Friday, September 09, 2011

Mr. Arvind Kejriwal’s study leave case- A legal analysis...

Hi friends

I happened to read an interesting case study on Mr. Arvind Kejriwal. It was written by Mr. Amitabh Thakur (B.Tech IIT KGP), an officer of the IPS (1992), UP Cadre. He is a B Tech from IIT Kanpur who is presently undergoing Fellow Program from IIM Lucknow. He is also the president of IRDS (Institute for Research and Documentation in Social Sciences). It presents the facts in a clear way, and mentions that many such cases do exist. Please find below the case. I have made some changes to highlight certain information and made some changes to the grammar involved.

Mr. Arvind Kejriwal’s study leave case- A legal analysis

Mr. Arvind Kejriwal was with the Indian Revenue Service (IRS) when he was granted study leave for two years in 2000. As per information, he went on study leave from 1st November, 2000, up to 31st October 2002. He joined back on 1st November, 2002. The three years got over on 31st October, 2005 and he resigned in February, 2006.

Now, as per information in the Press, he has been asked to return his leave salary of Rs. 3.54 lakhs along with an interest of about Rs. 4.16 lakhs. There is another matter related with him where a balance amount of Rs. 54,000 over Computer loan along with Rs. 1.04 lakh of interest over that is being shown against him. I wanted to undertake a purely legal study of the matter.

I found that Rule 63(1) of the Central Civil Services (Leave Rules) 1972, dealing with “Resignation or retirement after study leave or non-completion of the course of study” states the following:

If a Government servant resigns or retires from service or otherwise quits service without returning to duty after a period of study leave or within a period of three years after such return to duty or fails to complete the course of study and is thus unable to furnish the certificates as required under sub-rule (5) of Rule 53 he shall be required to refund-

(i) The actual amount of leave salary, Study Allowance, cost of fees, travelling and other expenses, if any, incurred by the Government of India; and

(ii) The actual amount, if any, of the cost incurred by other agencies such as foreign Government, Foundations and Trusts in connection with the course of study, together with interest thereon at rates for the time being in force on Government loans from the date of demand, before his resignation is accepted or permission to retire is granted or his quitting service otherwise.

What is to be noted here is that the word used is this: “within a period of three years after such return to duty”. Thus, all it needs is that a government servant should come back to service and join his duty which Mr. Kejriwal did on 1st November, 2002. Here, it should be mentioned that there is no requirement that the member of service shall remain in active service or any other such condition. Hence, a prima-facie reading of the rule seems to mean that a government servant needs to return to service and irrespective of the situation, which must include even the 2 years of extraordinary leave which was taken in Mr Kejriwal’s case, he is entitled to leave the service after a period of 3 years from return to duty.

Another fact that seems to give added weightage to this interpretation is that Rule 3(d) under definitions says the following:

“Completed years of service” means continuous service of specified duration under the Central Government and includes the period spent on duty as well as on leave including extraordinary leave.”

Thus, this also clearly makes extraordinary leave a part of period spent on duty.

These two rules taken together seem to legally point out that Mr. Kejriwal had completed three years in service before he finally resigned and hence was entitled to keep his study leave salary.

Regarding his computer loan, it is said that he stated that he wanted this amount to be deducted from his GPF account. This seems pretty logical and also would not have left any interest burden on him in a legal sense, if his resignation had got accepted in a stipulated time.

In fact, one very interesting fact that emerges in Mr Arvind Kejriwal's case is the delay that often occurs in acceptance of resignation from service. I have two friends from UP IPS, Mr. Dawa Sherpa who is now a leader in Gorkhaland and Mr. Kiran Jadhav, who is now in corporate world. They had resigned some 4 years ago but their cases are still pending and theoretically they are still in service. Another very case is that of Mr. Sanjay Pandey, IPS officer from Maharashtra and an IIT Kanpur graduate whose resignation has still not been accepted after so many years and who is fighting cases only to get his resignation accepted.

Thus, it seems resigning from Government is equally difficult as coming to government service.

Amitabh Thakur.