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Himachal Pradesh High Court · body

2006 DIGILAW 368 (HP)

SHAKUNTLA DUTTA v. STATE OF H. P.

2006-11-24

M.R.VERMA

body2006
JUDGMENT M.R. Verma, Chairman.—The applicant herein has claimed the relief that the respondents be directed to pay her salary for July and August, 1993 with interest. 2. The case of the applicant in brief is that while posted as Trained Graduate Teacher in Government Senior Secondary School Dehar in the year 1993 she remained ill and availed medical/extraordinary leave w.e.f. May 28, 1993 to July 11, 1993 and September 1, 1993 to September 6, 1993 and also availed summer vacations w.e.f. July 12, 1993 to August 31, 1993 with the permission of and sanction by the competent authority/ Head of office vide Annexure-A/1. The applicant while under treatment was transferred to Government High School Nihri but was later adjusted in Government Senior Secondary School Debar where she joined after recovery from illness. Her pay however, was ordered to be withdrawn from Government High School Nihri and the matter was accordingly referred to respondent No. 3 who had not drawn and disbursed the salary of the applicant from July 12, 1993 to August 31, 1993 despite the sanction of leave having been conveyed to him which was admissible to the applicant under Rule 28 of CCS. (Leave) Rules (hereinafter referred to as the Rules). Several written and verbal requests of the applicant to respondents 2 and 3 for release of her vacation salary did not yield any fruitful result. The applicant therefore, issued legal notice Annexure- A/2 to the respondents for immediate release of her outstanding salary put of no avail. Hence this original applicant n on the ground that such refusal is arbitrary and illegal as the applicant has been singled out for non payment of salary. 3. The respondents contested the claim. In their reply while admitting I that the applicant remained on sanctioned leave for 112 days as claimed pave denied the claim for salary for the vacation period on the ground that the applicant was entitled to enjoy vacations in combination with |or in continuation of any kind of leave as per the provisions of Rule (4) of the Rules and the maximum leave for 180 days only could be granted as per the provisions of Rule 26 (2) of the Rules. It is further claimed that in case the vacation is combined with earned leave the whole spell will be reckoned as earned leave for the purpose of applying the limit upto which earned leave can be taken at a time and in case the employee had not sufficient earned leave at the time of proceeding on leave in combination or in continuation of vacation the remaining period will have to be regularized as leave of the kind due but the vacation period cannot be isolated or treated as separate period. Therefore, the applicant who had sand witched the vacation period with other leave, is not entitled for salary as the whole spell from May 28,1993 to September 6, 1993 has to be reckoned as leave within the meaning of Rule 28 (4) of the Rules because the contrary is not provided under the Rules and the applicant is misconstruing the provisions of Rule 28(4) of the Rules. Hence the claim has been denied. 4. The applicant filed rejoinder denying the defence taken by the respondents and reaffirming her claim as in the original application. 5. We have heard the learned Counsel for the applicant and the learned Deputy Advocate General for the respondents. 6. Sub-rule (4) of Rule 28 of Rules as adopted and adapted by the Government of Himachal Pradesh which is relevant for the purpose of controversy in the case in hand reads as under:-— "(4) Vacation may be taken in combination with or in continuation of any kind of leave under these rules: Provided that total duration of vacation and earned leave taken in conjunction, whether the earned leave is taken in combination with or in continuation of other leave or not, shall not exceed the amount of earned leave due and admissible to the Government servant at a time under Rule 26." 7. The relevant part of Rule 26 referred to in sub-rule supra i.e. sub-rule (2) of Rule 26 of the Rules ibid reads as follows:-— "Rule 26 (2) Subject to the provisions of Rules 7 and 39 and sub-rules (1) and (3) of the rule, the maximum earned leave that, may be granted at a time shall be— (i) (180) days, in the case of any Government servant employed in India, or" 8. On a plain reading of the above sub-rules it is clear that vacation may be combined with or taken in continuation of any kind of leave but the period of vacation is to be treated as leave for determining the maximum amount of earned leave that can be taken at a time i.e. 180 days. The restriction limiting the amount of leave plus vacation does not apply in the case of half pay leave or extraordinary leave and it is permissible to allow vacation to intervene between two periods of leave or the vacation can be prefixed or suffixed to leave. If any employee combines vacation with extraordinary leave he does not stand debarred from the payment of salary for the vacation period. He however, in such a cases does not become entitle to any salary for the extraordinary leave as an employee on extraordinary leave is not entitled to leave salary during the period of extraordinary leave (See the clarification vide H.P. Government Letter No. 10-2/61/- Fin (R&E)-II, dated the 10th December 1969 to the Headmaster Cantt. Board Primary School, Dalhousie) referred to in "CCS (Leave) Rules as adopted and adapted by H.P. Government" by S.K. Duggal at Page 85. 9. The State Government of Himachal Pradesh vides its communication H.P. Govt., F.D., letter No. 2-3/73 (Fin-Reg) dated the 8th October, 1974 to the Accountant General, H.P. has given further clarification about combination/ continuation of vacation leave as referred to at PP 86-87 of the aforesaid Rule-Book and the relevant parts thereof read as under— "Point 1. Vacation can be sand witched between two spells of leave of any kind but the total duration of vacation and leave if it is Earned Leave*** should not exceed 120 days (now 180 days) ***. The significance of words "combination with or in continuation of used in Rule 28 (3) (now Rule 28 (4)) of the CCS. (Leave) Rules, 1972 is that the combination denotes vacation availed of before the commencement of the leave and continuation when the vacation is availed of by an individual after the expiry of the leave without returning to duty. Point 2. It is confirmed that it is permissible to allow vacation to intervene between two periods of leave. Similarly vacation can he prefixed or suffixed to leave or both prefixed and suffixed. Point 2. It is confirmed that it is permissible to allow vacation to intervene between two periods of leave. Similarly vacation can he prefixed or suffixed to leave or both prefixed and suffixed. But this combination is subject to the restriction as discussed against point I above." 10. To the same effect is the clarifications issued by the H.P. Government vide H.P. Govt., F.D., letter No. 2-3/73- Fin (Reg) dated the 4th September, 1974 to the Accountant General, H.P. referred to at page 86 of the aforesaid Rule-Book. 11. It is evident from the aforesaid rules and clarifications that in view of the use of expression combination and continuation of vacation as used in sub-rule (4) of Rule 28 supra the vacation period can be sand witched between two spells of leave of any kind subject to the restriction that total period of earned leave and vacation should not exceed 180 days in case of leave other than earned leave this restriction will not be applicable. 12. In the case in hand, it is admitted case of the parties that the applicant availed 44 days earned leave w.e.f. May 28, 1993 to July 10, 1993, summer vacation from July 12, 1993 to August 31, 1993 and extra ordinary leave w.e.f. September 1, 1993 to September 6, 1993 as was duly sanctioned to her by the competent authority. The vacation availed of key the applicant though was sandwiched between extraordinary leave however, in view of the clarification referred to hereinabove the applicant will not be debarred from the payment of salary for the vacation period but will not be entitled for any salary for the extra ordinary leave period. The only contention raised for the respondents that summer vacation was sandwiched by the applicant between leave periods therefore, the vacation period cannot be isolated or separated from the leave is therefore misconceived and the applicant is entitled to the salary for the vacation period which she was allowed to avail. 13. The only contention raised for the respondents that summer vacation was sandwiched by the applicant between leave periods therefore, the vacation period cannot be isolated or separated from the leave is therefore misconceived and the applicant is entitled to the salary for the vacation period which she was allowed to avail. 13. In view of the above the respondents are directed to make payment t of salary of the applicant for the vacation period i.e. the period from July 12, 1993 to August 31, 1993 within three weeks of the passing of this order failing which the amount of salary hereinabove ordered to paid shall be payable with interest at the rate of 9% per annum from the date the salary hereby ordered to be paid became payable till thedate of payment thereof. This original application is disposed of in terms of the above orders with no order as to costs. Application disposed of.