R.N.Sharma vs State of J & K

Perdoabia, J.—The appellant in this appeal was sent on deputation. An order to this effect was issued being order No. 216/ME of 1987

dated 26061987. He was to join with SheriKashmir Institute of Medical Sciences, Soura, Srinagar. It is not in dispute that the appellant in fact had

joined there. What is in dispute is as to whether he is entitled to deputation allowance or not. The case of the appellant before a learned Single

Judge of this court was that as he was sent to an orgainsation which was not a State department, therefore, he was entitled to deputation

allowance. As per him the bar of R52 (D) of the Jammu & Kashmir Civil Service Regulations would be attracted only if he was sent on deputation

from one Government department to another. The SheriKashmir Institute of Medical Sciences was not held to be a Government department. It

was on this reasoning the learned Single Judge of this court allowed the writ. It was concluded that the appellant was entitled to deputation

allowance. The fact that SheriKashmir Institute of Medical Sciences is an independent organisation is being disputed by the learned counsel

appearing for the State. The appellant in pursuance of the judgment given by this court was paid the difference of salary in September, 1996. He

has come to this Court. He seeks payment of interest. This is the subject matter of appeal preferred by him. This bears No. LPA (SW) No.

171/1995.

2 The State is also feeling aggrieved against the judgment given by the learned Single Judge. It is urged

(i) that the Institute in question is part and parcel of the Government;

(ii) that in terms of Regulation 42 (D) of the J&K Civil Service Regulations, the writpetitioner was not entitled to any deputation allowance;

(ii) that only Doctors who have been selected and appointed by the Institute are entitled to higher emoluments and not those who are sent on

deputation;

(iv) that the respondent/writpetitioner is not entitled to any deputation allowance and he can claim only that salary which he was getting as an

employee of the Health Department.

3 The learned counsel for the appellant has also urged that had he been working with the State Government, then he would have been permitted

private practice. This is not being allowed to a Doctor who is working in the said Institute.

After having heard the learned counsel for the parties, we are of the opinion that so far as the argument of Mr. Dubey is concerned that is

devoid of merit. The Government letter dated 21091989 is a complete answer to the argument which is being raised by the learned counsel for the

State. In this letter it was observed:

Government of Jammu & Kashmir

General Administration Department. No. GD (Ser) KAS/H/Sgr dated 21091989.

The Administrative Officer (Per) S. K. Institute of Medical Sciences, Srinagar. Sub: Deputation of Prof. R. N. Sharma to SKIMS

Sir,

I am directed to refer to your letter No. SKIMS/Per/2638/898859 dated 01081989 regarding the above subject and to say that as per standard

terms of deputation contained in the J&K CSR, a deputationist will have an option either to get his pay fixed on the deputation post under the

operation of the normal rules or to draw pay of the post held by him in his parent department plus a deputation allowance. As per rule 52C (iii) of

the J&K CSR an option exercised in this behalf shall be final except that on each occasion when such an employee receives proforma promotion in

his parent Department or is reverted to a lower grade in the parent department or is appointed to another grade in the new department or there is a

revision of pay scales in his parent department a fresh option shall be allowed to him. In case the doctor has not given any option for drawing pay

of the post held by him in his parent department he shall be admissible to get the pay of the deputation post in which event he would not be

admissible to draw any deputation allowance.

Yours faithfully

Sd/

Under Secretary to Government General Administration Deptt.

Independently of the above Regulation 45D clearly lays down that deputation allowance is not permissible if a person is sent from one

Government Department to another. A learned Single Judge of this court has observed that the Institute in question is an independent body. It is

not controlled by the State Government. It has also been observed that merely because the Chief Minister happens to be the Chairman of the

Managing Committee of that Institute cannot lead to the conclusion that the Institute in question is part and parcel of the Government. We are of

the opinion that the findings recorded by the learned Single Judge that the Institute in question is an independent body and is not a Government

Department is a finding which has been recorded on proper appreciation of material on record.

Another question as to whether the writ petitioner i. e. appellant in LPA (SW) No. 171/95 is entitled to interest or not be now examined.

The view expressed by the Supreme Court of India is that in case some emoluments are payable and these are withheld then the interest is

payable.

In case R. Kapoor V/S. Director of Inspection (1994 (6) SCC 589) the Supreme Court allowed the same @ 18%. While doing so reliance

was placed on an earlier decision reported as State of Kerala Vs. M. Padmanabhan Nair (1985 (1) SCC 429). Similar opinion has been

expressed in some other cases and without multiplying the judicial procedure on the point, it can safely be concluded that the interest at the rate of

12% per annum can be allowed.

In the above cases the interest has been allowed at the rate of 12% p. a. The fact that the appellant/writpetitioner retired on 31081990 is

apparent form Govt. order dated 20061990 and the fact that even after decision was given by this court, the arrears were not paid for almost 18

months is a matter which cannot be ignored. The ratio of the aforementioned cases do apply to the facts of this case. Thus, the

appellant/writpetitioner is held entitled to interest at the rate of 12%. Let this amount be paid within three months from the date copy of this order is

made available by the appellant/writpetitioner to the respondentauthorities. In case this is not done the rate of interest would be 18% and this

enhanced amount of interest shall be payable by the person from his own pocket on whose negligence the delay occurs. The interest would be

payable with effect from the date payment was wrongly withheld. Disposed of accordingly. No costs.