Allahabad High Court
State Of U.P. Thru. Prin. Secy. Rural ... vs Ganesh Prasad Tewari on 21 May, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:29990-DB
Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 210 of 2025
Appellant :- State of U.P. Thru. Prin. Secy. Rural Development Deptt. Lko. and 3 others
Respondent :- Ganesh Prasad Tewari
Counsel for Appellant :- C.S.C., V.P. Nag (S.C.)
Counsel for Respondent :- Ninnie Shrivastava
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Jaspreet Singh,J.
1. Office has reported the appeal as barred by 83 days.
2. For the reasons indicated in the application seeking condonation of delay, supported by affidavit, the same is allowed.
3. The delay in filing the appeal is condoned.
4. The appeal is directed against the order dated 22.01.2025, passed by learned Single Judge in Writ - A No. 12721 of 2024, whereby the writ petition filed by the respondent for payment of amount of leave encashment has been allowed.
5. The petition was filed by the respondent, inter alia, with the submissions that he 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 ('DRDA') on the post of Accountant, on which, he continued till his superannuation.
6. The petitioner, though was granted post retiral benefits, the amount of leave encashment was not paid. Feeling aggrieved, the present petition was filed, inter alia, with the submissions that though several of the employees like Ramesh Chandra Srivastava, K.U. Khan and Amar Jeet Singh were extended the benefits of leave encashment, the same was not paid to the respondent and therefore, he is entitled to the same. The petition was contested by the appellant, inter alia, on the strength of judgment in State of U.P. and others Pitambar : 2010 (6) ALJ 395 with the submissions that as the respondent does not hold a civil post, is not entitled to the grant of leave encashment.
7. The respondent, on his part, relied on Government Order dated 17.03.1994 ('GO'), which was issued by way of guidelines dealing with the employees of DRDA and specifically Clause 2(9) of the said guidelines, which, inter alia, provided that any of the service related aspects, which were not governed by the said guidelines, the employees would be governed by the rules, regulations and orders, which are applicable to government servants.
8. Learned Single Judge, after hearing the parties, relying on Clause 2(9) of the GO, came to the conclusion that as the judgment in the case of Pitambar (supra) does not take into consideration the GO, the same was per incuriam and allowed the writ petition ordering for payment of leave encashment to the respondent.
9. Learned counsel for the appellants made vehement submissions that learned Single Judge was not justified in accepting the writ petition. Submissions have been made that the judgment in the case of Pitambar (supra) holds the field and therefore, the respondent was not entitled to any relief and therefore, the petition deserved dismissal.
10. Counsel for the respondent made submissions that besides the fact that similarly placed employees were granted the benefit by the respondents, which has not been denied, the reliance placed on the judgment in the case of Pitambar (supra) was totally misplaced as the issue would be governed by Full Bench judgment in Kalyani Mehrotra vs. State of U.P. : 2021 LAB. I.C. 2260, wherein the larger Bench, based on Clause 2(9) of the GO, has laid down that qua the service conditions, which are not governed by the said GO, the rules, regulations and orders as applicable to the government servants would apply to DRDA employees and in the said case, had granted the benefit of compassionate appointment under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 ('the Rules of 1974') to the dependent of an employee of DRDA and consequently, as nothing contrary has been provided in the GO regarding leave encashment, the repsondent is entitled for the same.
11. We have considered the submission made by counsel for the parties and have perused the material available on record.
12. Undisputed facts are that the respondent, while working with DRDA, superannuated and was granted all the retiral benefits other than the leave encashment. Learned Single Judge, with reference to Clause 2(9) of the GO, granted the relief and observed that the judgment in the case of Pitambar (supra), relied on by the State, was per incuriam. In the case of Pitambar (supra), the Division Bench was concerned with applicability of Rule 56 of U.P. Fundamental Rules pertaining to the age of superannuation wherein the Division Bench came to the conclusion that those working with DRDA, were not holding civil post and were consequently, not entitled for benefit of Rule 56 of the U.P. Fundamental Rules.
13. It appears that subsequent to the judgment in the case of Pitambar (supra), in State of U.P. Vs. Ajeet Kumar Shahi : Special Appeal 714 of 2015, following the judgment in the case of Pitambar (supra), another Division Bench came to the conclusion that the Rules of 1974 were inapplicable to the employees of DRDA. Yet another Division Bench, being in conflict with the view in the case of Ajeet Kumar Shahi (supra), referred the matter to the larger Bench, wherein in the case of Kalyani Mehrotra (supra), the larger Bench with reference to the GO, come to the following conclusion:
"63. Consequently, the questions referred to this Bench are answered as follow:-
Question No. 1 : In view of the provisions of Government Order dated 17.03.1994, particularly clause 2(9), the provisions of U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 would be applicable upon employees of the District Rural Development Agency:
Question No. 2 : The judgment of Division Bench in Ajeet Kumar Shahi (supra) having been passed in ignorance of Government Order dated 17.03.1994 is held not to be a good law and is, therefore, overruled."
14. The larger Bench came to the conclusion that the judgment in the case of Ajeet Kumar Shahi (supra), having been passed in ignorance of GO, was not a good law. Once the larger Bench has come to the conclusion that in view of Clause 2(9) of the GO, unless something contrary was found in the said GO, all provisions pertaining to government servants would be applicable and made the Rules of 1974 applicable to the employees of the DRDA, as the GO does not deal with the leave encashment, the respondent would be entitled to the grant of leave encashment, which even otherwise has been paid to similarly placed candidates.
15. In view thereof, the judgment passed by the learned Single Judge does not call for any interference.
16. So far as the observation made regarding the judgment in the case of Pitambar (supra) being per incuriam, the judgment, to the extent, it holds the respondents not holding civil post, was not the subject matter before the larger Bench. The only subject matter was the applicability of the rules governing the government servants, which were not contrary to the GO and therefore, only to the said extent, the judgment in the case of Pitambar (supra) stood overruled in the case of Kalyani Mehrotra (supra).
17. With the above observations, as there is not substance in the appeal, the same is dismissed.
Order Date :- 21.5.2025
Mukesh Pal/Rakesh
(Jaspreet Singh, J) (Arun Bhansali, CJ)
