Allahabad High Court
Veerpal vs State Of U.P. And 2 Others on 21 April, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?[Reserved] In Chamber Case :- WRIT - A No. - 18192 of 2021 Petitioner :- Veerpal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Awadh Behari Singh Counsel for Respondent :- C.S.C.,Brij Bhushan Paul Hon'ble Vivek Chaudhary,J.
Heard Shri Awadh Behari Singh, learned counsel for petitioner, learned standing counsel and Shri B.B. Paul, learned counsel for respondent no.3.
Petitioner has filed this petition challenging the order dated 25.10.2021 passed by respondent no.1-Principal Secretary, State of U.P., Department of Fisheries, whereby his claim for leave enchashment is rejected and for mandamus commanding the respondents for payment of leave encashment to petitioner.
Learned counsel for petitioner claims that the said issue is already decided by a learned Single Judge of this Court by order dated 04.01.2018 passed in Writ A No.33680 of 2016 (Kishwar Ali Vs. State of U.P. and 3 others) whereby leave encashment was granted after taking into consideration the Government Orders applicable. Against the said order, a Special Appeal Defective No.396 of 2018 was filed by the State of U.P. and 3 Others. The said Special Appeal was decided by judgment and order dated 13.07.2018 which affirms the judgment of learned Single Judge. Thereafter S.L.P. No. 28129 of 2018 was filed by State of U.P. which was also dismissed by judgment and order dated 22.11.2018. Hence, the petitioner is entitled to benefit of the law affirmed by learned Single Judge in the aforesaid case Kishwar Ali (Supra).
On the other hand, learned counsel for respondents relies upon the Division Bench judgment of this Court dated 24.01.2023 passed in Special Appeal No.251 of 2021 (State of U.P. Vs. Prakash Chandra Srivastava) as well as order dated 02.04.2019 passed in review application in the aforesaid Special Appeal of Kishwar Ali (supra).
So far as the Division Bench judgment relied upon by learned counsel for petitioner in Special Appeal Defective No.396 of 2018 in case of Kishwar Ali (supra) is concerned, the relevant paragraphs are as follows:
"In appeal the argument advanced by learned counsel appearing on behalf of the appellants is that respondent petitioner was in employment of Fish Farming Development Agency, a society registered under the Societies Registration Act whereon the rules framed by the State for its employees are not applicable. It is further submitted that the document dated 20.03.1987 was issued by the Director, Fisheries who is not competent to apply the rules pertaining to the government servants for the employees of the Fish Farming Development Agency. So far as the payment of leave encashment to other similarly situated employees is concerned, it is stated that if anything is given to any employee in contravention of rules or without authority of law then the same cannot be cited to claim parity as that would amount to perpetuate illegality.
Having considered the facts relevant, we do not find any merit in this appeal. From perusal of the document dated 20.03.1987 it is apparent that the same was issued in the light of government orders dated 29.01.1987 and 01.03.1985. As per contents of the order dated 20.03.1987 necessary directions were given by the State Government for applying certain necessary amenities, facilities and perquisites for the employees of the Fish Farming Development Agency. The order passed by the Director is only an order consequential. If the State provides certain perquisites to the employees of the Fish Farming Development Agency now at this stage it is not open for the appellant State to deny the same by stating that the order passed by the Director was not correct, he being not the State."
The S.L.P. filed against the aforesaid Division Bench judgment was also rejected by Supreme Court. Thereafter, a review application was filed before High Court in Special Appeal. On the review application, order was passed on 02.04.2019 which states that the order passed in the case is in personam and not in rem. Such an observation does not impact the law settled by Division Bench of this Court. Hence, this Court is bound by the law settled by Division Bench as aforesaid. So far as the Division Bench judgment in Special Appeal No.251 of 2021 in case of Prakash Chandra Srivastava (supra) relied upon by learned counsel for respondent no.3 is concerned, paragraph 12 of the judgment reads as follows:-
"...12. The Director has rejected the respondent's claim for payment of leave encashment amount, on the ground that such benefit is admissible only to Government employees and there is no provision entitling employees of the Matsya Palak Vikas Abhikaran, District Ayodhya, which is a society, to payment of leave encashment amount, and the learned counsel for the respondent could not point out any provision before this court in which he would be entitled to such a claim."
From the aforesaid, it is clear that matter was not fully argued before the Court and in fact the judgment of Kiswar Ali (supra) was also not placed before the Court. Hence, the same cannot be said to be law settled by this Court. Even otherwise, with assistance of Shri B. B. Paul, learned counsel for respondent no.3, I have gone through the letter dated 16.11.2017 of Special Secretary, State of U.P. The said letter is only a clarification issued by State Government. The letter tries to clarify earlier Government Orders and consequential orders issued by the Director. The said aspect of the matter is already considered by the Division Bench in case of Kishwar Ali (supra). It has already held that direction issued by the director of fisheries was on the basis of earlier Government Orders and, thus, benefit of leave encashment was available to petitioner. Even otherwise, the communication dated 16.11.2017 can at best impact persons who come in service after 2017 and cannot take away rights which are already vested in petitioner.
Hence, the impugned order dated 25.10.2021 is set aside.
Respondents are directed to pay leave encashment amount of petitioner within a period of two months.
Writ petition is allowed.
.
[Vivek Chaudhary J.] Order Date :-21.04.2023
-Amit K-