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2009 DIGILAW 900 (GAU)

Prabir Ranjan Sengupta v. State of Assam

2009-12-15

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT Brojendra Prasad Katakey, J. 1. The petitioner, who retired from service as office assistant in Ledo Bazar High Secondary School on attaining the age of superannuation on 30.10.2002, by the present petition is challenging the office order dated 3.6.2003 issued by the Inspector of Schools, Tinsukia District Circle sanctioning cash payment in lieu of unutilized earned leave equivalent to salary for 145 days and also praying for directing the respondents to sanction payment in lieu of unutilized earned leave of 296 days, contending, inter alia, that in the absence of any declaration by the State Government as required under S. 114(2)(b) to the effect that the office assistant in an educational institution comes within the purview of vacation department, the petitioner is entitled to the same. 2. I have heard Mr. A.B. Choudhury, Learned Senior Counsel for the petitioner, Mr. Choudhury, learned standing counsel, Finance Department appearing on behalf of the respondent No. 1 and Mr. M.R. Pathak, learned standing counsel, Education Department appearing on behalf of the respondent Nos. 2 and 3. 3. No affidavit-in-opposition, however, has been filed by any of the respondents though the writ petition is pending for last more than five years. 4. The contention of the petitioner in the writ petition is that though he is entitled to the benefit of leave encashment to the tune of 296 days earned leave accrued to his account under the Leave. Rules, 1934, as amended, from time to time, the Inspector of Schools by the impugned order dated 3.6.2003 has granted the benefit of leave encashment only in respect of 145 days. The further contention of the petitioner is that he being an office assistant and not a member of the teaching staff in the educational institution, unless the declaration is made by the competent authority as required under S. 114(2)(b), the petitioner could not be treated to be a staff in the vacation department though educational institutions are considered as vacation department and the benefit of leave encashment cannot be restricted to 80 days, which is less than the number of days to which the staff of other Government departments, is entitled to. According, to the petitioner the eighty days ceiling sought to be imposed by the Finance Department vide Notification dated. 21.2.2000 cannot at all be applied in his case in the absence of such declaration under S. 114(2)(b). 5. According, to the petitioner the eighty days ceiling sought to be imposed by the Finance Department vide Notification dated. 21.2.2000 cannot at all be applied in his case in the absence of such declaration under S. 114(2)(b). 5. As noticed above, the claim of the petitioner has not been rebutted by any of the respondent by filing any affidavit-in-opposition. The learned Standing Counsel for the Finance Department as well as the Education Department, however, has submitted that since vide Notification dated 21.2.2000 the benefit of leave encashment of unutilized earned leave in respect of the vacation department is restricted to 80 days only, the petitioner is entitled to such leave encashment to the extent of maximum 80 days only. 6. This Court though by a common order dated 2.11.2009 passed in WP(C) No. 9851 of 2003 and 5006 of 2004 (present writ petition) directed the respondents to file affidavits indicating as to whether any declaration as required under S. 114(2)(b) has been made by the competent authority in respect of the Government servants not being member of the teaching staff being entitled to vacation, neither any affidavit has been filed nor any such declaration could be produced before this Court by the respondents. 7. Since the issue in the writ petition is as to whether an office assistant in the educational institution can be treated as a staff of a vacation department within the meaning of S. 114, in the absence of any declaration as aforesaid, the present writ petition is decided independently as agreed to by the Learned Counsel for the parties. There is no dispute that the petitioner was appointed a an office assistant in the Educational Department in question and retired from service on attaining the age of superannuation as office assistant. 8. S. 114 defines a vacation department to be a department or part of a department to which regular vacations are allowed during which the Government servants serving in the department are permitted to be absent. It further provides that the following all are the vacation departments for the purpose of FR 82: (1) The High Court excluding the Chief Justice and the Judges and the civil and Sessions Courts, other than the those under the control of the Deputy Commissioners in tae Assam valley Division and Cachar district. It further provides that the following all are the vacation departments for the purpose of FR 82: (1) The High Court excluding the Chief Justice and the Judges and the civil and Sessions Courts, other than the those under the control of the Deputy Commissioners in tae Assam valley Division and Cachar district. (2) Educational Institution in case of – (a) the teaching staff, (b) such Government servants, not being members of teaching staff, as may be declared to be entitled to vacations by the competent authority. 9. Admittedly the petitioner, as noticed, has retired as office assistant and such office assistant not being a member of the teaching staff cannot be treated to be a member of the educational institution within the meaning of the vacation department unless a declaration is made by the competent authority as required under S. 114(2)(b). In the absence of such declaration such staff, other than the teaching staff of an educational institution shall be entitled to the benefit of leave encashment, which was earlier 240 days and subsequently enhanced to 300 days, admissible to the staff of other departments of the Government of Assam. The notification dated 21.2.2000, which has been issued by the Finance Department, Government of Assam and by which benefit of such leave encashment in respect of vacation department has been restricted to 80 days, in absence of any declaration issued under S. 114(2)(b) cannot be applied to the case in hand. 10. In view of the aforesaid position, the present writ petition is allowed directing the respondent authority to verify the number of days of earned leave accrued to the petitioner against the claim of the petitioner for 296 days and to pay the cash equivalent to the salary for such number of unutilized earned leave, to the maximum of 300 days, to which the petitioner is found entitled to, by deducting the amount, if any, already paid. The entire exercise shall be completed within two months from the date of receipt of the certified copy to be produced by the petitioner before the Director of Secondary Education, Assam respondent No. 2, who shall be responsible for compliance of these directions. The respondent No. 2 shall make the necessary enquiry by involving the respondent No. 3. 11. The writ petition is accordingly allowed to the extent indicated above. No cost. Appeal allowed.