State Of U.P. Thru. Prin. Secy. ... vs Bhola Nath Pal
2024 Latest Caselaw 16516 ALL

Allahabad High Court

State Of U.P. Thru. Prin. Secy. ... vs Bhola Nath Pal on 10 May, 2024

Author: Rajan Roy

Bench: Rajan Roy

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:38445-DB
 

 
Court No. - 2
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 858 of 2023
 
Appellant :- State Of U.P. Thru. Prin. Secy. Fisheries Deptt. Civil Secrt. Lko. And Others
 
Respondent :- Bhola Nath Pal
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Sanjay Kumar Srivastava
 
Hon'ble Rajan Roy,J.
 

Hon'ble Om Prakash Shukla,J.

(Order on C.M. Application No.1 of 2023)

1. Heard Shri Indrajeet Shukla, learned Additional Chief Standing Counsel for the State-appellant and Shri Sanjay Kumar Srivastava, learned counsel for the respondent.

2. Objections are being filed to the delay condonation application.

3. We have perused the same.

4. Explanation given for the delay is satisfactory and the delay is only about six months.

5. We, accordingly, condone the delay and proceed to hear the appeal.

(Order on appeal)

1. By means of this appeal, the appellants-State has challenged the order of the writ Court dated 24.02.2023, which reads as under :-

"Heard learned Counsel for the petitioner and learned Standing Counsel.

The present petition has been filed by the petitioner claiming the benefit of leave encashment.

It is claimed that the Director, Fisheries has issued a letter dated 20.03.1987 and on the foundation of the said letter dated 20.03.1987, one Kishwar Ali filed Writ Petition No.33680 of 2016. This Court placing reliance on the said letter proceeded to allow the writ petition and directed the respondents to make payment of leave encashment amount.

The said order passed by the learned Single Judge was challenged in Special Appeal Defective No.396 of 2018 before the Special Appeal Court. It was argued that the Director had no authority to issue the letter of the nature contained in 20.03.1987. The Special Appeal Court considered the said argument and found that the communication dated 20.03.1987 was issued in the light of the Government Orders dated 29.01.1987 and 01.03.1985 and was only consequential order and based upon the said reasoning, the special appeal was dismissed vide order dated 13.07.2018. The Special Leave Petition preferred against the said order was also dismissed in limine vide order dated 22.11.2018.

The claim of the petitioner has been rejected by means of the impugned order holding that a review application was filed before the Special Appeal Court which was disposed off holding that the order dated 13.07.2018 passed by the Special Appeal Court is only affirming the order passed by the learned Single Judge relating the petitioner.

In the light of the said observations, now the stand of the respondent is that the order passed by the Special Appeal Court was in respect of the said petitioner only. The argument merits rejection as the Special Appeal Court had considered and decided that the directions given in the order dated 20.03.1987 were in consequence to the Government Orders dated 29.01.1987 and 01.03.1985. Thus the impugned order cannot be sustained being contrary to the directions given by the Special Appeal Court in its judgment dated 13.07.2018.

The writ petition is allowed. The impugned order as contained in Annexure-1 dated 23.11.2019 is set aside with the directions to the respondents to grant the benefit of leave encashment to the petitioner in the light of the directions given in the case of Kishwar Ali vs State of U.P. and others (Supra) and affirmed in Special Appeal Defective No.396 of 2018. The amount shall be calculated and paid to the petitioner within a period of three months from the date of production of certified copy of this order."

2. The basis for allowing the writ petition of the respondent bearing Writ A No.3215 of 2020 is an earlier order passed by a Single Judge Bench in Writ Petition No.33680 of 2016 filed by one Kishwar Ali. In the said writ petition a letter issued by the Director, Directorate of Fisheries, Uttar Pradesh, Lucknow dated 20.03.1987 was made the basis for grant of relief to Kishwar Ali and against the said Single Judge Bench judgment the Special Appeal Defective No.396 of 2018 was filed which was dismissed on 13.07.2018. Against the said judgment dated 13.07.2018 Special Leave Petition was preferred which was dismissed in limine on 22.11.2018, meaning thereby such dismissal did not amount to affirmation of the order of dismissal but only that the Supreme Court was not inclined to exercise its jurisdiction under Article 136 of the Constitution of India in the matter.

3. Thereafter the State filed a review application seeking review of the judgment dated 13.07.2018 passed in Special Appeal Defective No.396 of 2018. The said review application was disposed of vide order dated 02.04.2019 in the following terms:-

"Review Application

This review application is preferred to review the order dated 13.7.2018.

Shri Sudeep Seth, appearing for the Review Applicant submits that the law laid under the judgment sought to be reviewed must not be in rem but in persona.

A perusal of the order dated 13.7.2018 reflects that the same is an order affirming the order passed by the learned Single Judge relating to the petitioner only and it is to be read as such only.

In view of the above, this Review application is disposed of in terms of the above. "

4. Bare reading of the said order passed in review application makes it clear that the judgment dated 13.07.2018 has been clarified to the extent that it shall be treated as a judgement confined to the petitioner therein only, meaning thereby, the said judgment will not be basis for granting benefit to any other person, but it did not preclude consideration of claim of such other person on merits. Now the stand of the State before the Writ Court was that the employees of the Fish Farming Development Agencies were not government servants on the same lines as has been held by the Division Bench in State of U.P. and Others vs. Pitamber reported in (2010) 6 ALJ 395 in respect of DRDA employees wherein it was held that they were not employees of the DRDA. According to the State, their stand was that Rule 2 and Rule 157 of the Financial Handbook Volume II to IV Part 2 pertaining to payment of leave encashment were not applicable to such employees, but without considering this plea on merits, merely because in the case of Kishwar Ali another Single Judge Bench and thereafter Division Bench had passed an order, the writ petition has been allowed. This, according to him, is in the teeth of the order passed by the Division Bench in Review Application by which the purport and import of the said judgment was clarified, therefore the judgment by the Writ Court in Kishwar Ali and by the Division Bench rendered on 13.07.2018 did not have precedentiary value for others, meaning thereby, the case of others could be considered by the Writ Court and it would independently come to the conclusion that such employees were entitled for grant of leave encashment after considering the pleas raised by them but this could not have been done merely placing reliance upon judgments in Kishwar Ali's case which were confined to the petitioners therein as clarified by the Division Bench.

5. Shri Indrajeet Shukla, learned counsel for the State has also relied upon another Division Bench judgment wherein Special Appeal against judgment dated 03.03.2020 passed by the learned Single Judge Bench in Writ Petition No.3496 (S/S) of 2020 raising a similar claim of entitlement to leave encahshment by a similarly placed employee was dismissed and the Special Appeal of the State was allowed.

6. Learned counsel for the respondent has vehemently opposed the appeal and submitted that Writ Court has considered every aspect and also that this question was never raised before the Single Judge Bench. Assuming that it was not raised, whatever pleas were raised, were required to be considered on merits and as it is the respondent who was the petitioner raising a claim it is his claim which should have been considered first and he was required to prove his right in the light of relevant provisions of law, but this has not been done by the Writ Court. In any case the plea of the State noticed herein above goes to the root of the matter and requires consideration by the writ court.

7. We have perused the Writ Court order and find that the writ petition of the respondent has been allowed merely on the strength of the judgments passed in Kishwar Ali which in our understanding has been clarified by the Division Bench on 02.04.2019 as aforesaid and they are confined to the said petitioner only, meaning thereby, its benefit by itself cannot be given to any other employee. The Writ Court was obliged to consider the claim on merits and decide it accordingly which has not been done. Therefore, there is an error apparent in construing the purport and import as also the precedentiary value of the earlier judgments passed in Kishwar Ali, and also in not considering the merits of the issue. Therefore, we set aside the judgment dated 24.02.2023. Consequently, the appeal is allowed.

8. For the reasons given herein above, the writ petition shall now stand restored before the Writ Court for its consideration afresh.

9. List this petition in the second week of July, 2024.

10. Let the Writ Court consider the entitlement of the petitioner therein to leave encashment with reference to relevant provisions in the Rules and the law on the subject, but in the light of what has been stated herein above.

11. Consequent to the aforesaid, the contempt proceedings which have been initiated loose their efficacy and are also dropped.

12. Let a copy of this order be placed before the contempt court and records be corrected accordingly.

(Om Prakash Shukla, J.) (Rajan Roy, J.)

Order Date :- 10.5.2024

Arnima