Union Of India Ministry Of Defence ... vs Col. (Ts) P.D. Poonekar

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8379 OF 2014

UNION OF INDIA AND OTHERS .. Appellant(s)

Versus

COL.(TS) P.D. POONEKAR .. Respondent(s)

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 devoted the prime years of life in service of the nation. Reason: 1

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

3 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

4 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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