M. RAMA JOIS, J. ( 1 ) THE petitioner who is a Stenographer on the establishment of the Advocate general for the State has presented this writ petition questioning the legality of the official memorandum issued by the State Government and the consequential order made against him directing the recovery of the amounts drawn by him towards encashment of leave. ( 2 ) THE petitioner was originally appointed as local candidate as a stenographer in the office of the advocate General on 10-2-1972 pursuant to which h,e joined duty on 14-2-1972. Subsequently the petitioner was selected for permanent appointment by the Public Service commission. Pursuant to the said selection he was appointed on 18. 7. 1972. He was placed on probation for a period of two years as provided under Rule 18 (1) of the Karnataka State Civil Services (General Recruitment) Rules, 1957. While continuing on probation he applied for earned leave from 1. 2. 1974 to 2. 3. 1974. The said leave was refused in public interest Consequently. the petitioner could not utilise the leave as the leave was refused in public interest he surrendered the same and claimed encashment of the leave , as provided in the Ruales regulating surrender of Earned Leave and payment of leave salary framed by the governor under Art. 309 of the constitution (hereinafter referred to as the Rules ). In terms of the said Rules the petitioner was paid a sum of Rs. 466-20 paise as per the office order dated 12-2-1974. But subsequently, a memo dated 5-4-1975 (Ex-A) was issued. In the said memo the petitioner was directed to refund the amount drawn by him towards encashment of leave relying on the official memorandum, issued by the State government dated 12. 7. 1971 clarifying that the Rules relating to grant of leave salary in respect of earned leave surrendered by the Government servant is not applicable to a probationer until the completion of the probationary period and the making of a declaration, that he has completed the period of probation satisfactorily and to local candidates. 7. 1971 clarifying that the Rules relating to grant of leave salary in respect of earned leave surrendered by the Government servant is not applicable to a probationer until the completion of the probationary period and the making of a declaration, that he has completed the period of probation satisfactorily and to local candidates. ( 3 ) SRI Murlidhar Rao, learned counsel for the petitioner contended that the official memorandum issued by the State Government is contrary to the Rules framed by the Governor under proviso to Art. 309 of the constitution and therefore it cannot prevail and consequently the memorandum issued by the 2nd respondent directing the petitioner to refund the amount already drawn is also not legal. ( 4 ) IN support of the above contention the learned Counsel for the petitioner relied on Rule 145 of the Karnataka civil Service Rules which provides that for the purposes Of leave a probationer is deemed to be holding a substantive appointment under the state Government. ( 5 ) SRI B. B. Mandappa learned High court Government Pleader appearing for th-2 respondent submitted that the encashment of leave rules are mainly meant for permanent Government employees and not for local candidates and probationers and therefore the official memorandum issued by the state Government is valid and not contrary to Rules. In support of this submission he relied on the definition of the word 'duty' contained in rule a (15) oi the Civil Services Rules, which defines that service of a probationer is treated as duty provided that such service is followed by confirmation. ( 6 ) I shall now proceed to consider the. merits of the rival contentions. Consequent on the recommendations of the Official Pay Committee appointed by the State Government, the governor of the State framed the rules under the proviso to Art. 309 of the constitution on 29. 1. 1971. Rule 3 of the said Rules provides for the encashrment of earned leave by a government employee in ' terms of the conditions set out in the said rule. 1. 1971. Rule 3 of the said Rules provides for the encashrment of earned leave by a government employee in ' terms of the conditions set out in the said rule. The relevant portion of the rule reads as follows:"3 (I) A Government employee (Gazetted or Non-Gazetted) who avails earned leave for a period of not less than thirty days, shall, at his option, be allowed to surrender the balance of the earned leave or any portion thereof to his credit on the dale of commencement of the leave, subject to a maximum of 30 days and shall be granted leave salary and allowances for the period of the leave so surrendered. (ii) When a Government employee applies for earned leave of not less than thirty days signifying his intention to surrender the balance of earned leave, subject to a maximum of 30 days or any portion thereof to his credit and the leave applied for is refused in public interest and where such refusal of leave totally deprives him of the benefit of encashment of leave within the block period of two years, specified in para 3 (iv), the competent authority may accept the surrender and encashment of earned leave upto a maximum of 30 days. This may be done even in cases where the original intention of the Government employee was to surrender less than 30 days of leave for encashment. "it is not disputed that if the, petitioner is entitled to the benefit of the Rules the encashment of leave allowed and the consequential payment of Rs. 466. 20 paise to the petitioner is in conformity with the above Rule. But the contention urged for the respondents is that the rules are not applicable to a probationer in view of the clarification issued by the State Government in the official memorandum dated 12-7-1971 which leads as follows: government OF MYSORE no. FD 112/srs 71 mysore Government Secretariat, 'vidhana Soudha', bangalore, dated 12th July 1971. OFFICIAL MEMORANDUM sub: Surrender of earned leave by Government employee for purposes of encashment clarification regarding. FD 112/srs 71 mysore Government Secretariat, 'vidhana Soudha', bangalore, dated 12th July 1971. OFFICIAL MEMORANDUM sub: Surrender of earned leave by Government employee for purposes of encashment clarification regarding. According to para 3 (i) of Government Order No. FD 59 SRS 70 dated (29-1-1971) a Government employee who avails earned leave for a period of not less than 30 days, shall at his option be allowed to surrender the balance of earned leave or any portion thereof to his credit subject to a maximum of 30 days. A point has been raised whether the local candidates and probationers are also entitled to the benefit of encashment of earned leave. The matter has been examined and it is clarified that the scheme of encashment of earned leave is not applicable to the Local candidates and probationers unless, the former become regular candidates and the latter are declared to have satisfactorily completed the period of probation. These orders come into force with immediate effect. Past cases decided other wise need not be reviewed. Sd/- U. V. Ramachandra, special Officer (Pensions), finance Department'" the official memorandum after referring to rule 3 (i) of the Rules clarifies that the scheme of encashment of earned leave contained in the rule is not applicable to local candidates and probationers. There is nothing in the wording of the rules to indicate as to whether the benefit under the said rules is applicable to the probationers or not. But it is not disputed that the benefit of the said rules is available to a permanent Government servant. R. 145 of the K. C. S. Rs. which lays down the conditions of eligibility for leave to the probationers reads as follows:"145. A Government servant appointed as probationer for a certain period before formal appointment, is entitled to the same leave as if he held a substantive appointment. Note. The term 'probationer' referred to in this Rule means a government servant recruited with a view to substantive appointment to the cadre of a department on completion of his probation. It does not refer to persons who have no vacancies reserved for them and who are only counted against temporary or officiating posts e. g. , a candidate appointed as a clerk in a temporary vacancy. It does not refer to persons who have no vacancies reserved for them and who are only counted against temporary or officiating posts e. g. , a candidate appointed as a clerk in a temporary vacancy. "from the aforesaid rule, it is clear that for the purposes of entitlement of leave, a Government servant appointed as probationer before his formal appointment is entitled to the same leave as if he held a substantive appointment. Though a probationer is on trial and is liable to be discharged if he is found unsuitable for appointment in terms of the Probation Rules, for the purpose of leave, rule 145 of the rules, creates a legal fiction. In view of the said rule, a probationer has got to be treated as holding a substantive appointment for the purpose of entitlement of leave as laid down in the Civil Service Rules. Note below the said rule however excludes a probationer appointed purely against a temporary vacancy in a temporary post. In the prepent case, though the petitioner was appointed against a temporary vacancy as a local candidate, subsequently he had been selecteed by the Public service Commission and was appointed against a substantive vacancy. Therefore rule 145 clearly applies to the case of the petitioner. ( 7 ) LEARNED counsel for the respondents, however, relied on rule 8 (15) (a) and (37) of the Civil Service Rules, which reads:"8 (15) (a)Duty. 'duty' includes: (a) sea-vice as a probationer or apprentice, provided that such service is followed by confirmation; (37) 'probationer'. means a Government servant employed on probation in or against a substantive vacancy in any cadre of a department; note 1. A Government servant (other than one who holds substantively a permanent post) appointed on probation to a sanctioned post will be treated for all purposes as a temporary Government servant"relying on rule 8 (15) (a) and (37), he submitted that service as a probationer could be treated as duty only when it is followed by confirmation and that a probationer has to be treated for all purposes as temporary Government servant and, therefore, they are not entitled to the benefit of encashment of leave as if they are permanent Government servants. I am unable to agree. I am unable to agree. Note (3) below rule 15 (a) reads as follows:"note 3the status of a probationer is to be considered as having the attributes of a substantive status except where the rules prescribe otherwise,. " ( 8 ) ACCORDING to the above note, a probationer has all the attributes of a substantive appointee. Though rule, 8 (37) provides that a probationer be treated for all purposes as a temporary government servant, as against this rule contained in the definition section, rule 145 is a special provision regulating the entitlement of leave, to the probationer. It specifically provides that a probationer appointed against a clear vacancy is entitled to the leave as if he held the appointment substantively. Therefore, as far as the question of leave is concerned, rule 145 of the civil Service Rules places a probationer in the position of a permanent government servant. If according to the leave rules prescribed in the Civil service Rules, the petitioner is entitled to the leave as if he was holding the post subsl antively, he would also be entitled to the benefit of rule 3 of the rules, because the said rules only provide for encashment of leave to which a civil servant is entitled to under the civil Set vice Rules. Further there is nothing in the rules to indicate that probationers though treated on par with the persons who hold substantive appointments for the purpose of leave rules under the Civil Service rules, they are required to be treated differently for the purpose of encashment of leave under the Rules. In the absence of any such provision, in view of rule 145 a probationer has to be treated in the same manner as a permanent Government servant both for the purpose of leave under the Civil service Rules and encashment of leave under the Rules, The Official memoranrdum issued by the Government dated 12-7-1971 runs counter to a statutory rule framed by the Governor under the proviso to Art. 309 of the Constitution. Therefore, the official memorandum dated 12-7-1971 to the extent it directs that the probationers are not entitled to the benefit of encashment of earned leave is contrary to rule 145. The, State government could not in exercise of its executive power issue instructions contrary to the statutory rules. Therefore, the official memorandum dated 12-7-1971 to the extent it directs that the probationers are not entitled to the benefit of encashment of earned leave is contrary to rule 145. The, State government could not in exercise of its executive power issue instructions contrary to the statutory rules. Therefore, tho official memorandum to the extent it provides that probationers are not entitled to the benefit of encashment of earned leave has to be) declared invalid. If the Government intended to exclue the probationers from the benefit of encashment of leave under the Rules it could have- been done only by way of making an amendment to the said rule or rule 145 of the civil Service Rules through a rule made by the Governor under proviso to Article 309 of the Constitution and not by an official memorandum. ( 9 ) I do not express any opinion about the clarification contained in the same official memorandum regarding local candidates as their case may stand on a different footing, because it appears that there is no provision similar to rule 145 covering the case of local candidates. ( 10 ) FOR the reasons aforesaid, I make the following order. (I) Rule made absolute. (ii) The official memorandum issued by the State Government dated 12-7-1971 in so far it clarifies that the claim for encashment of earned leave is not applicable to probationers is declared invalid. (iii) A writ in the nature of mandamus shall issue directing the respondents not to enforce the said official memorandum and consequently the memorandum dated 5-4-1975 (Exhibit-A) also. (iv) No costs. --- *** --- .