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2024 DIGILAW 101 (JHR)

Ravindra Prasad v. State of Jharkhand

2024-01-29

SANJAY PRASAD

body2024
JUDGMENT This writ petition has been filed on behalf of the petitioner challenging the Office Order dated 26.11.2015 (Annexure 8) by which Earned Leave of the petitioner for 72 days for the period from 04.04.2015 to 14.6.2015 has been sanctioned on the basis of Medical Certificate under Rule 227 & 248 of the Jharkhand Service Code causing a loss of Rs. 51,243/- due to rejection of application for commuted leave for the said period of 72 days. 2. Heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mr. Ankit Kumar, learned A.C. to G.P.-VI for the State. 3. It is submitted that while the petitioner was on the verge of retirement, he had to undergo open heart surgery and for which he applied for commuted leave for 72 days for the period from 04.04.2015 to 14.6.2015 before the Executive Engineer, Road Construction Department, (Road Division), Giridih. However, it was rejected by the Superintending Engineer by directing the Executive Engineer to take action on his own level and when also the petitioner applied before the Executive Engineer, then he was directed to apply with a fresh application without mentioning his earlier application for grant of Earned Leave instead of Commuted Leave. Finally, under the coercion of the department and in dire need of money, the petitioner had filed representation for grant of Earned Leave on 18.10.2015 and thereafter, the impugned order dated 26.11.2015 has been passed (Annexure 8) by the Superintending Engineer granting Earned Leave of 72 days under Rule 227 and 248 of the Jharkhand Service Code. It is submitted that similarly situated person have been granted commuted leave vide Annexure 11 series, namely Suresh Kumar Rastogi for a period of 62 days under the Rule 234 of the Jharkhand Service Code by the same Superintending Engineer, i.e. Respondent No. 3 and hence, revised order may be passed in sanctioning Commuted Leave on medical ground instead of Earned Leave and this writ petition may be allowed. 4. Learned counsel for the State has submitted that the writ petition is not maintainable and the impugned order is fit and proper and requires no interference. It is submitted that the petitioner has applied on 14.10.2015 for grant of commutative leave for 72 days, i.e. for the period from 04.04.2015 to 14.6.2015 and in the light of the said application, the authorities have passed the office order dated 26.11.2015. It is submitted that the petitioner has applied on 14.10.2015 for grant of commutative leave for 72 days, i.e. for the period from 04.04.2015 to 14.6.2015 and in the light of the said application, the authorities have passed the office order dated 26.11.2015. It is further submitted that even for the Executive Engineer, who also functions as Cadre Controller of 3rd and 4th Grade Employee in Road Construction Department/Division, asking guidelines from the higher authorities are always lawful and guidelines were given vide Letter No. 927 WE dated 10.07.2015. It is further submitted that petitioner’s application for grant of 243 days full salary and 57 days half salary was duly accepted by the Department vide Letter No. 793 dated 28.4.2016 and in consonance with letter dated 18.01.2016 issued by the Executive Engineer, Road Division, Hazaribagh, hence this writ petition may be dismissed. 5. Perused the record and considered the submission of both the sides. 6. It transpires from the pleadings of the parties that the petitioner was appointed on 15.4.1980 in the Road Construction Department in the erstwhile State of Bihar and remained posted at Chatra RCD as Senior Accounts Clerk from 15.4.1980 to 19.06.1986. Thereafter, he was transferred to various districts and lastly he was transferred to Giridih R.C.D. on 01.8.1997 and remained posted there till his superannuation on 30.11.2015. 7. It appears that while the petitioner was posted at R.C.D., he remained on medical leave from 4. 04.2015 to 14.6.2015 for his treatment of “Open Heart Surgery” at N.H. Narayana Institute of Cardiac Science, Bangalore and he was discharged from the said Hospital on 29.4.2015 with an advice to take rest for 30 days and to continue medication as advised from time to time. Then the petitioner resumed his duties on 15.6.2015 and thereafter he applied for sanction of commuted leave on medical ground from 04.04.2015 to 14.6.2015 by annexing necessary documents as contained in Annexure 1 series before the Executive Engineer, Road Construction Department, Road Division, Giridih. 8. However, the said application of the petitioner was forwarded by the Executive Engineer to the Superintending Engineer, Road Construction Department, Hazaribagh for the commuted leave of 72 days. 8. However, the said application of the petitioner was forwarded by the Executive Engineer to the Superintending Engineer, Road Construction Department, Hazaribagh for the commuted leave of 72 days. Surprisingly, vide letter dated 10.07.2015, the Superintending Engineer-Respondent No. 3 returned the application of the petitioner to the Executive Engineer, Road Construction Department, Giridih (Respondent No. 4) with a direction that he, i.e. the Executive Engineer is himself competent to grant Earned Leave or Commuted Leave or any other leave for Class III and Class IV employees. Thereafter, the Executive Engineer, Road Construction Department, Giridih again referred the leave of the petitioner to the Superintending Engineer, Road Construction Department, Road Circle, Hazaribagh for grant of 72 days of commuted leave and for sanction of half pay for 144 days vide Annexure 3. However, the Superintending Engineer, again vide letter dated 29.09.2015 rejected the application of the petitioner sent by the Executive Engineer, for grant of Commuted Leave for the period from 04.04.2015 to 14.6.2015 with the direction to obtain an application for grant of Earned Leave from the petitioner and which was communicated vide Memo No. 2205 dated 07.10.2015 to the petitioner. 9. Thus, under the aforesaid circumstances, the petitioner, under the coercion of the department and considering his needs, filed an application on 14.10.2015 for grant of Earned Leave for the period from 04.04.2015 to 14.6.2015 vide Annexure 6. Thereafter, again the Executive Engineer forwarded the said letter of the petitioner to the Superintending Engineer, R.C.D.-Road Circle, Hazaribagh for grant of Earned Leave despite the fact that Superintending Engineer had informed the Executive Engineer to grant commuted leave/earned leave or any other leave to the petitioner at his own level as he happens to be the Cadre Controlling officer of Group III and Group IV employees. Thereafter, by Office Order dated 26.11.2015, the petitioner was sanctioned Earned Leave for the period from 04.04.2015 to 14.06.2015. The Department has justified the said facts at Para 13, 15, 16, 17 and 18 of its counter affidavit. 10. The approach of the Department is inhuman and discriminatory. Thereafter, by Office Order dated 26.11.2015, the petitioner was sanctioned Earned Leave for the period from 04.04.2015 to 14.06.2015. The Department has justified the said facts at Para 13, 15, 16, 17 and 18 of its counter affidavit. 10. The approach of the Department is inhuman and discriminatory. It is evident from Annexure 1 series that the petitioner was on the verge of retirement when he had to undergo “Open Heart Surgery” and for that he remained on leave from 04.04.2015 to 14.06.2015, but still he was coerced to file representation for grant of Earned Leave vide letter dated 29.09.2015, issued by the Superintending Engineer, Road Construction Department to the Executive Engineer, Road Construction Department, Path Pramandal, Giridih. 11. On the one hand the said Superintending Engineer has granted commuted leave to one Suresh Rastogi vide letter No.2063 dated 16.10.2014 under Rule 234 of the Bihar Service Code instead of Jharkhand Service Code and on the other hand the petitioner had been compelled to file representation for grant of Earned Leave instead of commuted leave. Thus, the action of the Respondent No. 3 and 4 are highly discriminatory and not sustainable in the eye of law. 12. The authorities should have taken a liberal view while considering the case of granting commuted leave to the employees who are virtually on the verge of retirement and has undergone such major operation like “Open Heart Surgery”. 13. It appears that the Executive Engineer-Respondent No.4 has committed grave illegality by referring the matter of the petitioner to the Superintending Engineer-Respondent No.4 for grant of commuted leave and even the Superintending Engineer, who himself has stated that the Executive Engineer is competent to sanction commuted leave or earned leave, has passed the order by rejecting the claim of the petitioner instead of taking lenient view. 14. 14. Under the circumstances, Office order dated 26.11.2015, issued by the Superintending Engineer, Road Construction Department (R.C.D.), Road Circle, Hazaribagh-Respondent No. 3 is quashed to the extent of grant of Earned Leave for the period from 04.04.2015 to 14.06.2015 for total 72 days under Rule 227 and Rule 248 of the Jharkhand Service Code and both Respondents No. 3 and Respondent No. 4 are directed to pass necessary order for sanction of leave in the light of Rule 234 of the Jharkhand Service Code, which is to be allowed on the basis of medical certificate, subject to a limit of 180 days in the case of government servant in superior service and 120 days in the case of a government servant in inferior service during the entire service period. 15. This writ petition is allowed with the aforesaid direction and observations.