WP(C) 7171/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) The petitioner while serving as Assistant Executive Engineer (Ci vil) in Assam State Electricity Board (in short, the ASEB ) was sent on deputat ion vide order dated 18.12.1995 passed by the Administrative Officer, ASEB and w as placed under disposal of Panchayat and Rural Development Department, Governme nt of Assam for appointment as Executive Engineer, District Rural Development Ag ency, initially for a period of one year, with effect from the date of handing o ver the charge on the following conditions:- 1. During the period of deputation, the officer may elect to draw either hi s own grade pay and other allowances as admissible under the Board’s rules and o rders in force from time to time or pay scale of the foreign employer Govt. of A ssam plus deputation allowance as may be admissible under the rule of the foreig n employer. 2. The deputation commences as soon as the officer is released and ends whe n joins Board’s service, he will be give joining time as may be admissible under rules. 3. The foreign employer will pay the officer usual traveling allowance and daily allowances for tour connected with work under it at the rates admissible t o its officers of similar status. 4. Leave salary and pension contributions inrespect of the officer, while o n foreign service will be paid by the foreign employer to the ASEB as per rules of the Board in force from time to time. 5. The disability leave will be governed by the provisions of F. Rs. and S. Rs. 6. The officer will remain subject to the leave rules of the parent organiz ation and leave travel concession as per foreign employer rules as applicable to its officer of similar status. 7. The foreign employer shall provide Rs.200/- as Medical Allowance for the officer. 8. Regarding accommodation facilities the officer will be governed by the r ule of the Foreign employer. 9. The officer will not be allowed to join any pension or GPF scheme of the foreign employer. 2. The under Secretary to the Government of Assam, Panchayat & Rura l Development (C) Department, on being placed the service of the petitioner at t he disposal of the said Department by the ASEB vide order dated 18.12.1995, post ed him as Executive Engineer, DRDA, Sibsagar on deputation initially for a perio d of one year at his own grade, pay and allowances, which the petitioner has opt ed. The petitioner accordingly joined in the post of Executive Engineer, DRDA, Sibsagar and was subsequently transferred as Executive Engineer, DRDA, Karimganj . While he was serving in the said capacity at Karimganj, he applied for medica l leave from 19.02.1999 to 10.12.1999 to the borrowing Department, namely the Pa nchayat & Rural Development (C) Department, Government of Assam, which Departmen t issued a communication dated 03.03.2000 to the ASEB Authority relating to the leave admissibility report. The ASEB Authority consequently vide communication dated 04.04.2000 informed the Deputy Secretary, Government of Assam, Panchayat a nd Rural Development (C) Department that the petitioner had got 240 days of earn ed leave and 264 days half pay leave at his credited as on 18.02.1999. The Gove rnor of Assam was pleased to allow the petitioner to avail the earned leave of 1 80 days and commuted leave of 115 days with effect 19.02.1999 to 10.12.1999 on m edical ground, which was communicated to the petitioner vide office order dated 30.08.2000 (02.09.2000). The petitioner was, thereafter, reverted to the parent Department vide order dated 21.02.2001 wherefrom he, having opted for voluntary retirement, was retired from service on 01.02.2005. The case of the petitioner is that though under the terms of deputation, which was accepted by the Governme nt of Assam, the leave salary and pension contributions in respect of the petiti oner is to be paid by the borrowing Department, the leave salary for the period from 19.02.1999 to 10.12.1999 has not been paid by the borrowing Department to t he ASEB Authority for which the ASEB Authority has not paid the same to him. It is the further case of the petitioner that since the period is included in the period from 14.04.1998 to 30.09.2000 for which a separate salary bill has been p repared, the salary for the said period from 14.04.1998 to 30.09.2000 has not be en paid to the petitioner, which according to the petitioner, is required to be deposited by the Panchayat and Rural Development (C) Department, Government of A ssam with the ASEB Authority for payment to the petitioner. It is also the case of the petitioner that because of non payment of the salary for the same period , the benefit under the Voluntary Retirement Scheme, which the petitioner has op ted for, has not been paid to him. 3. I have heard Mr. S. Shyam, the learned counsel for the petitione r as well as the learned Standing Counsel, ASEB appearing on behalf of the respo ndent Nos.4 and 5 and Mrs. Phukan, the learned State Counsel appearing on behalf of the respondent Nos.1, 2 and 3. 4. Mr. Shyam, the learned counsel for the petitioner has submitted that since the Government of Assam has accepted the order of deputation dated 18 .12.1995 with the conditions stipulated therein, whereby and whereunder the peti tioner has been deputed and placed at the disposal of the Panchayat and Rural De velopment Department, Government of Assam, the said Department is duty bound to pay leave salary as well as the pension in respect of the petitioner to the ASEB Authority for payment to the petitioner, which having not been done inspite of the several representations filed, he has to approach this court for issuance of necessary directions in this regard. The learned counsel appearing on behalf o f the respondent Nos.4 and 5 referring to the statements made in the affidavit-i n-opposition filed on their behalf supporting the case of the petitioner has sub mitted that unless the amount is deposited by the borrowing Department it is not possible on the part of the ASEB Authority to pay the amount to the petitioner and as soon as the amount is deposited, the same will be paid to the petitioner together with the amount payable for voluntary retirement under the Scheme. Mrs . Phukan, the learned State Counsel appearing on behalf of the respondent Nos.1, 2 and 3 referring to the communication dated 21.11.2000 issued by the Project D irector, DRDA, Karimganj to the Commissioner and Secretary, Panchayat and Rural Development (C) Department has contended that as for the leave period, i.e. from 19.02.1999 to 10.12.1999 another person was engaged as Executive Engineer to wh om the salary was paid, the leave salary for that period could not be paid to th e petitioner as there is only one post of Executive Engineer. 5. It is evident from the order of deputation dated 18.12.1995 that the leave salary and pension contribution in respect of the petitioner is requi red to be paid by the borrowing Department to the ASEB as per rules of the Board in force from time to time. The said order of deputation dated 18.12.1995 was accepted by the Panchayat and Rural Development (C) Department, Government of As sam and vide order dated 03.01.1996 posted the petitioner as Executive Engineer initially at Sibsagar and was subsequently transferred to DRDA, Karimganj. Ther e is no dispute that the petitioner has opted to draw the salary in his own grad e and other allowances admissible under the ASEB Rules and Order in force and he served in the borrowing Department from January 1996 to 21.02.2001, on which da te he was reverted to the parent Department, i.e. the ASEB. There is also not d ispute that from 14.04.1998 to 30.09.2000, which includes the period of medical leave from 19.02.1999 to 10.12.1999, the petitioner was under deputation in Panc hayat and Rural Development (C) Department and, therefore, the salary payable fo r the said period is required to be paid by the borrowing Department in the pay scale to the petitioner in terms of the condition of deputation. The petitioner applied for medical leave for the said period from 19.02.1999 to 10.12.1999 to the borrowing Department, in respect of which the borrowing Department wrote to the parent Department about the admissibility of leave. The parent Department, on receipt of such communication, informed the borrowing Department vide communi cation dated 04.04.2000 about the availability of 240 days earned leave and 264 days of half pay leave at the credit of the petitioner as on 18.02.1999. The Go vernor of Assam consequently was pleased to allow the petitioner to avail the ea rned leave for 180 days and commuted leave for 115 days with effect from 19.02.1 999 to 10.12.1999 on medical grounds. Inspite of granting such leave vide order dated 30.08.2000 (02.09.2000) issued by the Deputy Secretary, Government of Ass am, Panchayat and Rural Development Department, the petitioner has not been paid his salary for that period and as the said period is included in the pay bill f or the period from 14.04.1998 to 30.09.2000 the salary for the entire period whi ch includes the period from 19.02.1999 to 10.12.1999 has not been paid to the pe titioner. 6. The Government of Assam having accepted the terms of deputation, which requires the borrowing Department to pay the leave salary and having perm itted the petitioner to avail the medical leave for the period from 19.02.1999 t o 10.12.1999 is bound to pay the leave salary for the said period, which has not been done in the instant case. The stand taken by the State as reflected vide c ommunication dated 21.11.2001 (Annexure-8 to the writ petition) cannot be accept ed as the petitioner was deputed to the Panchayat and Rural Development (C) Depa rtment and, therefore, the said Department is duty bound to pay the leave salary payable to the petitioner for the said period having accepted the terms of the deputation. 7. In view of the aforesaid position, I direct the respondent Nos.1 , 2 and 3 to deposit the leave salary for the period from 19.02.1999 to 10.12.19 99 with the ASEB Authority within a period of two months from today. The said r espondents, namely the respondent Nos.1, 2 and 3, shall also deposit the salary and other allowances payable to the petitioner for the period from 14.04.1998 to 30.09.2000, which includes the period for which the leave was granted and for w hich the leave salary is directed to be paid, if the said amount has not already been paid to the petitioner or deposited with the ASEB Authority for payment to the petitioner. The ASEB Authority immediately, thereafter, shall release the s ame to the petitioner. 8. Relating to the prayer of the petitioner for directing the ASEB Authority to pay the amount due and payable to him under the Voluntary Retiremen t Scheme, it has been submitted by the learned counsel for the ASEB that the pet itioner is not furnishing all the required particulars for the purpose of calcul ating and releasing the amount payable to the petitioner, which Mr. Shyam, the l earned counsel for the petitioner has disputed. Be that as it may, the ASEB Aut hority shall within a period of 15 days from today inform the petitioner about t he requirement of furnishing any particulars apart from the particulars, which h ave already been submitted by the petitioner for the purpose of sanctioning and payment of the amount due and payable under the Voluntary Retirement Scheme. Th e petitioner, thereafter, shall furnish the required particulars. The ASEB Autho rity, upon receipt of such particulars from the petitioner, as well as within tw o months from the date of receipt of the amount towards the salary from the resp ondent Nos.1 to 3, as directed above, shall release the benefit payable to the p etitioner under the Voluntary Retirement Scheme. The petitioner shall furnish a certified copy of this order before the Chairman of ASEB as well as before the Secretary, Panchayat & Rural Development Department, Government of Assam for com pliance. 9. The writ petition is accordingly allowed to the extent indicated above. No cost.