Ganesh Prasad Tiwari vs State Of U.P. Thru. Prin. Secy. Rural ...
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Allahabad High Court

Ganesh Prasad Tiwari vs State Of U.P. Thru. Prin. Secy. Rural ... on 22 January, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:4383
 
Court No. - 6
 

 
Case :- WRIT - A No. - 12721 of 2024
 

 
Petitioner :- Ganesh Prasad Tiwari
 
Respondent :- State Of U.P. Thru. Prin. Secy. Rural Development Deptt. U.P. Lko. And 3 Others
 
Counsel for Petitioner :- Ninnie Shrivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Ms. Ninnie Srivastava, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

2. Controversy in the present writ petition is with regard to applicability of the benefit granted to the Government servant specially with regard to payment of leave encashment.

3. It has been submitted by learned counsel for the petitioner that petitioner was initially appointed on the post of Clerk in Small Farmers Development Agency, Unnao and subsequently, promoted to the post of Junior Clerk and his services were subsequently merged on creation of District Rural Development Agency (hereinafter referred to as "the DRDA") on the post of Accountant on which he continued till his superannuation. 

4. The petitioner superannuated from the post of Accountant on attaining age of superannuation i.e. 60 years which was on intervention of this Court in Writ Petition No. 5974 (S/S) of 2009. On the retirement of petitioner he was granted post retiral dues except amount of leave encashment. The petitioner made several representations to the competent authority to grant him leave encashment and it was further stated that similarly situated employees of the DRDA have already been extended the benefit of leave encashment in the case of Ramesh Chandra Srivastava, K.U. Khan and Amar Jeet Singh, which orders have been annexed alongwith the present writ petition by the petitioner to canvass his submissions.

5. It is in the aforesaid circumstances, on being denied the benefit of grant of leave encashment, the respondents rejected the representation of the petitioner and passed order dated 11.09.2024, stating that posts in the DRDA have been held to be "dying cadre" after merger of the DRDA in the Department of Rural Development on 18.07.2016 and therefore, for the said reason the petitioner has been held to be disentitled for payment of leave encashment.

6. Considering the aforesaid grounds raised by the petitioner pertaining to denial of leave encashment by the respondents, the State was called upon to submit explanation in this regard.

7. Learned Standing Counsel has vehemently opposed the writ petition. He submitted that employees of the DRDA are not Government servant and consequently Fundamental Rules would not be applicable to the employees of DRDA and once Fundamental Rules are not applicable, then petitioner would not be entitled for grant of leave encashment and on this ground prays for dismissal of the writ petition. In support of his submissions he has relied upon the judgment of this Court in the case of State of U.P. and Others Vs. Pitambar, Special Appeal (Defective) No. 687 of 2010 (decided on 19.08.2010), where benefit of date of retirement of 60 years which was made applicable to the Government employees was not extended to the employees of DRDA.

8. Heard learned counsel for the parties and perused the record. 

9. It is noticed that undisputedly the petitioner is an employee of DRDA which was earlier created in each district of the State under the directions of the Government of India for ensuring effective implementation of rural development programmes. Formal creation of DRDA was contemplated under the Office Memorandum of the Government of India dated 24.10.1980, which provided that DRDA will be created as a Society in each district. The State Government, vide Government Order dated 24.11.1980, created DRDAs in each district. The Central Government issued an Office Memorandum dated 10.03.1981 pursuant to which all the DRDAs prepared almost identical Bye-laws. As regards the structure of DRDAs, District Magistrates are the Head of each DRDA and total funding is being done by the Central Government and State Government in the ratio of 70-30. Applying the test of funding and pervasive control which the State have over the DRDAs, there can be no dispute that the DRDA is a State within the meaning of Article 12 of the Constitution of India. 

10. Apart from the above, it is further noticed that considering the fact that no service conditions have been provided for the employees of the DRDA the Government Order dated 17.03.1994 was issued extending the benefit of service conditions of the employees of the State of U.P. to the employees of the DRDA. The relevant clauses of the aforesaid Government order dated 17.03.1994, are quoted herein below :-

Þ2- ¼6½- lh/kh HkrhZ }kjk fu;qDr deZpkfj;ksa dh T;s"Brk dk fu/kkZj.k le; le; ij ;Fkk la'kksf/kr m0iz0 ljdkjh lsod T;s"Brk fu;ekoyh] 1991 ds vuqlkj fd;k tk;sxkA

2- ¼7½- fofHkUu Js.kh ds inksa ij lh/kh HkrhZ }kjk fu;qDr O;fDr;ksa ds vuqeU; osrueku ,slk gksxk tSlk ljdkj }kjk le; le; ij vo/kkfjr fd;k tk;sA bl ekxZ funsZ'k ds izkjEHk gksus ds le; ds osrueku ifjf'k"V d esa fn;s x;s gSA

2- ¼8½- n'krkjksd ikj djus dh vuqefr rc rd ugh nh tk;sxh] rc rd fd mldk dk;Z vkSj vkjp.k larks"ktud u ik;k tk;s vkSj mldh lR;fu"Bk izekf.kr u dj nh tk;sA

2- ¼9½- vU; fo"k;ksa dk fofu;eu&mu fo"k;ksa ds lEcU/k esa] tks fofufnZ"V :i ls bl ekxZ funsZ'k ;k fo'ks"k vkns'kksa ds vUrxZr u vkrs gks] ftyk xzkE; fodkl vfHkdj.kksa esa fu;qDr O;fDr ,sls fu;eksa] fofu;eksa vkSj vkns'kksa }kjk fu;af=r gksxs tks jkT; ds dk;Zdyki ds lEcU/k esa lsokjkr ljdkjh lsodksa ij lkekU;r;k% ykxw gksrs gSA

2- ¼10½- vuqlwfpr tkfr] vuqlwfpr tutkfr] fiNM+s oxZ rFkk vU; Js.kh ds O;fDr;ksa ds fy, lsok esa vkj{k.k ls lEcfU/kr HkrhZ ds le; izo`Rr ljdkj ds vkns'kksa ds vuqlkj vkj{K.k fd;k tk;sxkA

2- ¼11½- tgkW jkT; ljdkj dk ;g lek/kku gks tk;s fd lh/kh HkrhZ }kjk fu;qfDr O;fDr;ksa dh lsok dh 'krksZ dks fofu;fer djus okys fdlh fu;e ds izorZu ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ gksrh gS] ;gkW ;g ml ekeys esa ykxw gksus okys fu;eksa@mifu;eksa eas fdlh ckr ds gksrs gq, Hkh] vkns'k }kjk ml fu;e dh vis{kkvksa dk ml lhek rd vkSj ,slh 'krksZ ds v/khu jgrs gq, ftUgsa ;g ekeys esas U;k;laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d le>s] vfHkeqfDr ;k f'kfFky dj ldrh gSA

2- ¼12½- mRrjkpay ds lHkh 08 ftyk xzkE; fodkl vfHkdj.kksa esa lh/kh HkrhZ ds leLr inksa dks mRrjkapy {ks= ds vH;fFkZ;ksa esa ls mi;qDr vH;qfFkZ;ksa }kjk gh Hkjk tk;sxk vkSj bl iz;kstu gsrq mu inksa ds in/kkjdks dk vius vius lEoxZ esa i`Fkd milEoxZ gksxk] ijUrq bldk izHkko vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj O;fDr;ksa dh vU; fo'ks"k Jsf.k;ksa ds vH;qfFkZ;ksa ds fy, izkfo/kkfur vkj{k.k ij ugh iM+sxkA

2- ¼13½- ftu inksa ds lEcU/k esa fu;qfDr dk izkf/kdkj Jh jkT;iky ;k vk;qDr] xkzE; fodkl foHkkx esa fufgr gS] mu inksa ds in/kkjdksa dks mRrj izns'k ds fdlh Hkh ftyk xzkE; fodkl vfHkdj.k esa LFkkukUrfjr fd;k tk ldsxkAÞ

11. From the aforesaid provisions, it is clear that Clause 2(a) of the aforesaid Government Order indicates that rules and regulations of the State of U.P. pertaining to the service conditions would apply to the employees of the DRDA. Once Government Order dated 17.03.1994 has been passed, there is no doubt that all the benefits of service which are available to the State Government employees would be applicable to the employees of the DRDA and accordingly, leave encashment which is also a service benefit granted on superannuation of the Government employees, as provided for in the Fundamental Rules, would also be applicable to the petitioner.

12. Considering the case of State of U.P. and Others Vs. Pitambar (supra) the question before the Division Bench was as to whether extension of date of superannuation would be applicable to the employees of the DRDA also. It was also to be considered as to whether Rule 56 of the Fundamental Rules would govern the service conditions of the members of the DRDA. The said judgment was passed without taking note of the Government Order dated 17.03.1994, which is vital link between the service conditions of the employees of DRDA marking equivalence to the service conditions of the employees of the State Government.

13. Accordingly, we find that by not considering Government Order dated 17.03.1994, the judgment in the case of State of U.P. and Others Vs. Pitambar (supra) the judgment was rendered in ignorance of the said Government Order and consequently be held per in curium and not a good law to be followed subsequently.

14. Apart from the above, this Court finds that other similarly situated employees have already been granted benefit of leave encashment and consequently, the petitioner could not be adversely discriminated by rejecting his case for grant of the same.

15. For the reasons stated above, this Court finds that petitioner is entitled for grant of leave encashment, accordingly, present writ petition is allowed. Impugned order dated 11.09.2024 is set aside.

16. The respondents are directed to make payment of amount of leave encashment to the petitioner, expeditiously, say within six weeks from the date of production of certified copy of this order, alongwith interest at the rate of 8% per annum from the date of retirement till the date of actual payment.

Order Date :- 22.1.2025

A. Verma

(Alok Mathur, J.)