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2014 DIGILAW 147 (HP)

Rakesh Kumar v. State of H. P.

2014-03-04

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J (oral) CMP No.21392 of 2013 Application is allowed and disposed of. CWP No. 1713 of 2013 Petitioner has prayed for the following reliefs:- “I Issue a writ quashing the Memo dated 06.06.2011 (Annexure P-8) declaring the same arbitrary, illegal, irrational, unreasonable and unconstitutional AND II Issue writ of mandamus to the respondents to grant the petitioner 19 days Earned Leave for period 01.04.2011 to 19.04.2011 with salary alongwith interest @ 12% p.a. from the date of accrual thereof till full and final payment” 2. Order dated 10.06.2011 (Annexure P-8) is the impugned Memo, operative portion of which reads as under:- “Memo, Reference your letter No.EDN-BLS(E-1)(7) 2009-10-3481 dated 27.5.2011 on the subject cited above. Similar situated cases of pending salary in r/o lecturers(School) were taken up with the Govt. for approval/direction. The Govt. has directed to treat the above mentioned period as EOL (Without pay with out break in service) in accordance with their earlier Policy instruction issued vide their earlier instructions issued vide their Department letter No.Shiksha-II(Kha)7-1/2004-Vol-I dated 17.6.2004 and further reiterated vide their letter No.Shiksha-II(Kha) 7-1/2004-Vol.-II dated 11.8.2008. Since Sh.Rakesh Kumar, lecturer Maths was under order of transfer from GSSS Ghumarwin (B) (Bilaspur) to GSSS Jamni (Mandi) and relieved from GSSS (B) Ghumarwin on 31.3.2011(AN). He never joined at GSSS Jamni(Mandi) but modified his order to GSSS Jukhala (Bilapur) where he joined on 20.4.2011. The period w.e.f. 1.4.2011 to 19.4.2011 be treated as EOL (without pay and with out break in service) as per the Policy instructions issued H.P. Govt. letter No.Shiksha-II(Kha)7-1/2004-Vol.-1 dated 17.6.2004.” 3. It is seen that in identical circumstances, Division Bench of this Court, vide judgment dated 11.05.2012 passed in LPA No.657 of 2011, titled as State of Himachal Pradesh & others Versus Ashutosh Kumar Bhardwaj, has directed the respondent-State to consider the request of an employee for granting leave of the credit due. The operative portion of the judgment reads as under:- “The State has come up in appeal. The issue pertains to the regularization of 92 days absence of the writ petitioner. Learned Additional Advocate General points out that he had willfully absented himself by not joining the transferred station and the Government has shown indulgence by regularizing the period as leave without pay. Learned Single Judge has, however interfered with the decision of the Government and has directed to pay the salary for the period of 92. Learned Additional Advocate General points out that he had willfully absented himself by not joining the transferred station and the Government has shown indulgence by regularizing the period as leave without pay. Learned Single Judge has, however interfered with the decision of the Government and has directed to pay the salary for the period of 92. Thus aggrieved, the appeal. 2. The direction by the learned Single Judge is to pay the salary of 92 days, which we find difficult to uphold since the petitioner was admittedly absent from duty for the said period of 92 days. How the period is to be regulated or regularized is the question? We have held in several cases if as on that date in case the writ petitioner had leave to his credit, the same should be adjusted against that leave and if not, the period will be treated as leave without pay but without break in service. We have taken this view in the background of Government’s own decision to regularize the period of leave as one without pay but without break in-service and if that be so, if there is leave available, it should be appropriately adjusted. 3. Therefore, this appeal is partly allowed vacating the direction to pay salary of 92 days but with a direction to the Government to see whether there was leave to the credit of the petitioner as on the date of passing of the impugned order and to that extent the leave shall be adjusted and rest of the period will be treated as leave without pay but without break in service. Needless to say that the eligible leave salary will also be paid.” (emphasis supplied) 4. In my considered view, above directions squarely apply to the instant case. Petitioner’s request for grant of leave of the kind due stands turned down vide impugned order dated 10.06.2011 (Annexure P-8). There is no justifiable reason for the same. As such, order dated 10.06.2011 (Annexure P-8) is quashed with a direction to the respondent/competent authority to consider petitioner’s application for according leave of the kind due, in accordance with law. Needful be positively done within a period of three months. With the aforesaid observations, petition stands disposed, so also pending application(s), if any.