Central Administrative Tribunal - Delhi
Sunil Arora vs National Human Rights Commission ... on 7 April, 2026
1
Item No.57 & 61(C-V)
O.A. No.3811/2022
With
OA No.246/2023, OA No.3854/2024 &
OA No.270/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3811/2022
With
OA No.246/2023
OA No.270/2023
and
OA No.3854/2024
Order reserved on : 16.02.2026
Order pronounced on: 07.04.2026
Hon'ble Mr. Chhabilendra Roul, Member (A)
Hon'ble Mr. Rajveer Singh Verma, Member (J)
I. OA No.3811/2022
SUNIL ARORA
S/0 LATE SH KULDIP SINGH RAI
RIO 716, VIKASKUNJ, VIKASPURI
NEWDELHI-11 0018
...Applicant
(By Advocate : Shri Manindra Dubey with Shri
Sudhakar Dubey)
VERSUS
NATIONAL HUMAN RIGHTS COMMISSION
THROUGH ITS SECRETARY GENERAL
MANAV ADHIKAR SHAW AN
C BLOCK, GPO COMPLEX, INA
NEW DELHI-11 0023.
...Respondent
(By Advocate : Shri R.K. Jain)
RACHNA KAPOOR
Digitally signed by
RACHNA KAPOOR
II. OA No.246/2023
RAJVIR SINGH
S/O LATE SH. RAM PRAKASH
R/O H.NO.907, WARD NO.28,
BHARAT COLONY,
ROHTAK, HARYANA-124001
...Applicant
(By Advocate : Shri Manindra Dubey with Shri
Sudhakar Dubey)
Versus
2
Item No.57 & 61(C-V)
O.A. No.3811/2022
With
OA No.246/2023, OA No.3854/2024 &
OA No.270/2023
NATIONAL HUMAN RIGHTS COMMISSION
THROUGH ITS SECRETARY GENERAL
MANAV ADHIKAR SHAW AN
C BLOCK, GPO COMPLEX, INA
NEW DELHI-11 0023.
...Respondent
(By Advocate : Shri R.K. Jain)
III OA No.3854/2024
OM PRAKASH VYAS,
S/O SH. JATA SHANKAR SHARMA,
R/O FLAT NO.440, GOLDEN HEIGHTS,
POCKET 8, SECTOR 12, DWARKA,
NEW DELHI-110078
...Applicant
(By Advocate : Shri Sandeep Jindal)
Versus
NATIONAL HUMAN RIGHTS COMMISSION
THROUGH ITS SECRETARY GENERAL
MANAV ADHIKAR SHAW AN
C BLOCK, GPO COMPLEX, INA
NEW DELHI-11 0023.
...Respondent
(By Advocate : Shri Gyanendra Singh)
IV OA No.270/2023
OM PRAKASH,
S/O LATE SH. JITA RAM,
R/O H.NO. 862, GALI NO.03,
SAI NAGAR, FLAT NO.440, GOLDEN HEIGHTS,
POCKET 8, SECTOR 12, DWARKA,
NEW DELHI-110078
...Applicant
RACHNA KAPOOR
Digitally signed by (By Advocate : Shri Manindra Dubey with Shri
Sudhakar Dubey)
RACHNA KAPOOR
Versus
NATIONAL HUMAN RIGHTS COMMISSION
THROUGH ITS SECRETARY GENERAL
MANAV ADHIKAR SHAW AN
C BLOCK, GPO COMPLEX, INA
NEW DELHI-11 0023.
...Respondent
(By Advocate : Shri R.K. Jain)
3
Item No.57 & 61(C-V)
O.A. No.3811/2022
With
OA No.246/2023, OA No.3854/2024 &
OA No.270/2023
ORDER
By Hon'ble Mr. Rajveer Singh Verma, Member (J) :-
The facts and issues in the captioned OAs are stated to be similar, the grounds urged on behalf of the parties are common and the relief sought by the applicants are same. In view of the background of such admitted position and with the consent of the learned counsels for the parties, the captioned OAs are being heard and decided together by the present common order. However, for the sake of convenience, OA No.3811/2022 has been treated as a lead case and facts are being taken from the pleadings therein.
2. The present Original Application has been filed by the Applicant under Section 19 of the RACHNA KAPOOR Digitally signed by RACHNA KAPOOR Administrative Tribunals Act, 1985, challenging the impugned order passed by the Respondent - National Human Rights Commission (NHRC) relating to denial/regulation of service benefits pertaining to 4 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 leave and consequential service entitlements. He has sought the following relief(s) :-
―(i) To quash the Impugned Order dated 30.06.2021 passed by the Respondent No. 1 and direct them to pay the amount of Rs. 15,73,650/- for the accumulated earned leave of 300 days on the date of retirement, based on the last pay drawn, as claimed by the applicant along with interest @ 18% per annum.
(ii) To award the compensation of Rs 5 lakhs for the suffering and mental agony of applicant due to non-payment of full amount of his earned leave of 300 days.
(iii) Pass any other order as deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the case in the interest of justice.‖
3. The Applicant, who retired as Joint Registrar on 30.06.2021, served the National Human Rights Commission under the Ministry of Home Affairs and during the course of his service certain issues arose concerning the grant/regularisation of leave and related service benefits, which ultimately culminated Digitally signed by RACHNA KAPOOR RACHNA KAPOOR in the issuance of the impugned order in the year 2022 adversely affecting the Applicant. 5 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023
4. Learned counsel for the applicant submitted that the action of the respondents is contrary to the governing service rules and executive instructions, particularly the provisions contained in the Central Civil Services (Pension) Rules, 1972 and the relevant Government of India instructions issued from time to time.
5. In support of his claim, learned counsel for the applicant has relied upon the relevant statutory provisions and executive instructions, including the Government Notification dated 14.07.2000 and the Office Memorandum issued by the Department of Personnel and Training dated 25.03.2013, which clarifies that "encashment of earned leave allowed by the Central Government prior to absorption in Central Autonomous body shall not be taken into account while calculating the number of days of earned leave Digitally signed by cashable in the autonomous body for the post RACHNA KAPOOR RACHNA KAPOOR absorption period."
6. Learned counsel for the applicant submitted that the applicant was earlier on deputation and became the employee of the Commission w.e.f. 05.01.2004 6 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 and the payment received before absorption cannot have any bearing on the entitlement of the applicant as an absorbed officer. In this context, he relied upon Rule 39(D) of the CCS (Leave) Rules, 1972. The said rule reads as under :-
―39(D). Cash equivalent of leave salary in case of permanent absorption in Public Sector Undertaking/Autonomous Body wholly or substantially owned or controlled by the Central/State Government :
A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or State Government or in or under a body controlled or financed by one or more than one such Government shall be granted suo motu by the authority competent to grant leave cash equivalent of leave salary in respect of earned leave at his credit on the date of absorption subject to a maximum of 300 days. This will be calculated in the same manner as indicated in Clause (b) of sub-rule (2) of Rule 39.
NOTE.-- The expression 'permanent absorption' used in Rule 39-D shall mean the appointment of a Government servant in a Public Sector Undertaking or an Autonomous Body, for which he had applied through Digitally signed by RACHNA KAPOOR RACHNA KAPOOR proper channel and resigns from the Government service to take up that appointment.‖
7. During the course of hearing, a query was put to learned counsel for the applicant as to whether the National Human Rights Commission (NHRC) falls 7 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 within the category of a Public Sector Undertaking (PSU) or an autonomous body, to which he replied that NHRC is an autonomous body under the Government of India. He further submitted that DoP&T, vide O.M. dated 25.03.2013, has clarified the issue as under:
―Whether leave encashment allowed by the Government under the CCS (Leave) Rules, 1972 on absorption in a Central autonomous body/PSU is to be taken into account?
Encashment of EL allowed by the Government under the CCS (Leave) Rules, 1972 for service rendered in the Central Government prior to absorption in a Central autonomous body shall not be taken into account while calculating the number of days of EL encashable in an autonomous body/PSU for the post-absorption period.‖ [[[
8. Learned counsel for the applicant submitted that leave encashment already availed by the applicant during his service in the Central Government, i.e., RACHNA KAPOOR Digitally signed by RACHNA KAPOOR Ministry of Home Affairs, is liable to be ignored and that the applicant is entitled to fresh leave encashment of 300 days at the time of retirement from NHRC. In this connection, he further relied upon 8 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 DoP&T O.M. dated 29.04.2019, particularly para 3 thereof, which reads as under:
―3. In so far as those employees who are covered under Rule-2 of CCS (Leave) Rules, 1972 are concerned, it is stated that clarifications have been issued vide O.M. No.21011/08/ 2013-Estt.(AII) dated 25.03.2013 (copy enclosed) in the form of FAQs which are posted on DOPT's website.
As per the FAQs encashment of EL allowed by the Government under the CCS (Leave) Rules, 1972 for service rendered in the Central Government prior to absorption in Central Autonomous Body shall not be taken into account while calculating the number of days of E.L. encashable in an autonomous body/PSU for the post absorption period. It has also been clarified by this Department's O.M. No.14028/1/2017-Estt.(L) dated 27.06.2018 that persons re-employed after retirement may be governed by Rule 39(6)(a)(iii) of the CCS (Leave) Rules, 1972 and they may be granted leave encashment upto a maximum of 300 days including the period for which encashment was allowed at the time of retirement.‖
9. On a further query regarding the definition of ―autonomous body,‖ learned counsel submitted that NHRC is fully funded by the Government of India and Digitally signed by RACHNA KAPOOR RACHNA KAPOOR functions as an autonomous body. He also referred to paras 5, 7 and 8 of the letter dated 16.06.2004, which read as under:
―5. Fixation of pay on absorption: Shri Sunil Arora will be free to negotiate his 9 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 emoluments with the autonomous body. On his absorption, he will be at par with other employees of the autonomous body and will be governed by the rules of the autonomous body in all respects.
xxx xxx xxx
7. Benefits after permanent absorption: For the period of service rendered by Shri Sunil Arora in National Human Rights Commission from the date of permanent absorption, he will be entitled to all the benefits admissible to the corresponding employees of the said organization and continue to be governed by its rules in all respects.
8. Provident Fund: The amount of subscription together with interest thereon standing to the credit of Shri Sunil Arora in the General Provident Fund account will be transferred to his new Provident Fund account under NHRC with its consent. In case the autonomous body does not have Provident Fund Scheme or the Provident Fund Scheme of Autonomous body does not provide for acceptance of balance from other provident funds, the GPF balance shall be paid to Shri Sunil Arora in cash. Once such transfer of Provident Fund balance has taken place, Shri Sunil Arora will be subject to the Provident Fund Rules of the National Human Rights Commission and not of the Provident Fund Rules of the Govt. of India.‖ Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
10. Learned counsel for the applicant further relied upon the Gazette Notification dated 31.03.2010 and NHRC notification dated 26.12.2018, wherein NHRC has been described as a Autonomous Body, to 10 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 contend that the applicant is entitled to fresh leave encashment of 300 days.
11. Despite the clear position emerging from the applicable rules and instructions, the respondents passed the impugned order, which has the effect of denying the Applicant the benefit to which he is otherwise legally entitled.
12. Being aggrieved by the said decision, the applicant submitted representations to the competent authorities, requesting reconsideration of the matter in accordance with the applicable rules and government instructions. However, the respondents failed to grant appropriate relief to the Applicant. Consequently, the Applicant also sought relevant information under the Right to Information Act, and an RTI reply dated 04.08.2022 was received which further substantiates the Applicant's claim regarding Digitally signed by RACHNA KAPOOR RACHNA KAPOOR the correct position of rules and policy.
13. The learned counsel for the applicant submitted that the impugned action of the respondents is arbitrary, contrary to the applicable service rules and 11 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 instructions, and violative of the principles of fairness and administrative justice.
14. In support of his contentions, the applicant also relied upon judicial precedents of the Hon'ble Tribunal and other higher forums dealing with similar issues, which support the interpretation advanced by the applicant.
15. On the other hand, the respondents have filed their reply/additional affidavit opposing the OA pursuant to issuance of notice. Learned counsel for the respondents submitted that NHRC is a statutory body established by an Act of Parliament and not a simple autonomous body created by executive order. He contended that merely being fully funded by the Government of India does not entitle the applicant to get leave encashment of 300 days in addition to what has already been availed. According to him, the Digitally signed by RACHNA KAPOOR RACHNA KAPOOR maximum permissible leave encashment is 300 days in total, inclusive of previous service.
16. In support of his submissions, learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in State of Sikkim & Ors. vs. Dr. 12 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 Mool Raj Kothari (SLP Nos. 23709-23710 of 2023, decided on 23.04.2025), and particularly referred to paras 27 to 30 thereof, which read as under:
―27. Interpreting leave encashment provisions goes beyond financial compensation and connects to broader legal principles of dignity and welfare during service. However, such interpretations must carefully balance the interests of both employees and the financial stability of the organization, especially when public exchequer is involved. Courts must tread carefully to prevent employees from claiming leave encashment multiple times for the same accrual, which could lead to unjust enrichment and may go against the public interest of largesse.
28. Therefore, while leave encashment ensures that extra-ordinary work ethic of an employee is rewarded, it must be applied in a way that upholds both employee rights and institutional sustainability. Naturally, courts must interpret leave encashment rules and statutes in a manner that prevents undue financial burden on employers while ensuring that employees receive what they are lawfully entitled to.
29. Thus, Leave Rules recognize benefit of leave encashment to a government servant whose service has been extended and who has retired from regular service under the Service Rules, but not to the re-employed retired Digitally signed by RACHNA KAPOOR RACHNA KAPOOR government servant. Therefore, the leave encashment is permissible maximum upto 300 days of leave and not beyond as on the date of retirement, including the case of extension of service.
30. In view of the discussions made hereinabove, in our considered opinion, clarificatory order issued by State in the 13 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 matter of grant of leave encashment for the earned leave to government employees on ‗extension of service' subject to maximum period of 300 days and not beyond, is completely in consonance with the spirit of Rules 31, 32 and 36 of Leave Rules.‖
17. Learned counsel for the respondents submitted that the applicant, prior to his absorption in NHRC, had already been granted leave encashment of 234 days by his parent department, i.e., the Department of Revenue, Ministry of Finance, vide letter dated 20.01.2006. At the time of his retirement from NHRC, he was granted leave encashment of the remaining 66 days, thereby completing the total permissible limit of 300 days. It is submitted that initially, based on certain Frequently Asked Questions issued by DoPT in 2013, NHRC had adopted a practice of allowing fresh leave encashment up to 300 days without adjusting the encashment already availed from the parent Digitally signed by department. However, this practice was found to be RACHNA KAPOOR RACHNA KAPOOR erroneous during an audit conducted in 2018, wherein it was observed that excess payments were being made beyond the permissible limit of 300 days, 14 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 and recovery of such excess amounts was recommended.
18. Thereafter, clarifications were sought from the Ministry of Home Affairs and the Department of Personnel & Training. The Ministry of Home Affairs, vide letter dated 25.04.2019, clarified that Rule 39-D of the CCS (Leave) Rules, 1972 would apply in cases of absorbed employees, which mandates that leave encashment is subject to a maximum limit of 300 days including encashment already availed earlier. The DoPT, vide clarification dated 29.04.2019, further stated that NHRC, being constituted under an Act of Parliament, is required to take an administrative decision in the matter.
19. In view of the aforesaid clarifications and audit observations, the Commission reviewed its policy and vide order dated 10.06.2019 decided that the total Digitally signed by RACHNA KAPOOR RACHNA KAPOOR leave encashment admissible to an employee shall not exceed 300 days in the entire service, including the period for which encashment had already been granted by the parent department. This policy has been consistently followed thereafter. 15 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023
20. Learned counsel for the respondents submitted that the representation of the applicant claiming additional leave encashment beyond the said limit was considered by the competent authority and rejected vide communication dated 22.03.2024. Further, the Full Commission in its meeting dated 16.02.2024 also rejected the proposal for grant of additional leave encashment to similarly placed employees.
21. Learned counsel for the respondents further submitted that earlier instances where excess leave encashment was granted have been subjected to recovery proceedings, and therefore, no parity can be claimed on the basis of such wrong payments. The judgments relied upon by the applicant are not applicable to the facts of the present case as the issue herein is governed by specific statutory rules which clearly prescribe the ceiling of 300 days. Digitally signed by RACHNA KAPOOR RACHNA KAPOOR
22. It is also submitted that there is no provision under the CCS (Leave) Rules, 1972 for payment of interest on leave encashment. The claim of the applicant is, therefore, contrary to the applicable rules and settled administrative policy. 16 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023
23. In rejoinder, learned counsel for the applicant submitted that the present case is one of absorption after selection in NHRC and not re-employment after retirement, as was the case before the Hon'ble Supreme Court in State of Sikkim (supra) relied upon by the respondents. He further submitted that similarly situated employees have been granted such benefits, as pleaded in para 4.15 of the OA. He submitted that the Hon'ble Supreme Court in case of Jagdish Prasad Saini & Ors. Vs. State of Rajasthan SLP (Civil) No.16813/2019 in para 20 of the judgment dated 26.09.2022 has held that any provision imposing a bar on carry forward of leave on absorption and requiring employees to seek encashment from the previous employer is arbitrary and unconscionable condition.
[
24. We have heard the learned counsel for the Digitally signed by parties and perused the material available on record. RACHNA KAPOOR RACHNA KAPOOR Our Analysis
25. Vide notification dated 14.07.2000 (GSR 611 (E), Ministry of Home Affairs has issued a notification 17 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 in exercise of the powers conferred by Sub Section (1) read with Clause (b) of sub-Section (2) of Section 40 of the Protection of Human Rights Act, 1993 (10 of 1994), Central Government inacted the National Human Rights Commission (Conditions of Service of Officers and Staff) Rules, 2000. Rule 3 and 4 of the said Rules are reproduced below :-
―3. Officers and staff of the Commission. - The nature and categories of the officers and staff of the Commission and the scale of pay attached thereto shall be as specified in the Schedule appended to these rules.
4. Conditions of Service.- The conditions of service of the officers and staff of the Commission in the matters of pay, allowances, leave, provident fund, age of superannuation, pension and retirement benefits and other conditions of service, shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and staff belonging to Group 'A', Group ‗B', Group 'C', and Group 'D' of the Central Government, as the case may be, of the corresponding scales of pay attached to Digitally signed by these posts.‖ RACHNA KAPOOR RACHNA KAPOOR
26. The applicants in all the OAs have occupied and retired from the different posts of National Human Rights Commission, as mentioned in the Schedule appended to these Rules as prescribed under Rule 3 18 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 of the Rules. Rule 4 of the said rules deals with conditions of service of the officers and staff of the Commission in the matter of pay, allowance, leave, provident fund, age of superannuation, pension and retirement benefits and other conditions of service and provides that the same shall be regulated in accordance with such Rules and regulations as are for the time being applicable to officers and staff belonging to Group ‗A', Group ‗B' Group ‗C' and Group ‗D' of the Central Government as the case may be of the corresponding scale of pay attached to these posts.
27. Rule 39 of the CCS (Leave) Rules, 1972 provides that the overall limit of encashment of leave including both EL and HPL shall not exceed 300 days for the officers and staff served in Central Government.
28. From the combined reading of the provisions of Digitally signed by RACHNA KAPOOR RACHNA KAPOOR Rule 4 of the National Human Rights Commission (Conditions of Service of officers and staff) Rules, 2000 and the cap mentioned below Rule 39 of the CCS (Leave) Rule, 1972, a conclusion may be arrived that the officers and staff of the Commission are only 19 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 entitled for encashment of leave including both EL and HPL only for 300 days.
29. The applicants' case is based upon two grounds, firstly, that the Ministry of Personnel, Public Grievances and Pensions, DOP&T vide its OM No.2011/08/2013-Estt(AL) dated 25.03.2013 has clarified that "Encashment of EL allowed by the Govt. under the CCS (Leave) Rules, 1972 for service rendered in the Central Govt. prior to absorption in Central Autonomous body shall not be taken into account while calculating the number of days of E.L. encashable in an autonomous body/PSU for the post absorption period."
30. It is understood that the said position was clarified by the DOP&T in answer to frequently asked questions. However, the DOP&T vide its ID No.14028/1/2016-Estt.(C) dated 29.09.2019 has clarified as under :-
Digitally signed by
RACHNA KAPOOR RACHNA KAPOOR ―National Human Rights Commission may kindly refer to the letter No. 20020/13/94- Estt dated 5th March, 2019 regarding leave encashment on retirement.
2. The matter has been considered in this Department and it is stated that National Human Rights Commission (NHRC) has been constituted by an Act of Parliament 20 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 and being governed according to by-laws of that Act. The Central Civil Services (Leave) Rules, 1972 stipulates that these rules apply to Government servants appointed to the civil services and posts in connection with the affairs of the Union and as such are applicable only to such category of employees covered under the provisions of Rule 2 of the CCS (Leave) Rules, 1972.
These rules do not apply to persons in respect of whom special provisions have been made by or under the provisions of the Constitution or any other law for the time being in force. NHRC is constituted by an Act of the Parliament and hence the NHRC are not covered by provisions of the CCS (Leave) Rules, 1972 suo-motu. If any of the provisions of these rules are to be adopted or if any analogy is proposed to be drawn from the said rules, the decision has to be taken by the administrative authority in NHRC or the Administrative Ministry i.e. Ministry of Home Affairs. It may be noted that this Department has given the same advice to Ministry of Home Affairs in similar case.
3. In so far as those employees who are covered under Rule-2 of CCS (Leave) Rules, 1972 are concerned, it is stated that clarifications have been issued vide OM No.21011/08/2013-Estt. (All) dated 25.03.2013 (copy enclosed) in the form of FAQs which are posted on DOPT's website As per the FAQs encashment of EL allowed Digitally signed by by the Government under the CCS (Leave) Rules, 1972 for service rendered in the RACHNA KAPOOR RACHNA KAPOOR Central Government prior to absorption in Central Autonomous body shall not be taken into account while calculating the number of days of EL encashable in an autonomous body/PSU for the post absorption period. It has also been clarified by this Department's O.M.No.14028/1/2017-Estt (L) (dated 21 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 27.6.2018 that persons re-employed after retirement may be governed by Rule 39(6)(a)(iii) of the CCS (Leave) Rules, 1972 and they may be granted leave encashment upto a maximum of 300 days including the period for which encashment was allowed at the time of retirement‖
31. The second ground taken by the applicant is that he has claimed parity and stated that benefit of EL encashment has been allowed by NHRC for similarly situated persons and the applicants have provided a list containing 29 officers/staff of the Commission in support of his contentions. The issue of encashment of leave on the retirement of employees was governed till 2013 in the following manner :
―Leave accrued in their account (subject to a maximum of 300 days) minus number of days leave encashment availed from the parent at the time of their permanent absorption in Commission.‖
32. This policy to restrict the leave encashment only Digitally signed by RACHNA KAPOOR for 300 days including the earlier leave encashment in RACHNA KAPOOR previous department was followed in the Commission since the establishment of the Commission and subsequently in the year 2013 was changed and employees were being granted fresh encashment of 22 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 300 days of leave at the time of retirement without taking into account the earlier leave encashment in the parent organization from which they absorbed. As per notification dated 23.12.1993, which was subsequently modified on 11.02.1994 issued by Ministry of Home Affairs "on the expiry of his term of office in the National Human Rights Commission, Chairperson and Members shall be entitled to receive cash equivalent of leave salary in respect of earned leave standing to his credit subject to the condition that the maximum of leave encashed under this sub-rule or at the time of retirement from previous service, as the case may be or taken together was not in any case except 240 (now 300) days." It is surprising that when in the case of Members and Chairperson of NHRC, there were specific orders/clarifications/ directions that they could not get more than 300 days leave encashment, there was a notification of DOP&T Digitally signed by RACHNA KAPOOR in the year 2013, i.e. answers to frequently questions RACHNA KAPOOR enabling the other officers/staff to get leave encashment for 300 plus 300 days.
23Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023
33. It is noticed that there was an audit objection in the year 2018 in the Commission, which brought out an anomaly which was being followed in Commission, where employees were getting leave encashment up to 600 days for the entire career in Government Service. The matter was examined by the NHRC in consultation with DOP&T and MHA and in pursuance to the same, the Commission took a decision in 2019 that total number of days that employees shall be entitled to encashment should be 300 days in their entire service career as was being followed earlier i.e. prior to 2013. The necessary action to recover the undue payments so made in the said period was also initiated by the Commission.
34. The applicants have relied upon the judgment of Hon'ble Supreme Court in the case of Dr. Dudh Nath Pandey Vs. The State of Jharkhand 2007(2) BLJR 2847, wherein it is held by the Hon'ble Court that Digitally signed by RACHNA KAPOOR RACHNA KAPOOR executive instructions cannot override the statutory rules. In the instant case, the relevant statutory rules is NHRC (Conditions of Service of Officers and Staff) Rules, 2000 and Rule 4 of the said Rules stipulates 24 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023 that the conditions of service of the officers and staff of the Commission in the matter of pay and allowances, leave etc. shall be regulated in accordance with the Rules framed by the Central Government and the Central Government has framed the relevant rules i.e. Rule 39 of the CCS (Leave) Rules, 1972 on the subject Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or gratuity of service. This rule stipulates that the overall limit of encashment of leave including both the EL and HPL shall not exceed 300 days.
35. From the above, it is understood that DOP&T OM dated 25.03.2013 is in contravention of the statutory Rule 4 of the NHRC (Conditions of Service) Rules, 2000 read with Rule 39 of the CCS (Leave) Rules, 1972 and as per settled law, the executive instructions/OM and instructions cannot override Statutory Rules framed by the Government in exercise Digitally signed by RACHNA KAPOOR RACHNA KAPOOR of the powers conferred under the statute or under Article 309 of the Constitution of India. 25 Item No.57 & 61(C-V) O.A. No.3811/2022 With OA No.246/2023, OA No.3854/2024 & OA No.270/2023
36. From the above discussion, it is understood that the applicants' case is covered under Rule 39 of CCS (Leave) Rules, 1972 which stipulates that the overall limit for encashment of leave shall not exceed 300 days for the entire service career and earlier leave encashment shall also be taken into account in calculation of total period.
37. In view of the above, we do not find any merit in the present OAs and the same are liable to be dismissed and, as a result, the OAs stand dismissed.
38. All pending MAs, if any, shall stand disposed of.
There shall be no order as to costs.
(Rajveer Singh Verma) (Chhabilendra Roul)
Member (J) Member (A)
‗rk'
Digitally signed by
RACHNA KAPOOR
RACHNA KAPOOR