Sohan Lal Bhatt v. Union of India & Ors.

under Article 226 / 227 of the Constitution of India has challenged the impugned orders Annexure P-4 and P-6, to the writ petition. The petitioner joined the service with the Border Security Force, as a Constable, Vehicle Mechanic (V.M) on 23.8.1989. An order was issued by respondent No.2 specifying therein that personnel of communication, MT and 'G' Sets up of frontier and Sector Headquarters of entire BSF shall be entitled to 60 days earned leave in a calendar year in view of the amendment of Rules 3 and 4 of B.S.F. Leave (Amendment) Rules, 1979, which reads as under :- “Order. CWP No. 17039 of 2009 -2- ***** Director General, Border Security Force, is pleased to order that the personnel of Communication, MT & 'G' Sets up of Frontier and Sector HQrs of entire BSF shall henceforth be governed by the provision contained under rule 3 & 4 of Border Security Force Leave (Amendment) Rules, 1979, notified MHA No. A. 24027/3/76/Staff/BSF-Pers)-II dated 26 May' 79 read with FHQ Circular No. A-24027/2/76- Staff/BSF dated 4.7.79. Accordingly they shall be entitled for 60 days Earned Leave in a calendar year subject to observation of relevant guide lines of the notified liberalized rules.

2. These orders are effective from the date of its issue and shall remain in force till further orders.” Thereafter on 9.5.1989, the instructions issued referred to above were clarified, to read as under :- “To All IsG BSF All DisG BSF Subject : Entitlement of 60 days EL in a Calendar year in R/o Personnel of Comn/MT/G Sets up of FTR/Sec CWP No. 17039 of 2009 -3- ***** HQRS-Clarifications thereof. Ref : This HQrs order No. 25017/1/86- Staff /BSF dated 5.8.88. Of late number of queries have been received from various Ftr/Sc HQRs, seeking Clarification whether officer / Ministerial Staff working in Comn/G/MT Set- up of Ftr HQ/Sec HQ are entitled for 60 days EL in a calendar year under the provision of this HQ letter under reference.

2. In order to have a clear interpretation of said orders, it is hereby clarified that all personnel (irrespective of ranks) of Comn/G/MT set-up of Frontier/Sector HQRs are entitled for 60 days EL in a calendar year in case they attend to their work invariably on Saturdays. Further it is likely to have effect in their accumulation of leave, details of which will be sent after getting Govt. orders on the subject.” Respondent, in view of the fact that the orders referred to above, were not passed by the competent authority. Therefore, a decision was taken to amend the rules to enforce the rules, which were in existence prior to amendment. This was done on 6.1.2000, Annexure P-3 reads as under :- “O R D E R CWP No. 17039 of 2009 -4- ***** Further to this Office Order No. 26017/1/86- STaff/BSF dated 05.08.88 regarding grant of 60 days E/L to the personnel of Communication, MT 'G' set up of Ftr HQrs/ SHQRs. The case has been re-examined and as desired by CA the facility for entitlement of 60 days E/Leave allowed provisionally to Comn. MT and 'G' set up vide Staff Section order referred above as no decision from MHA has been received so far inspite of protracted correspondence. In order to avoid audit objections at a later stage and to avoid recoveries for excess leave availed if any at the time of retirement of personnel for want of Govt. orders, the decision has been taken to withdraw the orders of entitlement of 60 days E/Leave to these personnel. Hence-force all these personnel will be entitled to 30 days E/Leave and 08 days casual leave in a calendar year at par with other personnel posted in Ftr HQrs/SHQrs.” In pursuance to the decision Annexure P-3 the impugned order Annexure P-6 was passed, wherein decision was taken that leave of all non-entitled categories was to be recasted from 5.8.1988 to 5.1.2000 with reference to their entitlement of 30 days earned CWP No. 17039 of 2009 -5- ***** leave in a year; and that the excess earned leave availed the official was to be adjusted against the future earned leave, followed by adjustment against leave encashment at the time of their retirement. The impugned order Annexure P-6 reads as under :- “Kindly refer your UO Note No. 1280-81 dated 26 Jun, 2009 vide which the application of No. 890065 Cont/VM Sohan Lal Bhatt of your Organization.

2. In this contest, it is stated that then DG BSF has already agreed to for entitlement of 60 days EL to pers posted in Comn. MT and 'G' set up & Water Wing of Ftr Hqrs/SHQrs keeping in view of their commitment. The necessary order for entitlement of 60 days E/L was issued on 05 Aug 1988 in this regard. Lateron, certain observations were made by IAP and then Dd (A/cs) PAD BSF. The case was taken up with MHA for granting approval of the leave entitlement to these categories of pers. But MHA has raised various objections and directed to roll back the orders whatsoever issued by BSF. Accordingly, above order was withdrawn on 06 Jan, 2000.\

3. After long pursuance of the case, with the approval of FA (Home) MHA (F-1), has allowed to adjust excess E/Leave as under. a) Leave of all non-entitled categories CWP No. 17039 of 2009 -6- ***** may be re-casted w.e.f. 5.8.1988 to

05.01.2000 with reference to their entitlement of 30 days EL in a year. b) The excess E/leave availed by non- entitled officials may be adjusted against the future E/L followed by adjustment against leave encashment at the time of their retirement. Decision of MHA was circulated to all concerned accordingly vide letter dated 15/21 July, 2003. The case stands pursued with MHA/DOP & T for almost 10 yrs. but they did not agree to proposal.” The contention of the learned counsel for the petitioner that the impugned order is arbitrary or beyond the jurisdiction having been passed in violation of natural justice, can not be accepted, as the authority competent to frame the rules can also amend the rules. In view of the fact that the amendment to the rules earlier made, was not by the competent authority. However, there is no force in the contention of the learned counsel for the petitioner, that the withdrawal of the benefit could not be with retrospective effect. The petitioner and similarly situated employees had performed the duties on Saturdays, Sundays and other Gazetted holidays to avail this benefit of additional 30 days leave. It is well settled law that benefit granted can not be drawn CWP No. 17039 of 2009 -7- ***** by retrospective effect. Consequently, while upholding the amendment in rules and withdrawing the additional benefit of leave, the retrospective operation of the impugned order is set aside. It is ordered that impugned orders Annexures P-3 & P-6 will have prospective operation from the date of issuance of these orders. The benefit of leave earlier availed by the petitioner and other similarly situated employees shall not be withdrawn or adjusted in future leave or adjusted against leave encashment. The impugned clause of impugned order Annexure P-6 i.e. Clauses 'a' and 'b' are set aside. The roll back order shall be operative w.e.f. 5.1.2000 and not earlier thereto. The writ petition is disposed off in above mentioned terms, but with no order as to costs.

06.09.2010 'sp' (VINOD K. SHARMA) JUDGE