JUDGMENT : Order on C.M. Application No. 02 of 2022 (Application for Condonation of Delay) 1. Heard learned State counsel representing the appellant- State authorities, Sri Pradeep Chandola and Sri Abhishek Dwivedi, learned counsel representing the respondent no.1- petitioner and Sri Anurag Kumar Singh, learned counsel representing the Vice-Chancellor, Lucknow University, Lucknow. 2. Having heard the learned counsel for the parties and perused the averments made in the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained. 3. Accordingly the application is allowed and the delay in preferring the special appeal is hereby condoned. Order on Special Appeal 1. Heard the learned counsel representing the respective parties and perused the record available before us on this special appeal. 2. By means of this intra-court appeal instituted under the provisions of Chapter VIII Rule V of the Rules of the Court, the State authorities have laid a challenge to the judgment and order dated 14.12.2020 passed by the learned Single Judge in Writ Petition No. 24316 (SS) of 2020, whereby the writ petition filed by the respondent no.1- petitioner was allowed with a direction to the appellant - State authorities to provide her benefit of leave encashment. Learned Single Judge while allowing the said writ petition and ordering to extend the benefit of leave encashment to the respondent no.1-petitioner has relied upon a judgment passed by another learned Single Judge, dated 27.05.2019 rendered in the case of Ram Kumar and others versus State of UP and others; Writ-A No.62389 of 2014. 3. Impeaching the judgment and order passed by learned Single Judge, learned State counsel has vehmentaly argued that the judgment and order under appeal herein is erroneous and as a matter of fact the judgment rendered by the Court in the case of Ram Kumar (supra) requires a re-look for the reason that the relevant provisions contained in the Financial Handbook which govern leave rules and matter related thereto, including leave encashment, have not been taken into consideration by learned Single Judge while deciding the case of Ram Kumar (supra). It has been argued by learned State counsel that in terms of provisions contained in Fundamental Rules 81-B (1)(xii) of the Financial Handbook (Volume II, Part II to IV), in absence of any Government Orders having been issued by the State Government allowing leave encashment to an employee of an Associated College of Lucknow University, the respondent no.1-petitioner is not entitled to the said benefit. It has, thus, been argued that this aspect of the matter does not appear to have been considered by the learned Single Judge in the case of Ram Kumar (supra) and accordingly it is not only that the judgment in the case of Ram Kumar (supra) is erroneous but also that reliance placed by learned Single Judge while passing the judgment and order under appeal herein also suffers from the said error. 4. On the other hand learned counsel for the respondent No.1-petitioner has submitted that the judgment in the case of Ram Kumar (supra) is based on elaborate discussion of the provisions contained in the U.P. State Universities Act 1973 (hereinafter referred to as “the 1973 Act), the first Statutes of the University concerned and the provision of Fundamental Rules 58 to 104 including sub-Rule 1 and 2 of Rule 81B, and hence neither the said judgment in the case of Ram Kumar need any re-look, nor the judgment and order under appeal herein warrants any interference by this Court in this Special Appeal. 5. Sri Anurag Kumar Singh representing the University has stated that there is no irregularity in the judgment and order under appeal in this case and the special appeal is thus liable to be dismissed. 6. We have given our anxious consideration to the rival submissions made by learned counsel representing the respective parties. 7. Respondent No.1- petitioner was employed with Nari Siksha Niketan Post Graduate College, Lucknow against a Class III post, who after serving the said institution retired on 31.03.2018 on attaining the age of superannuation. Nari Siksha Niketan Post Graduate College is an Associated College listed at serial number 14 of the list of Colleges mentioned in the Statute 13.01 of the First Statutes of Lucknow University. ‘Associated College’ under the 1973 Act has been defined to mean, in section 2 (4), any institution recognised by the University as such. Nari Siksha Niketan Post Graduate College is an Associated College listed at serial number 14 of the list of Colleges mentioned in the Statute 13.01 of the First Statutes of Lucknow University. ‘Associated College’ under the 1973 Act has been defined to mean, in section 2 (4), any institution recognised by the University as such. Similarly ‘Affiliated College’ has been defined in Section 2 (2) of the 1973 Act to mean any institution affiliated to the University in accordance with the provisions of the Act and the Statutes of that University. Section 37 which falls under Chapter VII of the 1973 Act provides for affiliation and recognition of the affiliated colleges and as per Section 37 (1), the said provision does not apply so far as the University of Lucknow is concerned. In other words, in Lucknow University there are no affiliated colleges rather Associated Colleges and other category of educational institutions such as Constituent Colleges and Institute etc. The provision relating to Associated Colleges is found in Section 38 of the 1973 Act which clearly provides that the said provision shall apply to the University of Lucknow. 8. Thus as per the scheme of 1973 Act, there is no concept of affiliated colleges so far as Lucknow University is concerned and similarly there is no concept as Associated Colleges so far as other State universities are concerned. This distinction became necessary for us to discuss for the reason that the judgment under appeal is based on the judgment in the case of Ram Kumar (supra), who was an employee of an affiliated college of Chaudhary Charan Singh Meerut University, Meerut and the relevant Statute available in the first Statutes of the Meerut University applicable in the case of employees working in an affiliated college has been quoted and relied upon in Ram Kumar’s case. The said distinction also became necessary for us to discuss for the reason that the learned Single Judge in the judgment and order under appeal in this case has relied upon in the case of Ram Kumar (supra), which is based on the first Statutes applicable to the employees of affiliated colleges of Meerut University, whereas the claim in the instant case of the respondent No.1- petitioner is based on the relevant Statute of the First Statutes of the Lucknow University applicable to the non-teaching staff of Associated Colleges. 9. 9. However, the relevant Statute governing the conditions of service of the non-teaching staff of Meerut University is couched in identical language as the relevant Statute which governs the condition of service of a class III employee working in the Associated Colleges of Lucknow University. 10. Statute 36.01 of the First Statutes of Meerut University is quoted here under:- “36.01: The leave rules applicable to the Government servants from time to time shall mutatis mutandis apply to the employees of like satute.” 11. The Statute which is relevant for resolving the issue involved in this matter is Statute 37.01 of First Statutes of Lucknow University, which is also extracted herein below:- “37.01 Leave-The leave rules applicable to the Government servants from time to time shall mutatis mutandis apply to the employees of like status.” 12. Thus there is no doubt that Statute 37.01 of the First Statutes of the Lucknow University and the Statute 36.01 of the First Statutes of Meerut University are akin to each other and accordingly any decision in this matter will necessarily require the discussion in relation to and consideration of judgment in the case of Ram Kumar (supra) rendered by learned Single Judge. 13. We may, at this juncture, notice that Statute 37.01 of the Lucknow University falls in Chapter XXIII of the First Statutes which is in relation to, “Qualification and Conditions of Service of non-Teaching Staff of the Associated Colleges”. Statute 37.01 clearly and categorically states that leave rules applicable to the government servants from time to time shall apply to the employees of the Associated Colleges of like status mutatis mutandis. Employees of like status mentioned in Statute 37.01 refers to the non-teaching staff of the Associated Colleges. Admittedly, the respondent No.1 - petitioner was employed against a class III post in an Associated College of Lucknow University, as such she will be governed in the matters of leave by Statute 37.01 of the First Statutes of the Lucknow University. There is no ambiguity in our mind regarding applicability of leave rules which govern the State Government employees, to the employees of an Associated College of Lucknow University. 14. We, thus, now need to examine as to what are the leave rules applicable to the State Government employees. There is no ambiguity in our mind regarding applicability of leave rules which govern the State Government employees, to the employees of an Associated College of Lucknow University. 14. We, thus, now need to examine as to what are the leave rules applicable to the State Government employees. There is no dispute at the bar that leave rules applicable to the State Government employees can be found under Chapter X, Section I of the Financial Handbook (Volume II, Part II to IV). The leave in respect of the State Government employees is thus governed by Fundamental Rules 58 to 104 of the Financial Handbook. 15. Fundamental Rules 81-B (1) of the Financial Handbook provides for certain leave rules applicable to the State Government employees. Rule 81-B (1) states that the procedure given therein shall be deemed to have come into force with effect from 01.01.1978 in regard to the calculation of earned leave in respect of the State Government employees. Clause 1 of Rule 81B of the Fundamental Rules contains various other sub-clause from (i) to (xii). Sub-Clause xii of Clause 1 of Rule 81-B runs as under:- “(xii) A Government servant may be permitted to surrender a portion of earned leave at his credit and allowed cash payment in lieu thereof in accordance with the orders issued by Government, in this regard, from time to time.” 16. There cannot be any dispute that in terms of the provisions contained in Statute 37.01 as quoted above sub-clause (xii) of Clause 1 of Rule 81-B will have its application to the employees working in the Associated Colleges of Lucknow University by virtue of express provision that leave rules as applicable to the State Government employees shall apply to the employees of Associated Colleges as well. We do not have any doubt that provisions contained in sub-clause (xii) of Clause I of Rule 81-B will have application in case of respondent No.1 - petitioner as well. 17. We are also of the considered opinion that the kind of language in which sub-clause (xii) of Clause I of Fundamental Rules 81-B is framed gives a substantive right to an employee to surrender a portion of earned leave available in his credit and to ask for cash payment in lieu thereof. 17. We are also of the considered opinion that the kind of language in which sub-clause (xii) of Clause I of Fundamental Rules 81-B is framed gives a substantive right to an employee to surrender a portion of earned leave available in his credit and to ask for cash payment in lieu thereof. In other words, the said provision confers a substantive right upon a Government servant to surrender a portion of earned leave and seek encashment instead of the leave. 18. By virtue of Statute 37.01, the petitioner as well, is thus conferred with the substantive right of surrendering a portion of her earned leave which might be available in her credit and to seek cash payment in lieu of such surrender of the earned leave. 19. The only issue/ question which has been raised by learned counsel for the State-Appellant is that so far as the State Government employees are concerned, the State Government has issued orders from time to time and payment of leave encashment in terms of the provisions contained in Rule 81-B(1)(xii) is permissible only in accordance with the Government Orders, however in case of employees of Associated Colleges, till date no Government Order has been issued. In this view, the submission is that in absence of any Government Order having been issued as per the requirement of sub-clause (xii) of Clause I of Fundamental Rule 81-B, the respondent No.1 - petitioner is not entitled to leave encashment. 20. Learned State Counsel has drawn our attention to a Government Order dated 26.04.1978 which provides that benefit of leave encashment will be available to the State Government employees equivalent to maximum of 180 days leave. The said Government Order also provides that benefit of leave encashment will be available after the Government employee attains the age of superannuation and retires and accordingly in terms of the formula for payment given in the said Government Order, a government employee shall be paid the amount of leave encashment at the time of his retirement. 21. Learned State Counsel while arguing further has also drawn our attention to yet another Government Order dated 01.07.1999, according to which the benefit of leave encashment was enhanced from 180 days to 300 days’ earned leave. 21. Learned State Counsel while arguing further has also drawn our attention to yet another Government Order dated 01.07.1999, according to which the benefit of leave encashment was enhanced from 180 days to 300 days’ earned leave. His submission, thus, is that so far as the State Government employees are concerned, the Government Order from time to time have been issued and accordingly they are entitled to the benefit of leave encashment, however in the case of employees working in the Associated College of Lucknow University, since the State Government has not issued any Government Order as such they are not entitled for payment of leave encashment. 22. Emphasis of the learned State Counsel is on the occurrence of the words, “in accordance with the orders issued by the Government in this regard, from time to time” as can be found in Clause 81-B (1)(xii) of the Fundamental Rules. When we examine and consider the aforesaid arguments advanced by the learned State counsel, we do not find ourselves in agreement with the same for the reasons which follows. 23. If we scrutinize the two Government Orders as pointed out by learned State Counsel, namely, Government Order dated 26.04.1978 and 01.07.1999, what we find is that the said Government Orders do not in any manner accord or vest any substantive right of leave encashment. The Government Orders only provide the point of time at which an employee shall be entitled to encash his/ her earned leave and the extent of the amount to be paid in lieu of the earned leave. As already pointed out, the first Government Order dated 26.04.1978 provides that the Government Employee shall be entitled to benefit of leave encashment at the time when he retires on his attaining the age of superannuation. This Government Order further provides that a Government employee shall be entitled to leave encashment up to 180 days of earned leave. Similarly the Government Order dated 01.07.1999 provides that leave encashment will be permitted upto 300 days earned leave. Thus, the Government Orders determine two things, firstly, the point of time when the employee shall be entitled to encash her earned leave and secondly, the extent or quantum of leave encashment admissible. Thus, Government Orders do not, clearly, create or vest any right in the employees so far as payment of leave encashment is concerned. Thus, the Government Orders determine two things, firstly, the point of time when the employee shall be entitled to encash her earned leave and secondly, the extent or quantum of leave encashment admissible. Thus, Government Orders do not, clearly, create or vest any right in the employees so far as payment of leave encashment is concerned. The substantive right available to the employees is referable to the provisions Rule 81-B (1) (XII) of the Fundamental Rules. 24. In our considered opinion, the substantive right of leave encashment to an employee flows from the provisions contained in Fundamental Rule 81-B (1)(xii) of the Financial Handbook. The said provision of the Fundamental Rules confers right rather, substantive right upon an employee to surrender a portion of his/her earned leave and claim encashment in lieu thereof. The occurrence of the phrase “in accordance with the orders issued by the State Government, in this regard from time to time”, in our considered opinion only permits the State Government to prescribe the manner in which leave encashment is to be made available. Thus the Government Orders issued from time to time do not confer the substantive right of claiming leave encashment which rather flows from the earlier part of provision contained in Fundamental Rule 81-B (1)(xii) of the Financial Handbook. 25. In other words, sub-clause (xii) of Fundamental Rule 81-B (1) after conferring the right in a State Government to encash a portion of his earned leave only permits the State Government to issue Government Orders for the purposes of prescribing the procedure etc. “In accordance with the orders” clearly refers to the nature of Government Orders which may be issued by the State Government which may be referable to the provision contained in Rule 81-B(1) (xii). 26. In view of the aforesaid discussion, insistence of the learned State Counsel that for entitling any Government servant to leave encashment, it is necessary that Government Order should be issued and unless and until the Government Order is issued, a Government employee will not be entitled to leave encashment, in our considered opinion, is fallacious and such an argument is clearly based upon a complete misreading of the provisions of Fundamental Rule 81-B (1)(xii) of the Financial Handbook. 27. 27. So far as the respondent no.1-pettioner is concerned, as already observed above, she retired from a Class III post working in an Associated College of Lucknow University and Statute 37.01 of the First Statute of the Lucknow University clearly provides that leave rules applicable to the employees of Associated Colleges will be the same as are applicable to the Government servant. Accordingly, we are of the considered opinion that Fundamental Rule 81-B (1)(xii) of the Financial Handbook will be applicable to the respondent no.1-petitioner as well and further that the said provision confers a right upon the respondent no.1-petitioner to surrender a portion of her earned leave and encash the same. Merely because the State Government has not issued any Government Order prescribing the manner and quantum and point of time etc. for leave encashment, will not, in our opinion, disentitle the respondent no.1-petitioner to seek the benefit of leave encashment. We may also emphasise that while framing Statute 37.01, the Statute making authority was conscious and accordingly it has used latin phrase “mutatis mutandis” in the said provision. The purpose of using such a phrase in the First Statute is not difficult to gather. In our opinion the intention of the Statute making authority/ body was clear and infact it intended to provide all the leave benefits to the employees of Associated College, which are applicable on and available to a Government employee. 28. There is yet another aspect of the matter which cannot be lost sight of. The respondent no.1-petitioner has been legitimately expecting throughout her service career that she shall be entitled to the leave encashment in terms of the provisions contained in Statute 37.01 and accordingly instead of availing the leaves, which she could have, she rather allowed certain number of leaves to be credited in her leave account. In such a view of the matter, the stand being now taken by the State Government is not only contrary to the statutory prescription available in the Statute 37.01 read with Fundamental Rules 81-B (1) (xii) of the Financial Handbook but is also against the principle of legitimate expectation. 29. In such a view of the matter, the stand being now taken by the State Government is not only contrary to the statutory prescription available in the Statute 37.01 read with Fundamental Rules 81-B (1) (xii) of the Financial Handbook but is also against the principle of legitimate expectation. 29. So far as the reliance placed by learned Single Judge in the judgment under Appeal before us on the judgment by another learned Single Judge in the case of Ram Kumar (supra) is concerned, the only difference in the facts of these two cases is that the employee in the case of Ram Kumar (supra) was employed with an Affiliated College of Meerut University, whereas in the present case the respondent no.1-petitioner was employed with the Associated College of Lucknow University. The Statute 36.01 of the First Statute of Meerut University, as already noticed above, is identically worded as Statute 37.01 of the First Satutes of Lucknow University. Learned Single Judge in the case of Ram Kumar (supra) has elaborately discussed the provisions of relevant Statute and those of the Financial Handbook including the Fundamental Rules 81-B (1)(xii) of the Financial Handbook and has concluded that in view of the said provisions, the benefit of leave encashment is available to an employee of a Affiliated College of Meerut University. 30. It has also been argued by learned counsel for the appellant-State authorities that in view of the provisions contained in Section 21(3), no expenditure where approval of State Government is required by the 1973 Act or the Statute or the Ordinances, shall be incurred except with such approval previously obtained from the State Government and since there is no approval accorded by the State Government for payment of leave encashment, which will of course be an expenditure, the respondent no.1-petitioner is not entitled to the benefit of the leave encashment. 31. On behalf of the appellant it has further been urged that in terms of the provisions contained in subsection (4) of Section 21 of the 1973 Act, pay and other allowances to various categories of employees of the University or any Institute or a Constituent or Affiliated or Associated College shall be such as may be approved by the State Government. The submission is that leave encashment forms part of pay and unless and until this is approved by the State Government the respondent no.1-petitioner will not be entitled to leave encashment. 32. When we examine sub-clause (3) of Section 21, what we find is that approval of the State Government is required only in a situation where expenditure can be incurred by the University for which approval of the State Government is required either under the 1973 Act or under the first Statute or Ordinance. Learned counsel representing the appellant has utterly failed to show that there is any requirement of approval for expenditure for meeting the expenditure in making payment of leave encashment either under the 1973 Act or in the first Statutes or in the Ordinances of Lucknow University. On the contrary, so far as the leave related matters are concerned, Statute 37.01 is clear, according to which the said matters shall be governed by the Rules applicable to the State Government employees. There being specific provision in Statute 37.01 regarding applicability of leave rules applicable to the government employees, we are of the opinion that all the leave rules applicable to the State Government employees as are contained in the Fundamental Rules will have application in case of the respondent no.1-petitioner as well and thus she is legally entitled for grant of benefit of leave encashment as per the conferment of rights in terms of Fundamental Rule 81-B(1)(xii) of the Financial Handbook. 33. So far as the arguments based on sub-Section (4) of Section 21 of the 1973 Act is concerned, we find that the said issue has been considered by the learned Single Judge in the case of Ram Kumar (supra), wherein it has been observed that such argument would have been justified in case a provision such as Statute 36.01 (in case of Meerut University which is akin to Statute 37.01 applicable to the Lucknow University) was not in existence in the first Statutes and no approval was granted by the Sate Government in that regard. The reasoning given by learned Single Judge in the case of the Ram Kumar (supra) appears to be correct. The argument based on Section 21(4) could be said to be available to the learned State Counsel only in absence of the provisions which are contained in Statute 37.01 of the First Statutes. 34. The reasoning given by learned Single Judge in the case of the Ram Kumar (supra) appears to be correct. The argument based on Section 21(4) could be said to be available to the learned State Counsel only in absence of the provisions which are contained in Statute 37.01 of the First Statutes. 34. For the reasons aforesaid, we are unable to find ourselves in agreement with the submission made by the learned counsel for the appellant-State authorities. The judgment and order passed by learned Single Judge which is under Appeal herein does not warrant any interference by us in this Special Appeal. 35. The Special Appeal is thus dismissed. 36. However, there will be no order as to Costs.