JUDGMENT 1. 1. The petitioner was initially appointed as staff nurse in Medical & Health Department on 5.11.66 and was confirmed on the post w.e.f. 6.9.69 vide order dated 28.5.70. The petitioner had resigned and her resignation was accepted w.e.f. 1.11.80. At the time of resignation, the petitioner was having 140 days Privilage Leave and 194 Half Pay Leave in her credit (as per written statement). Even though the petitioner states that she had 275 days Half Pay Leave. Even though the petitioner states that there was no provision for giving 3 months notice or to deposit the salary of three months at the time of resignation, but she was compelled to deposit the pay of three months. Her request to adjust the amount towards the amount of P.L. or leave due was not agreed to. Vide annexure-8 the petitioner applied for payment of the amount of Privilege leave and Half Pay Leave, Rs. 40/- per month for officiating higher post of Sister, Provident Fund and other allowances. She was informed vide order dated 23.9.82 (ann.10) that she is not entitled to any encashment of leave, gratuity etc. and there was no question of any allowance of officiating any higher post as she was not ordered to officiate any post. 2. In the written statement filed by respondent without mentioning the period of officiating any post, it has been admitted in para No. 4 that she had temporarily worked on the post of Sister i.e. higher post, even though order dated 23.10.76 has been denied. The respondents have stated that gratuity, leave encashment and other retiral benefits are made applicable only to those Govt. servants who retires or superannuate from the service. 3. Rule 257(1) of Rajasthan Service Rules, 1951 provides as under: "A Government servant who has completed five years qualifying service may be granted an additional gratuity not exceeding the amount specified in sub paragraph (3), when he retired from service and is eligible for a gratuity or pension section I." Sub para (3) provides as under : (3)(i) The amount of gratuity will be nine-twentieth of the "emoluments" of a Government servant for each completed year of qualifying service subject to a maximum of 15 times time "emoluments". In the event of the death of a Government servant while in service, the gratuity will be subject to a minimum of 12 times his "emoluments" at the time of his death. Provided that in no case it shall exceed Rs. 24,000/-". Rule 257 of the RSR provides the procedure for payment of Gratuity. 4. The Government made clarification of Rule 257-A vide F.D. Notification No.F.1(9)FD/Gr.2179 dated 2.4.1979, as under: "A temporary Government servant, who retires on superannuation or is discharged from service or is declared invalid for further service, or his family in case he dies while in service, shall be eligible for a gratuity at the rate of half month's pay for each completed year of his service, provided that he had completed not less than five years continuous service at the time of retirement, discharge or invalidment or death." 5. The relevant Rule 91 of Rajasthan Service Rules in regard to admissibility of privilege leave reproduced as under: "91. Admissibility of privilege leave.-(1)(a) A Government servant whether temporary or permanent shall be entitled to privilege leave of 30 days in a calendar year." 6. Rule 94 of the RSR provides admissibility of terminal leave to the extent of privilege leave may be sanctioned to a temporary Govt. servant whose services are terminated by Government on account of retrenchment or on the abolition of the post before attaining the age of superannuation. 7. Rule 94(2) of the RSR provides that a temporary Govt. servant, who resigns on his own may at the discretion of the sanctioning authority be granted terminal leave not exceeding half the amount of privilege leave at his credit subject to a maximum of 90 days. 8. Vide F.D. Notification No.F.1(58) FD (Rules)/70 dated 14.12.78, the Government had taken a decision to grant terminal leave to a temporary Govt. servant whose services are terminated by Govt. on account of retrenchment or on abolition of post before attaining the age of superannuatiop; 9. Sub-rule (3) of Rule 94 of the RSR provides that cash payment of leave salary shall be paid in lump sum as one time settlement in accordance with method of computation. 10. Counsel for petitioner submits that voluntary resignation amounts to voluntary retirement and relies on the judgment in case of (1) J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of U.P. and others, 1990(4) SCC 27 . 10. Counsel for petitioner submits that voluntary resignation amounts to voluntary retirement and relies on the judgment in case of (1) J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of U.P. and others, 1990(4) SCC 27 . The Hon'ble Supreme Court has observed that when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job and therefore, such a situation would be covered by the expressions 'voluntary retirement' within the meaning of clause (i) of Section 2(s) of the State Act. Therefore, the question of grant of compensation under Section 6N does not arise. It was observed as under:"8. In the present case the employee's request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service, the meaning of term 'resing' as found in the Shorter Oxford Dictionary includes 'retirement'. Therefore, when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expressions 'voluntary retirement' within the meaning of clause (i) of Section 2(s) of the State Act. In Santosh Gupta case Chinnappa Reddy, J. observed as under : (SCC p.342, para 5) "Voluntary retirement of a workman or the retrenchment of the workman on reaching the age of superannaution can hardly be described as termination, by the employer, of the service of a workman." 11. Reliance has also been placed on the judgment in case of (2) Committee of Management Dayanad Arya Kanya Degree College, Moradabad and others v. Director of Higher Eduation, Allahabad and others, 1998(4) SCC 104 , wherein the case of J.K. Cotten Spinning and Weaving Mills Company (supra) was again noticed. 12. In (3) Children's Garden Play School Education Society v. Rajasthan Non Government Educational Institution Tribunal & others, writ petition No. 5797/97, decided on 8.9.98 , wherein the Tribunal ordered for encashment of leave on resignation, the order of the Tribunal was upheld by this court. 13. In view of the above quotted rules it goes without saying that the petitioner is entitled to encashment of privilege leave to the extent of 90 days as per rule 94(2) of RSR. The action of respondents in not granting encashment of leave cannot be upheld. 14. 13. In view of the above quotted rules it goes without saying that the petitioner is entitled to encashment of privilege leave to the extent of 90 days as per rule 94(2) of RSR. The action of respondents in not granting encashment of leave cannot be upheld. 14. Admittedly in the present case the petitioner had rendered the service of about 14 years at the time of resignation. She was a permanent employee. The Govt. notification dated 2.4.79 says that a temporary employee who retires on superannuation or is discharged from service or is invalidated or dies, the employee shall be eligible for gratuity at the rate mentioned therein provided he has completed more than five years service at the time of retirement. 15. Even though the Payment of Gratuity Act is not applicable to the civil servants but the legislature had taken into account the fact that any employee of establishment, to whom Payment of Gratuity Act is applicable and whosoever renders five years continuous service was made entitled to amount of gratuity. On submission of voluntary resignation, the relations in between master and servant comes to an end. Such a decision of Government employee, who voluntarily resigns can be voluntary retired from service. The gratuity can be made available to an employee who seeks retirement or is retired. The resignation does involve an element of retirement from service. In such situation if the employee has put in good service for his employer, in my opinion, even on voluntary resignation he would be entitled to gratuity on the same analogy if he has put in more than five years of minimum service. 16. The other point raised by the petitioner are disputed questions of fact, which cannot be determined in writ petition. 17. For the reasons and discussions made above, the writ petition is partly allowed. The petitioner shall be entitled to the amount of gratuity and also for encashment of privilege leave, to the maximum of 90 days as per Rules, which shall bear the interest at the rate of 8% per annum from the date when the amount became due. With the above observations, the writ petition is partly allowed. Petition allowed. *******