Punjab-Haryana High Court
Surjit Kumar Sharma vs State Of Punjab Through Secretary, ... on 23 January, 1992
Equivalent citations: (1992)102PLR428
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT B.C. Varma, C.J.
1. The petitioner, a teacher in the "Vacation Department" of the State of Punjab, when retired from service had 367 days' "half pay leave" to his credit. In the matter of service including grant of leave, the petitioner is governed by the Punjab Civil Service Rules, (for short 'the Rules') as amended from time to time. His claim is that the Rules entitle a retiring government servant to leave to the maximum of 240 days, which can be encashed. Since his alleged claim for encashment of leave to the extent due to him has been denied, he filed the present petition for a direction to the State Government to allow him the benefit of encashment of leave due to him as aforesaid. When the matter came up for hearing before the motion Bench, the petitioner's learned counsel placed reliance on the decision of a learned Single Judge of this Court in Mohni Sadana v. State of Punjab, 1990 (2) S. L. R. 297. The view taken in Mohn Sadane's case (supra) is that a teacher in the Education Department of the State of Punjab on his/her retirement is entitle to the benefit of leave encashment if any such leave is due to his/her credit to the maximum of 240 days. Counsel for the State of Punjab before the motion Bench doubted the correctness of the decision in Mohni Sadana's case (supra). The motion Bench then admitted the petition and recommended that the question involved be decided by the Full Bench. This is how the matter has come to be heard by us.
2. It may be mentioned that a Letters Patent Appeal taken against the decision of Mohni Sadana's case (supra) was dismissed in limine by this Court without any decision on merit. We are also told that a Special Leave Petition before the Supreme Court has also been dismissed in the like manner.
3. The Punjab Government vide Finance Department Circular Letter No. 240-GOL 4FR-12523 dated January 25, 1978, decided in line of the decision taken by the Government of India that the Punjab Government employees retiring on superannuation on or after 31st January, 1978, will be paid in cash equivalent of leave salary in respect of the period of earned leave at their credit at the time of retirement This was termed as a concession and is subjected to certain conditions with which we are not concerned For the purposes of grant of leave and leave salary, the Punjab Government has categorised the government employees, other than those engaged on contract or those for whom special provisions relating to leave have been made, in two categories. In the second category (with which we are concerned), fall government employees who are subject to Punjab Revised Leave Rules, 1936 and who enter or have entered or are, or have been re-employed in Government Service, whether in permanent or other capacity, on or after 1st January, 1931. Revised Leave Rules, applicable to Government employees falling under this category are contained in Section III of the Punjab Civil Service Rules, Volume I, Part I, at page 151 onwards of its 1984 Edition. Rule 8 .113 defines "leave", "earned leave, and "half pay leave" While leave includes earned leave and leave on half pay, earned leave is defined to mean leave earned in respect of periods spent on duty while half pay leave is defined as leave earned in respect of completed years of service. Rule 8.116 prescribes the extent of earned leave admissible to a government employee in permanent employment shall be l/24th of the period spent on duty during the first ten years of service and 1/18th of the period spent on duty dring the next ten years of service, and l/2th of the period spent on duty thereafter. According to Rule 8.119, half pay leave "admissible to an officer in permanent employment has a relation to the completed years of service, which is significantly different from the earned leave admissible to a government employee which is correlated to the period spent on duty. Pointed attention must be drawn to Rule 8.117 It reads as follows :-
"8.117. (a) Earned leave is not admissible to a Government employee serving in a vacation department in respect of duty performed in any year in which he avails himself of the full vacation;
(b) the earned leave edmissible to such Government employee in respect of any year in which he is prevented from avail ing himself of the full vacation is such proportion of the following periods as the number of days of vacation not taken bears the full vacation :-
(i) to a Goverment employee with 10 years service or less; : 15 days
(ii) to a Government employee with more than ten years service but not exceeding 20 years service;: 20 days
(iii) to a Government employee with over 20 years service; : 30 days If in any year he does not avail himself of the vacation, earned leave will be admissible in respect of that year in accordance with the provisions of Rule 8.116."
Rule 8.122 then speaks of leave salary. Sub rule (1) of this rule provides that an officer on earned leave shall be entitled to leave salary equal to pay drawn immediately before proceeding on earned leave. Further, according to Sub-rule (2) of that Rule, an officer on half pay leave or leave not due is entitled to leave salary equal to half the amount specified in sub-rule (1).
4. A resume of the above leave rules clearly brings out that there is a marked distinction between earned leave and half pay leave former is correlated to the periods spent on duty while the latter becomes available to a government employee in respect of completed years of service. Further, in respect of the admissibility of earned leave, a distinction has been made between the employees in Vacation Department and those in non-vacation Department. In unequivocal terms--, Rule 8.117 does not permit an employee in Vacation Department to grant of any earned leave in respect of the duty performed in any year in which he avails himself of full vacation. It is only when he is. prevented from availing himself of full vacation that he is entitled to some earned leave in proportion to the number of days for which vacation is not permitted to him. The Punjab Government notification dated 25th January, 1978, referred to by us above, permits the payment of money equivalent only in respect of unutilised earned leave. To us, it is, clear that a permanent government employee is entitled to leave encashment only in respect of unutilised earned leave to the extent mentioned in that notification. Since, as we have seen, all employee in Vacation Department availing himself of the full vacation in a given year is not entitled to any earned leave, he also can not be permitted any leave encashment. It is only when earned leave as may become due to him in terms of Clause (b) of Rule 8.117, remains unutilised at the time of his retirement on retiring officer that he would become entitled to encash that unutilised earned leave and shall become entitled to be paid its money equivalent. We are, however, clear that in no case such an employee in Vacation Department shall become entitled to leave encashment on his retirement in lieu of half pay leave then remaining due to his credit.
5. We have noticed earlier that half pay leave is entirely different from earned leave and at the cost of repetition may say that it is admissible to a permanent employee in respect of each completed year of service. It has no relation to the period spent on duty. It may, thus, be possible in a given case that to an employee a half pay leave; may be admissible because of his. completed, years of service and yet he may not have any earned leave to his credit for he may not have spent requisite number of days or years in service. The clear intention of the Government notification dated 25th January, 1978, referred to above, permitting cash payment in lieu of unutilised earned leave appears to be to permit this benefit/concession only to such person who have spent certain period on duty and not to those who become entitled to specific kind of leave (half pay leave) only because of their having completed certain years of service. Such being the intention of the Government to benefit their employees at the time of retirement we are of the considered view that the benefit of leave encashment in terms of the existing Rules applicable to the employee/ officers of the Government of Punjab, governed by the Punjab Civil Service Rules, is available only in lieu of unutilised earned leave and not half pay leave.
6. Learned counsel for the petitioner attempted to build an argument in support of the petitioner on the strength of sub-rule (5) of Rule 8.122, which may be quoted :-
"8. 122(5)(a) A Government employee who is granted leave beyond the date of compulsory retirement of quitting of service, as the case may be, shall be entitled during such leave to leave salary admissible under this rule, reduced by the amount of pension and pension equivalent of other retirement benefits.
(b) Where such Government employee is re-employed during such leave, the leave salary shall be restricted to the amount of leave salary admissible while on half pay leave and further reduced by the amount of pension and pension equivalent of other retirement benefits;
Provided that it shall be open to the Government employee not to avail himself of the leave but to avail of full pension." The submission has been that this sub-rule does not make any distinction between the government employees availing of earned leave and those granted half pay leave. The argument appears to be fallacious. It is true that the sub-rule does not make any such distinction between the earned leave or half pay leave. We, however, find that this rule 8.122 including all its sub-rules only speak of leave salary as it is significant from the title of that Chapter. The entire Rule only speaks of the amount of salary which may be paid to any officer proceeding on different kinds of leave An officer on earned leave shall be entitled to leave salary equal to the pay drawn immediately before proceeding on earned leave. An officer on half pay leave is entitled to leave salary equal to half the amount of leave admissible to an officer proceeding on earned leave. Similary, sub-rule (5) also speaks of payment to a government employee in respect of leave granted to him beyond the date of compulsory retirement of quitting service. It says that for period beyond the date of compulsory retirement or quitting of service, the Government employee shall be entitled to leave salary as admissible under Rule S.122 by the amount of pension and pension equivalent of the other retiral benefits. We fail to see how this rule can be put at par with the terms of the aforesaid notification speaking of unutilised earned leave and payment in lieu thereof. This sub-rule (5) is of no consequence in the present context is further clarified by the proviso appended to that sub-rule. The proviso makes sit open to the government employee not to avail himself of the leave but to avail himself of full pension. It does not talk of payment equivalent to the amount of salary for that period.
7. We are unable to agree with the interpretation by the learned Single Judge in Mohini Sadana's case (supra) of provisions of Rule S.116 and 8.122 of the Rules. It appears that the relevant notification dated 25th January, 1978, referred to in the earlier part of our judgment, was not brought to the notice of the learned Single Judge. The Rules have to be read in the light of that notification which, as we have said above, permitts the cash payment in lieu of unutilised earned leave alone The distinction between an employee in the Vacation Department and any other Department also does not appear to have been brought to the notice of the learned Single Judge. We, therefore, express our reluctance to agree with that view which we overrule
8. Learned counsel for the petitioner also tried to build an argument based on the vice of discrimination. What is contended is that it is not just and fair to deprive the employees in Vacation Department of the benefit of unutilised leave when the same is made admissible to all other employees of the State Government. It may be mentioned that there is no plea in the writ petition raised in this behalf. Apparently, the respondent-State therefore, did not have an opportunity to meet such a plea which obviously must be based upon certain factual premises. Even so, we permitted the learned counsel to raise the argument. We may say that this argument has not appealed to us at all. The Vacation Staff falls under entirely different category from the other employee. They are entitled to avail of the vacations in a given year which the other employees of the State Government are totally deprived of. Even otherwise, we have seen that some amount of earned leave is made admissible event to employees in such Vacation Departments if they are prevented from availing of the vacation or part thereof. We, therefore, reject this argument.
9. For the foregoing reasons, we dismiss this writ petition. There shall, however, be no order as to costs.