CHANDMAL UTTAMCHAND BORA Vs. GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Article 226 is for recovery of arrears of special pay alleged to have been wrongfully withheld from petitioner and interest thereon.

(2.) PETITIONER was in the subordinate judicial service of the State having been recruited thereto in the year 1949. Starting at the lowest rung, he rose to the position of a Selection Grade District and Sessions Judge. Well before reaching superannuation which event was to take place on 30th September 1976 petitioner applied for 120 days leave which he had earned. The same was refused in public interest. As a Government servant, petitioners service was governed by the then in force Bombay Civil Service Rules (BCSR ). Rule 753 thereof permitted and petitioner was allowed to avail of refused leave as from the day succeeding the last day of his service. During the period of refused leave the individual concerned though not working draws salary and allowances as distinct from pension. He cannot take up other employment except with the sanction of the Government. The oratically, he can be recalled to work. But this stage is not an extension or re-employment vis-a-vis the servant. In fact Rule 161 (d) says that it shall not be treated as sanctioning an extention of service, for the purposes of pensionary or contributory provident fund benefits or the retention of lien". Eligibility for pensionary benefits begins from the expiry of the refused leave-this is made clear in the remaining part of Rule 161 (d ). While on refused leave petitioner took over as Member, Industrial Court on 6-1-1977. District Judges while serving on ex-cadre posts and member, Industrial Court as also Registrar to the Office of the Lok-Ayukta and Upa-Lok-Ayukta being such posts-were entitled amongst other monetary benefits to a special pay of Rs. 300/- p. m. This pay was given also to persons re-employed, provided the re-employment occurred immediately after the attainment of superannuation. Petitioner worked as Member from 6-1-1977 to 31-3-1980 and as Registrar from 1-4-1980 to 31-3-1985. Special pay claimed for the periods not having been granted, petitioner has filed the instant petition. Arrears for the period served as Member were claimed in the petition filed in 1983. Unpaid amounts relating to the period when petitioner worked as the Registrar were brought in by way of an amendment to the petition effected in 1989. The total amount if due-would come to Rs. 29,700/ -. Petitioner seeks the same with interest at rate 15% p. a. from due date until payment.

(3.) THE claim is based on a two-fold basis. First, it is contended that petitioner having been appointed as Member while on refused leave must be deemed to have been drafted while in service. This coupled with immediate re-employment in the said post as also as Registrar entitled him to the rules and alternatively violative of the promise of equality enshrined in Article 14 of the Constitution.