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2010 DIGILAW 3463 (ALL)

Rajendra Singh Negi v. State of U. P. and another

2010-11-10

A.P.SAHI, F.I.REBELLO

body2010
By the Court. - This appeal has been preferred against the judgment of a learned Single Judge dated 19.7.2010. 2. The State of U.P. framed a rule known as the Uttar Pradesh Government Servants (Employment Leave) Rules, 2003 (hereinafter referred to as the rules). The rules were to remain in force only upto 31st March, 2008. 3. The appellant herein applied for employment leave under the aforesaid rules. The leave was not sanctioned, inspite of that the appellant proceeded on leave. The appellant sent various reminders but no action was taken on his application. Thereafter he filed a petition being Writ Petition No. 5578 of 2010 which was disposed of by this Court on 3.2.2010. 4. The grievance of the appellant before this Court was that he is entitled for sanction for employment leave which he availed of in the expectation that the same would be sanctioned in accordance with the rules. The learned Single Judge after considering the contentions was pleased to observe that the appellant herein may approach the Director Panchayat Raj U.P. alongwith the copy of the order who shall proceed to process the request of the petitioner and pass an appropriate order within a period of six weeks. 5. The grievance of the appellant is that considering the object for which the rules had been framed the employee had a right to apply for leave and the same will have to be considered and be sanctioned. The appellant herein so applied for leave and then his leave ought to be sanctioned. In these circumstances he has proceeded on leave. The leave application was not decided for no fault of the appellant and in these circumstances considering the judgment of the learned Single Judge the respondents were bound to pass appropriate orders on his application. 6. By the time application came up for consideration, the rules were no longer in force. The appellant applied for a period of three years leave before the enforcement of the rules. Subsequently, after the aforesaid period rules had come to an end but that by itself would not disentitle the appellant for leave for the period for which he was entitled to proceed to leave. 7. We have heard learned counsel for the appellant. The appellant applied for a period of three years leave before the enforcement of the rules. Subsequently, after the aforesaid period rules had come to an end but that by itself would not disentitle the appellant for leave for the period for which he was entitled to proceed to leave. 7. We have heard learned counsel for the appellant. Under the rules of employment leave has been defined under Rule 3(b) which rule is as under: Rule 3(b): "Employment Leave" means such leave which is sanctioned by the competent authority to a Government servant for undertaking any kind of private trade or business or employment etc. in an organisation other than the Government Departments, Semi-Government Departments, a Corporation, a Board, a Public Undertaking or a Body owned or controlled by the State Government of Uttar Pradesh. Similarly what is relevant is Rule 5(1) and 5(2). 5. Conditions of Employment Leave. - (1) Government servants may be sanctioned Employment Leave for a minimum period of three years and a maximum period of five years. Such Government servants shall, in no case, be allowed to return to duty in the Government service from the Employment Leave before the completion of three years. (2) State Government in case of Government servants belonging to Group 'A' and Group 'B' posts and the Head of the Department in case of Government servants belonging to Group 'C' and Group 'D' posts will be empowered to sanction/disallow the Employment Leave. 8. From a reading of Rule 5(1), it would be clear that the language used is "may" and not shall. The expression may also considering the definition clause of Rule 3(b) cannot be read as shall. In other words it was for the appropriate authority either to sanction leave or not to sanction leave. From this it has to be inferred that it was the discretion of the sanctioning authority to grant leave or not to grant leave. 9. The employee could not have proceeded on leave as the expression used in Rule 5(3) is during employment of leave. Therefore, the employee could proceed to go on leave only after sanction. In the absence of a sanction there was no question of the employee proceeding on employment leave. 10. The second question for consideration is whether there is a provision for Ex post-facto sanction. The rules themselves do not so provide as noted earlier. Therefore, the employee could proceed to go on leave only after sanction. In the absence of a sanction there was no question of the employee proceeding on employment leave. 10. The second question for consideration is whether there is a provision for Ex post-facto sanction. The rules themselves do not so provide as noted earlier. On a reading of the rules including Rule 5, it would be clear that the employment leave must be sanctioned before an employee can go on a leave. This being the position no ex posf facto leave can be granted. 11. We are, therefore, clearly of the opinion that the very object of the provision was to shed excess employees. At the same time, the decision making process was of the sanctioning authority, who had the discretion either to sanction or not to sanction the leave. No employee could, therefore, proceed on leave without an appropriate order from the sanctioning authority. 12. In the instant case the appellant proceeded to go on employment leave without it being sanctioned. We, therefore, find no fault in the action taken by the respondents, consequently there is no merit in the appeal and the same is accordingly dismissed to that extent. 13. Learned counsel for the appellant draws the attention of the Court to the letter dated 11 th June, 2010 whereby he was given time to resume his duties. It is submitted that on account of pending proceedings, he had not joined and in these circumstances he has to be given an opportunity to resume his duties. 14. Considering the submissions advanced and considering the fact that the respondents themselves by the notice dated 11 th June, 2010 had given an option to the appellant to resume duties, on an application being moved by the appellant herein, before the concerned authorities, they are to consider the same favourably and pass appropriate orders as early as possible but not later than fifteen days from the date of receipt of application. 15. The appeal is disposed of.