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2012 DIGILAW 75 (JK)

Viqar Ahmad Ganaie v. State & Ors.

2012-02-24

MUZAFFAR HUSSAIN ATTAR

body2012
1. The petitioner was placed under suspension by respondent No.4 vide order No. 16 of 2010 dt. 25.02.2010. When suspension allowance was not paid to him the petitioner approached this court by filing SWPNo.893/2011. 2. The court disposed of the writ petition on 29th April 2011 and directed the respondents to consider the claim and take decision for release of subsistence allowance in accordance with rules. 3. The respondent No.4 send a communication to respondent No.2 bearing No.SBK/Estt/11/3021-B dated 15.07.2011. At endorsement 2 of the said communication the petitioner was conveyed that his claim for release of subsistence allowance does not fall within the purview of Article 109 of CSR. It is this communication which is called in question in this petition. 4. On notice issued, respondents have filed objections/reply affidavit, in which reference again is made to Art. 109 of CSR for rejecting the claim for release of subsistence allowance in favour of petitioner. 5. At the hearing attention of the court was not only drawn to the suspension order issued by respondent No.4 but to Article 108, 108-A of the CSR. Article 108 provides that a Government servant under suspension from the date of this suspension will be entitled to the payments, details whereof are mentioned in Article 108-A of the CSR which interalia provides for payment of subsistence allowance. 6. Article 109 of the CSR provides that a servant of the State committed to prison either on debt or for a criminal charge should be considered as under suspension from the date of his arrest and not allowed to draw any pay until termination would proceed against him. 7. Admittedly the petitioner is placed under suspension by an order passed by the authority. He is not entitled to receive any pay but in terms of Article 108,108-A he is definitely entitled to receive subsistence allowance. 8. The stand taken by respondents in this legal background cannot be sustained. 9. For the above stated reasons, this petition is disposed of in the following manner: By issuance of writ of certiorari the impugned order bearing No.SBK/Estt/11/3021-B is quashed. By issuance of writ of mandamus respondents are directed to consider the claim of petitioner for release of subsistence allowance in terms of Article 108,108-A of the CSR. 10. 9. For the above stated reasons, this petition is disposed of in the following manner: By issuance of writ of certiorari the impugned order bearing No.SBK/Estt/11/3021-B is quashed. By issuance of writ of mandamus respondents are directed to consider the claim of petitioner for release of subsistence allowance in terms of Article 108,108-A of the CSR. 10. The respondents to consider and take decision in the matter within a period of four weeks from the date copy of this order is served.