Chattisgarh High Court
Faguvaram Patel vs State Of Chhattisgarh on 30 September, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 19
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No. 3870 of 2021
1. Faguvaram Patel S/o Late Jagaturam Patel Aged About 62 Years
R/o H.No. H/56, Gali No. 01, Near Papal Chabutara,
Bramhanpuri, Tehsil And District Raipur, Chhattisgarh.
2. Gopiram Yadav S/o Late Hira Singh Yadav Aged About 64 Years
R/o Gali No. 03, Ward No. 28, Avanti Vihar, Shankar Nagar,
Tehsil And District Raipur, Chhattisgarh.
3. Badri Prasad Yadav S/o Late Sevaram Yadav Aged About 62
Years R/o Ward No. 49, Near Police Chauk, Jogi Nagar, Tehsil
And District Durg, Chhattisgarh.
---- Petitioners
Versus
1. State Of Chhattisgarh Through Secretary, General Administration
Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil
And District Raipur, Chhattisgarh Pin 492002
2. State Of Chhattisgarh Through Secretary, Water Resource
Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil
And District Raipur, Chhhattisgarh. Pin 492002.
3. State Of Chhattisgarh Through Secretary, Finance Department,
Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District
Raipur, Chhhattisgarh. Pin 492002.
4. Chief Engineer Mahanadi Pariyojana, Water Resource
Department, Tehsil And District Raipur, Chhattisgarh.
5. Superintendent Engineer Mahanadi Mandal, Water Resource
Department Raipur, Tehsil And District Raipur, Chhattisgarh.
6. Executive Engineer Division No. 1, Water Resource Department
Raipur, Tehsil And District Raipur, Chhattisgarh.
7. Executive Engineer E And M Heavy Earth Moving Machinery
Division, Raipur, Civil Line Raipur, District Raipur, Chhattisgarh.
---- Respondents
Writ Petition (S) No. 2979 of 2022
1. Sharada Chandrakar W/o Late Kamal Kishore Chandrakar Aged About 56 Years R/o In Front Of Sindhu Kirana Store, Sudama Nagar, Tikrapara Tehsil And District Raipur C.G.
2. Shail Namdev W/o Late Mohan Lal Namdev Aged About 58 Years R/o House No. 528, Near Azad Chowk, Subhash Nagar, Ward No. 42, Durgtehsil And District Durg C.G.
3. Sunita Nirmalkar W/o Late Santosh Kumar Nirmalkar Aged About 49 Years R/o House No. 385, Near Milan Hotel Naya Bas Para, Ward No. 28, Durg Tehsil And District Durg C.G.
4. Anusuiya Sahu W/o Late Dronacharya Sahu Aged About 38 Years W/o Late Dronacharya Sahu, R/o House No. 38, Ban Page 2 of 19 Baghera, Police Station Somni Rajnandgaon Tehsil And District Rajnandgaon C.G.
---- Petitioners Versus
1. State Of Chhattisgarh Through Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District Raipur Chattisgarh Pin 492002
2. State Of Chhattisgarh Through Secretary, Water Resource Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tehsil And District Raipur Chhattigarh Pin 492002
3. State Of Chhattisgarh Through Secretary, Finance Department, Mantralaya, Naya Raipur, Tehsil And District Raipur Chhattisgarh Pin 492002
4. Chief Engineer Mahanadi Pariyojana, Water Resource Department, Tehsil And District Raipur Chhattisgarh
5. Superintending Engineer Mahanadi Mandal, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh
6. Superintending Engineer Mahanadi Mandal Water Resourc Department Raipur, Tehsil And District Raipur Chhattisgarh
7. Executive Engineer E And M Heavy Earthmoving Machinery, Division, Raipur, Ocean Chowk, Civil Lines, Raipur District Raipur C.G.
---- Respondents Writ Petition (S) No. 3874 of 2021
1. Krishnadas Manikpuri S/o Late Motidas Manikpuri Aged About 62 Years R/o Shiv Mandir, Chhattisgarh Nagar, Tehsil And District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
2. Pardeshiram Bramhdev S/o Late Samaydas Bramhdev Aged About 64 Years R/o H.No. 312, Ward No. 51, Dhamtari Raod, Bajrang Chauk, Bhatapara Devpuri, Tehsil And District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
3. Bhagvati Ram Yadav S/o Late Gabharu Yadav Aged About 63 Years R/o Bajar Chauk Abhanpur, Tehsil And District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
4. Johan Vishwakarma S/o Late Mahesh Ram Vishwakarma Aged About 66 Years R/o Magar Load, Tehsil Kurud, District- Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh Through Secretary General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District- Raipur, Chhattisgarh, Pin 492002, District : Raipur, Chhattisgarh
2. State Of Chhattisgarh Through Secretary, Water Resource Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil Page 3 of 19 And District- Raipur, Chhattisgarh, Pin-492002, District : Raipur, Chhattisgarh
3. State Of Chhattisgarh, Through Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District- Raipur, Chhattisgarh, Pin-492002, District : Raipur, Chhattisgarh
4. Chief Engineer, Mahanadi Pariyojana, Water Resource Department, Tehsil And District- Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh
5. Superintending Engineer, Mahanadi Mandal, Water Resource Department Raipur, Tehsil And District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
6. Executive Engineer, Division No.1, Water Resource Department Raipur, Tehsil And District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
7. Executive Engineer E And M Heavy Earth Moving Machinery Divion, Raipur, Ocean Chouk, Civil Line, Raipur, District-Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
---- Respondents Writ Petition (S) No. 3897 of 2021
1. Goverdhan Lal Sahu S/o Late Somnath Sahu Aged About 64 Years R/o House No. 268, Ward No. 51, Durgapara, Santoshi Nagar, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. Abhyashram Yadav S/o Late Chhaviram Yadav Aged About 65 Years R/o House No. 384, Ward No. 54, Rda Plot, Sanjay Nagar, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
3. T.B.S.N. Murthy S/o Late Narsimha Aged About 64 Years R/o Shivanand Nagar, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh Through Secretary, General Administration Department Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District Raipur Chhattisgarh Pin 492002., District : Raipur, Chhattisgarh
2. State Of Chhattisgarh Through Secretary, Water Resource Department Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District Raipur Chhattisgarh Pin 492002., District : Raipur, Chhattisgarh
3. State Of Chhattisgarh Through Secretary, Finance Department Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District Raipur Chhattisgarh Pin 492002., District : Raipur, Chhattisgarh
4. Chief Engineer Mahanadi Pariyojana, Water Resource Department Tehsil And District Raipur Chhattisgarh., District :
Page 4 of 19Raipur, Chhattisgarh
5. Superintending Engineer Mahanadi Mandal, Water Resource Department Raipur, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
6. Executive Engineer Division No. 1, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
7. Executive Engineer E And M Heavy Earth Moving Machinery Division Raipur, Ocean Chowk, Civil Line Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Respondents Writ Petition (S) No. 3908 of 2021
1. Hira Ram Sinha, S/o Late Ramchandra Sinha, Aged About 65 Years R/o Gandhi Nagar, Barah Kholi, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. Prahlad Singh Patel, S/o Late Samarat Singh Patel, Aged About 64 Years R/o H.No. H-20, Ward No. 13, Mohan Nagar, Irrigation Colony, Tehsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh
3. Nazeer Baksha Qureshi, S/o Late Nabi Baksha Qureshi, Aged About 69 Years R/o H.No. 307/1, Ward No. 41, In Front Of Nitin Kunj, Dargah Road, Kelabadi, Durg, Tehsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh, Through Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District - Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
2. State Of Chhattisgarh, Through Secretary, Water Resource Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District - Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
3. State Of Chhattisgarh, Through Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District
- Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
4. Chief Engineer, Mahanadi Pariyojana, Water Resource Department, Tehsil And District Raipur, Chhattisgarh., District :
Raipur, Chhattisgarh
5. Superintending Engineer, Mahanadi Mandal, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
6. Executive Engineer, Division No. 1, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh Page 5 of 19
7. Executive Engineer, E And M Heavy Earth Moving Machinery Division, Raipur. Ocean Chouk, Civil Line Raipur, District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Respondents Writ Petition (S) No. 3909 of 2021
1. Dinanath Tiwari S/o Late Vamdev Tiwari Aged About 63 Years R/o H.No. 1904, Nac Durga, Chauk, Ravi Nagar, Raja Talab, Tehsil And District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
2. Kriparam Devangan S/o Late Bisahu Devangan Aged About 63 Years R/o H.No. 225/2, Ward No. 02, Rajeev Nagar, Nahar Singh Dharamshala, Tehsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh
3. Punau Ram Yadav S/o Late Ghanshyam Yadav Aged About 63 Years R/o H.No. 84/12, Motilal Neharu Nagar,bhilai, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh Through Secretary, General Administration, Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District- Raipur, Chhattisgarh, Pin- 492002., District : Raipur, Chhattisgarh
2. State Of Chhattisgarh Through Secretary, Water Resources Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District- Raipur, Chhattisgarh, Pin- 492002., District : Raipur, Chhattisgarh
3. State Of Chhattisgarh Through Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District- Raipur, Chhattisgarh, Pin- 492002., District : Raipur, Chhattisgarh
4. Chief Engineer Mahanadi Pariyojana, Water Resources Department, Tahsil And District- Raipur, Chhattisgarh., District :
Raipur, Chhattisgarh
5. Superintending Engineer Mahanadi Mandal, Water Resource Department, Raipur, Tahsil And District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
6. Executive Engineer Division No. 1, Water Resource Department , Raipur, Tahsil And District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
7. Executive Engineer E And M, Heavy Earth Moving Division, Raipur, Ocean Chowk, Civil Line, Raipur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
---- Respondents Writ Petition (S) No. 3918 of 2021
1. P. Suryanarayan S/o Late P.V. Yoganna, Aged About 63 Years R/o House No. D-5, Daldal Shivani Mova, Saddu, Tehsil And Page 6 of 19 District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
2. Ramnath Sharma, S/o Late Lal Dhar Sharma Aged About 68 Years R/o Shyam Nagar Crishchiyan Colony, Behind Sundar Yadav, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
3. Md. Mushtak, S/o Late Md. Yashin, Aged About 67 Years R/o Irrigation Colony, Behind M. M. Hospital, Tehsil And District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh, Through Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District - Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
2. State Of Chhattisgarh, Through Secretary, Water Resource Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District - Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
3. State Of Chhattisgarh, Through Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Tahsil And District
- Raipur, Chhattisgarh, Pin 492002., District : Raipur, Chhattisgarh
4. Chief Engineer, Mahanadi Pariyojana, Water Resource Department, Tehsil And District Raipur, Chhattisgarh., District :
Raipur, Chhattisgarh
5. Superintending Engineer, Mahanadi Mandal, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
6. Executive Engineer, Division No. 1, Water Resource Department Raipur, Tehsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
7. Executive Engineer E And M Heavy Earth Moving Machinery Division, Raipur. Ocean Chowk, Civil Line Raipur District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh
---- Respondents Writ Petition (S) No. 4649 of 2021
1. Smt. Sukhin Bai Yadav W/o Horilal Yadav, Aged About 66 Years Class - Iv Employee, (Retired Rasoiya) Aged About - 66 Years, R/o- Akhrabhata, Sakti, District - Janjgir - Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
2. Smt. Ganga Bai Yadav W/o Late Santram Yadav, Aged About 73 Years Class - Iv Employee, (Retired Sevika) R/o- Akhrabhata, Sakti, District - Janjgir - Champa Chhattisgarh, District : Janjgir- Champa, Chhattisgarh
3. Smt. Triveni Bai Yadav, W/o Late Ramadhar Yadav, Aged About 66 Years Class - Iv Employee, (Retired Rasoiya) R/o-
Page 7 of 19Akhrabhata, Sakti, District - Janjgir - Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
4. Suklal Sidar S/o Budhram Sidar, Aged About 62 Years Class - Iv Employee, (Retired Jalwahak) R/o Village Dhimani Post - Bandora, District - Janjgir - Champa Chhattisgarh, District :
Janjgir-Champa, Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh, Through Secretary, Department Of Scheduled Tribe And Scheduled Caste Development, Mahanadi Bhawan, Nava Raipur, District - Raipur Chhattisgarh., District :
Raipur, Chhattisgarh
2. Assistant Director, Tribal, Janjgir Champa Chhattisgarh
3. Joint Director, Treasury, Account And Pension, Janjgir Champa Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
---- Respondents Writ Petition (S) No. 5570 of 2021
1. Krishna Singh Chouhan S/o Late Phool Singh Chouhan Aged About 62 Years R/o Subhash Nagar, Near Talwar Bhavan, District Durg Chhattisgarh
2. Jhagaru Ram Yadav S/o Late Kanhaiya Yadav Aged About 71 Years R/o Behind Sital Complex, Maulipara, Tehibandha, District Raipur Chhattisgarh
3. Ram Pratap Dewangan S/o Late Binda Vasnik Dewangan Aged About 62 Years R/o House No. 51/1086, Ashwani Nagar, Near Jaganath Temple, Sangharsh Nagar, District Raipur Chhattisgarh
4. Anil Kumar Dubey S/o Late Vishram Dubey Aged About 67 Years R/o Telibandha, Ravigram, P. O. Gali No. 01, District Raipur Chhattisgarh
5. Vinay Kumar Choubey S/o Late Jungal Prasad Choubey Aged About 63 Years R/o Lig 621, Sector 2, Gali No. 01, Pt. Deendayal Upadhyay Nagar, District Raipur Chhattisgarh
6. Rajesh Kumar Verma S/o Late Narmada Prasad Verma Aged About 63 Years R/o Sunder Nagar, Bindranawagarh, District Raipur Chhattisgarh
7. Abdul Bari Khan S/o Late Abdul Shahid Khan Aged About 69 Years R/o Sanjay Nagar, Ghansiya Chowk, Tikrapara, Ward No. 54, District Raipur Chhattisgarh
---- Petitioners Versus
1. State Of Chhattisgarh Through The Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur Tahsil And District Raipur Chhattisgarh Pin 492002
2. State Of Chhattisgarh Through Secretary, Water Resource Page 8 of 19 Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Tehsil And District Raipur Chhattisgarh Pin 492002
3. State Of Chhattisgarh Through Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, Naya Raipur Tehsil And District Raipur Chhattisgarh Pin 492002
4. Chief Engineer Mahanadi Pariyojana, Water Resourece Department, Tehsil And District Raipur Chhattisgarh
5. Superintending Engineer Mahanadi Mandal, Water Resourece Department, Raipur, Tehsil And District Raipur Chhattisgarh
6. Executive Engineer E And M, Heavy Earth Moving Machinery, Division Raipur, Ocean Chowk, Civil Line Raipur District Raipur Chhattisgarh
7. Executive Engineer E And M, Light Machinery, Nalkoop And Gate Division, Water Resourece Department, Raipur, Ocean Chowk, Civil Line Raipur District Raipur Chhattisgarh
---- Respondents For Petitioners : Mr. Vaibhav P. Shukla, Mr. Ishwar Jaiswal, Mr. Rahul Mishra, Advocates.
For Respondents/State : Mr. Ayaz Naved, Government Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 30.09.2022
1. These bunch of writ petitions have been filed by the Work Charged / Contingency Paid employees, who have been retired from the establishment of Water Resources Department, for grant of leave encashment. As common question of law and facts are involved in the bunch of these writ petitions, they are heard analogously and are being disposed of by this common order. [For the sake of convenience , Writ Petition (S) No. 3870 of 2021 is taken as lead case]
2. Learned counsel for the petitioners would submit that the petitioners are working as work charged / contingency paid employees with respondents No. 4 to 7. Initially they were employed on temporary basis but after 10 years of service they have become permanent employees. They have attained the age of superannuation and now have been retired through Page 9 of 19 various orders.
3. Learned counsel for the petitioners would submit that the leave benefits of the petitioners are governed by the Madhya Pradesh Work-Charged / Contingency Paid Employees Leave Rules, 1977 (herein after the Rules, 1977) which has been made by the erstwhile State of Madhya Pradesh and has been adopted by the State of Chhattisgarh under the exercise of power conferred under Article 309 of the Constitution of India. Rule 2(i) defines "Employee" means an employee who is a member of the M.P. Workcharged and Contingency Paid Employees Service of any department. Rule 2(ii) defines "Employee having permanent status" means an employee who is eligible for the status of a permanent employee under the M.P. Workcharged and Contingency Paid Employees Recruitment and Conditions of Service Rules of department. Rule 2(iii) defines "Continuous Service" include periods spent on duty as well as on earned leave. Rule 3 defines 'Right to Leave' as the leave cannot be claimed as a right. Discretion is reserved to the authority empowered to grant leave to refuse or revoke leave at any time according to the exigencies of public service. Rule 4 states 'Earned Leave' shall be admissible to an employee having permanent status at the rate of 20 days and to an employee not having such status at the rate of 10 days in a year on the continuous service rendered by him immediately to the commencement of the leave subject to a maximum accumulation at a time to 120 days leave in case of permanent employees and 30 days leave in case of temporary employees. Rule 7 deals with 'Leave Salary' which provides that an employee on earned leave shall be entitled to leave salary equal to the rate of pay or salary which has been drawn for the month immediately prior to the month in which the leave is taken.
4. Learned counsel for the petitioners would submit that though these Rules provide grant of earned leave, but the Executive Engineer, Water Resources Department vide its memo dated 22.10.2020 has rejected the claim of the petitioners for leave Page 10 of 19 encashment accrued in their accounts in terms of Circular dated 14.09.1992 issued by the Finance Department.
5. Learned counsel for the petitioners would submit that Circular dated 14.09.1992 does not deal with the issue of the petitioners and would further submit that the Circular dated 17.01.1992 (Annexure P/5) provides that instruction of the Finance Department dated 16.08.1980 and 31.01.1983 are not applicable in the case of Work Charged / Contingency Paid employees. Therefore, he would submit that rejection of the application of the petitioners for grant of surrender leave and leave encashment is without application of mind.
6. Learned counsel for the petitioners would draw attention of this Court to the circular which has been referred i.e. circular dated 16.08.1980 (Annexure P/6) which deals with formula for leave encashment which provides that an employee is entitled to get 240 days of leave encashment and surrender leave. Circular dated 31.03.1983 deals with eligibility for surrender of leave to dead employees that entire leave credited in the account of the employee will be encashed and the above formula in earlier circular will not be applicable in such cases.
7. He would further submit that vide Circular dated 21.06.1989 the State of Madhya Pradesh Finance Department has clarified that the State has restored the benefits of the leave encashement and surrender leave to Work Charged / Contingency Paid employees provided vide circular dated 30.11.1983 which was stopped by the State on 2nd March, 1987. The Circular dated 21.06.1989 has never been withdrawn by the State Government. Therefore, the Work Charged / Contingency Paid employees are entitled to get the benefit of leave encashement and surrender leave. Learned counsel for the petitioner would submit that from bare perusal of Rule 7 of the Rules, 1977 it is quite vivid that leave encashment is part of the salary, therefore, leave credited in the account of the Work Charged / Contingency Paid employees deserve to get encashment.
8. He would refer to the judgment of the Hon'ble Division Bench of Page 11 of 19 the Hon'ble High Court of Madhya Pradesh in case of State of Madhya Pradesh vs Ram Khilawan Singh decided on 10.10.2013 and would submit that the Hon'ble Division Bench has decided the issue and directed that the employees are entitled to get benefit of encashment of 120 days of earned leaves, therefore, State to extend benefit of encashment of 120 days earned leaves to them.
9. On the other hand, learned Government Advocate would submit that the Under Secretary, Government of Chhattisgarh vide its memo dated 02.07.2019 has clarified that in pursuance of circular dated 14.09.1992 the Work Charged / Contingency Paid employees are not entitled to leave encashement and surrender leave, therefore, the rejection of the representation of the petitioners for grant of leave encashment and surrender leave has been rightly rejected and pray for dismissal of the writ petition. Learned counsel for the State would further submit that Rule 7 does not deal with the preposition made by the learned counsel for the petitioners.
10. I have heard learned counsel for the parties and perused the record with utmost satisfaction.
11. The issue which is required to be decided by this Court is whether leave encasement and surrender leave is part of the salary or not?
12. The Under Secretary, Finance Department, Government of Chhattisgarh has issued memo dated 02.07.2019 pursuant to circular dated 14.09.1992. The circular dated 14.09.1992 is extracted below:-
"fo"k;kafdr ds laca/k esa ;g Li"V fd;k tkrk gS fd foRr foHkkx ds Kkiu dzekad ,Q-,-1@13@77@fu&1@pkj] fnukad 16&9&80 lgifBr Kki dzekad 161&4131&82@fu&1 pkj] fnukad 31&1&83 ds izko/kku dk;ZHkkfjr rFkk vkdfLedrk O;; ls osru ikus okys deZpkfj;ksa dks ykxw ugha gSA"
13. From bare perusal of Rule 7 of the Rules, 1977 it is quite vivid that an employee on earned leave shall be entitled to leave salary equal to the rate of pay or salary which has been drawn for the month immediately prior to the month in which the leave Page 12 of 19 is taken. This shows that the earned leave is a part of salary.
14. Since, the earned leave is part of salary therefore, the employee is entitled to encash the same. In similar set of Rules the Hon'ble Supreme Court in case of State of Rajasthan vs. Senior Higher Secondary School, Lachhmangarh and Others 1 has held as under:
"15. A critical examination of Rules 47 to 53 in Chapter VI prescribing various categories of leave admissible to an employee also indicates that benefit of leave encashment is nothing but payment of salary for the leave earned and credited but not availed by an employee. "Privilege leave"
admissible to an employee belonging to non-teaching or teaching staff is 15 days in every calendar year. The unavailed portion of privilege leave is carried forward to the next year up to a maximum limit of 300 days. Under Rule 51 an employee is entitled to leave salary for unavailed privilege leave and half-pay leave. Rule 51 reads thus:
"51. Amount of leave salary.--(1) An employee on privilege leave is entitled to leave salary equal to the pay to which he is entitled to on the day before the leave commences.
(2) An employee on half-pay leave will be entitled to leave salary equal to half the amount specified in sub-rule (i) above subject to a maximum of Rs 3000:
Provided that this limit shall not apply if the leave is taken on medical certificate or for pursuing an approved course of study otherwise than on study leave terms.
(3) An employee on commuted leave will be entitled to leave salary as admissible during the privilege leave.
(4) An employee on extraordinary leave is not entitled to any leave salary."
16. From the aforesaid Rules, regulating leave, it is clear that benefit of encashment of leave is nothing but payment of salary for the leave not availed by an employee and which is to his credit.
17. For the aforesaid additional reason, the conclusion reached by the High Court is supportable that leave encashment is part of "salary" and covered in the wider 1 (2005) 10 SCC 346 Page 13 of 19 expression "scales of pay and allowances" used in Section 29 of the Act which has to be read and understood with the definition of the word "salary" contained in Section 2(r) of the Act."
15. Again Hon'ble Supreme Court in case of Jagdish Prasad Saini vs State of Rajasthan {SLP (C) No. 16813 of 2019} decided on 26.09.2022 wherein Hon'ble Supreme Court has examined the Rules made by the Rajasthan Voluntary Rural Education Services Rules wherein the bone of contention was leave encasement to employees working with the aided establishment. The relevant portion thereof is reproduced as under :-
"18. As far as leave encashment dues are concerned, the issue is no longer at large. In Senior Higher Secondary School Lachhmangarh (supra) this Court held that "salary"
under the Act, includes leave encashment. The relevant observations are extracted below:
"19. The contention urged is that Section 16 refers to various conditions of service including pay whereas Section 29(1) refers only to "scales of pay and allowances" and not the "conditions of service".
Learned counsel submits that by implication, Section 29 excludes the benefit of leave encashment. We are unable to accept the above contention.
20. Section 16 confers a rule-making power on the State Government to regulate recruitment and conditions of service including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, etc. of employees of aided institutions. Section 16 has to be read and worked harmoniously with Section 29 which directs maintenance of parity in the scales of pay and allowances between employees of aided institutions and government institutions.
21. As we have held above, the expression "pay and allowances" in Section 29 read with the wider definition of the word "salary" in Section 2(r) of the Act has a very wide connotation. We have come to the conclusion that the expression includes benefit of leave encashment which is nothing but salary for the unavailed leave to the credit of the employee.
22. Section 16 confers rule-making power on the State Government to regulate "conditions of service" of employees of aided institutions. The section specifically confers power to frame rules regarding entitlement of leave. If leave salary is a kind of salary within the wide definition of "salary" under Page 14 of 19 Section 2(r) the rules to regulate conditions of service of employees of aided institutions, must be so framed as to maintain parity in conditions of service in that regard with employees in government institutions. That is the mandate of Section 29 of the Act. The contention, therefore advanced that subject-matter of entitlement of leave encashment is covered by Section 16 of the State but is beyond the purview of Section 29 of the Act, is fallacious and has to be rejected.
23. While construing the provision under consideration, it is to be borne in mind that interpretation of a welfare legislation should be to promote education. The service conditions of the employees of the aided institutions are sought to be improved and brought on a par with those in government educational institutions to maintain educational standards. It has also to be borne in mind that our Constitution- makers have placed the field of education at a higher pedestal and granted it a special status. Various provisions of the Constitution deal with the aspect of advancement of education. Primary education has been held to be a fundamental right in the decision of this Court in Unni Krishnan, J.P v. State of A.P 1993 1 SCC 645 and this aspect still holds the field despite the decision having been overruled on some other aspects in T.M.A Pai Foundation v. State of Karnataka 2002 8 SCC 481. To improve education, various State Governments grant aid to educational institutions and, by and large, teachers of aided private schools deserve to be treated on a par with teachers of government institutions to the extent possible. The provisions of these Acts deserve to be liberally interpreted in favour of the teaching class except where statute may compel otherwise. A statute of no other State has been brought to our notice where similar benefit has been denied to the teachers of the aided institutions to improve education. The service conditions of the teachers also deserve to be improved."
19.This court is of the opinion that the aforementioned reasoning is binding, and conclusive as regards entitlement of the appellants to claim leave encashment benefits. However, the State had urged that by virtue of Rule 5 of the 2010 Rules, the employees who were regularized could not claim these benefits. The 2010 Rules were framed in exercise of powers under proviso to Article 309 of the Constitution. Rule 5, to the extent it is relevant, states as follows:
Page 15 of 19"5. Terms and condition for appointment of employees in Government Service.--The regularly appointed existing employees in the No.- Government Aided Educational Institutions who are working against sanctioned aided post on the date of commencement of these rules shall be appointed under the Rajasthan Voluntary Rural Education Service on the following terms and conditions, namely :--
(i) The employee should possess the requisite educational and professional qualification for the respective posts as per the relevant service rules applicable to the Government servant of similar cadre.
(ii) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(iii) The appointed employees shall be posted only in the colleges/ schools, as the case may be, in the rural areas on the equivalent posts specified in column number 2 of the Schedule. However, in case there is no such equivalent post in the government, they shall be appointed on other posts carrying the same pay scale of aided posts:
[Provided further that in the case of non-teaching staff, screened for appointment on non-teaching posts in College Education Section and posts for posting in rural areas are not available, such person shall be appointed on any equivalent post in rural areas in any other department governed by these rules. Such person shall be deemed to be appointed in the new department from the date of joining in the Directorate of College Education.]
(iv) The employees appointed under these rules shall not be entitled for any promotion till they attain the age of superannuation. However, they shall be allowed benefit of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the posts become vacant for any reason whatsoever i.e. on account of superannuation/voluntary retirement/termination of Page 16 of 19 service/death while in service/resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on the basis of the salary as drawn at the time of appointment as per the Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Services (Revised Pay Scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales) for Government College Teachers including Librarian and PTI Rules, 1999 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2001 shall be allowed benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008, Rajasthan Civil Services (Revised Pay Scales) for Government College teachers including Librarian and PTI Rules, 2009 and Rajasthan Civil Services (Revised Pay Scales) for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2010 respectively with effect from the date they join in the Government after appointment under these rules.
(vii) No arrears on any account whatsoever, (including arrears of salary, selection scale, Assured Career Progression or Career Advancement Scheme) shall be paid by the State Government for the period prior to the date of their joining in the Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not be allowed. Employees shall be free to get payment of encashment of balance of P. L. from the respective grant-in-aid educational institutions.
[(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government.]
(x) The period of service in the aided institutions shall not be counted for payment of gratuity, The employees shall be free to obtain payment of gratuity from the respective grant in aid educational Page 17 of 19 institution.
(xi) Each employee shall be required to execute an undertaking, in Form - II, that he/she voluntarily accepts all the terms and conditions of service prescribed under these rules and agrees to serve in the government educational institutions situated in the rural areas till attaining the age of superannuation in the service of Government.
20. Evidently, these rules were framed to enable the absorption of employees and teachers of non-government aided institutions. What is relevant for the purposes of this case is that by Rule 5(viii), carry forward of existing privilege leave is denied; likewise, the period of service in aided institutions is not to be reckoned for the purpose of gratuity under Rule 5(ix). Every employee had to furnish an undertaking in the prescribed form to accept the terms and conditions. Ordinarily no public employer can be faulted in imposing pre-conditions before it recruits an employee. However, such conditions cannot be arbitrary, or so onerous as to be unconscionable. In the opinion of this court, the condition in clause (viii) of Rule 5 i.e., carry forward of balance privilege leave, is barred and requiring employees to seek encashment from their previous employer, i.e., aided institutions, is an arbitrary and unconscionable condition, which cannot be enforced. Speaking that such conditions are enforceable, this court, recently, in Pani Ram vs. Union of India & Ors. after quoting the observations in Central Inland Water Transport Corporation Limited & Anr. V Brojo Nath Ganguly and Anr held as follows:
.23. "....Right to Equality guaranteed Under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of Rules as part of the contract, however unfair, unreasonable and unconscionable a Clause in that contract or form or Rules may be."
21. This court had categorically ruled, in Senior Higher Secondary School (supra) that leave encashment is part of salary. In the scheme of the 1993 Rules, the assessment of, and determination of the extent of, aid to be granted to any institution, is provided by Rule 13. What forms part of the approved expenditure that would be the content of aid, is provided by Rule 14. In the present case, the management establishment was recipient of 70% aid, in the form of grant. In these circumstances, the State cannot shrug its responsibility to shoulder its part of the responsibility to pay the appellants the Page 18 of 19 share of leave encashment benefits, and hide behind either Rule 5 (viii) or the undertaking executed by them. The appellants are held entitled to privilege leave entitlement benefits. Such benefit shall be calculated from the date they entered the service of the establishment till the date of their absorption, by the State, in 2016. The State shall pay the benefits due to the extent of 70%, and the balance 30% shall be payable by the management establishment."
16.From the above stated facts and considering the law laid down by the Hon'ble Supreme Court that earned leave is part of salary therefore, it has to be encashed by the department as per the maximum permissible accumulation limit of 120 days to the employees who have attained the permanency as per the Rules of 1977.
17.The other submission of the learned counsel for the State in view of the circular dated 14.9.1992 the petitioners are not entitled to get the leave encashment is incorrect preposition of facts and law. This Court to appreciate the submission have extracted the circular dated 14.09.1992 in foregoing paragraph which reveals that it does not prohibit encashment of leaves to the employees working as Work-Charged and Contingency Paid. Even otherwise from bare perusal of Anexure P/6, it is crystal clear that the circular relates to regular employees, therefore it is not relevant to deny the claim of the petitioners. So far as Annexure P/5 is concerned, it deals with the same situation which has been dealt vide circular dated 14.09.1992. Thus, these circulars do not deal with prohibition of leave encashment to the Work Charged / Contingency Paid employees. The respondents have not examined the matter in its true letter and spirit and also not examined the provisions of the Rules, 1977.
18. There is no provision placed on record by the respondents which prohibits the entitlement of the leave encashment of the petitioners. The circular and instruction cannot supersede the Rules. It is well settled position of law that Rules are quite specific and there is no prohibition in the Rule, therefore, denial Page 19 of 19 of the State to grant leave encashment to the petitioners vide Annexure P/8 dated 22.10.2020, Annexure P/9 dated 21.05.2021, Document-B dated 02.07.2019 deserve to be and is hereby quashed.
19. Considering the law laid by the Hon'ble Supreme Court in Senior Higher Secondary School, Lachhmangarh and Jagdish Prasad Saini (Supra) and the Rules, 1977 the petitioners are entitled to get leave encashment, as such, Respondent State is directed to grant leave encashment and surrender leave to the petitioners, within 2 months from the date of receipt of copy of the order, as per the maximum permissible accumulation limit of earned leaves to the extent of 120 days to the employees who have attained the permanency.
20. In the light of the above discussion and observation, the bunch of these writ petitions are allowed.
Sd-
(Narendra Kumar Vyas) Judge Deshmukh