Puran Singh Nayal vs State Of Uttarakhand And Others
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Uttarakhand High Court

Puran Singh Nayal vs State Of Uttarakhand And Others on 5 September, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

                                                2024:UHC:6410

HIGH COURT OF UTTARAKHAND AT NAINITAL
          Writ Petition (S/S) No.181 of 2022
Puran Singh Nayal                                --Petitioner
                            Versus

State Of Uttarakhand and Others              --Respondents

Presence:-
      Mr. Vinod Tiwari, learned counsel for the petitioner.
      Mr. Rajeev Singh Bisht, learned Additional C.S.C. along
      with Mr. Bhupendra Koranga, learned Brief Holder for
      the State of Uttarakhand/respondents.

Hon'ble Pankaj Purohit, J. (Oral)

By means of this writ petition, petitioner has challenged the orders dated 21.09.2020, 23.09.2020 and 30.09.2020 (Annexure Nos.6, 7 & 8) passed by the respondents for recovering the amount of A.C.P. from the salary of the petitioner and further another ancillary relief.

2. The brief facts of the case are that petitioner was initially appointed in Basic Education Board as a Junior Clerk on 02.07.1983. He was retired on 30.11.2016 after putting in approximately 33 years of service in the respondent-Education Department. Before creation of State of Uttarakhand, the petitioner was working under the U.P. Basic Education Board, but after creation of State of Uttarakhand on 09.11.2000, service of the petitioner was transferred to State of Uttarakhand. In the year 2006, an enactment namely Uttarakhand School Education Act, 2006 (hereinafter referred to as "Act of 2006") was passed and the said Act of 2006 came into force with effect from 22.04.2006. Petitioner became Government Servants in the State of Uttarakhand, by virtue of Section 58 of the aforesaid Act of 2006, which is quoted herein below:-

"58. The services of teachers and employees of Basic Shiksha Parishad to be under the control of State

2024:UHC:6410 Government.- All the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of this Act, shall be transferred to the State Government and they shall become teachers, officers and employees of the State Government, and their services shall be governed by the service rules prescribed by the State Government."

3. Thus, there is no doubt that petitioner retired as Government Servant of the State of Uttarakhand.

4. The controversy involved in the writ petition is with regard to encashment of Earned Leave of the petitioner, which is there in his credit prior to 22.04.2006, when he was employee of U.P. Basic Education Board. Vide impugned Government Orders dated 21.09.2020, 23.09.2020 and 30.09.2020, A.C.P. has been denied to the petitioner of the period during which he was in the service of U.P. Basic Education Board. Feeling aggrieved, by the aforesaid government order, the petitioner is before this Court.

5. Counter affidavit has been filed by the respondent-State, wherein reliance was placed on the impugned Government Orders dated 21.09.2020, 23.09.2020 and 30.09.2020 to submit that petitioner being the employees of U.P. Basic Education Board before 22.04.2006 shall be entitled to get the Leave Encashment after 22.04.2006 from which date he became Government Servant. No rejoinder affidavit has been filed by the petitioner.

6. It is submitted by learned counsel for the petitioner that the respondent-State cannot discriminate its employees. He relied upon the identical matters which was decided by a Coordinate Bench of this Court in WPSS No.1349 of 2020 (Surendra Pal Singh Rajwar and Others Vs. State of Uttarakhand and Others) and Batch of writ petitions as well as the judgment and order passed

2024:UHC:6410 by this Court in WPSS No.2529 of 2015 (Mahipal Singh Aswal & Others Vs. State of Uttarakhand and Others), dated 14.07.2022 and 21.05.2024 respectively, wherein, the issue of recovery of A.C.P. amount as well as the payment of leave encashment of earned leave were involved and this Court has passed the judgment and order in favour of the petitioners of these writ petitions. He also submits that similarly situated employees have been granted all consequential benefits. This position is not disputed by learned counsel for the State.

7. Having gone through the record of the case and the relevant government orders' which are made part of this record, this Court is of the view that the petitioner is entitled to get Leave Encashment as he has been getting by virtue of Government Orders dated 30.03.1983 and 12.11.2007 (Annexure no.4) and subsequent government orders. The State Government cannot be permitted to change the terms and conditions of the petitioner, who was earlier employee of U.P. Basic Education Board, but who by virtue of the provision of Section 58 of the Act of 2006 became Government Servant. Thus, he cannot be denied the benefit of the earlier service benefit admissible to him.

8. It is apt to note at this stage that services rendered by the petitioner as employee of U.P. Basic Education Board were reckoned for all purposes including the selection grade, promotional grade and other benefits. The petitioner has already been given notional promotion on the post of Chief Assistant, Administrative Officer and Senior Administrative Officer, on 19.06.2010, 29.08.2011 and 05.07.2016 respectively. The benefit of his service rendered in Uttar Pradesh Basic Education Board was given to him. He was accordingly rightly given benefit of ACP, which the

2024:UHC:6410 respondents cannot recover from the petitioner. Reason being that the promotions given to the petitioner was only notional.

9. Leave encashment is akin to a salary, which is property. Depriving a person of his property without any valid statutory provision would violate Article 300-A of the Constitution of India. Leave encashment paid on account of unutilized leave is not a bounty. If an employee has earned it and the employee has chosen to accumulate his Earned Leave to his credit, then encashment becomes his right. The Hon'ble Supreme Court, in the catena of judgments held that a person could not be deprived of his right to pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution of India. The Supreme Court, in the case of "D.S. Nakara and Others Vs. Union of India", has established the legal position that pension is a statutory right, not subject to the whims of the authorities, but is governed by statutory rules. In the case of State of Jharkhand and others vs Jitendra Kumar Srivastava (2013)12 SCC 210, the Apex Court emphasized that the right to property cannot be infringed upon without due process of law. Thus, any attempt to deprive an employee of pension, gratuity, or leave encashment without a statutory provision, is untenable.

10. Consequently, leave encashment which was acquired by the petitioner, constitutes his property once earned. Deprivation of such property without statutory backing will not be permitted. Leave Encashment is recognized as a right by the courts, accruing to employees upon fulfillment of statutory conditions, and can only be restricted by another statutory provision empowering the employer to withhold it.

2024:UHC:6410

11. Thus, the benefit of Leave Encashment of Earned Leave admissible to the U.P. Basic Education Board, being employee of erstwhile State of U.P. as the petitioner was, denied only for the reason that his service has been merged with the State of Uttarakhand by invoking Section 58 of the Act of 2006.

12. Accordingly, writ petition is allowed. The impugned government orders dated 21.09.2020, 23.09.2020 and 30.09.2020 are set aside. The amount, if any, recovered pursuant to impugned orders, shall be refunded to the petitioner, within a period of three months' from the date of production of certified copy of this order. A mandamus is also issued commanding the respondents to pay Leave Encashment of Earned Leave to the petitioners immediately, in accordance with law.

(Pankaj Purohit, J.) 05.09.2024 PN PREETI NEGI Digitally signed by PREETI NEGI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=63c75a8c4765581180a58d7478fadbe38331bac55c78b5f9f0276c16432f6aab, postalCode=263001, st=UTTARAKHAND, serialNumber=2BA53171893B3C3CB3CCCAE81FAE064498483A83D84BDB0F9229D5BF08D959AC, cn=PREETI NEGI Date: 2024.09.07 12:52:12 +05'30'