Justice Jyotsna Rewal Dua, Himachal Pradesh High Court
Subsequent Government Order Modifying Or Amending Earlier Won't Have Retrospective Application: Himachal Pradesh High Court
|The High Court directed to pay 100% leave salary during the sanctioned study leave for pursuing three years LLB Degree course as the leave was granted prior to enforcement of the amendment notification.
The Himachal Pradesh High Court observed that if a subsequent government order is a modification or amendment of the earlier government order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights, which is impermissible in law.
The petitioner took study leave for the period of 721 days to pursue LLB, however, due to change in CCS Rules, the petitioner was not paid full salary.
A Bench of Justice Jyotsna Rewal Dua observed, “In the instant case, the amendment notification dated 07.08.2024 does not enjoy retrospective application. In terms of Clause 1(2) thereof, the same was to come into force from the date of its publication in the Rajpatra, Himachal Pradesh. Admittedly, the notification was published in the Rajpatra on 09.08.2024. Once the study leave stood already sanctioned in favour of the petitioner on 06.08.2024, notification dated 07.08.2024, which came into force from 09.08.2024, cannot be said to be applicable to petitioner’s case. The said notification will not govern payment of leave salary during the aforesaid period to the petitioner.”
Advocate Hirdaya Ram represented the Petitioner, while Advocate General Anup Rattan represented the Respondents.
Case Brief
The petitioner was sanctioned study leave by the respondents for pursuing three years LLB Degree course from the Himachal Pradesh University, Shimla, subject to certain terms & conditions including that quantum of study leave will not extend beyond 24 months, i.e. 730 days. While applying for the study leave, petitioner had indicated tentative schedule for availing the leave in different spells with total period coming to 721 days. During the study leave, petitioner was to be paid full salary in terms of the applicable Central Civil Services (Leave) Rules, 1972.
However, in August 2024, the Respondent State amended the Rule for study leave. As per the amended Rule, a government servant was to draw leave salary equal to 40% of the pay that he drew while on duty with the Government immediately before proceeding on such leave in addition to the Dearness Allowance and House Rent Allowance as admissible to him. Thus, the Respondent-State declined to grant full salary to the petitioner for his remaining study leave period.
Court’s Observation
At the outset, the Court noted that since the amendment notification came on August 09, 2024 and the leave of the petitioner was sanctioned on August 06, 2024, thus, the notification cannot be said to be applicable to petitioner’s case.
“The subsequent sanction of study leave by the respondents to the petitioner for pursuing LLB Degree course in different spells will not alter the basic fact that study leave stood already sanctioned in his favour under notification dated 29.08.2023 for 24 months in all, i.e. 730 days”, the Court added.
The Court referred to catena of judgements and was of the opinion that if a subsequent government order is held to be a modification/ amendment of the earlier government order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights, which is impermissible in law.
"In the instant case, the amendment notification dated 07.08.2024 does not enjoy retrospective application. In terms of Clause 1(2) thereof, the same was to come into force from the date of its publication in the Rajpatra, Himachal Pradesh", the Court said.
The Court observed that the petitioner was eligible for 100% leave salary during the sanctioned study leave for pursuing three years LLB Degree course.
Accordingly, the Writ Petition was allowed.
Cause Title: Sant Ram V. State of H.P (Neutral Citation: 2025:HHC:27838)
Appearance:
Petitioner: Advocate Hirdaya Ram
Respondents: Advocate General Anup Rattan and Deputy Advocate General Menka Raj