A.S. SUPEHIA, J.

1. By way of the present petition, the petitioner has prayed for granting benefits of leave encashment of 300 leaves accrued during his service tenure.

2. The brief facts giving rise to the present petition are that.

3. The petitioner worked under the Office of respondent no. 1 authority as Deputy Mamlatdar and he was suspended on 01.12.2008 and he reached at the age of superannuation in February, 2011. While he retired under suspension during pendency of departmental inquiry, however, he was not paid leave encashment of 300 days. He made an application on 15.03.2012 to the respondent authority requesting to process and grant benefits of leave encashment of 300 leaves credited to his account during his service tenure.

4. Learned advocate Mr. Vaibhav Sheth appearing on behalf of the petitioner has submitted that the respondents have not disputed that he had to his credit of leave of 300 days and the same was credited to petitioner's account as on 30.04.2008, which is prior to his suspension i.e. 01.12.2008. He has further submitted that in an identical situation one Mamlatdar was granted benefits of leave encashment of 300 days vide order dated 29.01.2011 and 21.07.2011, whereas the petitioner has been denied the benefit of leave encashment. Thus, he has urged that respondent no. 1 may be directed to grant benefit of leave encashment of 300 Earned Leaves.

5. Learned AGP Ms. Jirga Jhaveri appearing on behalf of the respondent authority has submitted that the petitioner is not entitled to aforesaid amount. She has further submitted that the petitioner would not be entitled to amount of leave encashment as per Rule 64 of the Gujarat Civil Services (Leave) Rules, 2002. She has further submitted that since departmental inquiry was pending against the petitioner and suspension period was yet to be regularised, no benefits under the said rule regarding granting of benefit of leave encashment can be conferred upon him.

6. Before adverting rival contentions raised by the learned advocates for the respective parties, it would be apposite to incorporate Rule 64 of Gujarat Civil Services (Leave) Rules, 2002.

“64. CASH EQUIVALENT TO LEAVE SALARY IN RESPECT OF LEAVE AT THE TIME OF CESSATION OF SERVICE:

(1) The authority competent to grant leave shall suo moto sanction to a Government employee the cash equivalent to leave salary in respect of the earned leave at this credit subject to a maximum of three hundred days on following occasion:-

(a) on his retirement on attaining the age of superannuation.

(b) where the service of a Government employee has been extended in the public interest beyond the date of retirement on superannuation on the expiry of his such extension of service.

(c) in the case of termination for reemployment after retirement.

(d) in the case of death of a Government employee while in service, to the family of the deceased.

(e) in the case of transfer of Government employee to an Industrial Establishment.

(f) on absorption of a Government employee in the State Public Sector Undertakings, autonomous body wholly or substantially owned or controlled by the Central or State Government.

Note: A Government employee who retires from service on attaining the age of compulsory retirement while under suspension shall be paid cash equivalent to leave salary under this rule in respect of the period of earned leave at his credit on the date of his superannuation.

Provided that the opinion of the authority competent to order reinstatement, the Government employee has been fully exonerated and the suspension was wholly unjustified.

(2) The cash equivalent of leave salary payable under sub-rule (1) above shall also include dearness allowance, non-practising allowance and compensatory local allowance admissible on the leave salary at the rates in force on the date on which the Government employee ceases to be in service, an it shall be paid in one limp-sum, as a one time settlement taking a month of thirty days.

(3) The house rent