THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extraordinary Jurisdiction)
------------------------------------------------------------------------------------
SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
------------------------------------------------------------------------------------
W.P. (C) No. 14 of 2022
Dr. Mool Raj Kotwal,
S/o Late S.N. Kotwal,
R/o Shunyata,
Tibet Road,
Gangtok,
East Sikkim. ..... Petitioner
Versus
1. State of Sikkim,
Through the Chief Secretary,
Government of Sikkim,
Secretariat, Tashiling,
Gangtok, East Sikkim,
Pin - 737101.
2. Home Department,
Through the Principal Secretary,
Government of Sikkim,
Secretariat, Tashiling,
Gangtok, East Sikkim,
Pin - 737101.
3. Department of Personnel, A.R. & Training,
Public Grievances,
Through the Secretary,
Government of Sikkim,
Secretariat, Tashiling,
Gangtok, East Sikkim,
Pin - 737101. .... Respondents
Application under Article 226 of the Constitution of India, 1950.
[For issuance of Writ of or in the nature of Mandamus and or any other appropriate
Writ, order of direction of the like nature for quashing of Office Order No.493/G/DOP
dated 21st May 2020 issued by Department of Personnel, Government of Sikkim and
letter no.GOS/Home/Actt./726 dated 21.03.2022 issued by Chief Accounts Officer,
Home Department, Government of Sikkim.]
--------------------------------------------------------------------------------
2
W.P. (C) No 14 of 2022
Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
Appearance:
Mr. Karma Thinlay Namgyal, Senior Advocate with Mr. Yashir N.
Tamang, Advocate for the Petitioner.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Thinlay
Dorjee Bhutia, Government Advocate, Mr. Yadev Sharma, Government
Advocate and Mr. Sujan Sunwar, Assistant Government Advocate for
the Respondents.
--------------------------------------------------------------------------------
Date of hearing : 23.08.2022 & 08.09.2022
J U D G M E N T (O R A L)
08.09.2022
Bhaskar Raj Pradhan, J.
1. The petitioner retired from service as a Medical
Specialist on 31.01.2005. On 01.02.2005, the petitioner was
re-employed as Medical Advisor-cum-Chief Consultant in
the STNM Hospital initially and thereafter, for short periods
in various capacities until 2019. On 28.05.2019, the
petitioner was relieved from his assignment as Principal
Medical Advisor to the Hon'ble Chief Minister on re-
employment, w.e.f., 31.05.2019. On 31.05.2019, the
Department of Personnel, Adm. Reforms, Training & Public
Grievances, Government of Sikkim (DOPART), issued Office
Order No.710/G/DOP allowing the petitioner to draw cash
equivalent to leave salary in lieu of 300 days unutilized
earned leave standing to his credit as on 31.05.2019. On
27.02.2020, Office Memorandum No.4528/GEN/DOP was 3 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
issued seeking to clarify on leave encashment of earned
leave to government employees on extension of service, re-
employment, etc. It provided:
"Rule 36 of the Sikkim Government Service (Leave) Rules, 1982 provides to a Government Employee who retires from the service under the Sikkim Government Service Rules, 1974, cash equivalent of leave salary in lieu of earned leave on full day standing at his/her credit on the date of his retirement subject to a minimum of 300 days. Therefore, a maximum of 300 days of earned leave due at credit also includes the period of leave earned by a Government Employee during extension of service, Re- employment etc."
2. On 21.05.2020, the DOPART issued Office
Order No.493/G/DOP cancelling Office Order
No.710/G/DOP dated 31.05.2019, which allowed the
petitioner to draw cash equivalent to leave salary in lieu of
300 days of unutilized earned leave standing due to his
credit as on 31.05.2019. On 21.03.2022, letter bearing
No.GOS/HOME/Acctt./726 was issued by the Home
Department intimating the petitioner that the DOPART vide
Office Order No.493/G/DOP dated 21.05.2020 has
cancelled the Office Order No.710/G/DOP dated
31.05.2019. This communication informed the petitioner
that they were unable to release the payment as desired by
him.
3. Aggrieved by the denial of the benefit under Rule
36 of the Sikkim Government Service (Leave) Rules, 1982 4 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
(the Leave Rules), the petitioner has approached this court
invoking its extraordinary writ jurisdiction seeking an
appropriate writ to quash Office Order No.493/G/DOP dated
21.05.2020 issued by the DOPART; letter bearing No.
GOS/HOME/Acctt./726 dated 21.03.2022 issued by the
Home Department as well as a declaration that Office
Memorandum No.4528/GEN/DOP dated 27.02.2020 is not
applicable to the petitioner's case as it would not have
retrospective effect. The petitioner also seeks a declaration
that he is entitled to leave encashment of Rs.20,51,100/- as
per Rule 32 read with Rule 36 of the Leave Rules for the
period of 2005 to 2019 during the period of his re-
employment. The petitioner seeks further declaration that he
is also entitled to leave encashment as similarly placed re-
employed employees for the same period who were also given
the benefit under the said provisions. The petitioner seeks a
direction upon the respondents to disclose the list of
beneficiaries of all the government employees who got the
benefit of leave encashment on being re-employed as on
21.05.2020.
4. The respondent nos. 1, 2 and 3 (respondents)
have filed their counter-affidavits contesting the writ
petition. The fact that the petitioner was in the service of the 5 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
Government of Sikkim and that he was re-employed is not in
issue. The respondents state that after the petitioner's
retirement he was re-employed as a Medical Advisor-cum-
Chief Consultant in the STNM Hospital for a period of two
years and his term of re-employment was further extended
from time to time till he was relieved. The petitioner vide
letter dated 23.05.2019 submitted his representation
requesting to be relieved from his re-employment and the
concerned authority, duly considering the representation,
relieved him from his assignment, w.e.f., 31.05.2019, vide
Officer Order No.632/G/DOP dated 28.05.2019. It is
contended that the Leave Rules has no provision governing
encashment of unutilized leave earned during re-
employment. It is admitted that the respondents had been
inadvertently issuing orders of leave encashment of
unutilized earned leave in respect of re-employed officers
and as such, when the petitioner applied for it, the
respondents issued Office Order No.710/G/DOP dated
31.05.2019. It is stated that after the formation of the new
government in 2019, when the issue regarding encashment
of unutilized earned leave by the re-employed employees at
the time of their termination from re-employment came to
light, it was observed that the re-employed employees were 6 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
being erroneously given the double benefit of leave
encashment of 300 days at the time of retirement and at the
time of being relieved from the re-employment which was
putting unnecessary financial burden on the state
exchequer. The issue was carefully examined and in order to
mitigate the same, Office Memorandum No.4528/GEN/DOP
dated 27.02.2020, clarifying it, was issued. Pursuant
thereto, Office Order No.710/G/DOP dated 31.05.2019,
earlier issued to the petitioner, was cancelled. The
respondents further states that the petitioner, after a lapse
of almost a year, once again approached the respondents
vide letter dated 15.11.2021 with a request for payment of
leave encashment of 300 days as unutilized earned leave
which was considered and declined vide letter
No.2772/G/DOP dated 18.02.2022. It is submitted that the
petitioner's claim for encashment of unutilized earned leave
for his re-employed period under Rule 36 of the Leave Rules
is not correct as it provides for encashment of earned leave
to the employees who retires from service and not for the
petitioner who had already retired in the year 2005 as per
Rule 98 of the Sikkim Government Service Rules, 1974 (the
Service Rules) and who has also availed the benefit of leave
encashment under Rule 36 of the Leave Rules. 7
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
5. The Leave Rules came into force on 01.04.1981.
Rule 2 thereof provides the extent of its application. Rule 3
defines various terms but not the word "retirement" or the
phrase "retires from service". Rule 6 provides for earning of
leave. Rule 32 deals with leave during a period of re-
employment after retirement. Rule 36 provides for cash
payment in lieu of unutilized earned leave on the date of
retirement. The said provisions are quoted herein below for
clarity:-
"2. Extent of application.- Save as otherwise provided in these rules, they shall apply to government servants appointed to various services and posts in connection with the affairs of the State of Sikkim, but shall not apply to:-
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) persons employed on contract except
when the contract provides otherwise.
3. Definitions:-
(1) In these rules, unless the context
otherwise requires,-
(a) .....
[(aa) .....]
(b) .....
(c) .....
(2) Words and expressions used herein and
not defined but defined in the Sikkim Government Service Rules, 1974 shall have the meaning respectively assigned to them in those rules."
"6 Earning of leave.- Save as otherwise provided in these rules, leave shall be earned for the period for which a Government servant is on duty only.
Explanation I.- Duty includes periods of casual leave, departmental examination leave under rule 25, in- service training, joining time, quarantine leave but does not include the period of extraordinary leave, examination leave, study leave, maternity leave and all 8 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
other kinds of leave including special disability leave for accidental injury.
Explanation II.- For the purpose of this rule, the period spent on deputation to autonomous bodies, public undertakings, shall count as duty only if contribution towards leave salary and pension are paid either by the borrowing employer or the government servant."
"32. Leave during a period of re-employment after retirement.- In the case of a Government servant re-employed after retirement, the provisions of these rules shall apply as if he had entered government service for the first time on the date of his re-employment."
"36. Cash payment in lieu of unutilized earned leave on the date of retirement.- The Government may sanction to a Government servant who retires from service under the Sikkim Government Service Rules, 1974, cash equivalent of leave salary in lieu of the period of earned leave on full pay standing at his credit on the date of his retirement subject to a maximum of 300 days."
6. Heard Mr. Karma Thinlay Namgyal, learned
Senior Advocate for the petitioner as well as Mr. Sudesh
Joshi, learned Additional Advocate General for the
respondents. The learned Senior Advocate submitted that as
the petitioner was re-employed as per rules and given all
other benefits of a Government Servant, it would be
erroneous to deny him leave encashment only even when it
cannot be disputed that after his re-employment the
petitioner had once again served the State Government as a
Government Servant for several years until his retirement.
He submits that the State's objection on a confined
interpretation of the phrase "retires from service" in Rule 36
of the Leave Rules is in ignorance of Rule 32 which provides
that it would be applicable even in case of re-employment. 9
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
7. The learned Additional Advocate General on the
other hand submits that the petitioner was re-employed
under Rule 102 of the Service Rules which postulates only
three kinds of retirement as provided in Rule 98, 99 and
99A. Relieving the petitioner at the end of the period of his
re-employment cannot be considered as retirement.
8. The central issue relevant to decide the
controversy between the petitioner and the respondents
seems to be on the meaning of the phrase "retires from
service" as used in rule 36 of the Leave Rules.
9. The Leave Rules has been enacted to provide for
various matters concerning leave of Government servants
appointed to various services and posts in connection with
the affairs of the State of Sikkim. Rule 2 provides that the
Leave Rules shall not apply, inter alia, to "(f) persons
employed on contract except when the contract provides
otherwise".
10. Office Order No.1839/G/DOP dated 31.01.2005
is the office order by which the petitioner was re-employed.
It states that the petitioner is re-employed for a period of two
years, w.e.f., 01.02.2005. Office Order No.203/G/DOP dated 10 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
06.02.2007, extends the term of re-employment of the
petitioner for a period of two years, w.e.f., 01.02.2007. Office
Order No.1791/G/DOP dated 24.01.2009, further extends
the petitioner's re-employment for a period of one year,
w.e.f., 01.02.2009. Office Order No.1774/G/DOP dated
29.1.2010, extends the petitioner's re-employment for a
period of two years, w.e.f., 01.02.2010. There is no office
order for the period 2012 till 2015 filed by the petitioner
reflecting extension of his re-employment. However, in view
of the categorical stand of the respondents that subsequent
to his retirement the petitioner was re-employed for a period
of two years initially and the term was extended from time to
time till he was relieved, it is not an issue. Office Order No.
3345/G/DOP dated 31.1.2015, extends his period of re-
employment for a period of two years, w.e.f., 01.02.2015.
Office Order No.172/G/DOP dated 19.01.2017, extends the
petitioner's re-employment period by two years, w.e.f.,
01.02.2017. Office Order No. 4852/G/DOP dated
04.01.2019, extends the petitioner's re-employment for a
further period of one year, w.e.f., 01.02.2019. Thus, it is
evident that the petitioner was re-employed for short terms
of two years or one year and before the expiry of each term it
was extended continuously till he was relieved. 11
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
11. The Office Order No.5354/G/DOP dated
23.1.2019, reflects that in terms of the Office Memorandum
No.4189/GEN/DOP dated 21.11.2018, the basic pay of the
petitioner was fixed at Rs.1,19,929/- per month, w.e.f.,
01.01.2016. Further, the petitioner was also allowed to draw
two annual increments in the existing pay level of pay
matrix thereby raising his basic pay as under:-
(i) Rs.1,25,529/- pm w.e.f. 01.07.2016
(ii) Rs. 1,31,329/- pm w.e.f. 01.07.2017
Further, the petitioner was also allowed to draw other
allowances reckoning basic pay as under:
(i) Rs.1,87,700/- pm w.e.f. 01.01.2016
(ii) Rs.1,93,300/- pm w.e.f. 01.07.2016
(iii) Rs.1,99,100/- pm w.e.f. 01.07.2017
12. The petitioner has contended that on his re-
employment, he continued as regular employee availing all
the benefits. He further asserted that during the period of
re-employment, benefits like annual increments were being
granted to the petitioner on regular intervals. The
respondents admit the facts stated therein as matters of
record.
12
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
13. The pleadings in the present proceedings also
make it clear that the petitioner was re-employed giving all
benefits of a regular Government Servant although for short
durations, extended again and again from the year 2005 till
2019.
14. The learned Additional Advocate General points
out that the re-employment of the petitioner is in terms of
Rule 102 of the Service Rules. Rule 102 provides that:-
"102. A Government Servant, who is retired according to the provisions of Rule 98, may be re- employed by the Government if it is satisfied that such employment is definitely in the interest of the Government and that the Government Servant is physically and mentally fit. The period of re-employment shall be determined by the Government:
Provided that the pay fixed plus the retiring pension shall not, on the day of re-employment, exceed the pay last drawn by the Government Servant before retirement, and also that the pay plus the retiring pension shall not, at any time, exceed the maximum of the pay scale of the post held by him during the period of re-employment."
15. Chapter XII of the Service Rules regulates
retirement of government servants. Rule 98 deals with
retirement on superannuation. Rule 99 deals with
compulsory retirement. Rule 99 A deals with voluntary
retirement. The Service Rules also does not define the word
"retirement" or the phrase "retires from service". 13
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
16. It is certain that the Government has the power
to re-employ a person who has retired in terms of Rule 102
of the Service Rules. It is also certain that the period for re-
employment would be as determined by the Government. It
is thus clear that the petitioner's re-employment for the
entire period of 2005 till 2019 was legitimate and in terms of
Rule 102 of the Service Rules.
17. None of the office orders issued by the
respondents re-employing the petitioner and thereafter,
extending his period of re-employment, state that the period
of re-employment is contractual. If it was contractual
employment then Rule 2 (f) of the Leave Rules would
disentitle the petitioner in claiming any benefit under it
unless when the contract provided otherwise. It is neither
the claim of the petitioner nor the contest of the respondents
that his re-employment was contractual. If it was so, there
would have been a contract.
18. During the course of the arguments, the learned
Senior Counsel as well as the learned Additional Advocate
General relied upon various judgments to explain to this
court the meaning of the phrase "retires from service". A
perusal, however, reflects that none would be applicable to 14 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
the facts of the present case and those judgments were the
opinion of the court based on the peculiar facts of those
cases.
19. In Union of India & another vs. Sampat Raj Dugar
& aother1, the Supreme Court held that certain expressions
do not have a single universal meaning and their content
varies with the context. The aphorism that a word is not a
crystal and that it takes its colour from the context is no
less true in the case of these words.
20. In Superintendent and Remembrancer of Legal
Affairs to Government of West Bengal vs. Abani Maity2, the
Supreme Court held that a statute is not to be interpreted
merely from the lexicographer's angle and the court must
give effect to the will and inbuilt policy of the legislature as
discernible from the object and scheme of the enactment
and language employed therein. Words in a statute often
take their meaning from the context of the statute as a
whole.
21. In State Bank of India vs. A.N. Gupta & others3,
relied upon by the learned Additional Advocate General, the
1 (1992) 2 SCC 66 2 (1979) 4 SCC 85 3 (1997) 8 SCC 60 15 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
Supreme Court held that it cannot be said that an employee
retires only on superannuation and there is no other
circumstance under which an employee can retire.
Retirement on superannuation is not the only mode of
retirement known to service jurisprudence.
22. In R.N. Rajanna (Dr.) vs. State of Karnataka &
another4, the Supreme Court held that though the word
"retirement" may take within its fold all or any kind of
retirement when the same is used in the context of
"superannuation" or retirement by way of superannuation,
in service parlance the well-settled meaning it already
acquired and even in the normal course to be assigned is
that it has relevance and relates to discharge from a post on
account of the age fixed for such retirement, uniformly for
all or a particular class or category of service-holders.
23. The Service Rules are the rules regarding
recruitment and conditions of service of a person appointed
to the services and posts in connection with the affairs of the
State of Sikkim. Rule 98 deals with retirement on
superannuation at the age of 58 years. Rule 99 deals with
compulsory retirement and Rule 99A deals with voluntary
4 (2004) 1 SCC 249 16 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
retirement. Rule 102 makes it clear that the Government
has power to re-employ a Government Servant in the
interest of the Government and the tenure of re-employment
is the call of the Government. The only condition as provided
in the proviso to Rule 102 is that the pay fixed plus the
retiring pension shall not, on the day of re-employment,
exceed the pay last drawn by the Government Servant before
retirement, and also that the pay plus the retiring pension
shall not, at any time, exceed the maximum of the pay scale
of the post held by him during the period of re-employment.
24. Rule 32 of the Leave Rules makes it applicable to
a Government Servant who has been re-employed after
retirement and further provides that it would apply as if he
had entered Government Service for the first time on the
date of his retirement. By this, the intention of the
legislature is amply clear. By way of a deeming fiction even
the re-employed retired government servant is deemed to
have entered the service for the first time. The Leave Rules
deals with various rights of a Government Servant during
his tenure of service with regard to different types of leave
which can be availed of. By the deeming fiction contained in
Rule 32, the re-employed Government Servant can avail of
the leave rights under the Leave Rules.
17
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
25. Quite evidently, Rule 6 of the Leave Rules, which
permits a Government Servant to earn leave would also be
applicable to him. Although Rule 6 provides two
explanations on what days it would not include, it does not
clarify that the days of service by the re-employed
Government Servant after retirement would be excluded.
Thus, this court is of the firm opinion that the phrase
"retires from service" as used in Rule 36 of the Leave Rules
cannot be limited to the three types of retirement as
contemplated in Rule 98, 99 and 99A of the Service Rules.
In fact, the phrase "retires from service", as used in Rule 36,
must give meaning to Rule 32 which provides that the Leave
Rules shall be applicable even to a re-employed Government
Servant. So read, it is quite clear that Rule 36 of the Leave
Rules would be applicable to re-employed retired
Government Servants. The learned Additional Advocate
General argued that unlike a case of retirement from service,
the petitioner's re-employment was terminated vide Office
Order 632/G/DOP dated 28.05.2019 and therefore, it would
not amount to retirement. The facts speak otherwise. The
last extension of the petitioner was till 31.05.2019 as would
be evident from the certificate issued by DOPART bearing
no. 2868/GOS/DOP dated 11.06.2019. The petitioner vide 18 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
his communication dated 23.05.2019 sought the permission
of the Hon'ble Chief Minister to retire from 31.05.2019. The
DOPART vide Office Order no. 632/G/DOP dated
28.05.2019, relieved the petitioner from his assignment,
w.e.f., 31.05.2019. This court is thus of the view that the
phrase "retires from service" would be wide enough to
include the coming to an end of the petitioner's re-
employment.
26. Communication bearing No.3526/GEN/DOP
dated 28.08.2020, issued by the DOPART to its State Public
Information Officer in reply to the Right to Information
application of the petitioner provides that leave encashment
orders in respect of two retired officers have been enclosed.
Communication bearing No.13355/G/DOP dated
01.09.2020, issued by the DOPART to the Assistant State
Public Information Officer as well as Office Orders bearing
No.448/GOS/DOP dated 05.06.2015, 1509/G/DOP dated
12.05.2017, 1180/G/DOP dated 13.04.2017, reflects that
four persons named therein were retired government
employees, who were on re-employment, were issued office
orders duly allowing them to draw unutilized earned leave.
The petitioner contends that he had obtained the above
information on the basis of Right to Information application 19 W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
made by him, by which he was informed that six retired
government servants who had been re-employed had been
granted leave encashment as per Rule 36 of the Leave Rules.
The respondents also admit these facts as matter of record.
The respondents, however, explained that the Leave Rules
being silent with regard to the provisions/rules governing
the encashment of unutilized leave earned during the re-
employment period by the re-employed employee after the
termination of their re-employment period, they had been
inadvertently issuing the orders of leave encashment to re-
employed government servants and therefore they were
availing the double benefit of leave encashment once at the
time of retirement and then after being relieved from the re-
employment. This was putting a lot of unnecessary financial
burden to the state exchequer. The respondents therefore,
after the formation of the new government, finally resolved
the issue by issuing Office Memorandum
No.4528/GEN/DOP dated 27.02.2020. There is no pleading
in the counter-affidavit of the respondents as to whether any
steps had been taken by them against the other re-employed
retired Government Servants who had been given benefit
under Rule 36 of the Leave Rules.
20
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
27. In the petitioner's case as well, in the first
instance, immediately after his resignation was accepted,
the respondents issued Office Order No.710/G/DOP dated
31.05.2019, permitting him to draw cash equivalent of leave
salary in lieu of 300 days unutilized earned leave standing
due to his credit as on 31.05.2019. The explanation sought
to be provided subsequently vide Office Memorandum
No.4528/GEN/DOP dated 27.02.2020, may not be a correct
interpretation of Rule 36 of the Leave Rules, as evidently, it
does not consider Rule 32 thereof, as explained above.
Further, the Office Memorandum No. 4528/GEN/DOP dated
27.02.2020, being a subsequent Memorandum could not be
able to nullify the accrued rights of the petitioner on the
date he was relieved from service in the year 2019. The
respondents' suggestion that there was financial burden
upon the state exchequer by providing the retired re-
employed Government Servants leave encashment for
earned leave again for the period of re-employment is not
justified considering the fact that several others similarly
placed had been given the benefit. As such, isolating the
petitioner's accrued benefit to save the purported burden on
the state exchequer would be arbitrary and discriminatory. 21
W.P. (C) No 14 of 2022 Dr. Mool Raj Kotwal vs. State of Sikkim & Ors.
28. The writ petition is allowed. The impugned Office
Order No.493/G/DOP dated 21.05.2020 and letter no.
GOS/HOME/Acctt./726 dated 21.03.2022, are quashed and
consequently, the Office Order No.710/G/DOP dated
31.05.2019, is revived. It is declared that Office
Memorandum No.4528/GEN/DOP dated 27.02.2020, does
not correctly interpret Rule 36 for the purpose of its
application to re-employed retired Government Servants
which must be read with Rule 32 of the Leave Rules and not
in isolation. It is also declared that the petitioner is entitled
to leave encashment as per Rule 36 read with Rule 32 of the
Leave Rules for the period 2005 to 2019, in which period,
having been re-employed, the petitioner had served the State
Government.
29. The writ petition is allowed and disposed of, as
also the pending I.A.
30. The parties shall bear their respective costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
bp/to
