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2018 DIGILAW 176 (JK)

Dhian Singh v. State of J & K

2018-03-22

TASHI RABSTAN

body2018
JUDGMENT : 1. Through the medium of this writ petition, the petitioner is seeking quashing of Communication Nos. Edu-Coll/PF-34/Eng. dated 20.01.2005; No. Edu-Coll/PF-34/Eng. dated 09.12.2005 and No. Edu-Coll/PF-34/Eng. dated 11.07.2007 addressed to Principal, Government Degree/Women College, Kathua by the Under Secretary to Government, Higher Education Department; whereby the representation of petitioner herein for cash-in- lieu of earned leave salary has been rejected being not covered under rules. The petitioner is also seeking a direction to the respondents to release the same in his favour for the period he had worked as Superintendent/Warden of Boys Hostel of Government Degree College, Kathua, with effect from 1981 to 2001 and implementation of Order No. 106-HE of 1999 dated 7.6.1999. 2. The facts as projected in the petition are that the petitioner worked as regular English Lecturer in the Higher Education Department of the State with effect from 1972 till he superannuated on 30.09.2003. It is averred that the petitioner was posted as Lecturer in English in Government Degree College, Kathua on 05.01.1973 and till his superannuation he continued as such. It is averred that during his tenure as a regular Lecturer in Government Degree College, Kathua, he was assigned the additional duty as Hostel Superintendent/Warden of the Boys Hostel in Government Degree College, Kathua in the year 1980 and in his capacity as a Superintendent of the Hostel he was not allowed the earned leave. Thus, it is averred that from the year 1980 till the year 2001 he was given the additional duties of Hostel Superintendent of the Hostel, therefore, did not avail the earned leave in any year, much less for the vacation period permissible to the employees of the Higher Education Department every year. It is averred that the Higher Education Department is a vacation department and the petitioner was serving in the vacation department. Further, it is averred that the Higher Education Department vide Order No. 106-HE of 1999 dated 07.06.1999 accorded ex-post-facto sanction for treating the period of summer/winter vacations for the period 1981 to 1998 in favour of petitioner along with two other Lecturers. The petitioner came to be retired on 30.09.2003 and after his retirement he was entitled to the benefit of cash-in-lieu of earned leave salary. However, it is averred, the Higher Education Department vide Edu-Coll/PF-34/Eng. dated 20.01.2005, impugned herein, rejected the claim of petitioner. The petitioner came to be retired on 30.09.2003 and after his retirement he was entitled to the benefit of cash-in-lieu of earned leave salary. However, it is averred, the Higher Education Department vide Edu-Coll/PF-34/Eng. dated 20.01.2005, impugned herein, rejected the claim of petitioner. It is averred that the Principal, Government Degree College, Kathua vide Communication No. KC/1597 dated 02.02.2005 again forwarded the case of petitioner, however, Under Secretary to Government, Higher Education Department vide Communication No. Edu-Coll/PF-34/Eng. dated 09.12.2005, impugned herein, intimated the Principal, Government Degree College, Kathua, that the request of petitioner was not agreed to by the Finance Department. It is averred that the petitioner again made a representation for reconsideration of his case, however, the same to came to be rejected by the Higher Education Department vide Edu-Coll/PF-34/Eng. dated 11.07.2007, impugned herein. Hence, the present writ petition. 3. Mr. Johal, learned senior counsel argued that in terms of Rule 37 of Civil Services (Leave) Rules, 1979, any Government employee working in the Vacation Department, if is detained in vacations and not allowed any earned leave for such period of vacations, is entitled to cash-in-lieu for the said period. He further argued that on similar lines one Shri Som Lal has been accorded the said benefit. 4. Objections have been filed on behalf of respondents averring therein that in terms of Rue 27 of the J & K Civil Services (Leave) Rules, 1979, an employee of vacation department is debarred from earning earned leave during a year as they avail full vacations. Thus, it is averred that the petitioner, who was seeking the benefit of earned leave on the ground that he had performed the duty of Hostel Warden, as such was not found entitled to the same being his case not covered under rules. Further, it is averred that the petitioner being a member of vacation department is not entitled to the earned leave and the duties of Hostel Warden do not entitle him to the grant of benefit of earned leave. Further, it is averred that the order issued sanctioning accumulation of earned leave in favour of petitioner for hostel duty was irregular and could not be issued under rules. 5. I have heard learned counsel for the parties, considered their rival contentions and also perused the writ file. 6. Further, it is averred that the order issued sanctioning accumulation of earned leave in favour of petitioner for hostel duty was irregular and could not be issued under rules. 5. I have heard learned counsel for the parties, considered their rival contentions and also perused the writ file. 6. It is the specific case of petitioner that in addition to his own duties as a regular Lecturer in Government Degree College, Kathua, he was also assigned the additional duty as Superintendent/Warden of Boys Hostel from the year 1980 till the year 2001, thus, despite being serving in the Vacation Department, could not avail earned leave/vacation period during these years, which is otherwise permissible to the employees of Higher Education Department every year; therefore, was entitled to the benefit of cash-in-lieu of earned leave salary. Respondents in their objections have not denied this position of not availing the earned leave during the said period by the petitioner; meaning thereby the respondents have also admitted that the petitioner did not avail vacation period/earned leave from the years 1980 to 2001 despite being serving in the Vacation Department and that in addition to his own duties as a Lecturer, he was also performing the duties of Superintendent/ Warden of Boys Hostel. 7. Now the question remains to be determined is: whether the petitioner is entitled to cash-in-lieu of earned leave salary for the period he could not avail vacation period/earned leave? 8. Admittedly, vide Order No. 106-HE of 1999 dated 07.06.1999 issued by Under Secretary to Government, Higher Education Department, ex-post facto sanction for treating the period of summer/winter vacations for the period 1981 to 1998 was accorded in favour of petitioner for calculation of earned leave in terms of Rule 27 of Leave Rules, 1979. However, the same authority, i.e. Under Secretary to Government, Higher Education Department vide Communication No. Edu-Coll/PF-34/Eng. dated 20.01.2005 rejected the case of petitioner being not covered under rules. It is very strange that the respondents took about five and a half years in rejecting the case of petitioner with effect from 07.06.1999 when sanction was accorded in his favour for calculation of earned leave. dated 20.01.2005 rejected the case of petitioner being not covered under rules. It is very strange that the respondents took about five and a half years in rejecting the case of petitioner with effect from 07.06.1999 when sanction was accorded in his favour for calculation of earned leave. Whereas, on the other hand, in paragraph-2 of preliminary objections, the respondents have questioned the maintainability of writ petition on the ground of delay and laches, ignoring the fact that the last representation of petitioner came to be rejected vide order impugned on 11.07.2007 and the writ petition came to be filed on 23.04.2008. Now one can easily understand who is at fault and on whose laxity such a delay came to be occurred. Therefore, respondents are barred from taking such a clumsy plea. 9. Be that as it may, before proceeding further, it would be relevant to reproduce hereunder the relevant portion of Rule 27 of Civil Services (Leave) Rules, 1979 (hereinafter, for short, Leave Rules of 1979): “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. 10. As such, for more clarify on the issue, it would also be appropriate to reproduce hereunder the relevant portion of Rule 26 of Leave Rules of 1979: “26. Earned leave for Government servants in a Department other than vacation Department. (a) (i) A Government servant who is serving in a Department other than a Vacation Department shall be entitled to 30 days earned leave in a calendar year.” 11. Earned leave for Government servants in a Department other than vacation Department. (a) (i) A Government servant who is serving in a Department other than a Vacation Department shall be entitled to 30 days earned leave in a calendar year.” 11. Heading of Rule 27 of Leave Rules of 1979, i.e. “earned leave for persons serving in Vacation Departments” clearly illustrates that this particular rule is meant for only those persons serving in Vacation Departments; meaning thereby this rule pertains to the issue-in-question. Sub-Rule 2(b) of Rule 27 clearly provides that if a Government servant does not avail himself of any vacation in any year, earned leave shall be admissible to him in respect of that year under rule 26; meaning thereby in terms of Rule 27(2)(b) if a Government servant does not avail himself of any vacation in any year, in that case Rule 26 will apply, irrespective of the fact that Rule 26 applies to Government servants serving in a department other than vacation department. Whereas, Rule 26(a)(i) of Leave Rules of 1979 clearly provides that a Government servant who is serving in a Department other than a Vacation Department shall be entitled to 30 days earned leave in a calendar year. 12. Thus, a conjoint reading of both these rules (supra) clearly provide that if in any year, a Government servant serving in a vacation department does not avail himself of any vacation in terms of Rule 27(2)(b), he shall be entitled to 30 days earned leave in a calendar year in terms of Rule 26 of Leave Rules of 1979. For more clarity, Rule 27(2)(b) cannot be read in isolation, rather it has to be read with Rule 26 of Leave Rules of 1979. Therefore, in view of clear rule position, I do not see any illegality in issuing Order No. 106-HE of 1999 dated 07.06.1999 by the Under Secretary to Government, Higher Education Department, so far as it relates to petitioner, whereby ex-post-facto sanction for treating the period of summer/winter vacations for the period 1981 to 1998 as earned leave was accorded in his favour on account of being Hostel Warden of the College. Thus, in terms of clear rule position, the petitioner is entitled to maximum 300 days cash-in-lieu of earned leave salary for the period he did not avail himself of any vacation when in addition to his own duties as English Lecturer, he was also performing the additional duty as Hostel Superintendent/ Warden of the Boys Hostel in Government Degree College, Kathua. Further, in paragraph-3 of parawise reply of objections, the respondents have specifically averred that “the duties of Hostel Warden do not entitle the petitioner to the grant of the benefit of earned leave” meaning thereby the respondents have themselves admitted that the petitioner had been performing the duties of Hostel Warden during the years 1980 to 2001, in addition to his own duties as Lecturer in English. Thus, the petitioner is also entitled to the charge allowance for the period he had been performing the additional duties of Superintendent/Warden of Boys Hostel, in addition to his own duties as a Lecturer. 13. Further, the respondents have not denied the fact in their objections that one Som Lal, Lecturer in Physics was also accorded the same benefit on similar grounds vide Government Order No. 83-HE of 1999 dated 28.04.1999 treating the period of summer/ winter vacations of the year 1993, 1994, 1995, 1996, 1997 and 1998 as detention on duty being Hostel Warden of the College. Therefore, the respondents being a welfare State cannot be expected to adopt two different yardsticks for the same class of employees facing similar circumstances which is violative of Articles 14 and 16 of the Constitution of India. Therefore, on this score too the writ petition deserves to be allowed. 14. Therefore, in view of what has been discussed above and as per rule position, coupled with the fact that the petitioner has been hankering for his rightful dues for the last about fourteen and half years after his retirement, which has been wrongly withheld by the respondents, the writ petition merits to be allowed. Accordingly, the same is allowed and Communication Nos. Edu-Coll/PF-34/Eng. dated 20.01.2005; No. Edu-Coll/PF-34/Eng. dated 09.12.2005 and No. Edu-Coll/PF-34/Eng. dated 11.07.2007 addressed to Principal, Government Degree/Women College, Kathua by the Under Secretary to Government, Higher Education Department are hereby quashed. Accordingly, the same is allowed and Communication Nos. Edu-Coll/PF-34/Eng. dated 20.01.2005; No. Edu-Coll/PF-34/Eng. dated 09.12.2005 and No. Edu-Coll/PF-34/Eng. dated 11.07.2007 addressed to Principal, Government Degree/Women College, Kathua by the Under Secretary to Government, Higher Education Department are hereby quashed. Accordingly, as admissible under rules, respondents are directed to release 300 days cash-in-lieu of earned leave salary, in favour of petitioner along with 6% interest with effect from the date he came to be retired till the amount is actually released by the respondents. Let the amount be released in favour of petitioner within a period of eight weeks from today. The petitioner is also entitled for the charge allowance to be paid by the respondents, if not already paid, within the same period. Connected miscellaneous petitions, if any, accordingly stands disposed of.