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SCA/12281/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12281 of 2011
=========================================================
HUSSAIN
YUSUF BHATTI - Petitioner(s)
Versus
DISTRICT
PRIMARY EDUCATION OFFICER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SHIVANG M SHAH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/08/2011
ORAL
ORDER
Heard
learned advocate Mr. SM Shah on behalf of petitioner, learned AGP
Mr. Maulik Nanavati appearing for respondent State – newly
added respondent Secretary Panchayat Rural Housing and Rural
Development of State.
Brief
facts, which have been taken from list of events read as under:-
“Petitioner is
retired Primary Teacher and a pensioner, and invokes the
jurisdiction of this Hon’ble Court Article 226 of the Constitution
of India praying for direction to the respondents to grant benefit
of leave encashment for the maximum 300 days of leave contemplated
and admissible under Rule 65(4) of the Gujarat Civil Services
(Leave) Rules, 2002, which benefit is granted to similarly situated
employees and is also held to be grantable as per the law declared
by this Hon’ble Court in Special Civil Applicatin No.6972 of 2010 by
order dated 17.08.2010 and also Special Civil Application No.3713 of
2009 dated 25.06.2009.
In view of the settled
legal position, the petitioner is entitled to the leave encashment
upto the maximum limit of 300 days. Accordingly, excluding the
earned leave, which is separated, out of the total number of days of
half pay leave to the credit of the petitioner, entitlement in law
and as per rule is upto 300 days. Instead of granting this
admissible benefit, order at Annexure-D provided for encashment of
150 days only and thus the petitioner was paid the leave encashment
to that extent only.
It is well settled that
similarily situate employees has to be given benefit flowing from
the judgment and they should not be driven to Courts. In the case of
Liladhar Suchak Vs. Director of Ayurved & Others, reported
1992(2) GLH 478, 2008 AIR SCW 937 and other decisions on the line,
as elaborated in paragraphs 5.4, 5.5 and others.
Representation made as
mentioned in paragraph 6.1 of the petition have not yielded any
justice to the petitioner. Pleadings on various aspects of the
grievance are elaborated in the petition.
Therefore, the present
petition before this Hon’ble Court is submitted”
In
view of aforesaid facts, prayers made present petition by petitioner
in Para-10 (A) to (G) reads as under:-
“(A) Your Lordships
will be pleased to issue a writ of or in the nature of mandamus or
any other appropriate writ, order or direction, to declare and hold
that the petitioner is entitled to the benefit of leave encashment
under Rule 65(4) of the Gujarat Civil Services (Leave) Rule, 2002,
and be further pleased to set aside the decision of Respondent no.2
in not granting leave encashment to the petitioner for maximum
admissible 300 days of leave, available and admissible under the
said Rule and as per the order passed by this Hon’ble Court at
Annexure-A and Annexure-B to present petition.
(B) Your Lordships will
be pleased to issue a writ of or in the nature of mandamus or any
other appropriate writ, order or direction, to quash and set aside
the order dated 28.02.2006 passed by respondent no.2 (Annexure-D to
the petition) in so far as it certifies only 150 days for leave
encashment instead of admissible maximum 300 days for leave
(C) Your Lordships will
be pleased to issue a writ of or in the nature of mandamus or any
other appropriate writ, order or direction, directing the
respondents herein to treat allow and pay the leave encashment upto
the maximum admissible limit of 300 days as per Rule 65(4) of the
Gujarat Civil Services (Leave) Rules, 2002, holding that leave
encashment allowed to the extent of 150 days only as per order at
Annexure-D is illegal, contrary to Rule 65(4) an against the law
settled by this Hon’ble Court
(D) Your Lordships will
be pleased to direct the respondents to pay the amount prayed for in
prayer (C) above with 12% interest from the date of retirement of
petitioner till actual payment
(E) Pending hearing and
final disposal of the present Special Civil Application, Your
Lordship will be pleased to direct the respondents to forthwith
cause deposited the amount of leave encashment for balance of 150
days illegally denied to the petitioner with this Hon’ble Court
(F) Your Lordships will
be pleased to award the costs of this petition from the respondents
(G) And any other order
necessary in the interest of justice be passed”
Learned advocate Mr. Shah
relied upon two decisions given by this Court in Special Civil
Application No. 6972/10 dated 17.08.2010 on same subject and issue
and also in Special Civil Application No. 3713 of 2009 dated
25.06.2009 and submitted that some suitable directions may be issued
to respondent authorities so they may consider representation, which
will be made by petitioner after considering aforesaid two decisions
and decide it within some reasonable time.
In view of aforesaid
facts, prayer and considering submission made by learned advocate
Mr. Shah, let petitioner may make detailed representation to
respondents and supply copies of aforesaid two decisions to
respondents within a period of 15 days, from date of receiving copy
of present order. As and when respondents receive such
representation, it is directed to respondents to consider it and
reexamine it in light of two decisions, which have been rendered by
this Court as relied by petitioner and then to pass appropriate
reasoned order in accordance with law within a period of two months,
from date of receiving such representation from petitioner and
communicate decision immediately to petitioner.
While
considering representation made by petitioner, let respondent
authorities may also consider amount involved and claimed by
petitioner.
In
view of above observation, present petition is disposed of by this
Court without expressing any opinion on merits. However, if ultimate
decision is adverse then it is open for petitioner to challenge same
before appropriate forum in accordance with law. Direct service is
permitted.
(H.K.RATHOD,
J)
asma
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