UNION OF INDIA AND OTHERS versus COL. (TS) P. D. POONEKAR
[2018] 14 S.C.R. 1268, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Facts
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UNION OF INDIA AND OTHERS
v.
COL. (TS) P. D. POONEKAR
(Civil Appeal No. 8379 of 2014)
DECEMBER 07, 2018
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service law: Armed Forces – Study leave – Extended – Grant
of pay for extended period – Entitlement – Extension of study leave
granted to respondent, a doctor in Army Medical Corps – However,
he was not granted allowances for the extended study leave period
– His request to authorities was rejected – Armed Forces Tribunal
directed Union of India to release pay and allowance for the
extended period of study leave period – Appeal by Union of India
– Held: Army Instructions 13/1978 clearly stipulate that during the
period of study leave, an officer shall draw full pay of the substantive
rank –  Clause 5(b) states that study leave will count as service for
pay, promotion and pension – If the period of study leave is extended
on a special dispensation by the President of India, there is no
justification for the Army authorities and the Union of India to deny
the benefit of pay and allowances on the same terms and conditions
as was allowed during the original period of study leave – Appellants
are directed to pay to the respondent all the outstanding dues – The
entire period of study leave to be counted for the payment of retiral
benefits.
Disposing of the appeal, the Court
HELD: There is no dispute over the fact that during the
original
period of twenty four months, the Respondent was granted
his pay and allowances.  Moreover, Clause 5(b) stipulates that
study leave will count as service for pay, promotion and pension.
Eventually, Army Instructions 13 of 1978 came to be amended
on 19 May 2009 as a result of which the period of study leave for
post-graduate courses of study in Health Sciences was extended
to thirty six months.  The original period of study leave of twenty
four months was extended by twelve months in terms of the
request which was made by the respondent.  Once the period of
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study leave was extended on a special dispensation by the
President of India, there was no reason or justification for the
Army authorities and the Union of India to deny the respondent
the benefit of pay and allowances on the same terms and conditions
as was allowed during the original period of study leave.  The
appellants are accordingly directed to pay to the respondent all
the outstanding dues within a period of two months together with
interest at the rate of nine per cent per annum.  The entire period
of study leave shall also count for the payment of retiral benefits
and a re-computation as may be warranted shall be made within
two months. [Paras 7, 8, 11][1271-D-G; 1272-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8379
of 2014.
From the Judgment and Order dated 11.04.2012 and 17.05.2012
of the Armed Forces Tribunal, Regional Bench at Guwahati in O.A. No.
01 of 2012 & M.A. No. 12 of 2012 in O.A. No. 01 of 2012.
S. B. Upadhyay, Sr. Adv., Ms. Sunita Rani Singh, Mukesh Kumar
Maroria, Advs. for the Appellants.
Mani Bhushan Sinha, Pranab Prakash,  Gopal Singh,  Advs. for
the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Personnel belonging to the Armed Forces serve the nation in
challenging conditions and inhospitable terrain.  The Medical Corps attend
to the sick and the wounded.  A specialist in prosthetic surgery belonging
to the Army Medical Corps has had to pursue his tryst with justice over
a
quarter of a century, denied his pay for the extended period of study
leave abroad.  Despite the sanction for the extended period by the
President of India, the Union Government has denied him his pay.  In
retirement now, he defends the judgment of the Armed Forces Tribunal
granting him the pay over the extended period of study leave.  Justice
has been delayed, inordinately delayed. That it was not denied should be
a small recompense for an officer who devoted the prime years of life in
service of the nation.
2. The Respondent, who is a doctor, joined the Army Medical
Corps as a Permanent Commissioned Officer on 27 February 1977.  He
UNION OF INDIA AND OTHERS v. COL. (TS) P. D.
POONEKAR
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completed his post graduation with an MS in Surgery and was posted to
the Artificial Limb Centre at Pune. The Centre provides specialised
medical services to armed forces personnel, veterans and civilians.  He
was granted study leave to pursue a specialization in Prosthetic Surgery
for a period of twenty four months in the US at the University of Miami,
Florida. The period of study leave was two years. Permission was granted
on 22 May 1990.  On 10 March 1992, the Respondent made an application
seeking an extension of twelve months to complete the course of study.
As a special case, an extension was granted on 17 September 1992 for
a further period of twelve months. However, on 08 April 1993, he was
informed that the allowances payable to him were discontinued.  On 19
October 2004, the request of the respondent for the grant of pay for the
period of extension was rejected. Challenging it, the respondent instituted
proceedings before the Armed Forces Tribunal which culminated in the
impugned order dated 11 April 2012.  The Tribunal, while allowing the
application, directed the Union of India to release the  pay and allowances
to the respondent for the extended period of study leave of twelve months.
3. Assailing the judgment of the Tribunal, the Union of India is in
appeal before us.
4. Army Instructions 13/1978 govern the grant of study leave.
Clause 5 of the Instructions is in the
following terms :
“5. Pay and promotion during Study leave :
(a) During Study Leave officers will draw full pay of the
substantive rank.
(b) Study Leave will count as service for pay, promotion and
pension but not for leave.  It will, however, not affect any period
of qualifying service for the grant of furlough, rendered before
the officer proceeded on Study Leave.
(c) For other purpose like allotment of accommodation etc.
the officer will be treated as if he is on furlough.”
5. Besides this, the attention of the Court is also drawn to Clause
5 of the earlier Army Instructions, 191/62. They read thus:
“5.  Secondment
(a) An Officer may be seconded for a period not exceeding 12
months for the purposes of attending a course in a recognized
institution.
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(b) Such secondment will normally be granted in continuation of
any privilege or Study Leave, provided that the total period of
absence from duty will not exceed two years.
(c)  While thus seconded, the officer will not receive any pay
from Government funds, but the period of secondment will be
counted for purposes of increments of pay, promotion, seniority
and pension but not for gratuity, subject to sub-para 4(g).
(d) This secondment may be allowed in installments of not less
than two months, at a time.”
6. The submission which has been urged on behalf of the Union
of India is that in view of the provisions contained in Clause 5 of Army
Instructions 191/62, an officer, on being seconded, is not entitled to receive
any pay from government funds.
7. The submission of the appellants cannot be accepted for the
simple reason that Army Instructions 13/1978 which have been issued
subsequently, clearly stipulate that during the period of study leave, an
officer shall draw full pay of the substantive rank.  Indeed, there is no
dispute over the fact that during the original period of twenty four months,
the Respondent was granted his pay and allowances.  Moreover, Clause
5(b) stipulates that study leave will count as service for pay, promotion
and pension.  Eventually, Army Instructions 13 of 1978 came to be
amended on 19 May 2009 as a result of which the period of study leave
for post-graduate courses of study in Health Sciences was extended to
thirty six
months.
8. The original period of study leave of twenty four months was
extended by twelve months in terms of the request which was made by
the respondent.  Once the period of study leave was extended on a
special dispensation by the President of India, there was no reason or
justification for the Army authorities and the Union of India to deny the
respondent the benefit of pay and allowances on the same terms and
conditions as was allowed during the original period of study leave.
9. In his counter affidavit, the respondent has stated before the
Court that after completing his course of studies, he returned to India
and served the Army until he attained the age of superannuation on 31
May 2013.
UNION OF INDIA AND OTHERS v. COL. (TS) P.D.
POONEKAR [DR. DHANANJAYA Y CHANDRACHUD, J.]
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10. The interpretation which was placed on the Army Instructions
by the Armed Forces Tribunal is  eminently correct and does not warrant
interference in appeal.
11. The appellants are accordingly directed to pay to the respondent
all the outstanding dues within a period of two months from today together
with interest at the rate of nine per cent per annum.  The entire period of
study leave shall also count for the payment of retiral benefits and a re-
computation as may be warranted shall be made within two months.
12. The Civil Appeal is disposed of in the above terms.  The
respondent shall be entitled to costs quantified at Rs.50,000/- (Rupees
Fifty Thousand).
Devika Gujral
Appeal disposed of.