Full Judgment Text
| REPORTABLE |
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8379 OF 2014
| UNION OF INDIA AND OTHERS | .. | Appellant(s) |
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Versus
| COL.(TS) P.D. POONEKAR | .. | Respondent(s) |
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J U D G M E N T
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
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.01.03
16:07:21 IST
Reason:
devoted the prime years of life in service of the nation.
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2. The Respondent, who is a doctor, joined the Army Medical
Corps as a Permanent Commissioned Officer on 27 February 1977.
He 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.
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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.
(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 subpara 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
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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 postgraduate 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
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returned to India and served the Army until he attained the age
of superannuation on 31 May 2013.
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).
.............................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
.............................J.
( M.R. SHAH )
New Delhi,
Dated: December 07, 2018.
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ITEM NO.45 COURT NO.13 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8379/2014
UNION OF INDIA & ORS. Appellant(s)
VERSUS
COL. (TS) P.D. POONEKAR Respondent(s)
Date : 07-12-2018 This appeal was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Appellant(s) Mr. S.B. Upadhyay, Sr. Adv.
Ms. Sunita Rani Singh, Adv.
Mr. Mukesh Kumar Maroria, AOR
For Respondent(s) Mr. Mani Bhushan Sinha, Adv.
Mr. Pranab Prakash, Adv.
Mr. Gopal Singh, AOR
UPON hearing the counsel the Court made the following
O R D E R
The Civil Appeal is disposed of in terms of the Signed
Reportable Judgment.
Pending applications, if any, also stand disposed of.
(GEETA AHUJA) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
(
The Signed Reportable Judgment is placed on the file)
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