IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2011 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.7015 of 2011 CDR SP Ilangovan (Rtd) ... Petitioner Vs. 1. The Defence Secretary, Ministry of Defence, South Block, New Delhi – 110 011. 2. The Chief of the Naval Staff, Sena Bhavan, DHQ Post, New Delhi – 110 011. ... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus, calling for the records relating to his Leave encashment and examine the propriety and validty of the Naval Head Quarters Letter No.PA/5424 dated 23.3.2000 which denied him his leave encashment of remaining 60 days standing in his credit, in contravention of the contents of the Government of India Ministry of Defence G.O.No.4(2)/98/D(AG-1) dated 20.3.1998 and quash the same as unconstitutional and not valid in law and direct the respondents to pay the petitioner the leave encashment for the remaining 60 days of surrendered leave standing in his credit as authorised vide Government of India Ministry of Defence G.O.No.4(2)/98/D(AG-1) dated 20.3.1998, as per the revised pay scale of VI CPC with 12% interest from 1.1.2006 i.e, the date of revision of pay scale as per VI CPC and award cost. For Petitioner : Mr.CDR SP Ilangovan, Party-in-person For Respondents : Mrs. R.Maheswari, SCGSC O R D E R By consent, the main writ petition itself is taken up for disposal. https://hcservices.ecourts.gov.in/hcservices/ 2. The prayer in the writ petition is to quash the order dated 23.3.2000 denying leave encashment of remaining 60 days standing in petitioner's credit, which was issued in contravention of the contents of the letter dated 20.3.1998 of the Ministry of Defence, Government of India, and direct the respondents to pay to the petitioner the leave encashment for the remaining 60 days of surrendered leave standing in his credit as authorised by the letter dated 20.3.1998 as per the revised pay scale of VI CPC with 12% interest from 1.1.2006. 3. The case of the petitioner as could be seen from the affidavit filed in support of the writ petition are as follows: (a) The petitioner was commissioned in the Indian Navy as Direct Entry Officer on 10.3.1969. After completing 29 years of service in Indian Navy, petitioner took pre-mature retirement from Navy with effect from 1.4.1998 and at that time he was working in the rank of Commander from MSQAA (Missile System Quality Assurance Agency), Hyderabad. Prior to retirement, in the year 1997, the petitioner was posted as Office-in-charge, Guided Missile Standardisation System in Defence Standardisation Cell at Hyderabad. (b) It is stated in the affidavit that during the last few months of petitioner's service, there were some misunderstanding with his higher officials. Due to the said misunderstanding, he applied for premature retirement from Navy and after retirement, he wrote a letter to the Official explaining the entire events and sought for pardon for any misgivings and misunderstandings. Even though several events are stated in the affidavit for the disposal of the matter in issue in this writ petition, this Court is not narrating the entire facts mentioned. (c) According to the petitioner, he has already surrendered 314 days of annual leave upto 1996, which was in his credit, out of which he is eligible to encash 300 days in view of the ceiling fixed by the orders of the first respondent Department. However, the petitioner was allowed to encash only 240 days of accumulated leave, instead of 300 days. The said action is justified in this writ petition on the ground that increase of days upto 300 days was ordered only by order dated 20.3.1998 of the Ministry of Defence, Government of India, and prior to the said order a total period of 240 days alone can be credited as leave on remuneration and encashment was permissible. (d) The contention of the petitioner is that even though the said order was issued on 20.3.1998, it was given retrospective effect from 1.7.1997 and therefore the said enhancement of 300 days is applicable to him, who was in service upto 1.4.1998 and declining the encashment of 60 days earned leave to him is discriminatory and arbitrary. https://hcservices.ecourts.gov.in/hcservices/ 4. Respondents have filed counter affidavit contending that the Ministry of Defence, Government of India having issued the order on 20.3.1998 and as the petitioner was not in service as on the said date, he is entitled to get the benefit of accumulation of leave only for 240 days, which was the rule prevailed on the date of the pre-mature retirement of the petitioner, that was on 1.4.1998. It is also stated in the counter affidavit that the leave accumulated after 1.7.1997 alone can be encashed as per the order of the Government of India dated 20.3.1998 and the leave accumulated earlier cannot be counted and therefore the petitioner was rightly given 240 days of accumulated leave for encashment. 5. Heard the petitioner, who appeared as party-in-person and the learned Senior Central Government Standing Counsel appearing for the respondents. 6. The issue arises for consideration in this writ petition is as to whether the petitioner can get 300 days of earned leave in toto for encashment. 7. It is not in dispute that the total number of days for encashment of earned leave was increased from 240 days to 300 days by the order dated 20.3.1998 of the Ministry of Defence, Government of India. The said order reads as follows: "No.14(2)/98/D(AG) Government of India, Ministry of Defence, New Delhi. 20th March, 1998 The Chief of the Army Staff, The Chief of the Navy Staff, The Chief of the Air Staff, Subject: Recommendation of the Fifth Central Pay Commission Enhancement of the ceiling on accumulation of annual Honorary Commission. Crs, Ucs (R) and corresponding cadres in Navy and Air Force for purpose of encashment of Enhancement of Ceiling from 240 days to 300 days. Sir, I am directed to refer to this Ministry's letter No.E14(3)/88/D(AG), dated 20th December, 1991 and 10th January of the President to enhance the ceiling of accumulation and encashment of leave to Defence service https://hcservices.ecourts.gov.in/hcservices/ Personnel at the time of encashment as under: (a) 15 years and above, but, ... Upto 240 days below 17 years (b) 17 years and above, but, ... Upto 270 days below 22 years (c) 22 years and above ... Upto 300 days The benefit of enhanced leave accumulation and encashment mentioned in para 1 above will be subject to the following conditions: (i) Not more than 30 days shall be allowed to be accumulated in a calendar year. Annual leave of the year of retirement will be encashed as follows: (a) Those retiring on .. 15 days 31st January of the year (b) Those retiring in .. 30 days February and thereafter (ii) The total number of days of leave encashed including leave of the year of retirement shall not exceed 300 days. The above orders shall take effect from 1st July, 1997. This issues with the concurrence of the Ministry of Defence, Finance vide their G.O.No.107-PA, dated 12.7.98. Yours faithfully, Sd/-xxxxxxxxxxxx (W.P.VARGHESE) (Under Secretary to the Govt.of India)" The said order was given retrospective effect from 1.7.1997. 8. Petitioner's leave was also calculated by the department on 19.2.1998 and a copy of the same is filed at page No.24A of the typed set of papers. The said calculation even though was made at the instance of the petitioner, the same was verified, recommended, forwarded and certified that the petitioner is due for 300 days encashment of accumulated leave. The said calculation, recommendation as certified, reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "APPLICATION FOR ENCASHMENT OF ACCUMULATED ANNUAL LEAVE ON RETIREMENT 1. Bank Name & Personal No.: CDR.SP.ILANGOVAN (00966W) 2. Designation : Dy.Director (Trishul), MSQAA, Hyderabad. 3. No.of days encashment due: 300 days. Year No.of days Total 1983 15 15 1984 15 30 1985 15 45 1986 28 72 1987 30 103 1988 30 133 1989 30 163 1990 17 180 1991 23 203 1992 30 233 1993 13 246 1994 -- 246 1995 30 276 1996 30 306 1997 -- 306 4. Details of A/L availed during the year of retirement : 45 days Date: 19.2.98 (SP.ILANGOVAN) Cdr (00966W) ------------------------------------------------- Recommended & forwarded. Certified that the Officer is due 300 days encashment of A/L. (P.PANT) COMMODORE ADDL.DIR.MSQAA, KANCHANBAGH, HYD-58 Signature of CO/Superior Officer" https://hcservices.ecourts.gov.in/hcservices/ 9. The contention of the respondents that only leave credited after 1.7.1997 alone can be counted beyond 240 days is not the contents and purport of the order of the Ministry of Defence, Government of India, dated 20.3.1998. It is stated in the said order that the Ministry of Defence, as early as in December, 1991, addressed letters to the President to enhance the ceiling of encashment of accumulated leave for defence personnel at the time of retirement. The conditions stated in the said order are that in a calendar year only maximum of 30 days shall be allowed to be accumulated, and that the total number of days of leave encashed including leave of the year of retirement shall not exceed 300 days. Thus, the reason stated by the respondents and argued by the learned Standing Counsel is contrary to the order of the Government of India. The recommendations made as extracted above, reveals that in all the years the petitioner has not exceeded 30 days. The respondents being bound by the order above extracted, are therefore not justified in restricting the accumulated earned leave to 240 days for the purpose of encashment. The second respondent is not justified in giving narrow interpretation to the order of the first respondent. 10. For the reasons stated above, the impugned order is unsustainable and the same is set aside. The respondents are directed to permit the petitioner to encash the remaining 60 days of accumulated leave standing in his credit in terms of the Government of India letter dated 20.3.1998 and pass necessary orders with eligible interest for belated payment, within a period of three months from the date of receipt of copy of this order. The writ petition is allowed with the above direction. There is no order as to costs. vr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Defence Secretary, Ministry of Defence, South Block, New Delhi – 110 011. https://hcservices.ecourts.gov.in/hcservices/ 2. The Chief of the Naval Staff, Sena Bhavan, DHQ Post, New Delhi – 110 011. + 1 cc to Mr. Command SP Ilangovan (RTD) Party in Person SR No.37292 + 1 cc to M/s. S. Maheswari, Advocate SR No.37299 KSK(CO) SR/29.6.2011 Order in W.P.No.7015 of 2011 https://hcservices.ecourts.gov.in/hcservices/