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2016 Supreme(Del) 176
IN THE HIGH COURT OF DELHI
SANJIV KHANNA And NAJMI WAZIRI, J.
DR. PRADEEP GARG - Petitioner
Versus
DIRECTOR, ALL INDIA INSTITUTE OF MEDICAL SCIENCES (AIIMS) - Respondent
WRIT PETITION(CIVIL) No. 7014/2015
Decided on : 12.1.2016
Mr. Rajeev Awasthi, Advocate.
Mr. R.K. Gupta, Advocate.
Ad hoc employees are entitled to encashment of earned leave as per the relevant OM, and the word 'termination' should be interpreted narrowly.
Headnote:
earned leave - ad hoc appointment - CCS (Leave) Rules, 1972 - OM dated 28th February, 1988 - grant of leave to ad hoc employees - encashment of earned leave - interpretation of 'termination' - payment for work performed
Fact of the Case:
Dr. Pradeep Garg, an ad hoc Assistant Professor at AIIMS, claimed encashment of earned leave of 108 days after nearly ten years of service. His claim was rejected, leading to a writ petition.
Finding of the Court:
The court found that the ad hoc employees were entitled to the benefit of encashment of earned leave as per the OM dated 28th February, 1988, and the word 'termination' should be interpreted in a limited sense. The court set aside the previous order and directed AIIMS to make the payment for earned leave.
Issues: The main issue was the entitlement of ad hoc employees to encashment of earned leave and the interpretation of the word 'termination' in the context of the OM dated 28th February, 1988.
Ratio Decidendi: The court held that ad hoc employees were entitled to encashment of earned leave as per the OM dated 28th February, 1988, and the word 'termination' should be interpreted narrowly, excluding cases where ad hoc employment comes to an end by efflux of time or when regular appointment is made.
Final Decision: The court allowed the writ petition, set aside the previous order, and directed AIIMS to make the payment for earned leave within two months, with an interest of 8 per cent per annum if the payment was delayed.
SANJIV KHANNA, J.
Dr. Pradeep Garg vide letter dated 8th August, 2002 after due selection was appointed as an Assistant Professor (Obstetrics and Gynecology) at the All India Institute of Medical Sciences, Delhi in the pay scale of Rs.11625-325-15200 plus non-practising allowance and usual allowances as admissible to Central Government Servants. The appointment was on an ad hoc basis for a period of three months from the date the petitioner would assume charge or till regular appointment was made, whichever was earlier.
The letter records the terms and conditions of employment. Clause (3) of the letter stipulated:-
“3. Other conditions of service such as benefits of provident fund, leave etc. will be in accordance with the rules and regulations of the Institute.”
Clause 6 of the letter mentions that the petitioner would be eligible for grant of house rent allowance as admissible to the Central Government servants of his status provided he would apply for institute accommodation and the same was not provided to him. The terms postulated that the petitioner could resign by giving one month notice or by depositing pay and allowances for the period by which the notice falls short. Clause 7 of the letter, read:-
“7. He/she should also note that he/she will have to conform to the rules discipline and conduct prevailing in this Institute and those imposed by the Institute on all their employees.”
2. The petitioner continued to work as Assistant Professor (Obstetrics and Gynecology) till 10th April, 2012. In other words he had worked for nearly ten years. During this period, he had earned credit of 108 days of earned leave, having not taken the said permissible leaves during this period.
3. Thereupon, the petitioner had claimed encashment of earned leave of 108 days. The prayer was rejected vide letter dated 11th August, 2012. The petitioner wrote another letter dated 11th August, 2012 drawing attention of the respondents to OM No. 13018/6/86-Estt.(L), Government of India, DOPT, asserting that the memorandum accords benefit of encashment of earned leave to ad hoc employees. When there was silence and failure to respond, the petitioner filed a writ petition before this Court, which was transferred to the Central Administrative Tribunal after the All India Institute of Medical Sciences was notified under Section 14 of the Administrative Tribunals Act, 1985. The TA No. 5/2014 filed by the petitioner stands dismissed vide order dated 16th April, 2015, recording that no employee would be entitled to benefit of encashment of earned leave on termination of his service. The services of the petitioner were terminated and, therefore clause 3 of the DOPT’s OM dated 28th February, 1988 would not entitle encashment.
4. Having heard learned counsel for the parties, we find it difficult to accept and agree with the reasoning given by the tribunal. Office Memorandum dated 28th February, 1988 relates to grant of leave to ad hoc employees and paragraphs 2 and 3 thereof read as under:-
“ 2. The President is now pleased to decide that employees whose appointment is treated as ad-hoc for purely technical reasons, may be extended the benefit of leave as admissible to temporary employees of the Vacation Department under the CCS (Leave) Rules, 1972. In other cases of ad-hoc appointment of staff categorised as ‘Vacation Staff’ which are of brief periods, if vacation is allowed with usual pay & allowances/leave salary, no leave shall be admissible. In case they are not allowed such vacation, they may be allowed earned leave @ 2 ½ days per month of service, as allowed to similar employees in non-vacation Department, subject to the conditions that:-
(a) Their services are utilised by the Administration on which they are borne during the period of vacation;
(b) If their services cannot be utilised during vacation for any reason their services should be terminated on the commencement of vacation; and
(c) While granting the leave it should be in terms
