Firdos Begum Mohd Samiuddin ... vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9173 Bom

                                                                      W.P. No.5831/2008
                                         (( 1 ))


         `     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        WRIT PETITION NO.5831 OF 2008



 Firdos Begum d/o Mohd. Samiuddin
 Chaudhari, Age 29 years, Occ. Service,
 R/o Galli No.11, Bari Colony,
 Aurangabad, District Aurangabad
                                   ...  PETITIONER
       VERSUS

 1.       The State of Maharashtra
          through Secretary,
          Finance Department,
          Mantralaya, Mumbai

 2.       The Municipal Corporation,
          Aurangabad, through its
          Deputy Commissioner (Admn.),
          Municipal Corporation,
          Aurangabad

 3.       The Education Officer,
          Municipal Corporation,
          Aurangabad
                                               ...      RESPONDENTS

                                .....
 Shri M.S. Choudhari, Advocate petitioner
 Mrs. V.S. Choudhary, A.G.P. for respondent No.1.
 Shri S.S. Tope, Advocate for respondent No.2
                                .....

                                 CORAM:        RAVINDRA V. GHUGE AND
                                               SUNIL K. KOTWAL, JJ.

DATED : 29th NOVEMBER, 2017.

ORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.):

1. The petitioner, who is an employee of the

W.P. No.5831/2008 (( 2 ))

Aurangabad Municipal Corporation, as a Teacher, has moved this

petition for seeking conversion of her leave without pay into

leave with pay. The petitioner has put forth prayer clauses 12(B)

and (C) as under:

(B) To direct the respondents No.2 and 3 to convert L.W.P. of 32 days (w.e.f. 16.7.2006 to 16.8.2006) into leave not due and pay the salary accordingly and also to release annual increment in pay which is due and payable to the petitioner w.e.f. June 2007.

(C) In the alternative respondents No.2 and 3 may kindly be directed to decide the claim of leave of the petitioner w.e.f. 16.7.2006 to 16.8.2006 (32 days) and Regular Annual Increment of pay which is payable to the petitioner w.e.f. June 2007 as expeditiously as possible.

2. We have considered the strenuous submissions of the

learned counsel for the petitioner and the learned counsel for the

respondent Corporation.

3. The petitioner relies upon Rule 62 of the Maharashtra

Civil Services (Leave) Rules, 1981 for seeking an adjustment of

the excess leave that she has taken with the leave that is likely

to be accumulated in future. The contention is that, pursuant to

Rule 62, the Corporation should have allowed her request for

conversion of leave without pay into leave with pay. The further

W.P. No.5831/2008 (( 3 ))

contention is that, the Government Resolution dated 6.12.1996,

cannot be made applicable since the Corporation is relying on the

said Government Resolution to deprive the petitioner of the

facility of conversion of excess leave into leave with pay which is

likely to be accumulated in future.

4. Shri Tope, learned Advocate for the respondent

Corporation has drawn our attention to the affidavit-in-reply filed

on 29.1.2009. It is pointed out that, the petitioner had opted for

medical leave in 2006. She had 13 days leave in her balance.

The Corporation gave her the advantage of the said 13 days

leave and sanctioned her medical leave for the said period with

wages, which would mean full wages.

5. Shri Tope further submits that, it was noticed that,

beyond the sanctioned leave, the petitioner had remained absent

for 32 days when there was no leave available in her balance,

keeping in view that 13 days of leave, besides the 32 days leave

absence, was adjusted against the available leave.

6. Shri Tope then relies upon the Government

Resolution dated 6.12.1996, and submits that, the employees of

the Municipal Corporation are, in a sense, not directly the

employees of the State Government. However, by way of a

W.P. No.5831/2008 (( 4 ))

policy, some of the provisions of the Maharashtra Civil Services

Rules are made applicable to them. By the said Government

Resolution, it was specifically provided that, adjustment of excess

leave availed, with future accumulation of leave, was prohibited

by way of a policy. The said policy has been implemented for the

last more than 21 years and no exception can be carved out in

favour of the petitioner. He has also pointed out Rules 10 and 14

of the Maharashtra Civil Services (Leave) Rules, 1981 to contend

that, no employee can, as a matter of right, claim leave or

adjustment of leave.

7. For the sake of clarity, Rules 10, 14 and 62 of the

Maharashtra Civil Services (Leave) Rules, 1981 are reproduced

as under :

"10. Right to leave :-

(1) Leave is permission granted by a competent authority at its discretion to remain absent from duty.

(2) Leave cannot be claimed as of right.

(3) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.

.............

14. Commutation of one kind of leave into another :-

(1) At the request of a Government servant, the

W.P. No.5831/2008 (( 5 ))

authority which granted him leave may commute it retrospectively into leave of a different kind which was due and admissible to him at the time the leave was granted, but the Government servant cannot claim such commutation as a matter of right.

Provided that, no such request shall be considered unless received by such authority, or any other authority designated in this behalf, within a period of 30 days of the concerned Government servant joining his duty on the expiry of the relevant spell of leave availed of by him.

(2) The commutation of one kind of leave into another shall be subject to adjustment of leave salary on the basis of leave finally granted to the Government servant, that is to say, any amount paid to him in excess shall be recovered or any arrears due to him shall be paid.

Note:- Extraordinary leave granted on medical certificate or otherwise may be commuted retrospectively into leave not due subject to the provisions of Rule 62.

............

62. Leave not due :-

(1) Save in the case of leave preparatory to retirement, leave not due may be granted to a Government servant in permanent employ subject subject to the following conditions :

(a) the authority competent to grant leave is satisfied that there is reasonable prospect of the Government servant returning to duty on its expiry;

(b) leave not due shall be limited to the half pay leave he is likely to earn thereafter;

(c) leave not due during the entire service shall be limited to a maximum of 360 days out of which not more than 90 days at a time and 180 days in all may be otherwise than on medical certificate;

(d) leave not due shall be debited against the half pay leave the Government servant may earn subsequently.

(e) the authority competent to grant leave obtains an undertaking from the Government servant that in the event of his resigning or retiring voluntarily from service without returning to duty, he shall refund the leave salary paid to

W.P. No.5831/2008 (( 6 ))

him.

2. (a) Where a Government servant who has been granted leave not due resigns from service or at his request permitted to retire voluntarily without returning to duty, the leave not due shall be cancelled, his resignation or retirement taking effect from the date on which such leave had commenced, and the leave salary shall be recovered.

(b) Where a Government servant who having availed himself of leave not due returns to duty but resigns or retires from service before he has earned such leave, he shall be liable to refund the leave salary to the extent the leave has not been earned subsequently :

Provided that no leave salary shall be recovered under clause (a) or (b), if the retirement is by reason of ill- health incapacitating the Government servant for further service or compulsory on attaining the age of 50/55 years or in the event of his death."

8. Rule 10 specifically provides for granting of a leave

by the competent authority in its discretion. Leave cannot be

claimed as a matter of right. Rule 14 permits an employee to

make a request for commutation of one kind of leave into

another and the said application could be considered in

appropriate cases. The Government Resolution of 1996 is to be

read in tandem with Rule 10 and 14.

9. Rule 62 enables the employer to consider the

application of an employee by taking into account the remainder

portion of his service, and a possibility of further accumulation of

leave, against which excess leave/ absence could be adjusted.

W.P. No.5831/2008 (( 7 ))

However, the Government has introduced the Resolution of 1996

by way of a policy and the said Government Resolution is still in

force for the last 21 years. We do not find that this Court can

step into the shoes of an employer and issue directions as to how

an employer should exercise its discretion in considering leave

applications.

10. Considering the above, we do not find that this

petition deserves to be entertained. The same is, therefore,

dismissed. Rule is discharged.

          ( SUNIL K. KOTWAL )          ( RAVINDRA V. GHUGE )
               JUDGE                          JUDGE




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