Gujarat High Court
Hm Bhatt vs State Of Gujarat & 6 on 29 January, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/2590/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2590 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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HM BHATT
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR GS SHUKLA, FOR NANAVATI & NANAVATI, ADVOCATE for the
Petitioner
MR NEERAJ ASHAR, ASSTT GOVT PLEADER for Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 29/01/2015
ORAL JUDGMENT
1. The petitioner who on re-employment joined as Member of the Gujarat Revenue Tribunal and retired as President of the Tribunal has filed this petition under Article 226 of the Constitution of India seeking direction against the respondents to pay salary in respect of Un-availed Earned Leave during his tenure as Member/ President of the Tribunal.
Page 1 of 5C/SCA/2590/1998 JUDGMENT
2. The case of the petitioner is that he joined the services of respondent No.1 in the year 1964 as Civil Judge (J.D.) and Judicial Magistrate (First Class). He retired on 31.3.1991 as Chief Metropolitan Magistrate, Ahmedabad. Upon his retirement, he became eligible for terminal benefits, including encashment of leave unavailed by him during his service tenure. After his retirement, he was appointed as Member of the Gujarat Revenue Tribunal (Tribunal) for a period of one year with effect from the date he took over the charge on re- employment basis. Necessary notification dated 18.11.1991 for his re-employment was issued. He was then appointed as President of the Tribunal and retired as President on 29.3.1996. Upon his retirement, he applied for leave encashment of unavailed leave of 59 days during his tenure as Member/ President of the Tribunal. However, such request of the petitioner was turned down by the concerned authority as communicated to the petitioner by the Registrar of the Tribunal. The petitioner has given example of grant of additional leave encashment to one Shri F.C. Mehta on termination of his re-employment.
3. The petition is opposed by affidavit-in-reply by the Registrar of the Tribunal and the stand is taken that the retired employee after re-employment is not entitled for leave encashment in excess of 240 days.
4. I have heard learned advocates for the parties.
5. Learned advocate Mr. G.S. Shukla for Nanavati Associates for the petitioner submitted that not only the Government Resolution dated 1.1.1987 at Annexure-G clearly provides for benefit of leave encashment for 240 days after retirement on attaining the age of superannuation but it also provides for such benefits in case of termination of re-employment after retirement. Mr. Shukla submitted Page 2 of 5 C/SCA/2590/1998 JUDGMENT that the provision made in such resolution is in fact in continuation of earlier resolutions dated 10.1.1978 and 23.7.1979 and therefore, the respondent No.1 was not justified in denying the leave encashment for accrued leave on termination of re-employment. Mr. Shukla submitted that a similarly situated person, named Shri F.C.Mehta, was given additional leave encashment beyond 240 days on termination of re-employment on the basis of the above-said circular of 1987 and therefore, there is no reason not to extend the similar benefits to the petitioner.
6. Learned Assistant Government Pleader Mr. Neeraj Ashar submitted that if the petitioner is allowed the benefit of leave encashment in respect of service of re-employment, it would amount to double benefit to the petitioner, which could not have been the intention of the Government. Mr. Ashar submitted that the Government vide later resolution dated 11.9.1996 has clarified such position and therefore, the petitioner is rightly denied the benefit of leave encashment on termination of re-employment.
7. Having heard learned advocates for the parties, it appears that the claim of the petitioner for leave encashment of 59 days leave accrued to him during re-employment is denied on the basis of later circular dated 11.9.1996. It needs to be recorded that giving benefit of leave encashment on termination of re-employment was already available to the employees over and above the benefit of leave encashment on retirement on attaining the age of superannuation. As could be seen from the resolution dated 10.1.1978 at page No.28, the benefit of leave encashment without any restriction to the employees appointed on re-employment was available. It appears that thereafter, maximum limit of 180 days of accumulated earned leave was fixed and then by resolution dated 1.1.1987, the same limit was enhanced to 240 days. In the said resolution at Annexure-G, Page 3 of 5 C/SCA/2590/1998 JUDGMENT benefits of leave encashment for 240 days are made available to different categories, including on retirement on attaining the age of superannuation as well as in case of termination of re-employment after retirement. Therefore, entitlement of leave encashment at the end of re-employment which was provided in the earlier circular was distinctly continued with other categories. It appears that thereafter, by resolution dated 11.9.1996, the Government reconsidered the issue about grant of leave encashment and resolved to grant maximum 240 days on retirement on attaining the age of superannuation and also on termination of re-employment. Mr. Ashar submitted that the circular dated 11.9.1996 is just clarificatory one and there is no new resolution and therefore, as per this circular, the petitioner was entitled to leave encashmnent to the extent of maximum 240 days on his retirement on attaining the age of superannuation and on termination of his re-employment. It is required to be noted that in the affidavit-in-reply, specific stand is taken that the petitioner is not entitled to any benefit on the basis of the circular dated 11.9.1996 as the petitioner retired on 29.3.1996. In fact, the petitioner is not asking for benefit under this resolution dated 11.9.1996. What the petitioner is asking is additional leave encashment benefit on the basis of the circulars prevailing before the circular dated 11.9.1996 and the Government had earlier provided for such benefits vide resolution dated 10.1.1978 and continued such benefits vide resolution dated 1.1.1987 for leave encahsment in respect of the period of re-employment, and when re-employment period of the petitioner was ended before the above-said circular dated 11.9.1996, the petitioner could not have been denied additional benefits on the ground that it amounted to double benefits. If the Government has clearly intended by earlier circulars to give such additional benefits on re-employment and given re-thought to make change in such policy after retirement of the petitioner, the Page 4 of 5 C/SCA/2590/1998 JUDGMENT petitioner cannot be denied such benefits on the basis of the resolution brought in force after the petitioner retired.
8. It is required to be noted that as per the Government decision dated 27.10.1997, one Shri F.C. Mehta, whose term of re-employment ended prior to resolution dated 11.9.1996 was given additional benefit of leave encashment even though he was permitted to enjoy 240 days maximum leave encashment on his retirement on reaching the superannuation. Such order placed on record is not disputed by filing any affidavit-in-reply. While granting additional benefit of leave encashment to Shri Mehta, the Government has clearly stated in the order that since the case of the petitioner of re-employment was prior to resolution dated 11.9.1996, maximum limit of 240 days provided in the said resolution will not apply to the case of Shri Mehta. Such being the order of the Government for a similarly situated person, there is no reason to deny the benefit of leave encashment claimed by the petitioner.
9. For the reason stated above, the petition is allowed. The respondents are directed to releases benefit of leave encahsment to the petitioner for 59 days unavailed earned leave on termination of re-employment of the petitioner as per the resolution dated 1.1.1987 within a period of THREE MONTHS from the date of receipt of this order. Rule is made absolute to the aforesaid extent.
Sd/-
(C.L.SONI, J.) Omkar Page 5 of 5