Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 5 Ors on 29 October, 2021
Page No.# 1/5
GAHC010170402021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5691/2021
SMTI MINU BARMAN AND 2 ORS
W/O LT BHUMIDHAR BARMAN, R/O VILL- CHAUTARA, P.O.-AMINKATA,
P.S.-GOSSAIGAON, DIST- KOKRAJHAR (BTAD), ASSAM, PIN-783336
2: SMTI SONAGHRI MUSHAHARY
W/O LT BINESH CH. MUSHAHARY
R/O VILL-NO-2 MAKTAI GAON
P.O.-MAKTAI GAON
P.S.-GOSSAIGAON
DIST- KOKRAJHAR (BTAD)
ASSAM
PIN-783360
3: SMTI PRAMILA RAY
W/O LT SAMARU RAY
R/O VILL- SIMALTAPU
P.O.-SIMALTAPU
P.S.-KOKRAJHAR
DIST- KOKRAJHAR (BTAD)
ASSAM
PIN-78336
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, DISPUR,
GUWAHATI-781006
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006
Page No.# 2/5
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19
4:THE BODOLAND TERRITORIAL COUNCIL
REPRESENTED BY ITS SECRETARY
DEPTT OF EDUCATION
KOKRAJHAR
ASSAM
PIN-783370
5:THE DIRECTOR OF EDUCATION
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
ASSAM
PIN-783370
6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
KOKRAJHAR
P.O. AND DIST-KOKRAJHA
Advocate for the Petitioner : MR M AHMED
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
29.10.2021
Heard Mr. M Ahmed, learned counsel for the petitioner. Also heard Mr.
Ganesh Pegu, learned counsel for the respondents No.1 and 3 being the
authorities under the Elementary Education Department, Government of Assam
and Mr. B Gogoi, learned counsel for the respondent No.2 being the authorities
under the Finance Department Government of Assam as well as Mr. P Nayak,
learned counsel for the respondents No.4, 5 and 6 being the authorities under
Page No.# 3/5
the BTC.
2. The husbands of the three writ petitioners before the Court were all Grade
IV employees in different provincialised schools in the State. The husband of the
petitioner No.1, namely, Late Bhumidhar Barman who was working as a
Chowkidar in the Milon ME School died on 22.06.2011 while he was still in
service. The husband of the petitioner No.2, namely, Late Binesh Chandra
Mushahary worked as a Grade IV employee in the Maktaigaon ME School upto
his date of retirement i.e. 31.12.2014 and he died on 02.01.2016 and the
husband of the petitioner No.3 namely Late Samaru Ray who worked as a
Chowkidar of Jaragiri ME School upto his date of retirement i.e., 31.07.2010 and
died on 20.05.2020.
3. All the three petitioners make a claim that under the law they are entitled
to a leave encashment upto a maximum of 300 days. But the same had not
been paid to the respective husbands of the writ petitioners. Consequent
thereof, this writ petition has been instituted.
4. The issue as to whether the retired employees under the Education
Department, Assam are entitled to leave encashment upto a period of 300 days
has been settled by this Court in its judgment and order dated 02.06.2011
rendered in Khagendra Nath Deka and others Vs. State of Assam and Others
passed in WP(C)No.9851/2003 wherein it is provided that even in case of being
employed in a vacation Department, leave encashment upto a maximum of 300
days would be available to an employee. But again the fact would remain as to
Page No.# 4/5
whether the respective husbands of the petitioners had availed the benefit of
any number of days for the purpose of leave encashment. In the circumstance,
as it is a joint petition where we are unable to decide the individual facts of the
petitioners, we require the petitioners to file their individual representations
before the Director of Education, BTC stating in clear terms as to for how many
number of days their respective husbands had received the leave encashment
benefits and thereafter claim for the balanced number of days, if any.
5. Upon such representations being submitted, the Director of Education BTC
shall examine the respective individual cases of the petitioners and in the event,
it is found that the husband of the petitioners were entitled to leave encashment
for the unutilized earned leave upto a maximum of 300 days, the same be
granted to the petitioners by passing individual reasoned orders within a period
of three months from the date of such representations to be filed by the
petitioners.
6. In respect of the petitioner No.1, as pointed out by Mr. B Gogoi, learned
counsel for the Finance Department, the husband of the petitioner No.1 did not
complete his tenure of service as he died while he was still in service.
Accordingly, the Director of Education, BTC would have to make a calculation as
to up to a maximum of how many days the husband of the petitioner No.1
would be entitled to leave encashment benefit for the period of service he had
rendered. Depending upon such calculation, the Director shall also further
evaluate as to whether the husband of the petitioner No.1 had availed leave
encashment benefit in his service career. Upon arriving at such calculation, a
Page No.# 5/5
reasoned order be passed on the balanced number of days the petitioner No.1
would be entitled for leave encashment of her deceased husband.
7. Writ petition stands disposed of in the above terms.
JUDGE
Comparing Assistant
