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2016 DIGILAW 606 (JK)

Mohammad Tawaseen v. State of J&K

2016-11-24

ALI MOHD.MAGREY

body2016
JUDGMENT : Ali Mohd. Magrey, J. 1. This case cries hoarse of the absolute and extreme impassivity on the part of the respondents who have turned unimaginably and unrelentingly deaf and heedless to the rights of the petitioner-an aged person hailing from one of the remotest high-altitude-corners of the State, namely, village Chanipora of Tehsil Karnah of District Kupwara. Equally the petitioner appears to have been counselled wild to take implausible pleas in his petition, even to the extent of saying that he earned and had a total of 755 days' leave at his credit, and make such prayers therein which tantamount to, figuratively, pushing the petitioner up a tall tree and praying the Court to order its sawing below at the trunk. 2. The petitioner retired as a teacher from the Education Department of the State on 31.12.2009, now almost seven years back. The Zonal Education Officer, Chamkote, respondent No. 5, vide his order No. ZEOC/L/1703 dated 27.08.2011, i.e., 18 months after his retirement, accorded sanction to the grant of leave salary of Rs. 1,41,672 in favour of the petitioner in lieu of the earned leave of 168 days found at his credit on verification of his service book. The order was endorsed to the Chief Education Officer, Kupwara, respondent No. 3, ostensibly, alongwith the service book and the statement showing the service particulars of the petitioner and his leave account for allotment of the requisite funds. Respondent No. 3, in turn, sent the papers under the cover of his communication No. 15500 dated 20.10.2011 to the Director, School Education, Kashmir, Srinagar, i.e., respondent No. 2, for necessary action. This communication dated 20.10.2011 was returned by the Chief Accounts Officer in the Directorate of School Education, Kashmir, Srinagar, respondent No. 4, with an endorsement that there was no earned leave at the credit of the retiree and that the 'detention' shown in the leave account record be approved/sanctioned by competent authority. Simultaneous with the above endorsement, respondent No. 4 seems to have calculated the leave at the credit of the petitioner as 39 days which has then been reflected at the bottom of the leave account statement as had been prepared by respondent No. 5. 3. The case of the petitioner, as put forth in the writ petition, is that he was appointed on 01.03.1973 and superannuated from service on 31.12.2009. 3. The case of the petitioner, as put forth in the writ petition, is that he was appointed on 01.03.1973 and superannuated from service on 31.12.2009. During his service, he earned 771 days' earned leave out of which he availed 16 days, leaving 755 days un-availed earned leave. It is stated that as per Rule 37 of the Jammu and Kashmir Civil Service (Leave) Rules, 1979 a Government servant may be paid cash equivalent of leave salary in respect of the period of earned leave at his credit at the time of retirement/superannuation. However, in the same breath it is stated that as per the said Rule the cash equivalent of leave salary has to be limited to a maximum of 300 days only, and that the petitioner, therefore, is entitled to Rs. 2,25,984 on that count. It is averred in the petition that the calculation of leave made by respondent No. 5 to the extent of it being 168 days as well as the calculations made by respondent No. 4 stating it to be 39 days are patently incorrect and illegal. It is further stated by the petitioner that his service book gives full details of the orientation courses and the 'detentions' ordered by the competent authority/drawing and disbursing authority during his service period and that the respondents cannot refuse to accept the said entries after the petitioner's retirement. It is also stated that respondent No. 4, in his endorsement made on communication No. 15500 dated 20.10.2011 of respondent No. 3, has not given any reasons for declaring that no earned leave was at the credit of the petitioner. It is also stated that the ground furnished in the endorsement that 'detentions' of the petitioner have not been sanctioned by the competent authority (Director) is also incorrect inasmuch as all such detentions of the petitioner have been duly sanctioned by the competent authority mentioned therein. 4. The petitioner has made the following prayers in the writ petition: "It is accordingly prayed as under that by an appropriate writ, direction or order including one in the nature of writ of certiorari the impugned action of respondent No. 4 as contained in endorsement to annexure 2 be declared illegal and be accordingly quashed. Further the calculation of earned leave calculated by respondent No. 3 and 5 as contained in annexure 1 and 2 be also declared illegal and be quashed. Further the calculation of earned leave calculated by respondent No. 3 and 5 as contained in annexure 1 and 2 be also declared illegal and be quashed. By an appropriate writ the petitioner be declared entitled to cash payment equivalent to leave salary for 300 days as per Rule 37 of Jammu and Kashmir Civil Service (Leave) Rules of 1979 and the respondents be directed to pay the said cash payment in lieu of the said period of earned leave with interest @ 12% p.a. with effect from 1.1.2010 till the same is paid to the petitioner. Any other appropriate writ direction or order be also passed in favour of the petitioner as the Hon'ble Court deems just and proper in the facts and circumstances of the case." 5. Notice in this petition was issued by the Court on 11.01.2012. Thereafter, the matter came up before the Court on 09.03.2012, 30.03.2012, 08.05.2012, 25.05.2012, 10.10.2012, 12.11.2012, 29.11.2013, 11.03.2014. The respondents were continuously granted time to file objections which they failed. Even the peremptory orders mentioning last and final opportunity fell to deaf ears of the respondents. Therefore, on 19.03.2014, the Court heard the writ petition on admission and admitted it to hearing. Respondents were directed to file counter affidavit. Ever since case came up before the Court twelve times, but counter was not filed. 6. Meanwhile, one of the Coordinate Benches on 02.06.2016, while recording the submission of the learned counsel appearing for the petitioner, that despite petitioner having retired from the service in 2011 (should be 2009), respondents have not paid him the leave salary, ordered the respondents to take an appropriate decision in this regard positively within two weeks and submit report before the next date of hearing. The respondents did not respond to the said direction as well. When on the third hearing day after the aforesaid order the matter again came up before this Bench on 14.10.2016, the Court, as a coercive measure, ordered issuance of bailable warrants against the respondents with the provision that if they release the leave salary in favour of the petitioner and report compliance of the order, they would not need to appear. 7. In response, the Chief Education Officer, Kupwara, on 24.10.2016 filed, what he termed as, compliance report. The whole compliance is supposedly shown in paragraph 3 of the aforesaid return, which is quoted hereunder: "3. 7. In response, the Chief Education Officer, Kupwara, on 24.10.2016 filed, what he termed as, compliance report. The whole compliance is supposedly shown in paragraph 3 of the aforesaid return, which is quoted hereunder: "3. That, the case of the petitioner was forwarded to the Directorate of School Education, Kashmir for sanction of earned leave in favour of the petitioner by the Chief Education Officer, Kupwara vide communication No. 15500 dated 20-10-2011 and in this regard, another communication bearing No. 18306 dated 19-1-2016 was also sent to the Director School Education, Kashmir however, earned leave in favour of the petitioner was not sanctioned by the Directorate of School Education, Kashmir, and the case file of the petitioner was returned with observation/remarks that retiree (petitioner herein) is not entitled to any kind of earned leave as the detention shown in the leave account record must have been approved by the Competent Authority i.e., the Director of School Education, Kashmir being the competent authority to sanction earned leave. Copy of the communications dated 20-10-2011 and 19-10-2016 are annexed herewith as Annexure R1 & R2 for kind perusal of this Hon'ble Court." 8. Above is how the Court direction was stated to have been complied with. In consequence to the above, a Coordinate Bench of this Court accepted it as the compliance report and ordered the writ petition to be listed for consideration. 9. Consequently, when the matter came up on 10.11.2016, the respondents' right to file the counter was closed and the case was finally heard. 10. It may at the outset be said that if the writ petition is allowed in terms of the prayers made therein, the petitioner would get nothing. This matter, therefore, has to be dealt with and considered purely through the prison of social justice and not strictly according to the averments made in the writ petition or the prayers made therein. I am constrained to approach the matter this way because the petitioner belongs to a socially, economically and territorially backward pocket of the State and, therefore, has not been able to have the best of what one ought to. 11. Admittedly, the petitioner had been a teacher in the Education Department, known in service parlance as Vacation Department. I am constrained to approach the matter this way because the petitioner belongs to a socially, economically and territorially backward pocket of the State and, therefore, has not been able to have the best of what one ought to. 11. Admittedly, the petitioner had been a teacher in the Education Department, known in service parlance as Vacation Department. Vacation Department in terms of Rule 4(1)(g) of the 1979 Leave Rules is defined to mean a department or part of a department to which regular vacations are allowed, during which Government servants serving in the department are permitted to be absent from duty. Chapter IV of the 1979 Leave Rules prescribes the kinds of leave due and admissible to Government servants. Rule 26 thereof deals with the earned leave for Government servants serving in a Department other than Vacation Department. Rule 26(a)(i) of the Rules prescribes that a Government servant, who is serving in a Department other than Vacation Department, shall be entitled to 30 days' earned leave in a calendar year; whereas Rule 27 relates to the earned leave for persons serving in Vacation Departments and it prescribes as under: "27. Earned leave for persons serving in Vacation Departments. (1) A Government servant serving in a vacation Department shall not be entitled to any earned leave in respect of duty performed in any year in which he availed himself of the full vacation. (2) (a) In respect of any year in which a Government servant avails himself of a portion of the vacation he shall be entitled to earned leave in such proportion of 30 days as the number of days of vacation not taken bears to the full vacation; Provided that no such leave shall be admissible to a Government servant not in permanent employ or quasi-permanent employ in respect of the first year of his service; (b) If, in any year, the Government servant does not avail himself of any vacation, earned leave shall be admissible to him in respect of that year under rule 26. Explanation.-For the purpose of this rule, the term 'year' shall be construed not as meaning a calendar year in which duty is performed but as meaning twelve months of actual duty in a vacation department. Explanation.-For the purpose of this rule, the term 'year' shall be construed not as meaning a calendar year in which duty is performed but as meaning twelve months of actual duty in a vacation department. Note 1.-A Government servant entitled to vacation shall be considered to have availed himself of a vacation or a portion of a vacation unless he has been required by general or special order of a higher authority to forego such vacation or portion of a vacation; Provided that if he has been prevented by such order from enjoying more than fifteen days of the vacation he shall be considered to have availed himself of no portion of the vacation. Note 2.-When a Government servant serving in a vacation Department proceeds on leave before completing a full year of duty the earned leave admissible to him shall be calculated not with reference to the vacations which fall during the period of actual duty rendered before proceeding on leave but with reference to the vacations that fall during the year commencing from the date on which he completed the previous year of duty. Note 3.-Notwithstanding anything contained in this Rule, a Government servant belonging to a vacation Department (and entitled to enjoy regular vacation) if detained on duty during any vacation or portion of vacation, in connection with Invigilation/Supervision/Evaluation of papers, relating to any examination conducted by any Institute/Board/University etc. and for which he is paid remuneration on prescribed rates, shall not be allowed any earned leave for such period of vacation. However, such Government servants can opt to surrender the amount of remuneration prescribed and admissible for such assignment and in lieu thereof have the period of such vacation/portion thereof to be allowed to count for earned leave under the provisions of this rule. (3) Vacation may be taken in combination with or in continuation of any kind of leave admissible under these rules; Provided that the total duration of vacation and earned leave taken in conjunction, whether the earned leave is taken in combination with or in continuation of other leave or not, shall not exceed the amount of earned leave due and admissible to the Government servant at a time under rule 26; Provided further that the limitation prescribed above shall not apply when vacation, earned leave and commuted leave are taken in conjunction." 12. It is thus seen that Rule 27 deals with and stipulates the conditions under which a person serving in a vacation Department would earn the leave and the extent thereof. Few things become axiomatic: first, that a Government servant working in a vacation department shall not earn any leave if he avails full vacation; second, that it is not within the discretion of a Government servant working in a vacation department not to avail of the vacation, but the discretion lies with the 'higher authority'; third, subject to the above, if a Government servant working in a vacation Department does not avail himself of any portion of the vacation, he shall be entitled to earned leave in such proportion of 30 days as the number of days of vacation not taken bears to the full vacation, subject to the condition that if he has been prevented from enjoying more than fifteen days of vacation by a general or special order of 'higher authority' he shall be considered to have availed himself of no portion of the vacation; and fourth, if a Government servant working in a vacation Department does not avail himself of any vacation, which would include he having been prevented from enjoying more than 15 days by a general or special order of higher authority, leave shall be admissible to him in respect of that year under rule 26. 13. So, the Rule envisages that if a person working in the Education Department, who is entitled to vacation, is required by a general or special order by any higher authority to forego such vacation or portion thereof, and that such person is prevented by such order from enjoying more than fifteen days of vacation, he shall be considered to have availed himself no portion of the vacation, and, in terms of Rule 2(b), he would be entitled to 30 days' earned leave in respect of that year under Rule 26. 14. The Rules uses the words 'higher authority'. The term 'higher authority' is not defined in the 1979 Leave Rules. The Definition Rule 4 Sub-rule (2) of the 1979 Leave Rules says that the words and expressions used in the Rules and not defined, but defined in the J&K Civil Service Regulations, shall have the meanings respectively assigned to them in the J&K Civil Service Regulations. The term 'higher authority' is not defined in the 1979 Leave Rules. The Definition Rule 4 Sub-rule (2) of the 1979 Leave Rules says that the words and expressions used in the Rules and not defined, but defined in the J&K Civil Service Regulations, shall have the meanings respectively assigned to them in the J&K Civil Service Regulations. However, the expression 'higher authority' is also not defined in the J&K Civil Service Regulations as well. 15. Ascertainment of the definition or meaning of the expression 'higher authority' used in Rule 27 of the 1979 Leave Rules becomes necessary because the Chief Accounts Officer in the office of the Director, School Education, Kashmir, returned the case of the petitioner, as mentioned earlier, with an endorsement that "the 'detention' shown in the leave account record to be approved/sanctioned by the competent authority/Director", meaning thereby that, according to the said Chief Accounts Officer, the expression 'higher authority' used in Note (1) appended to Rule 27 of the 1979 Leave Rules only meant the Director and that the general or the special order in respect of the petitioner, spoken of in Note (1) appended to Rule 27, ought to have been passed or approved by the Director, School Education; whereas relevant entries in the Service Book of the petitioner record that his 'detention' on duty during vacations had been sanctioned by the D.E.O., meaning District Education Officer. It may be mentioned here that District Education Officer was then the highest authority at the district level in the Education Department, equivalent to the present Chief Education Officer. If it is established that the 'higher authority' does not, and would not, mean only the Director, but would include the officer or officers of the Education Department at the District level, then the endorsement made by the Chief Accounts Officer would be, and can be termed as, dehors the Rules. 16. As mentioned above, the Rules do not define the expression "higher authority". However, the petitioner at the hearing produced a Circular issued by the Director, School Education Department, Kashmir, Srinagar, under endorsement No. DSEK/PA/04/459-65 dated 7.7.2004. Its contents are relevant and have a decisive bearing on the matter. 16. As mentioned above, the Rules do not define the expression "higher authority". However, the petitioner at the hearing produced a Circular issued by the Director, School Education Department, Kashmir, Srinagar, under endorsement No. DSEK/PA/04/459-65 dated 7.7.2004. Its contents are relevant and have a decisive bearing on the matter. It reads as under: "Government of Jammu & Kashmir, Directorate of School Education Kashmir CIRCULAR Attention of all the leave sanctioning authorities of School Education Department is invited to Rule 37(2)(iv) of J&K Civil Services (Leave) Rules, 1979 which reads as under: 'The authority competent to grant leave, shall suo-moto issue order granting cash equivalent of earned leave at credit on the date of retirement.' Accordingly, all the leave sanctioning authorities/Drawing and Disbursing Officers of School Education Department are directed to issue orders granting cash equivalent to earned leave at the credit of a retiree at their own level which should be calculated as per the provisions of Rule 27 ibid, read with explanation note 1, 2 and 3 of Civil Service Leave Rules 1979 issued by Finance Department. In view of the aforesaid express provisions of the Rules on the subject, no such case need to be referred to CEO concerned/Directorate of School Education Kashmir by the leave sanctioning authority/Drawing and Disbursing Officers of School Education Department for verification of title to earned leave at the credit of a retiree. Leave sanctioning authority concerned shall henceforth sanction/calculate earned leave at the credit of a retiree at his/her own level with a copy to CEO concerned who will forward the same to the Director of School Education Kashmir for allotment of budget under Major Head 2071-pension and other retirement benefits. Sd/- (G.A. Peer) Director." 17. The above circular clinches the issue. It is clear in its terms, and establishes the fact that the leave sanctioning authorities in the Education Department are officers below the Chief Education Officers; meaning thereby that such officers could also require an employee, say a teacher, not to avail of whole or a portion of a vacation, and that it was not necessarily required to be sanctioned, granted or approved by the Director, School Education. This is also demonstrative of the position that the use of the expression 'higher authority' in Rule 27 of the 1979 Leave Rules does not have reference only to the Director, School Education. 18. This is also demonstrative of the position that the use of the expression 'higher authority' in Rule 27 of the 1979 Leave Rules does not have reference only to the Director, School Education. 18. Applying the above analogy to the preset case, the petitioner, as per the entries recorded in his service book, having been detained on duty by sanction of the District Education Officer, which post has been equivalent to the present day Chief Education Officer, his 'detention' can be said to have been ordered by a competent authority, not requiring any further approval by any authority, much less the Director, School Education. The impugned endorsement of the Chief Accounts Officer, therefore, has been untenable and without any legal justification. 19. Apart from the above, the Circular contains clear cut directions to the leave sanctioning authorities of the Department to issue orders granting cash equivalent to earned leave to a retiree at their own level to be calculated as per the provisions of Rule 27 of the 1979 Leave Rules and not to refer such cases to the Chief Education Officer concerned or the Director, School Education, for verification of title to leave at the credit of a retiree, and further, to forward the same only for allotment of budget through the Chief Education Officer concerned. 20. In the instant case, the Zonal Education Officer duly calculated the petitioner's earned leave as 169 days, and accorded sanction on 27.08.2011 to the payment of Rs. 141,672 as cash in lieu of leave salary in his and sent it to the Chief Education Officer for allotment of funds. The Chief Education Officer, in turn, forwarded the same to the Director, School Education Department, Kashmir, for the purpose strictly in terms of the directions contained in the Circular order issued by the Director, School Education, quoted above. 141,672 as cash in lieu of leave salary in his and sent it to the Chief Education Officer for allotment of funds. The Chief Education Officer, in turn, forwarded the same to the Director, School Education Department, Kashmir, for the purpose strictly in terms of the directions contained in the Circular order issued by the Director, School Education, quoted above. In light of Rule 27 of the 1979 Leave Rules read with the above Circular, there was no legally plausible reason or justification for the Chief Accounts Officer in the Directorate of School Education, Kashmir, to venture upon an exercise of verifying the title to leave of the petitioner over and above the calculations of the Zonal Education Officer (who in terms of the Circular order issued by the Director was competent to make such calculations) and return the petitioner's papers saying that there was no leave at his credit on the ground that his detention on duty had not been approved by the Director. 21. Since the Zonal Education Officer concerned, on the basis of the service record of the petitioner, had assessed and calculated the earned leave at his credit to be 168 days and, vide order No. ZEOC/L/1703 dated 27.08.2011, duly sanctioned an amount of Rs. 141,672 as cash in lieu of leave salary in his favour, the Directorate of School Education, Kashmir, was legally obliged to release and allot the funds/budget to the Zonal Education Officer concerned to enable him to disburse the same in favour of the petitioner. The Directorate of School Education having rejected the case of the petitioner summarily and in absolute disregard of the Rules having bearing on the matter, and the Circular order issued by the Directorate itself, has acted totally arbitrarily in the matter, subjecting the petitioner to serious agony and inconvenience over the years since 27.08.2011 and, consequently, loss of earnings in the shape of interest to him. 22. It may also be observed here that since the petitioner had a right to receive cash in lieu of the earned leave at his credit and it is settled that right to sum of money constitutes property within the meaning of Article 19 of the Constitution, the respondents could not legally have denied its payment to the petitioner or withheld the same. The same having been denied as well as withheld since 27.08.2011, the date it was sanctioned in favour of the petitioner by the competent authority, causing loss to the petitioner, the respondents are bound to compensate the petitioner for such inconvenience and loss. In almost identical situation, the Supreme Court in Vijay L. Mehrotra v. State of UP, (2001) 9 SCC 687 , holding that there was absolutely no reason or justification for the respondents therein for not making the payments of retiral benefits, which included encashment of leave etc. for months together, awarded 18% simple interest in favour of the petitioner therein with effect from the date of the petitioner's retirement. In the instant case as well, there has been no reason or justification for denying the release or payment of leave encashment. Therefore, on the analogy of the above judgment of the Supreme Court, the respondents are liable to pay interest to the petitioner on the amount in question from the date the Zonal Education Officer had accorded sanction to payment thereof. However, this Court is of the opinion that award of 4% simple interest per annum in favour of the petitioner would meet the ends of justice. 23. Coming to the claim and prayer of the petitioner to declare him entitled to cash payment equivalent to leave salary for 300 days as per Rule 27 of the 1979 Leave Rules, it is seen that Sub-rule (1) of the said Rule speaks that a Government servant may be paid cash equivalent of leave salary in respect of the period of earned leave at his credit at the time of retirement on superannuation. The expression used is 'at his credit' which means the leave that a Government servant would be entitled to and would earn and accumulate under either of the two applicable Rules-Rule 26 or Rule 27-as the case may be, and such concession will be subject to, inter-alia, the condition that the payment of cash equivalent of leave salary shall be limited to a maximum of 300 days. The Rule does not say that every Government servant has to be paid cash equivalent of leave salary for 300 days; the payment has reference to the leave at his credit. The claim of the petitioner is wholly based on misconception of law. 24. The Rule does not say that every Government servant has to be paid cash equivalent of leave salary for 300 days; the payment has reference to the leave at his credit. The claim of the petitioner is wholly based on misconception of law. 24. In light of the above, the petitioner is held entitled to the cash in the amount of Rs. 141,672/- in lieu of earned leave sanctioned in his favour by the concerned Zonal Education Officer in terms of order ZEOC/L/1703 dated 27.08.2011, together with 4% interest from the date of the sanction order viz. 27.08.2011 till the amount alongwith the interest is actually paid to him. 25. The writ petition is, accordingly, allowed in terms of the above. Moulding the relief prayed for by the petitioner in the writ petition, the endorsement made by the Chief Accounts Officer on the communication of the Chief Education Officer, Kupwara, bearing No. 15500 dated 20.10.2011, is quashed. The order passed by the Zonal Education Officer, Chamkote, bearing endorsement No. ZEOC/L/1703 dated 27.08.2011 need not be quashed. The respondents, especially, the Director, School Education, Kashmir, Srinagar, is directed to release and pay to the petitioner the amount of Rs. 141,672/- representing the cash in lieu of leave salary sanctioned in his favour by the Zonal Education Officer, Chamkote, in terms of order ZEOC/L/1703 dated 27.08.2011, together with 4% simple interest per annum from the date of the sanction order viz. 27.08.2011, till the amount is actually paid to him. The aforesaid exercise shall be completed within a period of 30 days from the date of this judgment. In the event the payments are not made to the petitioner within the stipulated time, the petitioner would be entitled to a further simple interest of 4% per annum, i.e., a total of 8% interest, on the amount with effect from the first day after the expiry of the period of one month till the amount is actually paid to him. 26. 26. It is also provided that after such payments are made to the petitioner, the Government/respondents shall be free to recover the amount equivalent to the awarded simple interest of 4% that may be paid to the petitioner quantifiable upto expiry of stipulated one month on the amount in question from the person of the Chief Accounts Officers concerned who exceeded his powers and arbitrarily dealt with the case of the petitioner, rejected and returned the papers to the Chief Education Officer, of course, after giving him an opportunity of being heard. 27. The petitioner is also held entitled to token costs of Rs. 3,000/- from the Director, School Education, Kashmir, Srinagar, to be paid to him on his proper identification before the Registrar Judicial of this Court. Petition Allowed.