J.S. Sekhon, J. - (1.) The petitioner retired as a Chief Engineer from the Haryana Irrigation Department on his superannuation with effect from the afternoon of June 30,1977. While in service he was conferred the award of "Padmshri" by the President of India in the year 1971 for having rendered meritorious services to the country. Some time later, the Slate of Haryana in recognition of excellent performance of the petitioner sanctioned Rs. 150/- per month as personal pay in addition to his usual emoluments. In the year 1974, the State of Haryana sanctioned deputation of the petitioner as Chairman of the Water and Power Development Consultancy Service (hereinafter referred to as 'WAPCOS') a Government of India undertaking. The petitioner took the charge of the said assignment on August 25, 1974. Somewhere in the month of July/August 1976, the petitioner was sanctioned 180 days 'leave preparatory to retirement by the Haryana Government vide order dated December 21, 1976, with effect from January 4, 1977. The petitioner relinquished the charge of the Chairman of the WAPCOS with effect from January 4,1977 and proceeded on leave preparatory to retirement (hereinafter referred to as 'LPR'). While on LPR the petitioner received an offer of foreign assignment as 'Consultant with the Asian Development Bank of Manila. The petitioner informed the Haryana Government of this offer and sought their permission to the acceptance of the same during the course of his LPR. On learning that the requisite permission was under issue, the petitioner joined the service of the Bank at Manila on January 31, 1977. Government of Haryana accorded sanction under Volume I, Parti as applicable to Haryana (hereinafter referred to as 'Service Rules') and communicated the same to the petitioner vide its letter dated February 8, 1977, while the petitioner was still under the employment of the Bank, the Government of Afganisthan- offered him two years' service contract for a senior post with Helmud construction Corporation (an Afganisthan Govt, undertaking) at Kabul. The petitioner again sought permission of the Government of Haryana to accept this assignment in the first week of June 1977. The petitioner after having been relieved from the service of the Bank joined this assignment in Kabul on June 3,1977. The petitioner remained unmindful for the incorrect application of Rule 8.41-A for the sanction conveyed to him to join the foreign service and did not doubt its validity as the same was conveyed to him after the concurrence of the Finance Department, which is very framer of these rules. Moreover, the petitioner while on foreign service did not have a copy of the relevant rules and, therefore, did not apply for correction of this ambiguity although the service conditions of the members on foreign service were governed by rule 10.4 and the notes appended therein. While Note 1 under rule 8.41 clearly provides the non-application of foreign service which is governed by rule 10.2 of the Rules. Thus, the petitioner maintains that as he had joined the foreign service with due permission of the State Government while on leave preparatory to retirement, he was entitled to draw the leave salary for the period he remained on LPR under rule 10.4. The petitioner continued waiting for disbursement on leave salary for the LPR period, but on getting no response from the Accountant-General, Haryana, he wrote a letter on march 28, 1978, for the issuance of authority in his favour to draw the leave salary for the sanctioned LPR, but the Accountant-General, Haryana, informed the petitioner in April, 1978, that the entitlement function in respect of Gazetted Officers of the Haryana Government had been transferred to the Departmental authorities with effect from September 1, 1976. Following the advise of the Accountant-General, Haryana, the petitioner then took up the matter with the Engineer-in-Chief, Haryana-respondent No. 2, Vide letter dated May 12, 1978 (Annexure P-4), the respondent No. 2 informed the petitioner that the leave salary would be drawn on receipt of last pay certificate from the Government of India for which he was getting the needful done. The petitioner then kept on waiting for some time for the disbursement of his leave salary, but, having failed to receive any communication from respondent No. 2, he wrote another letter (Annexure P-5) by way of reminder on December 30, 1978, for disbursement of his claim, but of no avail. Thereafter, the petitioner came to India in March 1979 and contacted respondent No. 2 at his office, when the latter told him that the leave salary bill of the petitioner was ready and the same would be sent for pre-audit to the Accountant-General, Haryana, But again on getting no response, the petitioner sent another letter (Annexure P-6) from Kabul to the Registrar of respondent No. 2 asking him to apprise the latest position of his claim, but on getting no response to this letter, the petitioner wrote letter to his friend at Chandigarh to pursue the matter. The friend of the petitioner then informed that the Accountant-General, Haryana, had declined to entertain the leave salary bill of the petitioner sent by respondent No. 2 in pre-audit on the ground that the LPR of the petitioner sanctioned by respondent No. 1 in December, 1976, was cancelled. The petitioner then procured the copy of the letter dated October 3, 1977 cancelling the sanctioned LPR (Annexure P-7). The petitioner again visited India in January 23, 1980, and happened to meet Mr. Goswami, the then Commissioner and Secretary, Irrigation Department, Haryana, who promised to do the needful. The petitioner again entered into correspondence with the Secretary Irrigation, but ultimately vide letter dated July 15, 1980, respondent No. 2 informed him that the Government had declined to give him the benefit of the salary of leave preparatory to retirement, because his deputation with the Asian Development Bank at Manila, amounted to double benefit. Ultimately, the petitioner resorted to file the present writ petition under articles 226 and227 of the Constitution of India.
(2.) During the pendency of this writ petition, the respondent-State without filing any reply, issued a sanction vide its memorandum dated August 25, 1981, to the effect that the petitioner will be paid leave salary at half pay in addition to the pay drawn by him from the foreign employer for the period he remained in foreign employment of the Asian Development Bank at Manila, i.e., with effect from February 1,1977 to June 30,1977. The petitioner was allowed to file the amended petition challenging the above referred subsequent notification (Annexure P-14), besides maintaining that he was entitled to the leave salary for the entire period he remained of LPR contending that the case was covered by notes land 2 appended below rule 10.4 of the Punjab Civil Services Rules, Volume 1, Part-I and not by rule 8.41-A of the Rules, and that the impugned order hit the fundamental right of the petitioner enshrined in Article 19 of the Constitution of India.
(3.) Respondents resisted this petition through a joint written statement admitting all the factual aspects of the matter but contended that the Government had rightly accorded permission under rule 8.41-A of the Rules vide memorandum dated February 8, 1977 (Annexure P2) for joining the foreign assignment with Asian Development Bant at Manila. Lateron, the Government again accorded permission to the petitioner for accepting employment with the Government of Afganistan in terms of rule 7.27 of the Punjab Civil Services Rules, Volume II, vide memorandum dated October 3, 1977 (Annexure P-7). It was further averred that by the same memorandum sanction of the Haryana Government to the cancellation of the LPR earlier granted to the petitioner vide order dated December 21, 1976 (Annexure P-1) was also accorded since he had accepted employment with the Asian Development Bank. Thus, it was maintained that from August 21, 1974 to June 30,1977, i.e., up to the date of his retirement, the petitioner, remained on deputation on foreign assignment partly in India with WAPCOS and partly out of India (at Manila and Kabul) getting a monthly salary at the rate higher than what he was getting as Chief Engineer in Harayan during the aforesaid period and did not avail the LPR sanctioned to him by the Haryana Government for the reasons best known to him. Under these circumstances, it was maintained that the case of the petitioner was not covered by rule 10.2 of the Rules but by rule 8.41-A ibid. It was further averred that granting of leave salary to an employee on foreign service is a concession within the exclusive discretion of the Government and it cannot be claimed as a matter of right. It was also asstered that acceptance of foreign service beyond the date of retirement is governed by rule 7.27 of the Rules and thus, it has been correctly referred to in the relevant memorandum (Annexure P-7). The delay in filing the representation as well as the writ petition was also stressed. Besides that there was no question of accrual of interest at the rate of 12 percent per annum as claimed by the petitioner.;