 76, referred to above, would be attracted to the facts and circumstances of this case. After having gone through the pleadings of the parties, I am of the opinion that SRO 76 would apply to that Government servant who applies for leave and he continues to be on leave beyond the period of four months. The petitioners do not belong to this category, and therefore, SRO 76/92 would not apply to them. They never applied for leave and the question of putting a ceiling of four months in their case would not arise. Petitioners migrated Kashmir valley to Jammu on account of the circumstances which need not to be elaborated here again. These factors are well known to the State administration. With a view to avoid extraordinary situation which had arisen, the State took a decision and created a category of employees known as migrant employees. These migrant employees are entitled to pay. This is not being disputed. The term `pay would include other emoluments such as Dearness Allowance and other allowances. House Rent Allowance and City Compensatory Allowance is also an allowance. This is part and parcel of pay. It is accordingly held :-- (i) That SRO 76/92 which prescribes that an employee who has remained on leave beyond 120 days would not be allowed House Rent Allowance and City Compensatory Allowance, would not be applicable to petitioners who are not availing of leave of their own; (ii) That the migrant employees is a different category of employees and different notifications for them have been issued by the State Government from time to time. They have been held entitled to pay. This would include all the allowance which are normally payable to a civil servant.; (iii) That so far as Regulation 41 of the Jammu and Kashmir Civil Services House Rent Allowance and the City Compensatory Allowance Rules of 1992 is concerned, that would apply to that employee who takes leave, voluntarily of his own. Petitioners have never applied for leave. This would include all the allowance which are normally payable to a civil servant.; (iii) That so far as Regulation 41 of the Jammu and Kashmir Civil Services House Rent Allowance and the City Compensatory Allowance Rules of 1992 is concerned, that would apply to that employee who takes leave, voluntarily of his own. Petitioners have never applied for leave. It is on account of the decision taken by the State Government, they are being treated as migrant employees and for the purposes of paying salary, a new nomenclature has been evolved. This has been termed as `leave salary. This leave salary, which as indicated above is being paid to the migrants not on account of the situation which has arisen by Regulation 41 but on account of a situation which has arisen on account of peculiar and extra-ordinary circumstances. In view of the above, I am of the opinion that petitioners are entitled to all the benefits including House Rent Allowance and City Compensatory Allowance. Let this amount be calculated and paid to them within a period of four months from the date, a copy of this order is made available to respondents by the petitioners. The said allowances would be continuously paid to the petitioners in future also. It. is clarified that wherever these allowances were withheld, these would be calculated and the amount i.e. arrears due would be released in favour of the petitioners within the period above mentioned. Disposed of accordingly.