Mahipal Singh Aswal & Others ... vs State Of Uttarakhand And Others on 21 May, 2024

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Uttarakhand High Court

Mahipal Singh Aswal & Others ... vs State Of Uttarakhand And Others on 21 May, 2024

2. The petitioners are retired Assistant Teachers of Government Primary School in the State of Uttarakhand. Most of them retired between 2010 to 2015 after putting in approximately 40 years of service in the respondent-Education Department. Before creation of State of Uttarakhand, the petitioners were working under the U.P. Basic Shiskha Parishad, but after creation of State of Uttarakhand on 09.11.2000, services of the petitioners were transferred to State of Uttarakhand. In the year 2006, an enactment namely Uttarakhand School Education Act, 2006 (hereinafter referred to as "Act of 2006") was passed and the said Act of 2006 came into force with effect from 22.04.2006. By virtue of Section 58 of the aforesaid Act of 2006, petitioners became Government Servants in the State of Uttarakhand.

3. Section 58 of the aforesaid Act of 2006 is quoted hereinbelow:-

"The services of teachers and employees of Basic Shiksha Parishad to be under the control of State Government.- All the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of this Act, shall be transferred to the State Government and they shall become teachers, officers and employees of the State Government, and their services shall be governed by the service rules prescribed by the State Government."

4. Thus, there is no doubt that petitioners retired as Government Servants of the State of Uttarakhand.

5. The controversy involved in the writ petition is with regard to encashment of Earned Leave of the petitioners, which is there in their credit prior to 22.04.2006, when they were employees of U.P. Basic Shiksha Parishad. Vide impugned Government Order dated 18.12.2013, Leave Encashment has been denied to the petitioners of the period during which they were in the services of the U.P. Basic Shiksha Parishad. Feeling aggrieved, by the aforesaid government order, the petitioners are before this Court.

6. Counter affidavit(s) have been filed by the respondent- State of Uttarakhand as well as State of U.P., wherein reliance was placed on the impugned Government Order dated 18.12.2013 to submit that petitioners being the employees of U.P. Basic Shiksha Parishad before 22.04.2006 shall be entitled to get the Leave Encashment after 22.04.2006 from which date they became Government Servants. The State of U.P. in its counter affidavit has submitted that Government Employees would entail Earned Leave as per Financial Handbook main Rule 18-kh (1) vide Government Order dated 24.06.1978. Since the Teachers enjoy the leave of summer vacation in calendar years the Earned Leave under Rule 18-kh(1) teachers would not be entitled to get Earned Leave.

7. Rejoinder affidavits have also been filed to the counter affidavits filed by the respondents while reiterating their writ case, it is contended by the petitioners that the petitioners have now become Government Servants by virtue of Section 58 of the Act of 2006 and as per the Government Order dated 06.08.1996 and 17.02.1999, the petitioners are entitled for Leave Encashment.

8. It is also submitted in the rejoinder affidavit that many similarly situated Teachers namely, Satyaprakash Nautiyal have been paid the Leave Encashment and accordingly the petitioners are also entitled for Leave Encashment.

9. It is argued by learned counsel for the petitioners that the respondent-State cannot discriminate its employees. Similarly situated Assistant Teacher who retired before 18.12.2013 have been paid Leave Encashment. Even similarly situated teachers, who superannuated till 2011 in the State of Uttarakhand, were paid their Leave Encashment, but after issuance of government order impugned in the writ petition, the petitioners have been denied Leave Encashment. In reply to this case of the petitioners as specifically set up in para no.19 of the writ petition, in para no.12 of the counter affidavit, the respondent-State admitted that in the State of U.P. by virtue of government order issued by erstwhile State of U.P. they are entitled for encashment of Earned Leave, but by the impugned government order issued by the State of Uttarakhand the petitioners are being deprived of the said benefit.

10. Learned State counsel feebly opposed this argument as advanced by the learned counsel for the petitioners.

11. Having gone through the record of the case and the relevant government orders' which are made part of this record, this Court is of the view that the petitioners are entitled to get Leave Encashment as they have been getting by virtue of Government Orders dated 06.08.1996 and 17.02.1999 (Annexure no.2) and subsequent government orders. The State Government cannot be permitted to change the terms and conditions of the petitioners, who were earlier employees of U.P. Basic Shiksha Parishad, but who by virtue of the provision of Section 58 of the Act of 2006 became Government Servants. Thus they cannot be denied the benefit of the earlier service benefit admissible to the petitioners.

12. It is apt to note at this stage that services rendered by the petitioners as employees of U.P. Basic Shiksha Parishad were reckoned for all purposes including the selection grade, promotional grade and other benefits.

13. Leave encashment is akin to a salary, which is property. Depriving a person of his property without any valid statutory provision would violate Article 300-A of the Constitution of India. Leave encashment paid on account of unutilised leave is not a bounty. If an employee has earned it and the employee has chosen to accumulate his Earned Leave to his credit, then encashment becomes his right. The Hon'ble Supreme Court, in the catena of judgements held that a person could not be deprived of his right to pension without the authority of law, which is the constitutional mandate enshrined in Article 300 A of the Constitution of India. The Supreme Court, in the case of D.S. Nakara and Others Vs. Union of India", has established the legal position that pension is a statutory right, not subject to the whims of the authorities, but is governed by statutory rules. In the case of State of Jharkhand and others vs Jitendra Kumar Srivastava (2013)12 SCC 210, the Apex Court emphasised that the right to property cannot be infringed upon without due process of law. Thus any attempt to deprive an employee of pension, gratuity, or leave encashment without a statutory provision, is untenable.

14. Consequently leave encashment which was acquired by the petitioners, constitutes their property once earned. Deprivation of such property without statutory backing will not be permitted. Leave Encashment is recognised as a right by the courts, accruing to employees upon fulfilment of statutory conditions, and can only be restricted by another statutory provision empowering the employer to withhold it.

15. Thus, the benefit of Leave Encashment of Earned Leave admissible to the U.P. Basic Shiksha Parishad, Teachers of erstwhile State of U.P. as the petitioners were, denied only for the reason that their services have been merged with the State of Uttarakhand by invoking Section 58 of the Act of 2006. There is no rationale in the Government Order dated 18.12.2013 by which the Leave Encashment of Earned Leaves prior to 22.04.2006 have been denied to the petitioners.

16. Accordingly, writ petition is allowed. The impugned government order is set aside to the extent whereby the petitioners have been denied the encashment of Earned Leave to their credit prior to 22.04.2006. A mandamus is also issued commanding the respondents to pay Leave Encashment of Earned Leave to the petitioners immediately, in accordance with law.

(Pankaj Purohit, J.) 21.05.2024 SK

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Uttarakhand High Court