Anil Kumar Shivhare vs The State Of Madhya Pradesh
2023 Latest Caselaw 10085 MP

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                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                   ON THE 4 th OF JULY, 2023
                                              WRIT PETITION No. 15147 of 2023

                          BETWEEN:-
                          ANIL   KUMAR    SHIVHARE   S/O LATE   SHRI
                          HARISHANKAR SHIVHARE, AGED ABOUT 63 YEARS,
                          OCCUPATION: RETIRED PIPROLI MATA KE PASS
                          SINGLE BASTI ROAD DISTRICT MORENA (MADHYA
                          PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI ADITYA DIXIT - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                PRINCIPAL SECRETARY VALLABH BHAWAN
                                BHOPAL (MADHYA PRADESH)

                          2.    ENGINEER   IN   CHIEF WATER RESOURCE
                                DEPARTMENT BHOPAL (MADHYA PRADESH)

                          3.    EXECUTIVE ENGINEER ELECTRIC ENGINEERING
                                DEPARTMENT HEAVY MACHINERY WATER
                                RESOURCES DEPARTMENT THATIPUR (MADHYA
                                PRADESH)

                                                                                         .....RESPONDENTS
                          (BY SHRI DEEPAK KHOT - GOVERNMENT ADVOCATE)

                                Th is petition coming on for hearing this day, th e court passed the
                          following:
                                                               ORDER

The present petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking following reliefs:-

"i-That, the respondents may kindly be directed to extend the benefit of 120 days leave encashment Signature Not Verified Signed by: NEETU SHASHANK Signing time: 05-Jul-23 10:36:26 AM

alongwith interest to the tune of 9% p.a. till the date of actual realization from the date of retirement. ii-That cost of the litigation be also awarded to the petitioner.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitioner." It is the submission of learned counsel for the petitioner that the petitioner is work charge employee and in view of the judgment dated 15.12.2010 passed by the Division Bench of this Court in Writ Appeal No.753/2010 (State of M.P. Vs. Shyama Bai), whereby respondents/authorities granted the benefit of earned leave encashment of 120 days', therefore, present petitioner is also

entitled for earned leave encashment of 120 days'.

Learned Government Advocate for the State opposed the prayer and prayed for dismissal of this petition.

Heard the learned counsel for the parties and perused the documents appended thereto.

T he case of the petitioner is squarely covered with the Writ Appeal No.753/2010 wherein vide order dated 15.12.2010 similarly situated employee was granted earned leave encashment of 120 days'. Relying on the said judgment another Division Bench in W.A. No.470/2012 (State of M.P. Vs.Ram Khilawan Singh) had taken a similar view.

As per rule 4 of the M.P. Work Charge Contingency Paid Employees Leave Rules, 1977, the similarly situated employees are entitled for 120 days' maximum earned leave encashment and not beyond it.

Rule 4 of the aforesaid rules reads as under:-

4. Earned leave- Earned leave shall be admissible to an employee having permanent status at Signature Not Verified Signed by: NEETU SHASHANK Signing time: 05-Jul-23 10:36:26 AM

the rate of (20 days) and to an employee not having such status at the rate of 10 days in a year on the continuous service rendered by him immediately to the commencement of the leave subject to a maximum accumulation at a time [120 days] leave in the case of employees having permanent status and 30 days leave in the case of temporary employees.​​ The aforesaid provision specifically provides maximum 120 days earned leave encashment. This question has already been examined by the Division Bench of this Court in W.A. No.753/2010 (State of M.P. vs. Smt.Shyama Bai). By an order dt.15.12.2010, the Division Bench considered the case of M.N.Wankhede and held thus:

''The singular issue which arises for consideration in this writ appeal is whether the respondent who was employed in work charge establishment is entitled of 240 days leave encashment after his superannuation. Learned single Judge vide order dated while placing reliance on the case o f M.N. Vankhede and Another v. The State of Madhya Pradesh & others, W.P. No.18652/2003 as well as another order dated 30.7.2007 passed in Sewakram Bhede & another v. State of M.P. and O t h e r s , W . P. No.5688/2005 directed the State Government to settle the claim of the respondent with regard to grant of leave encashment within a period o f three months from the date of receipt of certified copy of the order in accordance with the directives issued in the case of Sewakram Bhede (supra). However, learned single Judge has also observed that the appellants, herein, while deciding the claim of the respondent shall be at liberty to take into account the fact whether any statutory rule applies to the case of the respondent or not. Being aggrieved by the aforesaid order the State has preferred this appeal.

Learned counsel for the appellants submitted Signature Not Verified Signed by: NEETU SHASHANK Signing time: 05-Jul-23 10:36:26 AM

that in view of the circular dated 14.9.1992 issued by the Finance Department, respondent who was employed in work charge establishment are not entitled to encashment of earned leave. It was further submitted by learned counsel for the appellants that rule 4 of the M.P.Work Charge Contingency Paid Employees Leave Rules, 1977 only provides for encashment of 120 days of earned leave to the employees of the work charge establishment.

However, in view of the order passed in Sewakram Bhede (supra) learned single Judge has rightly directed the appellants to grant the benefits leave encashment of 240 days earned leaves.

We have considered the submission made by learned counsel for appellants. From perusal of the grounds mentioned in clause (b) of memorandum of the appeal filed by the appellants, it is apparent that the appellants have admitted that under rule 4 of the 1977 Rules the employees are entitled to 120 days' leave encashment. Thus, in view of the stand taken by the appellants themselves, the respondent is entitled to the benefit of encashment of 120 days' earned leave. Accordingly, the appellants are directed to extend the benefit of encashment of 120 days leave to the respondent which is admissible under the Rules within a period of three months from the date of production of certified copy of the order, if not already paid. Accordingly, the order passed by learned single Judge is modified to the extent indicated above."

In view of the settled position of law in the case of Shyama Bai (supra), this petition is disposed of with the direction to the respondents/authorities that benefit of earned leave encashment of 120 days' be given to the petitioner.

The petition stands disposed of in above terms.

Signature Not Verified Signed by: NEETU SHASHANK Signing time: 05-Jul-23 10:36:26 AM

(MILIND RAMESH PHADKE) JUDGE neetu

Signature Not Verified Signed by: NEETU SHASHANK Signing time: 05-Jul-23 10:36:26 AM