B Asok Kumar vs DEPARTMENT OF ATOMIC ANERGY on 30 October 2026

ORDER

[As per Hon’ble Mr. Varun Sindhu Kul Kaumudi, Member (Admn.)]

By this OA, the applicant has sought the following relief: “xxx the applicant humbly prays that this Hon’ble Tribunal may be pleased to declare the action of the respondents in seeking to recover ₹4,76,229 claiming to be excess payment of 140 days of EL encashment, which is against the letter and spirit of Rule 34 and Rule 39(2)(a) of CCS (Leave) Rules, 1972, and withholding payment of other dues on this account till date, even after several reminders, and rejection of his grievance petition dt. 07.03.2025 vide letter No. AMD- 2/6243/94-Adm.III/753 dt. 09.05.2025, on unsustainable grounds, thereby causing financial difficulties to a retired Security Officer, is arbitrary, unjustified and illegal, violative of Articles 14, 16 and 21 of the Constitution of India and direct the respondents not to effect any recovery towards the stated excess EL encashment for 140 days and release the dues payable to him with interest and pass such other order or orders as this Hon’ble Tribunal deems fit, proper, necessary and expedient in the circumstances of the case.”

2. Facts of the case, as narrated by the applicant, in the OA, are that

(i) The applicant had joined the Indian Air Force (IAF, for short) on 31.08.1978 and, after rendering 15 years of service, he was discharged in the rank of Corporal. Thereafter, he was selected and appointed as Assistant Security Officer in the 3rd respondent's organization, which is a Unit of the Department of Atomic Energy (DAE, for short), on 23.05.1994. He retired from service, on attaining the age of superannuation, as Security Officer, on 30.11.2021.

(ii) At the time of his retirement, while settling his retirement benefits, Respondents paid him an amount of Rs.10,20,490/- towards encashment of 300 days of earned leave, which was at his credit. However, they withheld his dues towards Performance Related Incentive Scheme (Org.) [PRIS(O)] @ 16% of annual emoluments, for the years from 01.04.2020 to 30.09.2020, 01.10.2020-31.03.2021, 01.04.2021-30.09.2021 and Performance Related Incentive Scheme (Group) [PRIS(G)] @ 10% of annual emoluments, from 01.04.2021 to 30.11.2021 besides the amount VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

towards his shares and savings from the AMD Co-operative Welfare Society. After repeated requests, the respondents, vide letter No. AMD- 2/6243/94-Adm.III/1016, dt. 19.05.2022, informed him that he was eligible for 160 days of leave encashment as per Rule 39, Sub-Rule 6(a)(iii) of the Leave Rules, 1972 and the DoPT Orders, as he had availed 140 days of EL encashment, at the time of retirement from the IAF.

(iii) The applicant represented to the respondents, vide his letter, dt. 16.12.2022, to release his dues, on the following grounds:-

a) In terms of Rule 34 of the CCS (Leave) Rules, 1972, in the case of a person re-employed after retirement, the provisions of these rules shall apply as if he had entered government service for the first time on the date of his re-employment.

b) In terms of clarification given by the DoP&T to the DRDO, any leave encashed by ex-servicemen at the time of their retirement from Defence Establishments, may not be counted towards the total limit of three hundred days for leave encashment. They may be treated as having entered government service for the first time on the date of their re-employment, as per Rule-34.

(iv) The applicant also addressed a letter, dt. 01.06.2023, to the 3rd Respondent and a letter, dt. 28.06.2023, to the 4th Respondent and, in response thereto, the 4th Respondent, vide letter No.AMD-2/6243/94- Adm.III/1226, dt. 27.07.2023, informed him that Sub-Rule 6(iii) under Rule 39 of the CCS (Leave) Rules is applicable in his case and, accordingly, disposed of his representation. Pursuant to the said letter, the Assistant VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

Accounts Officer of the respondent organization, vide letter No. AMD/Accts/PEN/2758, dt. 25.01.2024, directed the applicant to refund an amount of Rs.4,76,229/- towards excess payment of leave encashment for 140 days.

(v) When the applicant approached the National Commission for SC & ST, vide his letter, dt. 02.02.2024, ventilating his grievances that he had been discriminated against in the matter, the 4th Respondent again reiterated the position, vide letter, dt. 14.03.2024, that the DoPT, vide OM No. 14028/1/2017-Estt.(L), dt. 27.06.2017, has clarified that persons re- employed after retirement may be governed by Rule 39(6)(a)(iii) of the CCS (Leave) Rules 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, and the cases already decided otherwise need not be reopened. Being still aggrieved, the applicant represented the matter to the 1st Respondent and the President of India, vide his letter, dt. 07.03.2025. The 4th Respondent, once again, rejected his representations, vide the impugned letter, dt. 09.05.2025.

(vi) It is the specific case of the applicant that, in terms of Rule 34 of the CCS (Leave) Rules, 1972, in the case of a person re-employed after retirement, the provisions of these rules shall apply as if he had entered government service for the first time on the date of his re-employment and this position has been confirmed by the DoPT in their clarification to the DRDO, who have informed the same to all the Directors of Labs/Estts. of the DRDO, vide letter No. DOP/03/37160/SCM-1(14)/m/07, dt. 25.11.2016. In fact, ex-servicemen in different organizations of the Central VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

Government and in the DAE have been allowed encashment of 300 days of EL at the time of their retirement, without taking into account the EL encashment allowed at the time of their retirement from the Defence Ministry. Even the BSNL, vide letter No. BSNCO-A/11(25)/1/2020- ESTAB, dt. 12.08.2022, clarified that grant of encashment of EL up to a maximum of 300 days to the executives is also consistent with the FAQs of the DoPT No. 21011/08/2013-Estt. (AL). The applicant asserts that encashment of full EL up to 300 days was allowed to 18 employees, who had retired before and after him, in the Bhabha Atomic Research Centre, and 13 Security Personnel and 7 Drivers in the 3rd Respondent’s organization.

(vii) The applicant cites DoPT OM F. No. 18/26/2011-Estt(Pay-I), dt. 06.02.2014, and OM No. 18/03/2015-Estt. (Pay-I), dt. 02.03.2016, which were issued consequent to the law laid down by the Hon'ble Supreme Court in Chandi Prasad Uniyal and Ors vs. State of Uttarakhand and Ors. [2012 AIR SCW 4742:: (2012) 8 SCC 417] in support of his assertion that, in all cases where the authority comes to a conclusion to recover the excess payment on account of wrong pay fixation, grant of scale, etc., a show- cause notice has to be issued to the concerned employee, informing him of the reasons, so as to enable the employee to represent against the same. The applicant also relies upon the judgment, dt. 18.12.2014, of the Hon’ble Supreme Court in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) etc in CA No.11527 of 2014, in support of his contention that the recovery is impermissible under law. VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

(viii) The applicant also relies upon the judgment of the Hon’ble Supreme Court in SLP(C) No. 5918/2024 between Jogeswar Sahoo & Ors. Vs. The District Judge, Cuttack & Ors., decided on 04.04.2025. Therefore, the applicant submits that the recovery or adjustment of the alleged overpayment of Rs.4,76,229/-, from the dues payable to him, is illegal and arbitrary.

3. The respondents have contested the OA and filed a reply statement, inter alia, contending that:

(i) The applicant served in the Indian Air Force during the period from 31/08/1978 to 31/08/1993 and, on re-employment, he had joined the Respondent's Directorate, viz., Atomic Minerals Exploration & Research (AMD for short) as Assistant Security Officer-A, w.e.f. 23/05/1994, and retired as a Security Officer, on superannuation, on 30/11/2021, from AMD, Southern Region, Bengaluru. Upon his retirement, all the pensionary benefits have been settled and the sanction for encashment of EL for a period of 160 days was also sent to the Accounts, vide letter, dt. 19.05.2022. While processing leave encashment, O/o Dy. Controller of Defence was requested, vide letter, dt. 21.01.2022, to furnish the details of the number of days, for which, encashment was allowed and the amount paid on that account. In turn, the Air Headquarters, Directorate of Air Veterans, vide their Letter, dt. 05.05.2022, intimated that the applicant had availed encashment of 140 days at the time of discharge from the Indian Air Force. Therefore, in terms of sub-rule (ii) of Rule 39 of the CCS (Leave) Rules, 1972, encashment of 160 days of EL was sanctioned to the applicant, vide office letter, dt. 19.05.2022. VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

(ii) The Applicant made several representations on his claim for complete encashment of 300 days, without reducing the leave encashment already availed at the time of discharge from the IAF. Further, he also preferred a representation, dt. 02/02/2024, to the National SC & ST Commission, endorsing a copy of the same to the DAE. Subsequently, DAE referred the matter to the DoPT, vide DAE's ID Note No. 28/2/2024- SCS/12814, dt. 03.09.2024, seeking confirmation whether the action taken by the Department, in sanctioning 160 days encashment of EL to the applicant after deducting EL encashed during previous service, under the Defence Estimates is in order or not, so as to furnish a suitable reply to the National SC & ST Commission. In response, the DoPT, vide their ID Note No. A-24011/9/2022-Estt. (Leave), dt. 06/09/2024, has clarified as follows:

“Rule 39(6)(a)(iii) of the CCS(Leave) Rules, 1972 is applicable to all Central Government pensioners, who are re-employed after retirement to any of the central Ministries/Departments. Therefore, Rule 39(6)(a)(iii) may be applicable in the instant case also.”

(iii) It is also stated by the Respondents that prior to superannuation, vide letter, dt. 05.07.2021, the applicant had furnished an undertaking agreeing to refund or make good any amount, paid in excess to him.

(iv) It is submitted by the Respondents that an amount of Rs.10,20,490/- was released to the Applicant towards encashment of 300 days of leave. However, after releasing the said amount, it was found that the payment was made in excess, as per the guidelines issued under DoPT O.M., dt. 27.06.2017. Hence, he was requested, vide letter, dt. 25.01.2024, to refund the amount of Rs.4,76,229/-, which was paid in excess towards 140 days leave encashment. Instead of refunding the excess amount paid to him, the VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

Applicant has represented to the National SC & ST Commission. Since the amount is outstanding from the Applicant, the same was withheld from the benefits payable to him at the time of his retirement, as per Rules. As the applicant was selected under ex-servicemen quota, sub-rule 6(iii) under Rule 39 of the CCS (Leave) Rules is very well applicable in his case.

(v) It is also the case of the Respondents that, one Shri Malle Adinarayana, had approached this Tribunal, vide O.A No. 854/2021, seeking similar relief relying on the DRDO letter, dt.25.11.2016. This Hon’ble Tribunal, Hyderabad Bench, vide order, dt. 14.03.2022 dismissed the O.A and held as follows:

“6. The Rule position in this regard i.e, Rule 39(2) is very clear. Only once in the entire service, one can avail leave encashment for a maximum of 300 days unutilized Earned Leave and Half Pay Leave. The applicant has made a request by quoting Rule 34(2)(e) of CCS(CCA) Rules, 1965. No relevant rule/legal position has been brought to our knowledge. As such, we are not convinced with the contentions of the applicant. After going through the records, we are of the view that the O.A. is not maintainable and is liable to be dismissed. Accordingly, the O.A is dismissed. No order as to costs.”

Respondents also relied upon the Order, dt. 19.10.2022, of C.A.T., Ernakulam Bench, dismissing a similar case, vide O.A No.230 of 2020, with the following observations:

“13. Merely for the reason that a benefit might have been given to a group of employees under a mistaken notion, without adverting to the relevant provisions of law, the applicant cannot take advantage of such a mistake or illegality, which cannot be perpetuated. As indicated earlier, what is relevant is the Leave Rules, and Rule 39(6)(a)(iii) of the Leave Rules which clearly prohibits consideration of an application for encashment of earned leave beyond 300 days. Therefore, if the applicant had encashed maximum days of earned leave during his Military service, he cannot claim encashment as prayed for by him. Thus, the application is bereft of merits and is liable to be dismissed.”

VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

The above order in O.A. No. 230 of 2020 was challenged by the applicant therein before the Hon’ble High Court of Kerala, at Ernakulam, and the Hon’ble High Court, vide order, dt. 30.01.2025, dismissed the O.P.(CAT) No. 50 of 2023, with the following concluding observations:

“We are in agreement of the reasoning of the Central Administrative Tribunal. We do not find any illegality or perversity in the findings of the Central Administrative Tribunal. Thus, the O.P. (CAT) is dismissed.”

(vi) It is submitted by the Respondents that, in compliance with the guidelines in the DoPT OMs, dt. 06.02.2014 & 02.03.2016, the applicant was informed about the excess payment, vide their letter, dt. 25.01.2024, with a request to refund the excess amount paid to the tune of Rs.4,76,229/- and the same amount has not yet been recovered till date. It is only withheld in the form of dues payable to the applicant. In regard to the judgments of the Hon’ble Supreme Court in Chandi Prasad Uniyal &Ors.; and Rafiq Masih, the Nodal Department, i.e., the DoPT has advised all the Ministries/Departments of Government of India to make recovery of the excess payments made by informing the concerned employee, except in any extreme hardships.

(vii) The respondents further relied upon the following judgments of the Hon’ble Supreme Court in support of their case:

(a) Civil Appeal No. 3500 of 2006, in the matter of High Court of Punjab & Haryana & Ors. V. Jagdev Singh, dt. 29.07.2016

(b) Civil Appeal No. 5464-5465 of 2025, in the matter of State of Sikkim and Others v. Dr. Mool Raj Kotwal, dt. 23.04.2025 VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

4. Heard both sides and perused the documents.

5. Dr. S Goverdhan Rao, learned counsel for the applicant, states that there has been discrimination in the case of the applicant in counting the period of leave encashment during his tenure in the Indian Air Force while many of his colleagues have not been made to forgo the earlier period of encashment while counting the eligible leave period in their subsequent employment. Learned counsel further states that Annexure A-11 contains the list of Ex-Servicemen, who were given leave encashment in the earlier service as well as in the subsequent service. However, in this document, nothing pertains to leave encashment. Therefore, it cannot be relied upon.

6. Learned counsel for the applicant has drawn the attention of this Tribunal to the contentions raised in para 4.2 of the OA and submitted that, as per the extracts of the CCS (Leave) Rules, 1972, relied upon by him, Rule 34 provides that a person, who is re-employed after retirement, shall be treated as if he had entered government service, for the first time, from the date of his re-employment. He further submitted that, under Rule 39(2)(a), leave encashment includes payments against EL and HPL at his credit, subject to a maximum of 300 days.

7. It is further submitted by the learned counsel that the applicant had retired on 30.11.2021, whereas the recovery demand was raised only on 25.01.2024 (Ann A-6). According to him, the amount of Rs.10,20,490/- was correctly released towards encashment of 300 days of Earned Leave. Therefore, the recovery of Rs.4,76,229/-, by way of refund, on deducting 140 days of EL, is not sustainable. He also referred to the DOPT OM, dt. VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

02.03.2016 (Ann. A-13), and submitted that, in terms of para 4 thereof, recoveries after his retirement is not permissible. Learned counsel also sought to place reliance on the judgment in OA No. 1044/2023, decided by the Hon'ble CAT, Allahabad Bench on 11.08.2025, especially on paras 6, 7, 8 and 9, wherein, according to him, relief was granted in a similar matter. He has also cited the order of the Apex Court in the case of the Jogeswar Sahoo & Ors. vs. The District Judge Cuttack & Ors. at para 9 of the OA. In the light of these judgments, it is argued that the applicant is not liable for any recovery. Learned Counsel has also referred to the clarification issued by the BSNL regarding eligibility for encashment of EL/HPL, vide order, dt. 12.08.2022 (Annexure-A10). He also states that the decision, dt.24.07.2024, of the Hon’ble Madhya Pradesh High Court, sitting at Gwalior, in WP No. 2343/2009, mentioned by C.A.T., Allahabad Bench, in its order dt. 11.08.2025, in OA 1044/2023, will prevail over the DoPT OMs referred to by the respondents.

8. On the other hand, learned counsel for Respondents has taken us through paras 6(d) and 7.4 of the reply statement as well as Ann. R-9, viz., the DoPT OM, dt.27.06.2017, which limits the maximum EL encashment to 300 days for the purpose of encashment, including the period, for which, encashment had already been allowed at the time of discharge from the IAF. She also drew attention of this Tribunal to the order, dt.14.03.2022, passed by this Bench in OA No. 854/2021, wherein a similar issue had already been rejected. Reliance was also placed on the judgment of the CAT, Ernakulam Bench in OA No. 230/2020, decided on 19.10.2022, VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

wherein similar view was taken and the said judgment has been upheld by the Hon’ble High Court of Kerala.

9. We have gone through the order, dt. 25.01.2024, issued by the Asst. Accounts Officer, AMD, to the applicant, requesting to refund the amount of Rs.4,76,229/-, which clearly explains the reason for mis-calculation and the basis for refund of the said amount. It is a matter of record that the applicant has already furnished an undertaking for refund of excess amount on account of overpayment at the time of his superannuation. The application of Rule 39(6)(a)(iii) of the CCS(Leave) Rules, 1972, as attracted in the present case, has already been the subject matter and has been exhaustively considered in several judicial orders.

10. We have also gone through the order of this Bench, dt. 14.03.2022, in OA 854/2021 as well as, the order, dt. 19.10.2022, in OA No. 230/2020 of the Coordinate Bench of Ernakulam, which are extracted, supra. The order of the Ernakulam Bench has already been upheld by the Hon’ble High Court of Kerala, at Ernakulam, vide its order, dt. 30.01.2025 in OP (CAT) No. 50 of 2023, supra. In addition, the following portions of the orders of the Hon’ble Supreme Court, as extracted below, are directly relevant to the case in hand:

(a) Civil Appeal No. 3500 of 2006, in the matter of High Court of Punjab & Haryana & Ors. V. Jagdev Singh, dt. 29.07.2016: “10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

“(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” (emphasis supplied).

The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs.”

(b) Civil Appeal No. 5464-5465 of 2025, in the matter of State of Sikkim and Others v. Dr. Mool Raj Kotwal, dt. 23.04.2025: “31. In the present case, the respondent was in the regular employment and superannuated on completion of 58 years of age on 31.01.2005 under Service Rules. He was granted benefit of leave encashment maximum of 300 days under Rule 36 of the Leave Rules. On re-employment, he was continued for more than 14 years and relieved on 28.05.2019. On relieving after re- employment, the benefit of leave encashment was again sanctioned on 31.05.2019. The government on realising the mistake and interplay of Rules 32 and 36 with the spirit of the Leave Rules, issued clarificatory order on 27.02.2020 denying the benefit of leave encashment beyond 300 days, is in consonance with the spirit of Rule 36, which is just and reasonable to the extent as indicated above. Therefore, cancellation of VISWESWARA RAO ESURU

VISWESWARA RAO ESURU

sanction of leave encashment order dated 31.05.2019 is also in consonance to the law.

32. Lastly, it is impressed upon that the leave encashment benefit granted to the respondent has been cancelled without affording due opportunity, and in violation of natural justice. In our view, the said argument appears attractive on first blush, but of no substance. When the respondent is unable to justify his claim of leave encashment and unable to set forth his right even allowing him reasonable opportunity, in our view, no prejudice was caused in cancelling the order granting leave encashment second time. As such, the argument of not granting an opportunity and violation of natural justice is hereby repelled.

33. In view of the foregoing, the irresistible conclusion can be drawn is that, under Rule 36 of Leave Rules, a regular government servant, if retires under Sikkim Government Service Rules, 1974 would be entitled for leave encashment maximum for 300 days. If the government servant is re- employed after 58 years of age and continued for a long time and get leaves accumulated during the period of re-employment, he/she cannot get benefit of leave encashment second time merely because he/she is having leave in his/her credit during the period of re-employment. Consequently, the orders passed by the learned Single Judge and the Division Bench stand set-aside and both these appeals stand allowed. The pending application(s), if any, shall also stand disposed of. In the facts, there is no order as to costs.”

Thus, it is found that the matter is no longer res integra. The applicant had joined the Respondent Organization under the ex-serviceman quota. The DOPT ID Note, dt. 06.09.2024 (Ann. R-8) containing clarification in respect of encashment of EL to Shri Ashok Kumar, on his retirement, after re-employment, further reinforces the stand of the respondents and the same has not been challenged by the applicant.

11. In view of the above discussion, the applicant has failed to make out a case for himself. Accordingly, the OA is dismissed. Pending MA (s), if any, stand disposed of.

12. There shall be no order as to costs.

(VARUN SINDHU KUL KAUMUDI)

ADMINISTRATIVE MEMBER /evr/ VISWESWARA RAO ESURU

VISWESWARA RAO ESURU