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2016 DIGILAW 355 (JK)

Mohd. Yousuf Dar v. State of J&K

2016-07-14

MUZAFFAR HUSSAIN ATTAR, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT N. Paul Vasantha Kumar, J. 1. This appeal is filed against the order made in SWP No. 1255/2013, dated 21.11.2015, dismissing the writ petition, seeking vacation leave salary as the appellant actually worked in the school. The learned single Judge has dismissed the writ petition on the sole ground that the order to do the vacation duties of a teacher has to be passed only by the Director of School Education and not by the Chief Education Officer. The said order is challenged by the appellant by contending that he is a retired Master from School Education Department and superannuated on 28.02.2011. He was entitled to all the retiral benefits which included pension, gratuity, GPF and leave salary. According to the appellant, during his service career he was detained to perform duties during vacation periods for number of years for which leave salary has not been paid. The Respondent No. 3 prepared the bills for release of the leave salary and forwarded the same to Respondent No. 2 by granting post facto sanction to the detention of the appellant during vacations along with the service book of the appellant. The appellant was asked to perform the duties of Junior Assistant during vacation period by the Chief Education Officer Kulgam for which Respondent No. 3 requested the Respondent No. 2 for allotment of funds amounting to Rs. 2,43,112/- as cash in lieu of leave salary for 233 days in favour of the appellant. The said communication is dated 10.12.2011. The Respondent No. 2 passed a sanction order on 15.03.2012 and released the funds in favour of 9 officials to the tune of Rs. 2,13,922/- including the appellant. The Respondent No. 2 released cash in lieu of leave salary for 11 days i.e. Rs. 11477/- only in favour of the appellant out of 233 days during his entire service. The appellant thereafter filed representation before the 2nd respondent for consideration of his detention period to be converted into cash in lieu of leave as has been done in case of similarly situated persons, namely, Sibtain Hussain (Teacher) and Jajalu-Din Malik (Teacher). 11477/- only in favour of the appellant out of 233 days during his entire service. The appellant thereafter filed representation before the 2nd respondent for consideration of his detention period to be converted into cash in lieu of leave as has been done in case of similarly situated persons, namely, Sibtain Hussain (Teacher) and Jajalu-Din Malik (Teacher). The said representation was also recommended by the Chief Education Officer on 05.05.2012 and the same having not been considered and only 11 days cash in lieu of leave salary having been sanctioned, the appellant filed SWP No. 1435/2012 which was disposed of by this Court with a direction to the respondents to re-consider the issue for payment of leave encashment on the basis of the material/documents and in accordance with rules by order dated 19.07.2012. Thereafter a consideration order was passed on 18.03.2013, stating that the appellant has been detained by an incompetent authority, who has no authority to detain an employee working on vocational post during winter vacation, therefore, he is not entitled to get the benefit of earned leave salary. 2. The said order was challenged by the appellant before the Writ Court by contending that respondents having detained and extracted work from the appellant during vacations, that too by specific orders of the Chief Education Officer who is the highest officer in the District, the Respondent No. 2 is not justified in rejecting the claim of the appellant and the very same issue was considered by this Court in SWP No. 1034/2004 and order dated 29.10.2005. It is contended that the petitioner therein was detained by the order of Zonal Education Officer Yaripora to perform duties during vacation and the leave salary claim was not granted on the ground that Director of School Education has not passed the order to do vacation duty. The writ petition was allowed by holding that the Director has himself accorded post facto sanction in favour of one Sibtain Hussain, and same treatment shall be extended to the petitioner therein. According to the appellant getting a post facto sanction is also possible as the Chief Education Officer has recommended for post facto sanction of detention, therefore, the learned Single Judge was not justified in dismissing the writ petition on hyper technical ground. 3. We have perused the materials and have gone through the records meticulously. 4. According to the appellant getting a post facto sanction is also possible as the Chief Education Officer has recommended for post facto sanction of detention, therefore, the learned Single Judge was not justified in dismissing the writ petition on hyper technical ground. 3. We have perused the materials and have gone through the records meticulously. 4. It is seen from the record that the Chief Education Officer, Anantnag by order dated 02.08.1995 accorded sanction to the detention of duty in favour of the appellant during winter vacations of 1995 as recommended by Head Master, Government High School Qoimoh. Similar orders were passed on 05.07.1996, 25.10.1996, 12.08.1997 and 20.07.1998. The Head Master of the school certified the periods of detention of the appellant during the vacations as 326 days. Copy of the said certificate dated 07.12.2011 is annexed along with the appeal papers. Thus it is beyond doubt that appellant was detained for doing duties during winter vacation that too on the recommendations of the Headmaster and orders were passed by the Chief Education Officer periodically. 5. It is apt to mention Rule 37 of the Jammu and Kashmir Civil Services Leave Rules, 1979 at this juncture which deals with payment of leave salary earned by government servant. The relevant portion of said rule reads thus:- "37. Cash in lieu of leave salary: (1) A Government servant may be paid cash equivalent of leave salary in respect of period of earned leave at his credit at the time of retirement on superannuation. (2) This concession will be subject to the following conditions:- (i) The payment of cash equivalent of leave shall be limited to a maximum of 240 days earned leave: (Provided that with effect from 1-7-1997 the payment of cash equivalent of leave salary shall be limited to a maximum of 300 days of earned leave) (ii) The cash equivalent of leave salary thus admissible will become payable on retirement and will be paid in one lump sum as a one time settlement. (iii) Cash payment will be equivalent to leave salary admissible for earned leave and dearness allowance admissible on the leave salary at the rates in vogue on the date of retirement. (iii) Cash payment will be equivalent to leave salary admissible for earned leave and dearness allowance admissible on the leave salary at the rates in vogue on the date of retirement. No other allowance like compensatory allowance, Border allowance, Muffasil allowance, House rent allowance, or any other allowance will be admissible as part of leave salary; (iv) The authority competent to grant leave shall suo moto issue order granting cash equivalent of earned leave at credit on the date of retirement. (v)..........." 6. On perusal of the above rule it is evident that a Government servant shall be paid cash equivalent of leave salary in respect of earned leave at his credit at the time of retirement on superannuation to a maximum of 300 days and the authority competent to grant leave shall suo moto issue order granting cash equivalent of earned leave at credit on the date of retirement. The cash payment will be equivalent to leave salary admissible for earned leave and dearness allowance admissible at the rates in vogue on the date of retirement. No other allowance like compensatory allowance, Border allowance, Muffasil allowance, House rent allowance, or any other allowance will be admissible as part of leave salary. The only requirement mentioned in the said rule is that leave should be sanctioned by a competent authority. In schedule I, the authority competent to grant leave is mentioned. The same is delegated to the administrative department. In Note 4 of the Schedule I it is mentioned that Tehsil Education Officers Boys/Girls shall be competent to sanction all kinds of leave except leave outside India and study leave to the staff working under irrespective of their scale of pay. As of now the Tehsil Education Officers are not available and instead Zonal Education Officers are in place and at the District level the Chief Education Officer is the head of the school education department. 7. In this case the Chief Education Officer has sanctioned the detention order in favour of the appellant from time to time and even if technical approval is required from the Director of School Education, the Chief Education Officer Kulgam has already submitted the proposal to the Director School Education and sanction was also given to other persons by the Director School Education, therefore, denial of leave salary to the appellant is discriminatory and in violation of Article 14 of the Constitution of India. 8. The order of the Director is not disputing about the performance of duties by the appellant during winter vacations. It only states that incompetent authority has sanctioned the detention order. When the facts are not disputed with regard to performance of vacation duties as Junior Assistant, the 2nd respondent is not justified in denying the leave salary for the period the appellant performed his vacation duties. It is well settled proposition of law that when technicalities and substantial justice is pitted against each other, the Constitutional Court should lean towards rendering substantial justice. The Hon'ble Supreme Court in the decision reported in (2013) 4 SCC 690 (Rajesh Kumar v. State of Bihar), considered the said issue and in Paragraph No. 16 it is held thus:- "16. .....The power of the court to mould the relief, according to the demands of the situation, was never the subject-matter of dispute in those cases. That power is well recognised and is available to a writ court to do complete justice between the parties........" The Full Bench decision of the Orissa High Court in AIR 1992 Orissa 261 (Krishna Chandra Pallai v. Union of India) held that the High Court being the Court of plenary jurisdiction, has inherent power to do complete justice between the parties, and the said decision was approved by the Hon'ble Supreme Court in the decision reported in (1995) 6 SCC 749 (B.C. Chaturvedi v. Union of India). 9. It is also an admitted fact that similar issue was already considered by this Court in respect of similarly placed person in SWP No. 1034/2004, by order dated 29.10.2005. In the said writ petition the Director School Education is a party and the said judgment having become final, it is not open to the 2nd respondent to pass the impugned order, which was challenged before the Writ Court and taking the same stand which was taken before the Writ Court on earlier occasion which was negatived. It is a well settled proposition of law that once an issue is raised before the competent Court and a decision is rendered, so long as that decision is not reversed, the party to the said decision is bound to obey by the decision to achieve the finality of judicial proceedings. It is a well settled proposition of law that once an issue is raised before the competent Court and a decision is rendered, so long as that decision is not reversed, the party to the said decision is bound to obey by the decision to achieve the finality of judicial proceedings. Therefore, the 2nd respondent was not justified in rejecting the claim of the appellant on 18.03.2013 i.e. eight years after the decision was rendered by this Court on the same issue. The Hon'ble Supreme Court in the decision reported in (2015) 1 SCC 347 (State of U.P. & Ors. v. Arvind Kumar Srivastava & Ors.) held that when a particular set of employees are given relief by Court, all other identically situated persons should be treated alike by extending same benefit and not doing so would amount to discrimination and be violative of Article 14 of the Constitution of India. In paragraph 23 the principle is explained thus:- "23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." 10. In this case there is no delay on the part of the appellant in claiming the relief (earned leave salary). As stated supra the appellant retired on superannuation on 28.02.2011. He was paid 11 days leave salary and he claimed salary for all the vacation periods and the Chief Education Officer recommended on 05.05.2012 and the 2nd respondent having not considered his claim he filed writ petition and this Court on 19.07.2012 directed the 2nd respondent to consider the claim of the appellant and consideration order was passed on 18.03.2013 and the said order was challenged before this Court in July, 2013. Thus the law laid down by Hon'ble the Supreme Court squarely applied to the facts of this case. 11. Insofar as the discrimination shown by the 2nd respondent towards the appellant is concerned, the following decisions can be aptly quoted:- In (Premchand Somchand Shah v. Union of India) reported in (1991) 2 SCC 48 in paragraph 8 it is held thus: "8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question." (ii) In (Radhy Sham v. State of UP), reported in (2011) 5 SCC 552, it is held that policy of pick and choose in some parcel of the land and leaving many other parcels of the land under the Land Acquisition Act is discriminatory and violation of Article 14 of the Constitution of India. (iii) In (Sham Lal v. State of Punjab), reported in 2013 (10) Scale 67 , the aforesaid position is reiterated. (iv) In (State of UP v. Dayanand Chakrawarty) reported in (2013) 7 SCC 595 , it is held that there cannot be any discrimination in treating equally placed persons on same footing for all purposes. (v) The Hon'ble Supreme Court in the decision reported in (2015) 2 SCC 712 (Virendra Krishna Mishra v. Union of India) explained the same in paragraph 2 which reads thus:- "2. Equality before law and equal protection of laws is the quintessence of Right to Equality, a Fundamental Right guaranteed under the Constitution of India. Equals cannot be treated unequally, nay, they are to be treated equally. Right to such equality cannot be arbitrarily denied to the equals in the absence of a valid classification. Had the first Respondent borne in mind these elementary principles of one of the most sacred fundamental rights as indicated above, a long drawn three tier litigation of the Appellant employee could have been averted." These aspects having not been considered by the Writ Court and the writ Court having dismissed the writ petition, the order cannot be sustained. Had the first Respondent borne in mind these elementary principles of one of the most sacred fundamental rights as indicated above, a long drawn three tier litigation of the Appellant employee could have been averted." These aspects having not been considered by the Writ Court and the writ Court having dismissed the writ petition, the order cannot be sustained. In fine, the order of the Director School Education dated 18.03.2013, as affirmed by the learned Single Judge by order dated 21.11.2015 are set aside and the appeal is allowed with a direction to release the leave salary for the period for which the appellant was detained to perform duties during vacation period as certified by the Chief Education Officer, after adjusting the amount, if any, already paid and necessary orders shall be passed by the 2nd respondent within a period of two months from the date of receipt of copy of this order and payment of leave salary be made within two weeks therefrom. No costs.