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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
A.A. SAYED, JYOTSNA REWAL DUA, JJ.
Amita Gupta – Appellant
Versus
State of Himachal Pradesh and others - Respondents
C.W.P. No. 7359 of 2021
Decided on : 01-12-2022
Post of Senior Architect - Retired from service - Pay-scale - Superannuation - Respondent PWD issued a notification on releasing the two tier pay scale to petitioner - She was found eligible for the pay scale of Rs. 37400-67000+8600 Grade Pay with initial start of Rs. 46,000/- after 14 years of service -Petitioner was held entitled to this pay scale on notional basis w.e.f. and on actual basis - Consequent upon recommendations of the screening committee dated petitioner’s pay was refixed in higher pay scale Grade Pay after completion of 14 years regular service vide Annexure P-3 - Pay of the petitioner was fixed on notional basis for period and on actual basis from onwards - Pursuant to re-fixation of petitioner’s pay, revised sanction was accorded in her favour for payment of leave encashment of 300 days of un-utilized earned leave. The order in this regard was passed by the respondent department (Annexure P-4) - Amount of leave encashment already paid to the petitioner at the time of her retirement - Amount of revised leave encashment in light of re-fixation of her pay, post retirement was worked out at - Balance leave encashment amount due to petitioner- Whether the pay fixed on notional basis shall be counted for leave encashment or not. [Para 4]
Finding of Court : It is hereby clarified that if any increase in DA/ADA is sanctioned by Government with retrospective effect and Government servant concerned was eligible for same on date of his retirement/quitting service, then difference between leave salary already paid and leave salary payable according to new rates will be admissible to the Government servant concerned, notwithstanding fact that one-time settlement had already been made prior to the date of issue of orders regarding increase in DA/ADA, etc - Once revised DA/ADA is to be taken into consideration for revising payable leave encashment at the time of retirement, then certainly revised pay of an employee re-fixed from a retrospective date prior to his retirement is also to be taken into consideration for revising leave encashment - Respondents are directed to implement Office Order dated (Annexure P-4) - Balance amount of leave encashment due to petitioner in terms of office order dated be paid to her within a period of four weeks from today - Petitioner shall also be entitled to costs of Rs. 25,000/- to be paid to her by respondents alongwith due balance leave encashment amount within aforesaid period – Court also clarify that in case this amount is not paid within a period of four weeks, same shall also carry interest @ 5% per annum from due date.
Result : Writ petition stands disposed off.
JUDGMENT :
Jyotsna Rewal Dua, J.
Actual monetary benefits admittedly due to the petitioner towards revised leave encashment, on account of re-fixation of her pay in higher pay-scale from a retrospective date after her superannuation, are not being released by the respondents. Hence, the writ petition.
2. Facts
2(i) On attaining age of superannuation, the petitioner retired from service on 30.09.2020 from the post of Senior Architect.
2(ii) The Finance Department issued a letter on 14.11.2014 to the effect that the Government had re-introduced the process of granting two tier pay scale in the revised pay structure by granting the corresponding revised pay structure to the category of Architects in the Public Works Department (in short PWD) as per the schedule appended to the Himachal Pradesh Civil Services (Revised Pay) Rules 2009 with immediate effect. Keeping in view the decision taken in the Finance Department letter dated 14.11.2014, a further decision was taken by the Finance Department on 21.09.2020 (Annexure P-1) to allow the two tier pay scale in respect of the Architects of P.W.D. on notional basis w.e.f. 27.08.2009 (without grant of arrears) and on actual basis w.e.f. 14.11.2014.
2(iii) In furtherance of the decision taken on 21.09.2020, the respondent PWD issued a notification on 15.12.2020 (Annexure P-2) releasing the two tier pay scale to the petitioner. She was found eligible for the pay scale of Rs. 37400-67000+8600 Grade Pay with initial start of Rs. 46,000/- after 14 years of service. Petitioner was held entitled to this pay scale on notional basis w.e.f. 01.01.2013 and on actual basis w.e.f. 14.11.2014. Consequent upon recommendations of the screening committee dated 15.12.2020, the petitioner’s pay was refixed in the higher pay scale of Rs. 37400-67000+8600 Grade Pay after completion of 14 years regular service vide Annexure P-3 on 31.12.2020. Pay of the petitioner was fixed on notional basis for the period 01.01.2013 to 13.11.2014 and on actual basis from 14.11.2014 onwards.
2(iv) Pursuant to re-fixation of petitioner’s pay, revised sanction was accorded in her favour for payment of leave encashment of 300 days of un-utilized earned leave. The order in this regard was passed by the respondent department on 10.02.2021 (Annexure P-4). The amount of leave encashment already paid to the petitioner at the time of her retirement was Rs. 13,93,520/-. The amount of revised leave encashment in light of re-fixation of her pay, post retirement was worked out at Rs. 14,78,530/-. The balance leave encashment amount due to the petitioner was thus Rs. 85,010/-. This amount, however, was not released to the petitioner by the State Treasury for the following reasons/objection(s) dated 20.01.2021 contained in Annexure P-5
(2) Kindly follow instructions No. Fin(C)A(3)-1/2008, dated 13th August, 2013.
2(v) Regarding payment of balance leave encashment to the petitioner, the matter was followed up by the Chief Architect, HP PWD (respondent No. 3). On 07.04.2021, he wrote to the Engineer-in-Chief HP PWD (respondent No. 2) justifying the payment of balance leave encashment amount to the petitioner in view of revision of her pay scale post her retirement. In his communication at Annexure P-7 dated 07.04.2021, he was of the view that pay of the petitioner was fixed on actual basis w.e.f. 14.11.2014 and she had been paid the arrears on that basis after her superannuation, hence balance leave encashment amount ought to be paid to her. Request was accordingly made to issue necessary clarification in the matter. Some correspondence was exchanged on the subject between the respondents. Finally on 22.09.2021 (Annexure P-11), respondent No. 2 turned down the case of the petitioner for balance payment of revised leave encashment with following observations :-
The Chief Architect,
HP. PWD, Nigam Vihar
Point of Law : Once the revised DA/ADA is to be taken into consideration for revising the payable leave encashment at the time of retirement, then certainly revised pay of an employee re-fixed from a....
Revised leave encashment is payable if pay is refixed retrospectively, even if leave encashment was earlier settled in a lump sum, as the eligibility relates to the date of retirement.
Recovery of leave encashment from retirees is impermissible without due process, including affording notice and an opportunity to defend against claims of wrongful payment.
The entitlement to Revised Leave Encashment based on the revised pay scale and the reliance on previous judgments to support the claim.
The entitlement to Revised Leave Encashment based on the revised pay scale and resultant financial up-gradation w.e.f. 1.1.2016 is subject to the petitioner making a representation to the Chief Conse....
Retired employees are entitled to leave encashment as a matter of legal right, and undue delays in payment due to pending inquiries are not justified.
Leave encashment - Beyond the period of superannuation no benefit of leave is available to a government employee.
The main legal point established in the judgment is the entitlement of an employee to leave encashment benefits upon compulsory retirement, as per Regulation 38 and judicial interpretations, and the ....
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