Page No.# 1/9 GAHC010218752023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5796/2023 SUCHANDRA BASAK H.NO-3, LANE NO-5, KAMAKHYA NAGAR, ADABARI TINIALI, P.O- PANDU, DIST- KAMRUP, PIN-781012 VERSUS THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE JOINT SECRETARY TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-06 2:THE SECRETARY TO THE GOVT. OF ASSAM FINANCE (ESTT. A) DEPARTMENT DISPUR GUWAHATI-06 3:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA MAIN ROAD KAHILIPARA GUWAHATI-19 4:THE DEPUTY DIRECTOR OF SECONDARY EDUCATION KAHILIPARA ASSAM GUWAHATI-21 5:THE INSPECTOR OF SCHOOLS KAMRUP METRO DISTRICT PANBAZAR GUWAHATI-01 6:THE TREASURY OFFICER Page No.# 2/9 KAMRUP METRO DISTRICT PANBAZAR GUWAHATI-0 Advocate for the Petitioner : MR. K M MAHANTA, MR S GAUTAM Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 17.06.2025 Heard Mr. K.M. Mahanta, learned counsel for the petitioner. Also heard Ms. D. Mushahary, learned standing counsel for the respondent Nos. 1, 3, 4 and 5; and Mr. R. Borpujari, learned standing counsel for the respondent Nos. 2 and 6. 2. This petition, under Article 226 of the Constitution of India, is preferred by the petitioner for issuing direction to the respondent authorities to pay the arrear salary due to her for the period 09.08.2018 to 31.12.2018 with interest, and also to direct to release the unutilized earned leave illegally adjusted against commuted leave. 3. The background facts, leading to filing of the present petition, are briefly stated as under: “The petitioner was appointed as Elective Subject Teacher in English, vide memo No. GB-EST/APTT/30/87/91, dated 02.06.1987, and she joined as Subject Teacher on 03.06.1987 in Bidya Mandir Higher Secondary School, situated at Pandu, Guwahati. Thereafter, the petitioner was appointed as Principal on regular basis, vide order No. GB-EST/DSE/Principal Aptt/12/2017/41, dated 07.08.2018, and she superannuated on Page No.# 3/9 31.07.2020 and received all other pensionary benefits. After being promoted to the post of Principal of the aforementioned school, she had not received salary for the period 09.08.2018 till 31.12.2018, for the reasons best known to the respondents, and during the tenure of her service, she had applied for commuted leave for 15 days, from 04.08.2014 to 18.08.2014, but the respondent No. 3 had illegally adjusted the same from the unutilized earned leave showing it to be 235 days instead of 250 days. Though the petitioner had asked the respondent authorities to release her unpaid salary/dues, yet the same failed to evoke any response. Being aggrieved, the petitioner has approached this Court by filing the present petition.” 4. The respondent No. 3 has filed her affidavit-in-opposition, wherein a stand has been taken that the earlier salary as claimed by the petitioner was sanctioned, vide sanction letter dated 12.03.2025, for a sum of Rs. 2,76,813/- and the same was released to the petitioner as arrear salary, and that in respect of the claim of the petitioner for releasing unutilized earned leave, it is stated that as per the leave statement of the petitioner who retired from service on 31.07.2020, she had availed commuted leave of 15 days, and as per O.M. dated 15.06.1995 and Rule 12(a) of the Revised Leave Rules, 1934, a Government servant serving in a vacation department shall be entitled to 10 days earned leave in lieu of 20 days half pay leave as admissible under Rule 13(a)(i) of the Revised Leave Rules, 1934, and a Government servant who earned such earned leave will cease to earn half pay leave as provided under Rule 13(a)(i) of the Revised Leave Rules, 1934, and that there is no half pay leave for employees serving in a vacation department. It is also stated that the commuted leave availed to the petitioner was deducted from the account of half pay leave, as Page No.# 4/9 per Rule 13(c) of the Leave Rules, 1934, and hence, the question for commuted leave does not arise. 5. The petitioner herein has filed his reply to the aforesaid affidavit of the respondent No. 3, wherein it is stated that the petitioner is eligible for sanctioned commuted leave for the period of 15 days, w.e.f. 04.08.2014 to 18.08.2014, as because the O.M. dated 15.06.1995 is not applicable retrospectively, and the explanation for deduction is untenable in law, as because commuted leave in case of the petitioner was sanctioned on the basis of the service rendered prior to 15.06.1995, and hence, the question of deduction from earned leave could not arise when the application of the said notification is post 15.06.1995. 6. Mr. Mahanta, learned counsel for the petitioner submits that the petitioner has received the arrear salary for the period 09.08.2018 to 31.12.2018, but there are two more prayers of the petitioner which were unattended to. Mr. Mahanta further submits that the petitioner is entitled to 250 days unutilized leave, but the authority has granted 235 days and deducted 15 days on account of erroneous application of the O.M. dated 15.06.1995. 6.1. By producing the leave account of the petitioner, Mr. Mahanta submits that the petitioner joined as Subject Teacher on 03.06.1987 and she had availed earned leave for 15 days w.e.f. 04.08.2014 to 18.08.2014, and the respondent authority had erroneously deducted 15 days from the 250 days of unutilized earned leave on the basis of O.M. dated 15.06.1995, and from the date of her appointment till coming into force of the O.M. dated 15.06.1995, the petitioner had already earned 117 days of half pay leave, which amounts to 58.5 days of full pay leave, and the period of 15 days availed by her w.e.f. 04.08.2014 to 18.08.2014, could have been deducted from the 58.5 days full pay leave, and as Page No.# 5/9 such, the deduction of 15 days is erroneous and therefore, it is contended to direct the respondent authorities to grant the aforementioned leave to the petitioner. 6.2. Further, Mr. Mahanta submits that in paragraph 13 of the writ petition, the petitioner has contended that the respondent authorities are bound to release the salary of the petitioner with interest @ 8% per annum, and that the arrear salary has been released in favour of the petitioner, but the interest has not been attended to. 6.3. In support of his submission, Mr. Mahanta has referred to a decision of Hon’ble Supreme Court in the case of State of Andhra Pradesh and Anr. vs. Dinavahi Lakshmi Kameswari, reported in (2021) 11 SCC 543. 7. Per contra, Ms. Mushahary, learned standing counsel for the respondent Nos. 1, 3, 4 and 5 submits that vide sanction letter dated 12.03.2025, arrear salary of the petitioner for a sum of Rs. 2,76,813/- for the period since 09.08.2018 to 31.12.2018, had already been paid. And in respect of deduction of 15 days unutilized earned leave, she submits that the petitioner had availed 15 days commuted leave for which the respondent authorities have rightly deducted 15 days from total 250 days of unutilized earned leave, which the petitioner is entitled to, on the basis of the O.M. dated 15.06.1995. In respect of the prayer of granting interest on deferred portion of her salary Ms. Mushahary also submits that it has to be looked into whether the respondent authorities are responsible or not and that there is no merit in this petition, and therefore, it is contended to dismiss the same. 8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, Page No.# 6/9 and also gone through the decision referred by Mr. Mahanta, learned counsel for the petitioner. 9. The basic facts herein this case is not in dispute. The petitioner was appointed as Elective Subject Teacher in English on 02.06.1987, and she joined as Subject Teacher on 03.06.1987 in Bidya Mandir Higher Secondary School, situated at Pandu, Guwahati, and thereafter, she was appointed as Principal of the said school, vide order dated 07.08.2018, and she superannuated on 31.07.2020. It is not in dispute that after being promoted to the post of Principal of the aforementioned school, she had not received salary for the period w.e.f. 09.08.2018 till 31.12.2018, and despite repeated request, she had not been paid the aforementioned salary and also the interest. It is also not in dispute that the respondent authorities have granted unutilized earned leave of 235 days deducting 15 days of commuted leave which she availed from the total period of unutilized earned leave of 250 days. 10. It also appears from the affidavit filed by the respondent No. 3 that the respondent No. 3 has paid the arrear salary of the petitioner for the period 09.08.2018 to 31.12.2018, vide sanction letter dated 12.03.2025, for a sum of Rs. 2,76,813/-, and also admittedly, 15 days of commuted leave which the petitioner availed, was deducted from total unutilized earned leave of 250 days, in view of the O.M. dated 15.06.1995 and Rule 12(a) of the Revised Leave Rules, 1934. 11. Further, it appears that though the prayer for arrear salary was attended to by the respondent authorities, yet the interest part and also unutilized earned leave of 15 days have not been paid to her. Though a stand has been taken by the respondent No. 3 that in view of the O.M. dated 15.06.1995, the petitioner is entitled to 10 days earned leave in view of 20 days half pay leave as Page No.# 7/9 admissible under Rule 13(a)(i) of the Revised Leave Rules, 1934, yet the leave account of the petitioner maintained by the Principal of Bidya Mandir Higher Secondary School, indicates that since the date of her appointment i.e. 03.06.1987, till the date of coming into force of the O.M. dated 15.06.1995, she had earned 117 days of half pay leave, which if counted to full days, it would have been amounted to 58.5 days full pay leave, and before coming into force of the O.M. dated 15.06.1995, the period of 15 days could have been deducted from the 58.5 days full pay leave earned by her since the date of her joining, and as such, deduction of 15 days from the total earned leave of 250 days by the respondent authorities, is illegal and arbitrary and liable to be interfered with. 12. Further, while dealing with the issue of entitlement of interest by the petitioner over the deferred portion of the salaries, Hon’ble Supreme Court in the case of Dinavahi Lakshmi Kameswari (supra), in paragraph No. 13, has held as under: “13. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognized by the applicable rules and regulations which govern the service of the employees of the State. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that the rate of 12% p.a. which has been fixed by the High Court Page No.# 8/9 should be suitably scaled down. While learned counsel for the respondents submits that the award of interest was on account of the action of the Government which was contrary to law, we are of the view that the payment of interest cannot be used as a means to penalise the State Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.” 12.1. Reference in this context can also be made to another decision of Hon’ble Supreme Court in the case of Union of India & Ors v. Dr. J.K Goel, reported in 1995 SCC Supl. (3) 161, wherein it was held that before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are any special equities which would justify the grant of such interest although there is no provision in law for such grant. 13. In the instant case, arrear salary of the petitioner, for a sum of Rs. 2,76,813/- for the period since 09.08.2018 to 31.12.2018, was not paid within time. After rendering her service as Subject Teacher as well as Principal of the Bidya Mandir Higher Secondary School, situated at Pandu, Guwahati, she had superannuated on 31.07.2020. In spite of asking, the amount was not paid to her. There is no dispute, whatsoever, that the aforesaid amount is her rightful entitlement and there is no explanation, let alone a plausible one for non- payment of the salary for the said period. She was compelled to approach this Court by filing the present petition and during pendency of the petition, the amount was paid to her, vide sanction letter dated 12.03.2025, after more than six years. In the given facts and circumstances, this Court is of the view that on equitable considerations, the petitioner is entitled to interest here in this case upon her deferred portion of salary from the due dates. Page No.# 9/9 14. Under the given facts and circumstances, and also taking note of the submissions of learned counsel for both the parties, this Court is inclined to allow this petition with the following reliefs: (i) The petitioner shall be paid interest @ 6% per annum for the deferred portion of her salary w.e.f. 09.08.2018 till 31.12.2018. (ii) The petitioner shall be paid for the unutilized leave of 15 days illegally deducted from the total period of 250 days of earned leave. 15. The aforementioned exercise has to be carried out within a period of four weeks from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent No. 3 within a period of one week from today. 16. In terms of above, this writ petition stands disposed of. The parties have to bear their own costs. JUDGE Comparing Assistant