Comptroller and Auditor General of India and Others v Parameswaran N.B and Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **FRIDAY, THE 7[TH] DAY OF JULY 2023/16TH ASHADHA, 1945** **OP (CAT) NO.51 OF 2023** **AGAINST THE ORDER DATED 29.08.2022 IN OA No.565/2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** 1 THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, NO.10, BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 124. REPRESENTED BY THE PRINCIPAL ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, PIN – 695001. 2 THE PRINCIPAL ACCOUNTANT GENERAL (A&E) KERALA, M.G. ROAD, STATUE P.O., THIRUVANANTHAPURAM, KERALA, PIN – 695001. 3 THE DEPUTY ACCOUNTANT GENERAL (A&E)KERALA, THRISSUR BRANCH, KARUNAKARAN NAMBIAR ROAD, CHEMBUKKAV P.O., THRISSUR, KERALA -680 020, REPRESENTED BY THE PRINCIPAL ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM, PIN – 695001. BY ADV.SRI.K.I.MAYANKUTTY MATHER ## **RESPONDENTS:** 1 PARAMESWARAN N.B, S/O. BRAHMADATHAN NAMBOODIRI, AGED 57 YEARS, SENIOR ACCOUNTANT, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THRISSUR BRANCH, KARUNAKARAN NAMBIAR ROAD, CHEMBUKKAV P.O., THRISSUR, KERALA, PIN – 680020. 2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL & TRAINING NORTH BLOCK, NEW DELHI, PIN – 110001. BY ADVS. SRI.C.S.GOPALAKRISHNAN NAIR SRI.S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA SRI. SUVIN R. MENON-CGC THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 07.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** ## **----------------------------------------------------------------------** ## **O.P.(CAT)No.51 of 2023** (arising out of the impugned order dated 29.8.2022 in O.A.No.565/2019 on the file of the CAT, Ekm. Bench ) **----------------------------------------------------------------------** Dated this the 7[th] day of July, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The afore-captioned Original Petition, instituted under Articles 226 and 227 of the Constitution of India, is directed against the impugned Ext.P3 final order rendered on 29.8.2022 by the Central Administrative Tribunal, Ernakulam Bench in O.A.(Ekm)No.565/2019. The petitioners herein are respondents 2 to 4 in the above Original Application. The respondents herein are the original applicant and R-1 (Union of India) in the O.A. respectively. 2. Heard Sri.K.I.Mayankutty Mather, learned Standing Counsel for the Comptroller & Auditor General of India, instructed by Smt.T.K.Sreekala, learned counsel appearing for the petitioners herein, Sri.C.S.Gopalakrishnan Nair, learned counsel appearing for R-1 herein (original applicant) and Sri.Suvin.R.Menon, learned Central Government Counsel appearing for R-2 herein (Union of India in the Department of Personnel and Training (DoPT)). O.P.(CAT)No.51 of 2023 2 ## 3. The prayers in the instant Ext.P1 original application, O.A. ## No.565/2019 are as follows:- - _"(1) To call for the records leading up to the issue of Annexure A3, A5 and A7 and quash the same._ - _(ii) To direct the 1" respondent to issue necessary orders granting 90 days Special Casual Leave for those employees who donate their organs voluntarily without any return/personal gain._ - _(iii) To direct the respondents 2 to 4 to grant 51 days Special Casual Leave to the applicant in lieu of the earned Leave/Casual Leave granted to the applicant in connection with his Kidney donation._ - _(iv) Grant such other relief or reliefs that may be prayed for or that are found to be just and I proper in the nature and circumstances of the case._ - _v) Grant cost of this O.A."_ 4. The Tribunal, after hearing both sides, had rendered Ext.P3 final verdict on 29.8.2022 in the instant O.A.No.565/2019 ordering, in ## paragraph nos.12 and 13 thereof, as follows:- - _"12. It appears that the purpose of the applicant can be served, if he is granted special casual leave for 36 days as already applied for by him, besides any such application for special casual leave supported by medical records for visiting hospital prior to the surgery or for review, in connection with the said procedure undergone by him, shall be granted to him. Annexures A3, A5 and A7 are quashed and the respondents are directed to grant him special casual leave for 36 days for undergoing the surgery._ _13. As rightly suggested by the learned counsel for the applicant Annexure-A8 guidelines has to be amended suitably for meeting this kind of situation as well. In these days, organ donations and transplantations have_ O.P.(CAT)No.51 of 2023 3 _become very common. If only more people are attracted to such a noble cause, persons in dire need would be able to get organs transplanted. In fact, the applicant was standing for a noble cause, he had voluntarily donated one of his kidneys, a vital organ, without any motive. Such laudable acts have to be encouraged as done by the State of Kerala. Either the 1" respondent should formulate separate scheme for granting special leave for such donors, who are employees or should amend Annexure-A8 appropriately. I have noticed that even for lesser important matters like attending sports events, association matters etc., special casual leave is being granted very liberally. In some instances, Annexure-Al postulates granting special casual leave 30 days a year. Considering the nature involved, it is only appropriate that the 1" respondent shall frame separate Rules/guidelines or shall amend Annexure-A8 appropriately for incorporating grant of special casual leave for prospective donors. "_ 5. Through this Original Petition the petitioners herein (respondents 2 to 4) seek to challenge the impugned order of the Tribunal, as above, to the extent that it has directed the petitioners herein to grant special casual leave for 36 days to the respondent/applicant for undergoing surgery, for effectuating the organ donation. R-1 herein (original applicant) is a Senior Accountant in the Branch Office, Thrissur of the Comptroller and Auditor General's Office. He had voluntarily donated one of his kidneys to a terminally ill patient, who had been surviving on dialysis for the past several years. In connection with the said organ donation, the original applicant had to avail 36 days of leave from 04.01.2019 to 08.02.2019. As per the medical O.P.(CAT)No.51 of 2023 4 certificate issued by the Head of the Department, Department of Nephrology, Amritha Institute of Medical Sciences, Kochi, he was admitted on 07.01.2019 and underwent kidney transplantation on 08.01.2019 and he was advised to take rest for one month from the date of discharge, i.e., on 12.01.2019. It is in this background that the original applicant, who is a genuine organ donor, was compelled to seek special casual leave for 36 days. This claim was turned down, for want of statutory provisions in the CCS (Leave) Rules. It is thereupon that the original applicant has filed the instant O.A. No.565/2019, with the aforementioned prayers, seeking for grant of Special Casual Leave for 36 days. Even in the absence of statutory provisions, the Tribunal has taken up a proactive approach and has directed the petitioners herein to grant Special Casual Leave for 36 days to the original applicant for having undergone surgery for kidney transplantation, as above. The Tribunal also directed R-2 herein (Union of India in the DoPT) to frame separate rules or guidelines, etc. for incorporating the grant of Special Casual Leave for such donors, etc. When the above matter had come up for consideration on 30.5.2023, we had passed an order on that day, which reads as follows:- _"Notice before admission for R-1 has been taken by_ O.P.(CAT)No.51 of 2023 5 _Sri.C.S.Gopalakrishnan Nair, learned Advocate and notice before admission for R-2 (Union of India) has been taken by Sri.S.Manu, learned Dy. Solicitor General of India. The Registry will show the names of the abovesaid Advocates in the cause list. Service complete. 2. Sri.K.I.Mayankutty Mather, learned counsel appearing for the petitioners (Comptroller & Auditor General of India) and other officials concerned has submitted, on the basis of instructions, that the petitioners in the O.P/respondents 2 to 4 in the O.A have done their best to persuade the competent authority of the respondent (Union Government), to issue necessary rules and guidelines for conferment of special casual leave to Organ donors, like the original applicant, so that the benefit of casual leave could actually be granted to the original applicant, as envisaged in the verdict of the Tribunal. Now, the competent authority of the respondent (Union Government) has issued Ext.P-10 Office Memorandum No.A-24011/23/2022-Estt. (Leave) dated 25.04.2023, wherein it has been inter alia ordered in para 3 thereof, that the said orders, in the matter of grant of benefit of special casual leave to Organ donors, as ordered therein, will be applicable to Government employees appointed in Civil Services and posts in connection with the affairs of the Union of India, in terms of Rule 2 of the CCS (Leave) Rules, 1972 with effect from the date of the issuance of this O.M. It is pointed out that, by virtue of the abovesaid restrictive clauses in conditions in para 3 of Ext.P-10, since the original applicant had commenced his regular service prior to the cut off date of 25.04.2023 (date of issuance of Ext.P-10), he may not be able to actually get the benefit of special casual leave for Organ donors, though the entire exercise has originated based on the litigative efforts of the original applicant, who appears to be a genuine Organ donor. Further, it is submitted by the learned counsel for the petitioners that the petitioners apprehend that, inspite of the issuance of Ext.P-10, the original applicant may attempt to enforce the verdict of the Tribunal, for actual conferment of special casual leave benefits to him, on the basis of the impugned verdict by instituting contempt of court proceedings and that this apprehension is well-founded, as evident from Ext.P-11 contempt proceedings, now already initiated at the behest of the original applicant. 3. Having regard to the submissions of both sides, it is ordered, in the interest of justice that Ext.P-11, arising out of Ext.P-3 final order dated 29.08.2022 rendered by the CAT, Ekm. Bench in O.A No.565/2019, shall remain stayed and will be kept in abeyance. 4. Further, it is ordered, in the interest of justice_ O.P.(CAT)No.51 of 2023 6 _that in view of the fair and reasonable stand taken by the petitioners, the competent authority of the respondent (Union Government), will immediately furnish instructions and apprise this Court, as to whether the benefit of Ext.P-10 could be given by considering special casual leave benefits to the original applicant, as a special case and in relaxation of the general norms and without treating it as a precedent, as the entire exercise that led to the issuance of Ext.P-10 has originated only on account of the bonafide and litigative efforts of the original applicant, who is a genuine Organ donor. Alternatively, the petitioners and the respondent (Union Government) will also apprise this Court, as to whether this Court may consider issuing appropriate directions for granting the benefit of special casual leave to the original applicant, as conceived in Ext.P-11, as a special case and without treating it as a precedent. The matter should be expeditiously considered by the respondent (Union Government), inasmuch as the original applicant is likely to retire from service shortly."_ ## 6. Subsequently, on 14.6.2023, we had passed an order recording some more submissions of the parties concerned, which reads as follows:- _"Submission is made on behalf of Sri.S.Manu, learned Dy. Solicitor General of India, appearing for R-2 (Union Government – DoPT) that, some more time is required to get instructions on the points covered in this Court's order dated 30.04.2023._ _2. Sri.K.I.Mayankutty Mather, learned Standing Counsel for the Comptroller & Auditor General of India, appearing for the petitioners herein, submits that in compliance with the order passed by this Court on 30.05.2023, the petitioners have already sent a letter dated 09.06.2023 addressed to the competent authority of the Union Government in the Personnel & Training Department, etc., and a copy of the said letter dated 09.06.2023 will be produced, along with a memo of the learned counsel. Permission granted._ _3. Sri.C.S.Gopalakrishnan Nair, learned counsel appearing for R-1 herein (original applicant) would submit_ O.P.(CAT)No.51 of 2023 7 _that his party is retiring from service on 31.07.2023 and that the benefit of special casual leave will have to be sanctioned before that and that therefore, the urgency, etc."_ 7. Sri.K.I.Mayankutty Mather, learned Standing Counsel for the Comptroller and Auditor General of India, appearing for the petitioners, has given a copy of the letter dated 09.06.2023, submitted by the Office of the Comptroller and Auditor General of India, New Delhi addressed to the competent authority of the Union Government in the Department of Personnel and Training, wherein the petitioners have apprised the Union Government about the orders passed by this Court on 30.05.2023 and requested the competent authority of the Union Government to take necessary action in that regard. 8. Today, when the matter has been taken up for consideration, Sri.Suvin.R.Menon, learned Central Government Counsel appearing for the respondent/Union Government in the DoPT, has made available a copy of the letter dated 16.6.2023, addressed by the competent authority of the Union Government in the DoPT addressed to the Deputy Solicitor General of India. Para No.2(v) and para 3, given on page 4 of the above said letter dated 16.6.2023, issued by the competent authority of the Union Government in the DoPT, read as follows:- _“2. xxx i. xxx_ O.P.(CAT)No.51 of 2023 8 _ii. xxx iii. xxx iv.xxx_ _v. The matter was re-examined accordingly and O/0 CAG was informed ride OM dated 12.06.2023 (through email and by post) (copy enclosed along with its enclosures)_ _"The DOPT's OM issued on 25.04 2023 has covered all similar cases as that of Shri Parameshwaran N.B. with effect from the date of issue of the said OM Shri Parameshwaran N.B. is an employee of the O/o CAG. Granting of special casual leave to him in the matter retrospectively as a special case is purely an administrative issue, which is to be decided by the cadre controlling authority i.e., O/o CAG and DOPT has no role to play in granting Special Casual Leave to the employee of the O/O CAG, retrospectively”. vi.xxxx_ _3. It is further stated that, in case the O/o CAG considers granting special casual leave to Shri Parameshwaran N.B., retrospectively, as per DOPT's OM dated 25.04.2023, DOPT has no objection to the decision of the O/o CAG.”_ 9. Thus, it can be seen that all respondents in the O.A., namely, the petitioners herein and R-2 herein, has taken a very proactive approach, taking note of the humanitarian act of the original applicant, who is a genuine organ donor. A reading of the above said letter dated 16.6.2023 would indicate that DoPT has issued O.M. on 25.4.2023, which covers all cases similar to that of the present petitioners with effect from the date of issuance of the said O.M. It is stated therein that the original applicant is an employee of the Comptroller and Auditor General of India and that granting of Special Casual Leave to him in the matter retrospectively, as a special case, is purely an administrative issue, which is to be decided by the cadre controlling authority i.e., the O.P.(CAT)No.51 of 2023 9 Office of the CAG and that the DoPT may not have any role to play in the grant of Special Casual Leave to an employee in the office of the CAG. Further, it is stated, in para 3 of the said letter, that in case the Office of the CAG considers grant of Special Casual Leave to the original applicant retrospectively, as per the DoPT's O.M. dated 25.4.2023, then the DoPT has no objection to the said decision of the office of the CAG, etc. From the submissions of the respondent/Union Government, it appears that the new benefit of Special Casual Leave for organ donors will ordinarily be applicable only in cases where some Special Casual Leave is actually availed after the issuance of the said O.M. dated 25.4.2023. In the instant case, the original applicant has availed casual leave prior to the above said O.M., since he has availed special casual leave for 36 days for the period from 4.1.2019 to 8.2.2019. 10. Taking note of the overall facts and circumstances of the case, it is ordered, in the interest of justice, that the competent authority of the petitioners will immediately grant Special Casual Leave to the original applicant, in respect of the period from 04.01.2019 to 08.02.2019, taking note of the humanitarian act of the petitioner in being a genuine organ donor. Grant of such casual leave would be in relaxation, if any, of the rigour or requirement of the norms of the O.M. concerned. However, O.P.(CAT)No.51 of 2023 10 such grant of special casual leave, in favour of the original applicant, shall not be treated as a precedent and will be treated as one in relaxation of the rules/norms. Since the original applicant is to retire from 31.7.2023, orders on the above said aspect shall be issued by the competent authority of the petitioners without much delay, preferably within a period of one week from the date of receipt of a copy of this judgment. We also note the proactive steps taken by the 2[nd] respondent Union Government in the DoPT that they have no objection in the exercise of any such discretion by the office of the CAT. The above said directions are issued in modification of the verdict of the Tribunal. After issuing proceedings granting special casual leave to the original applicant, as above, the petitioners may produce a copy of the said proceedings before the Tribunal in the pending contempt proceedings and on production of said proceedings if it is in consonance with the present direction, then the Tribunal shall close the contempt proceedings accordingly. 11. Registry of this Court will forward a copy of this judgment to the CAT, Ernakulam Bench, which is dealing with Ext.P11 contempt petition No.11/2023 in O.A.No.565/2019 for necessary information. The learned Standing Counsel for the Comptroller and Auditor General will O.P.(CAT)No.51 of 2023 11 immediately forward a copy of this judgment to the petitioners for necessary information and immediate compliance. With these observations and directions the above original petition will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **C. JAYACHANDRAN, JUDGE** ww O.P.(CAT)No.51 of 2023 12 ## **APPENDIX OF OP (CAT) 51/2023** PETITIONERS' ANNEXURES: |ANNEXURE A1|TRUE COPY OF THE DISCHARGE SUMMARY ISSUED| |---|---| ||BY THE HOSPITAL.| |ANNEXURE A2|TRUE COPY OF THE CERTIFICATE ISSUED BY THE| ||PROFESSOR AND HEAD OF THE DEPARTMENT OF| ||NEPHROLOGY OF THE AMRITA INSTITUTE OF| ||MEDICAL SCIENCES ISSUED ON 18.1.2019.| |ANNEXURE A3|TRUE COPY OF THE MEMO NO. OE/IX/A&E/TSR/| ||SPL.CL/GNL/2019 DATED 31.1.2019 ISSUED BY| ||THE 4TH RESPONDENT.| |ANNEXURE A4|TRUE COPY OF THE REPRESENTATION DATED| ||28.01.2019.| |ANNEXURE A5|TRUE COPY OF THE MEMO NO. ADMN.VI/SP.CI/| ||PARAMESWARAN/2019 DATED 20.3.2019 ISSUED| ||BY THE 3RD RESPONDENT.| |ANNEXURE A6|TRUE COPY OF THE REPRESENTATION DATED| ||7.4.2019.| |ANNEXURE A7|TRUE COPY OF THE NOTE NO. ADMN.VI/SP.CI/| ||PARAMESWARAN/2019 DATED 9.7.2019 ISSUED BY| ||THE 3RD RESPONDENT ALONG WITH A COPY OF| ||THE MEMO DATED 27.6.2019 ISSUED BY THE 2ND| ||RESPONDENT.| |ANNEXURE A8|TRUE COPY OF THE BROCHURE CONTAINING THE| ||ORDERS ISSUED IN THIS REGARD FROM TIME TO| ||TIME BY 1ST RESPONDENT.| |ANNEXURE A9|TRUE COPY OF THE ORDER NO.GO(P) NO.124/| ||2013/FIN. DATED 5.3.2013 ISSUED BY THE| ||GOVERNMENT OF KERALA.| |ANNEXURE10|TRUE COPY OF THE G.O.(P) NO.21/2016 /FIN.| ||DATED 7.2.2016 ISSUED BY THE GOVERNMENT OF| ||KERALA| O.P.(CAT)No.51 of 2023 13 |EXHIBIT|P1|TRUE COPY OF THE ORIGINAL APPLICATION NO.| |---|---|---| |||565 OF 2019 FILED BY THE APPLICANT BEFORE| |||THE TRIBUNAL.| |EXHIBIT|2|TRUE COPY OF THE REPLY STATEMENT FILED BY| |||THE PETITIONERS HEREIN IN OA NO.565 OF| |||2019.| |EXHIBIT|P3|TRUE COPY OF THE ORDER OF THE CENTRAL| |||ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH| |||IN OA 565 OF 2019 DATED 29.8.2022.| |EXHIBIT|P4|TRUE COPY OF THE LETTER NO. SR.| |||DAG(A)/C.CELL/OA 565/2019 DATED 27.09.2022| |||ISSUED BY THE OFFICE OF THE 2ND| |||PETITIONER.| |EXHIBIT|P5|TRUE COPY OF THE LETTER NO.16/LEGAL| |||CELL/257-2019 DATED 6.12.2022 ISSUED BY| |||THE OFFICE OF THE 1ST PETITIONER.| |EXHIBIT|P6|TRUE COPY OF THE LETTER NO.EFILE NO.| |||14029/5/2021-ESTT(L) <br>DATED <br>27.12.2022| |||ISSUED BY THE OFFICE OF THE 2ND| |||RESPONDENT.| |EXHIBIT|P7|TRUE COPY OF THE LETTER NO.52/LEGAL| |||CELL/257-2019 DATED 13.01.2023 ISSUED BY| |||THE OFFICE OF THE 1ST PETITIONER.| |EXHIBIT|P8|TRUE COPY OF THE LETTER NO.259-LEGAL| |||CELL/257-2019 DATED 17.03.2023 ISSUED BY| |||THE SECRETARY, DEPARTMENT OF PERSONAL AND| |||TRAINING.| |EXHIBIT|P9|TRUE COPY OF THE REMINDER LETTER NO.307-| |||LEGAL CELL/257-019 DATED 23.03.2023 ISSUED| |||BY THE 1ST PETITIONER TO THE SECRETARY,| |||DEPARTMENT OF PERSONAL AND TRAINING.| |EXHIBIT|P10|TRUE COPY OF THE OFFICE MEMORANDUM NO.| |||A24011/23/2022-ESTT.(LEAVE)<br>DATED| |||25.4.2023 ISSUED BY THE 2ND RESPONDENT.| O.P.(CAT)No.51 of 2023 14 EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS DATED 27.03.2023 IN CONTEMPT PETITION NO.11 OF 2023 IN O.A.565 OF 2019 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' ANNEXURES: ANNEXURE R2(A) A TRUE COPY OF THE COMMUNICATION EF NO.A24011/23/2022-ESTT(LEAVE) DATED 16.06.2023 ISSUED BY DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA NEW DELHI.