IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. (T) No. 12466/2008 Date of decision: 12. 9. 2011 Sh. Sarb Singh Pathania …..Petitioner Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the petitioner: Mr. Ranjan Sharma, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral). The Original Application was filed by the petitioner under Section 19 of the H.P. State Administrative Tribunal Act, 1985 before the Erstwhile Tribunal, seeking following reliefs: “ (i) That the orders dated 19.5.2004 vide Annexure A4 giving less gratuity to the applicant on retirement on 31.12.2003 may be quashed and set aside. (ii) That the respondents may be directed to give the service gratuity of ` 119016 or such like amount in accordance with the CCS (Pension) 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - Rules and the OM’s vide Annexure A2 and A3, forthwith. (iii) That the respondents may be directed to give the benefit of permanency/ confirmation/ substantive appointment, as per Annexures A2 and A3, if required, for the purpose of giving higher rate of service gratuity pensionary benefits, forthwith. (iv) That the orders dated 29.5.2004 vide Annexure A5 giving leave encashment for only 113 days viz-a-viz the entitlement for 233 days, may kindly be quashed and set aside. (v) That the respondents may be directed to release the balance of amount of leave encashment for unpaid 120 days, forthwith. (vi) That the respondents may be directed to give interest on the gratuity amount w.e.f. 1.1.2004 till realization, along with interest as per the CCS (Pension) Rules, forthwith. (vii) That the respondents may be directed to give interest on the delayed payment of leave encashment w.e.f. 1.1.2004 till realization, which has been illegally withheld, forthwith. 2. After abolition of the Erstwhile Tribunal, the Original Application was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP (T) No. 12466/2008. 3. Heard and gone through the record. - 3 - 4. The facts giving rise to the present petition can be stated thus. Petitioner had rendered 28 years service in the Army and retired on 31.1.1991. Thereafter he was appointed as Senior Lab Technician Vide Annexure A1 dated 5.4.1991 in the State Health Department. Pursuant to that, he joined the service on 18.4.1994, in PHC Sainj falling under Banjar Block District Kullu. Respondent No. 2 Director Health Services fixed the petitioner at ` 1900/- per month salary protecting his last pay drawn by him in the Army w.e.f. 18.4.1994. As per the then existing practice, a person was to be confirmed only acquiring the lien against the permanent post but the respondent-State adopted and applied the law as per circular O.M. dated 28.3.1998 (Annexure A2) to the employees of the State government as per Annexure A3 dated 14.6.1994 specifying that an employee who completes the probation in the first appointment would be declared as permanent and such an employee shall hold the right, title or lien against a regular post whether permanent or temporary and this benefit was enjoyed by those who were declared permanent/confirmed after completing their probation period. 5. After completing normal probation period, the petitioner was entitled for his confirmation but till 1.4.2003 he was not confirmed for want of certain formalities. The - 4 - petitioner had rendered 9 years 8 months and 13 days service with the respondent in the civil post and got superannuated on 31.12.2003. Respondent No. 3 Chief Medical Officer vide order dated 19.5.2004 released only terminal gratuity to the tune of `15000/- for the aforesaid period ignoring the temporary service rendered by him before his confirmation against the said post. Now the aforesaid gratuity has been paid in August, 2005 after the delay of 1 year and 8 months for which the petitioner is seeking interest. 6. The second claim of the petitioner which now requires determination is with respect to the non-payment of leave encashment for 120 days out of 230 days which has been resisted by the respondents on the ground that the petitioner is not entitled for 120 days taking shield of the clarification issued under Rule 39 (2) (a) of the CCS (Leave) Rules,1972. 7. Ultimately the case of the petitioner for both the above claims was rejected vide Annexure A5 dated 29.5.2004 and Annexure A6 dated 24.9.2004. 8. Shri Ranjan Sharma, learned counsel for the petitioner regarding first claim submits that the petitioner is entitled for the interest amount on the delayed payment of DCRG as per provision of Rule 68 Read with instruction No. (2) below the aforesaid Rule. Regarding second - 5 - claim, his argument is that the CCS (Leave) Rules are not applicable to the persons who are covered by other special law. According to him, the petitioner was in the Army, therefore, the decision under Rule 39 (2) (a) as referred to by the learned Additional Advocate General for dealing the claim, does not apply to the petitioner. 9. In so far as claim No. 1 supra is concerned, CCS (Pension) Rules 1972 applies to government servants appointed on or before the 31st December, 2003 including civilian government servants in defence services, appointed substantially to civil services and post in connection with the affairs of the Union which are borne on permissible establishments but do not apply to the servants mentioned in rule 2 of the rules aforesaid. It does not recognize or make any distinction between the ‘permanent’ and the ‘temporary’ employees for the application of pension rules. Rule 50 of the rules aforesaid governs the grant of retiral gratuity to the government servant. Further the reference can also be made to Rule 68 of the said rules which provides that if the payment of gratuity is authorized less than the due date when its payment becomes due and if the delay involved is attributable to administrative lapse, the interest shall be paid on such amount as may be prescribed in - 6 - accordance with the instructions issued from time to time subject to the proviso added to it . 10. The Government of India’s decision No. 1 below this rule also needs consideration which further clarifies that under the rules aforesaid, gratuity becomes due immediately on retirement and Decision No. 2 provides where the payment of DCRG has been delayed beyond three months from the date of retirement, an interest at the rate applicable to GPF deposits will be paid to the retiree or his dependents, as the case may be. 11. In view of the above stated position, the petitioner is held entitled for interest on retiral gratuity w.e.f. 1.4.2004, i.e., 3 months after his retirement till August, 2005 on which date the entire DCRG amount was paid to him. Therefore, the petitioner is entitled for the interest, as provided in the concluding para of this judgment. 12. As far as leave encashment is concerned Rule 2 of the CCS (Leave) Rules, 1972 applies to the government servant appointed to the civil services and posts in connection with the affairs of the Union but shall not apply to the person in respect of whom special provisions have been made by or under the provisions of the Constitution or any other law for the time being in force. Here a reference to Rule 39 (2) (a) can usefully be made, it reads as under:- - 7 - “(a) Where a Government servant retires on attaining the normal age prescribed for retirement under the terms and conditions governing his service, the authority competent to grant leave shall suo motu issue an order granting [cash equivalent of leave salary for earned leave], if any, at the credit of the Government servant on the date of his retirement, subject to a maximum of [300] days.” [emphasis supplied] 13. The perusal of the aforesaid rule indicates that it applies only to the “Government servant” holding a “civil post”. The word “Government servant” is defined under Rule 2 (h) of the CCS (CCA), Rules as under:- “(h) Government Servant" means a person who (i) is a member of a service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; (ii) is a member of a service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government.” 14. The Constitution Bench of the Supreme Court in the State of Assam and others versus Kanak Chandra Dutta AIR 1967 SC 884 precisely observed that there is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of - 8 - Part XIV of the Constitution is indicated by their context and setting. In Article 311 ‘Civil Post’ means post not connected with defence outside regular services. Post is service or employment. A person holding a post under a State is a person serving or employed under the State, and is under administrative control of the State. There is a relationship of master and servant between State and person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. 15. Further another Constitution Bench decision in Dr. S.L. Agarwal vs. The General manager, Hindustan Steel Ltd. AIR 1970 SC 1150 the apex Court in para 7 of the judgment held as under:- “7.Clause (2) of the article, which gives the protection opens with the words "no such person as aforesaid" and these words take one back to Clause (1) which describes the person - 9 - or persons to whom the protection is intended to go. Clause (1) speaks of (i) persons who are members of (a) a Civil Service of the Union, or (b) an All India Service or (c) a Civil Service of a State, or (ii) hold a civil post under the Union or a State. (a), (b) and (c) refer to the standing services which have been created in the Union and the States and which are permanently maintained in strength. In addition to the standing services there are certain posts which are outside the permanent services. The last category in Article 311 (1) therefore speaks of such posts on the civil side as opposed to the military side. Incumbents of such posts also receive protection.” 16. The Kanak Chandra case supra (AIR 1967 SC 884) has been relied by yet another Constitution Bench of the Supreme Court in State of Gujarat and others versus Raman Lal Keshav Lal and others (1980) 4 SCC 653 holding that the expressions ‘civil post’ in entry 70 of List 1 of the Seventh Schedule to the Constitution and Entry 41 of List II of that Schedule refers to the State public services viz-a-viz part XIV of the Constitution and that the civil post and the military posts are altogether different. 17. In Union Public Service Commission versus Girish Jayanti Lal Vaghela and others (2009) 2 SCC 482 noting the definition of “Government servant” as defined in the CCS (CCA) Rules, reproduced para 9 of this judgment, held that holder of the civil post whether under - 10 - the Union or the State Government, would be a government servant for the purpose of CCS (CCA), Rules. 18. In view of the above stated position, it is thus clear that the Leave Rules, 1972 only applies to the “Government servant” and not to the persons who holds military post. Since the petitioner before joining civil post was holding military post, therefore, leave rules aforesaid cannot be made applicable to the service rendered under the CCS (Leave) Rules for the purpose of leave encashment. Hence, the petitioner is also held entitled to the leave encashment of 230 days and not 113 days as decided and concluded by the respondents. 19. Consequently, for the aforesaid reasons, Annexures A5 and A6 are quashed and set-aside and the petitioner is held entitled to interest on the retiral gratuity @ 8% w.e.f. 1.4.2004 till August, 2005, the date when it was actually paid to him and is also held entitled for leave encashment earned by him during civil post with respect to remaining 120 days. 20. No other relief or point pressed. 21. Therefore, petition is allowed to the above extent with cost quantified at `2000/-. 22. The respondents shall release the payment of the aforesaid amount on both the accounts to the - 11 - petitioner within a period 4 months from the date of production of the copy of this judgment. September 12, 2011 (Surinder Singh), (cm) Judge.