Om Prakash Yadav vs Union Of India & Ors.

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-

Brief facts of the case are that applicant was initially appointed as Vet. Dresser in the office of respondent No. 3 (Military Farm Allahabad). He sought request for transferring on compassionate ground from Military Farm Allahabad to 508 Army Base Workshop, Allahabad. The request of the applicant for transfer to 508 Army Base Workshop, Allahabad has been considered and posted in the office of respondent No. 4 as Labour. Applicant submitted his application dated 3.2.2012 regarding credit of earned leave and half pay leave in lieu of posting from Military Farm Allahabad to 508 Army Base Workshop, Allahabad. When no action has been taken on the representation of the applicant, he submitted several reminders. Respondent No. 5 with ulterior motive issued bill voucher No. E-12/SPB dated 28.06.2012 amounting to Rs. 98620/- in lieu of encashment of earned leave. Aggrieved against the aforesaid letter, applicant represented on 18.09.2013 to the respondent No. 4 requesting him to credit earned leave and half pay leave in respect of applicant who was transferred and posted on compassionate ground. Respondent no.4 issued impugned letter No.20603/Est-Ind dated 16.3.2015 and taking shelter of respondent no.3's letter wherein it has been mentioned that persons posted from non-industrial to industrial post, leave (EL/HPL) standing in the credit of the individual is not to be carried forward and such EL/HPL is to be audited and encashed as the individual would be absorbed against an industrial post where he could be governed by C.D.S. (Leave) Rules 1954/Factories Act 1948. Applicant represented to respondent no.4 against the letter dated 16.3.2015 on 24.3.2015. In response to the aforesaid representation of the applicant, respondent no.4 issued impugned letter No.20603/Encash-EL/MF-Alld/Est-Ind dated 05.06.2015 and ordered that as per letter of 05.03.2015 of respondent no.2, applicant is not entitled to credit his leave account, while posted under respondent no.4. Aggrieved against the aforesaid impugned orders, applicant preferred present OA.

I have heard Shri S.K. Kushwaha, learned counsel for the applicant and Shri Raghvendra Pratap Singh, learned counsel for the respondents and perused the record.

Submission of the learned counsel for the applicant is that applicant was initially working at Military Farm, Allahabad on the post of Veterinary Dresser. Applicant was transferred to the present department on dated 09.10.2009 since then he is working in 508 Army Base Workshop, Fort, Allahabad. There is provision as would be clear from Annexure A-7 that earned leave accrued in favour of the applicant in the old department will be counted and added in the earned leave in the new department. To substantiate his argument, learned counsel for the applicant referred to Annexure A-7 of the OA, further argued that respondents have denied the benefit of earned leave accrued in favour of applicant in the old department vide the impugned order. Referring to the entire document and pleading taken in the matter, it was further argued that order passed under challenge is illegal and arbitrary. Learned counsel for the applicant referred to the transfer order dated 09.10.2009 (Annexure A-3) and further argued that transfer order itself make it clear on this point that earned leave accrued in the old department shall be added in the new department. Learned counsel for the applicant also referred to Annexure A-11 and further argued that reasoning given in the order dated 2.8.2013 is not applicable in the case of the applicant. Learned counsel lastly argued that applicant is still in service, irreparable loss has occasioned due to impugned order, thus argued to allow the OA and to direct the respondents to add the earned leave accrued in favour of the applicant in old department in the earned leave accrued in the present (new) department.

In rebuttal, learned counsel for the respondents argued that as per the service documents, the applicant was initially appointed as Veterinary Dresser at Military Farm, Allahabad. It is argued that applicant was already serving in a unit which is located at Allahabad, but sought posting on compassionate grounds for the same station Allahabad. Consequent to issue of posting by Competent Authority, the applicant reported for duty to 508 Army Base Workshop, Allahabad on his permanent posting from Military Farm, Allahabad w.e.f. 30.11.2009. On receipt of service book from Military Farm, Allahabad, there was earned leave for 256 days in the credit of applicant which has not been encashed at the time of his being posted out from Military Farm, Allahabad. It is further argued that it has been clarified by the respondents on the information sought by the applicant under RTI Act that Vet Dresser is a non- industrial post and thus the leave is governed by Rule 6 of CCS (Leave) Rules, 1972 which stipulates that while being posted out from non-industrial to industrial post, leave (EL/HPL) in the credit of the individual is not to be carried forward and such EL/HPL is to be encashed by the old department as the individual would be absorbed against an industrial post. It is next argued that in accordance with Rule 6 of CCS (Leave) Rules, 1972, the service documents of the applicant was forwarded to Military Farm, Allahabad for necessary audit and to pay the amount of leave encashment of the applicant. It is contended that in response to above, contingent bill was prepared and forwarded to Area Accounts Office, Allahabad for payment, however, the Area Account Office vide their letter dated 1.08.2013 returned the contingent bill to Military Farm, Allahabad. Learned counsel for the respondents lastly argued that all such individual who have reported to 508 Army Base Workshop on their posting and where the change of category is involved, their payment of leave have been encashed by their parent units and paid to the individuals without any ambiguity.

I have considered the rival submissions advanced by the learned counsel for the parties and gone through the entire record.

From the perusal of record, it is evident that letter issued by Under Secretary to the Government of India for all concerned offices regarding carry forward of leave balance of a defence civilian employee on transfer/appointment/promotion from non-industrial to industrial Establishment clarified that “it has been decided to allow defence civilian employees, on their transfer/appointment promotion from Non-Industrial Post governed by COS(Leave) Rules, 1972 to a post in an Industrial establishment governed by CDS(IF) Leave Rules, 1954, to carry forward their Leave Balance at their credit on the date of such appointment/transfer/promotion subject to the maximum limits of accumulation as laid down in Rule 26 of CCS(Leave) Rules, 1972”. It is also pertinent to mention here that applicant was initially appointed in Military Farm, Allahabad which is non-industrial unit and on compassionate ground transfer, he has been transferred to 508 Army Base Workshop, Fort, Allahabad. If the facts and circumstances of the case are compared with the facts disclosed in the aforesaid rule, it is abundantly clear that applicant’s case will be governed by the aforesaid rule. Thus, I am of the view that respondents will be directed to consider the request of the applicant to carry forward his leave balance at his credit on the date of such transfer subject to the maximum limits of accumulation as laid down in Rule 26 of CCS(Leave) Rules, 1972.

In view of the above, OA is allowed. Impugned orders dated 16.03.2015 and 5.6.2015 are hereby quashed. Respondents are directed to consider the request of the applicant to carry forward his leave balance at his credit on the date of such transfer subject to the maximum limits of accumulation as laid down in Rule 26 of CCS(Leave) Rules, 1972 in the light of letter issued (referred to above). This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. All associated MAs are disposed of. No order as to costs.