MR. R. BALIA, J. ( 1 ) THIS petition has been filed on behalf of six petitioners for seeking direction that the respondents be directed to allow encashment of leave to the petitioners and to quash Annexure h dated 4th July 1997, by which the respondent have refused to encash the Earned Leave standing to the credit of husband of petitioner No. 1 Savitaben who was in the employment of the respondents at the time of his death on 25th May, 1997, ( 2 ) ACCORDING to the petitioners case, the petitioner No. 2 who is retiring in the month of April 1998 have accumulated leave 205 days as on 31st July, 1997, petitioner No. 3 is retiring in the month of April 1999, having accumulated leave of 210 days as on 31st July 1997 and petitioner No. 4 is retiring in the year 2016 having an accumlated leave of 173 days as on 31st July, 1997. Likewise, the petitioners Nos. 5 and 6 too have accumulated leave to their credit in the leave account, though exact balance is not known to the petitioners in respect thereof. Considering the leave in the credit of the employees with reference to the Government Resolution dated 12th August 1991 and apprehending that leave earned by these employees who are deemed to have become permanent as a result of Government Resolution dated 17th October 1988 on their completing 10 years of continuous service as daily wages, the present petition has been filed. ( 3 ) THE aforesaid facts that each of the petitioner has earned leave to his credit as on 31st July 1997, has not been denied in the reply affidavit. The specific contention raised in the reply is that, as per the Government resolution dated 17. 10. 1988, the Rojamdars are entitled to enjoy 30 days earned leave, 20 days half pay leave and 14 days casual leave including 2 optional leave. The said GR does not mention regarding the benefits of leave encashment to the Rojamdars. It is further contended that both the GR dated 17. 10. 1988 and 30. 5. 1989 do not mention regarding encashment of leave. The Rojamdars are not entitled to avail the leave encashment as per GR of Government of Gujarat, Road and building Department dated 12. 8. 1991. It has been reiterated in affidavit in reply that the gr dated 12. 8. 10. 1988 and 30. 5. 1989 do not mention regarding encashment of leave. The Rojamdars are not entitled to avail the leave encashment as per GR of Government of Gujarat, Road and building Department dated 12. 8. 1991. It has been reiterated in affidavit in reply that the gr dated 12. 8. 1991 is the latest GR for the action to be taken for the encashment of leave and as per the said GR. , petitioners or Rojamdars are not entitled to encash their accumulated leave. In respect of the order made by respondent No. 4, which have been cited as illustrative cases by the petitioners that the respondents are in fact allowing encashment of leave inspite of resolution dated 12. 8. 1991 for the purpose of raising a ground in their support that the petitioners cannot be discriminated in the matters of encashment of leave, making of such orders have not been denied, but it has been stated in respect of averments made in para 3. 5 that the same were conditional and orders referred to in para 3. 6 were branded as nullity being contrary to GR dated 12. 8. 1991. ( 4 ) HEARD learned counsel for the parties and perused the petition as well as relevant resolutions relied on by the learned counsel for the respective parties. The salient features of the resolution dated 17. 10. 1988 and 30. 5. 1989 may be first noticed. By resolution dated 17. 10. 1988, the Government had decided to extend the benefit of fixed monthly pay instead of daily wages to those daily rated workmen who are in continuous employment for more than five years, but has not completed 10 years. Alongwith benefit of fixed monthly pay, the other benefits extended to such categories of worker included the benefits of dearness allowance by considering the actual days on which the employees have worked in a month alongwith by considering the weekly holidays and Sunday as paid holidays, the benefit of two days optional and 14 days other miscellaneous holidays, weekly holidays and notional holidays to be treated as paid holidays for the workers falling in this category. The benefit of deduction for the purpose of general provident fund was also extended. The benefit of deduction for the purpose of general provident fund was also extended. It was then envisaged that those daily rated workmen who have completed 10 years continuous service, shall be deemed to be permanent and such permanent workmen shall be entieled to be fixed in the regular pay scale of Rs. 750/- to rs. 950/ -. They were allowed the benefit of DA, HRA, Local Allowance etc. In addition thereto, there were extended the benefit of pension, gratuity, general provident fund etc. as per the prevalent rules. In addition thereto, such workmen who have been considered permanent on completion of 10 years service as daily rated workers, were allowed the benefit of 2 optional holidays and 18 other holidays during the year alongwith the benefit of having 30 earned leave, 20 half pay leave, weekly paid holidays and notional holidays as paid holidays. Their age of superannuation was fixed as 60 years service and the period of their service was considered as qualifying service. Rest of the canditions of the resolution are not relevant for the present purpose as they relate to additional benefits to those who had completed more than 15 years service as on 1st October 1988 in the matter of fixation and directions prohibiting new future employment on daily rated basis. ( 5 ) THE resolution dated 30th May, 1989 is a document in the form of "question - answers where certain issues have been raised as possible area of some obscurity and the government has provided clarification thereto. The item at Sr. No. 8 refers to whether those employees who have become permanent and have become entitled to 30 days earned leave and 20 days half pay leave during a year, are entitled to accumlation of the same to the maximum permissible extent or they are required to avail of such leave during the year itself. It was answered by clarifying that, in this connection, the rules governing the temporary employees concerning accumulation of earned leave shall be applicable to such employees as well. ( 6 ) THUS read the two resolution leaves no room of doubt that the workmen who have been treated permanent under resolution dated 17. 10. 1988 have been made entitled to 30 days earned leave and 20 days half pay leave during a year of their service. By GR dated 30. 5. ( 6 ) THUS read the two resolution leaves no room of doubt that the workmen who have been treated permanent under resolution dated 17. 10. 1988 have been made entitled to 30 days earned leave and 20 days half pay leave during a year of their service. By GR dated 30. 5. 1989, it was clarified that such earned leave could be accumulated and could forward to succeeding period of service and could be availed in future as such as fully paid or half pay leave. As I have also noticed above, the fact that the earned leave have been allowed to be accumulated by maintaining a leave account and different amount of earned leave is standing in the credit of each of the petitioner as on 31st July, 1997, is a fact which has not been disputed by the respondents, disclosing that the accumulation of leave earned as per resolution dated 17. 10. 1988 is the benefit extended to the employees who are deemed to be permanent under the said resolution. The denial of encashment is solely on the ground that though employees have been allowed the benefit of earned leave and its accumulation, no specific reference has been made to be benefit of encashment of leave. ( 7 ) BEFORE examining issue further, it may be notice that the clearificatory letter dated 12th August 1991 Annexure c clearifies that the daily rated workman are not entiled to any benefit which has not been extended to them under resolution 17. 10. 1988. It only refers to the daily rated workers who are not entitled to leave travel concession, leave encashment, different loan on different account, allotment of government quarters etc. are not available. ( 8 ) FIRST of all, this clarification does not go beyond the resolution dated 17. 10. 1988 nor does it retrace any benefit which is available under resolution dated 17. 10. 1988. It may be seen that while those daily rated workmen who have completed continuous service for more than 5 years, but have not completed services of 10 years though have been entitled to the limited benefit of the monthly salary and dearness allowance and certain paid holidays, have not been extended benefit of earned leave during the year or the benefit of permanency. Obviously, those who have been treated as daily rated workmen and have not earned the status of permanency, have no occasion for accumulation of leave or right to earned leave except those which have been acknowledged as paid holidays during the year. However, once a daily rated workmen has acquired a status or permanent workmen on completion of 10 years continuous service and he has been extended benefit of earned leave of 30 days fully paid and 20 days half paid leave during each year of service, the treatment of such earned leave as a permanent employee for the accumulation or encashment can only be subject to rules as are applicable, where the employees entitled to fully paid and half paid earned leave during the year. The obligation of rules governing the treatment of earned leave for the purpose of its encashment or carry forward of its unavailed earned leave at the end of service on attaining the age of superannuation or on its premature termination, where pensionary benefits are not forfeited, are governed by the prevalent rules. This is also apparent from the fact that such permanent employees have been extended the benefit of pension, gratuity and provident fund as per the prevalent rules. That means, the retiral benefits will be governed as on the date of retirement or as on the date such benefits are to be computed and the same should be in accordance with the rules prevalent at that time. The encashment of unavailed earned leave at the time of such end of service is also part of retiral benefit to be governed under the prevalent rules. If an employee has to his credit earned leave of any number of days at the time when he superannuates and the rules otherwise permits that unavailed earned leave at the time of retirement to the extent provided in the rules are to be encashed or the wages for the period has to be paid to the workmen, unless such benefit is withheld by expressed provision, it cannot be withheld by issuing such clarification once the benefit of permanency as well as benefit of accumulation of earned leave has been extended to such workmen. The encashment or earned leave or the accumulation is inherent in the extension of benefit of fully paid and half paid earned leave. The encashment or earned leave or the accumulation is inherent in the extension of benefit of fully paid and half paid earned leave. Accumulated eanred leave denotes that employees have worked for such extra days, to which he was otherwise entitled to avail as paid leave. In other words, emoluments for such period was due to him without discharging his duties for that period. ( 9 ) IT may be noticed that question of encashment of earned leave arise only in case where though employees entitled to remain on leave without any deduction from his salary as actual work during those period and has earned his salary by working and not by availing the paid holidays. The encashment is only in furtherance of the policy that the payment which was due without working to the workmen, if for that period, he has worked he could not be deprived of that benefit. Therefore, in my opinion, once the benefit of earned leave, whether fully paid or half paid, has been extended and a leave account is maintained for purpose of its accumulation, the consequence that unavailed earned leave to the extent permissible under the rules are entitled to be encashed at the time of superannuation follows, ( 10 ) THERE is yet another reason for coming to this conclusion. It is not the case of the respondents that the employees are not entitled to accumulate their earned leave during the year and enjoy the same in subsequent period of their service. That is to say, if a person has earned leave to his credit for a period of 60 days, and he wants to avail all the earned leave before he superannuates as paid leave, there is no prohibition. But, if it remains unavailed at the time of superannuation, the refusal to encash the same is not with reference to the rules but with reference to the absence of specific mention that rules of encashment of earned of leave shall apply to those employees have been treated permanent under the resolution. This in my opinion is hair spliting in reading and giving effect to resolution dated 17. 10. 1988. ( 11 ) THERE is no dispute that the temporary employees are also entitled to accumulate their earned leave. This in my opinion is hair spliting in reading and giving effect to resolution dated 17. 10. 1988. ( 11 ) THERE is no dispute that the temporary employees are also entitled to accumulate their earned leave. The resolution dated 30th May, 1989 has clarified that about the accumulation of earned leave, the rules prevalent in respect of temporary employees of the State would apply. According to both the learned counsel, the temporary employees are also entitled to carry forward and accumulate the earned leave in a particular year. If that be so, the encashment of the unavailed earned leave at the time of superannuation or at the time when question of computing the retirement benefits arise, is in my opinion inherent in that benefit as the rules about treating the unavailed earned leave at the item of retirement would apply in such cases automatically. In fact, it has not been disputed that temporary employees regularly employed are also entitled to accumulation of leave and encashment of unavailed accunulated earned leave on superannuation upto the maximum permissible extent. ( 12 ) IT may be further noticed that the various instances in which leave encashment has been permitted by the respondents in the case of all those employees who are daily rated employees who have been treated permanent under the resolution dated 17. 10. 1988 have not been factually disputed. As I have come to the conclusion that the extension of this benefit to those persons cannot be treated as unlawful or contrary to any statutory rules, the denial of the similar treatment to the petitioners would also result in breach of art. 14 of the Constitution. The vague plea that the orders passed by respondent No. 4 permitting leave encashment in those cases is nullity, in my opinion, cannot be accepted, as neither the encashment of leave cannot be treated as nullity in view of the reasons stated above, nor it can be said to be unlawful, illegal or contrary to law in any other manner. 13. Accordingly, this petition is allowed. The petitioners are entitled to encash their earned leave which is standing to the credit of their leave account as per the rules relating to the encashment of leave to the extent and as per the rules relating to encashment of earned leave as are applicable to the temporary employees. 13. Accordingly, this petition is allowed. The petitioners are entitled to encash their earned leave which is standing to the credit of their leave account as per the rules relating to the encashment of leave to the extent and as per the rules relating to encashment of earned leave as are applicable to the temporary employees. In view of this, the order Annexure h refusing the benefit of encashment of earned leave to the petitioner No. 1 who is widow of Maganbhai Halpati to the extent unavailed earned leave stood in the name of the deceased empolyee as per the rules, is also quashed. The respondents are directed to make the payment on account of leave encashment as are payable to the widow within a period of two months. There shall be no orders as to costs. .