Judgment:
ORDER
N.G. Nandi, J.
1. The question involved in this Writ Petition is whether an Air Force Personnel taking voluntary retirement before completion of the qualifying service in Air Force, would be entitled to the encashment of entire leave balance.
2. The say of the petitioner is that he joined the service of Indian Air Force w.e.f. 27.12.1980 as CLK/CD. Though the term of engagement of the petitioner was for 20 years, he sought voluntary discharge from service after 15 years 8 months and 10 days. The Competent Authority approved his discharge vide No. AIR HQ/40802/1589/-PA-III, dated 9.8.1996 in accordance with the provisions of Air Force Rules, 1969, Chapter-3, Rule 15(2). The petitioner was permitted his dues of gratuity and Pension but the benefit of leave encashment was restricted to 90 days instead of 196 days balance; that the denial of leave encashment of 196 days is discriminatory inasmuch as the respondents are giving benefits of full leave encashment to one set of employees while denying the same to the other set of similarly placed employees; that though the respondents are giving leave encashment of 180 days to the personnel who are discharged from service on medial ground or those who are invalidated from service on medical ground with less than 17 years services and also the employees who are discharged on the ground that their services are no longer required; that the respondents are liable to follow uniform policy in the matter of leave encashment and the petitioner is entitled to be treated equally.
In affidavit in reply, the respondent contends that the petitioner was discharged from service at his own request on educational ground as he had availed three permissible chances of commission in the Air Force but did not get selection. In accordance with the Government of India, Ministry of defense Letter No. F.14(3)/88/D/AG-B, dated 26.3.1992 the ceiling on accumulation and encashment of leave in respect of leave in respect of Permanent Commissioned Officers, JCOs and other ranks and NCs(E) of Army and equivalent ranks in Navy and Air Force, who are permitted to proceed on retirement/discharge at their own request by the competent authority will encash their leave as per their length of service. Since the petitioner was discharged from service at his own request having less than 17 years of service, he is eligible to encash 90 days leave; that since the petitioner was discharged from service on his own request, having less than 17 years of service i.e. 15 years, 8 months and 10 days, he is eligible to encash 90 days leave and the petitioner was allowed to encash 90 days leave only at the time of discharge from Air Force; that the petitioner's case of encashment of leave was considered in accordance with Govt. of India, Ministry of defense letter dated 26.3.1992 and also dealt with in accordance with the existing Rules; that in case of dismissal from service, no leave encashment is permissible as also in case of Air Force Personnel, who have not completed 15 year of service; that in case of Air Force personnel, medically boarded out, the leave encashment would be:
(aa) Less than 15 years Nil days
(ab) 15 years to 17 years 240 days
(ac) 17 years to 22 years 270 days
(ad) 22 years and above service 300 days
In the case of services no longer required, the entitlement to leave encashment would be full encashment up to the date of discharge. It is contended that there is no discrimination as far as the benefit of leave encashment is concerned and the petitioner would not be entitled to the leave encashment for more than 90 days as he had less than 17 years of service on the date of his voluntary retirement.
3. It may be appreciated that there is no affidavit in rejoinder filed by the petitioner to the counter affidavit filed by the respondent especially, with regard to the quantum of leave encashment admissible.
4. It is submitted by Mr. Rishikesh, learned counsel for the petitioner that on the date of retirement, the petitioner was a Sergeant Clerk and had put in 15 years, 8 months and 10 days Air Force Service; that even the Air Force Personnel dismissed from service on disciplinary ground are given the benefit of full leave encashment.
5. It is submitted by Ms. Rekha Palli, learned counsel for the respondents that there is no discrimination between the Air Force Personnel in the matter of leave encashment and that in case of the Air Force Personnel who have been dismissed/removed from Air Force Service, leave encashment is not available/admissible.
6. It is not in dispute that the petitioner joined the Air Force Service on 27.12.1980 as CLK/CD and that he obtained voluntary retirement w.e.f. 5.9.1996 (AM) after completing the Air Force Service of 15 years, 8 months and 10 days.
7. Communication No. F.14(3)/88-D/AG-B dated 26.3.1992 from the Government of India, Ministry of defense (Annexure R-1) relates to the accumulation of annual leave by officers, JCOs (including those holding honorary commission) OR and NCs(E) and corresponding ranks in Navy and Air Force who are permitted to proceed on retirement/discharge at their own request. It is suggested there from that the ceiling on accumulation and encashment of leave in respect of the above referred Air Force, Navy personnel has been decided by the President of India as follows:-
Service at the time of Quantum of leave
retirement/discharge encashment admissible.
'(a) 22 years and above 240 days
(b) 20 years & above but
below 22 yrs. 210 days
(c) 17 years & above
but below 20 yrs. 105 days
(d) Below 17 years 90 days.
2. Benefits of enhanced limits mentioned in para 1 above will be allowed in a phased manner as indicated below :-
(a) Personnel with length of service of below 17 years will get encashment up to 90 days as at present based on accumulated leave of past years and the year of retirement.
(b) Personnel with length of service of 17 years and above but below 20 years will get encashment up to 105 days based on accumulated leave for past years and the year of retirement.
(c) Personnel with length of service of 20 years and above but below 22 years and 22 years and above and permitted to retirement/discharge on 30 Dec., 91 onwards will get up to 210 days based on accumulated leave of past years and the year of retirement.
(d) Personnel with length of service of 22 years and above and permitted to retire/discharge in Jan., 92 will get encashment up to 225 days based on accumulated leave of past years and the year of retirement. Personnel with length of service of 22 years and above and permitted to retire/discharge on 29.2.92 or thereafter will get encashment up to 240 days on the same basis.
3. Officers who are permitted to resign their commission may encash annual leave in the manner and to the extent indicated at para 2(a) and (b) above.
4. The enhanced limit of annual leave accumulation and encashment as contained in para 1 and 2 above will be subject to the condition that not more than 30 days will be allowed to be accumulated in a calendar year.
5. The benefit of encashment of leave accumulation and encashment mentioned in para 1 above will have effect from 30.12.1991.
6. This issues with the concurrence of the Ministry of defense (Finance) vide their UO No. 310-PA dated 24.3.92.'
8. Personnel Occurrence Report : Airmen & NCs(E) relating to the petitioner is Annexure P-4. It suggests the total accumulated leave of 196 days and the leave availed of for 58 days and that the total number of leave accumulated 196 days is restricted to 90 days only meaning thereby that for the purpose of encashment the leave balance is 90 days.
9. The submission by the learned counsel for the petitioner that in the matter of benefit of leave encashment, the petitioner is discriminated, inasmuch as the Air Force Personnel dismissed on disciplinary grounds, the personnels medically boarded out of Air Force Service and relieved on the ground of service no longer required, are differently treated since they are given the full leave encashment benefit does not deserve any credence for the reasons that the personnels, who are dismissed from Air Force Service are not entitled to any leave encashment as pointed out above whereas the Air Force Personnels medically boarded out of service and the personnels who have been relieved on the ground of service no longer required form distinct class. It need hardly be said that the Air Force personnels who have been medically boarded out from service and the personnels who have been relieved on the grounds that their services are no longer required, have to be treated differently from those who seek voluntary retirement since in the case of former, their service comes to an end not because of their own volition of voluntary act; on the contrary the discharge has been thrust upon them because of the medical disability or their service no longer required by the authority as the case may be and they are obliged to go out of the Air Force service for the reason beyond their power and control, whereas the personnels seeking voluntary discharge from Air Force Service, have invited their discharge from service by seeking voluntary retirement and their exit from Air Force Service is on their on volition and, thereforee, the argument by the learned counsel for the petitioner on this score, can not be accepted.
10. Annexure P-3 dated 26.3.1992 specifically provides that the ceiling on accumulation and encashment of leave in respect of the permanent commissioned officers, JCOs, or of NCs(E) of Army and equivalent ranks in the Navy and Air Force who are permitted to proceed on retirement/discharge at their own request, has been fixed by the competent authority and the same could be encased depending upon the length of service at the time of retirement/discharge. As far as the present petitioner is concerned, he having completed only 15 years 8 months and 10 days service, at the time of his voluntary retirement/discharge, which is below 17 years, the quantum of leave encashment admissible to the petitioner, would be 90 days and not 196 days, as contended by the petitioner.
11. In the above view of the matter, the petitioner would not be entitled to the relief claimed and the petition liable to be dismissed and rule discharged.
12. In the result, the petition fails. Rule discharged.