Heard Mr. Brijesh Sarma, learned coun­sel appearing for the petitioners. The respon­dents are represented by Mr. D. Saikia, learned Standing Counsel for the Finance De­partment.

2. The petitioners were Headmasters of different M. E. Schools and have retired from service between 30.09.2000 to 30.6.2003. They challenge the Office Memorandum (O.M.) dated 21.02.2000 (Annexure-2A) and 11.12.2006 (Annexure-4A) whereby it was decided by the Government that for those in the vacation department, leave encashment of unutilized earned leave shall be limited to a maximum of 80 days of the Earned Leave (E.L.) in the credit of the retiring employee. The second office memorandum dated 11.12.2006 also specified the maximum limit, to earned leave accruals of a vacation staff, to 80 days and no more. The petitioners con­tend that being the Headmasters and also the drawing and disbursing officers in the schools, they were required to attend duties even dur­ing the vacation period and could not remain away from duties, despite being a vacation department and accordingly, they are entitled to cash payment to the extent of credit of unutilized earned leave, at par with the em­ployee of anon-vacation department.

3. The petitioners also contend that ben­efit of earned leave accrues to them on the strength of provisions made in The Leave Rules, 1934 (hereinafter referred to as 'Leave Rules') and the maximum outer limit for leave encashment benefits confined to only 80 days (by the 2 impugned O.M.s) irrespective of earned leave credited in the account of retir­ing employees, is inconsistent with the provi­sions of the Leave Rules and is discrimina­tory vis-a-vis the employees of the non-va­cation departments, who have been granted leave encashment benefit of earned leave upto a higher extent of 300 days.

4. Averments have been made in paragraph 17 of the writ petition to project that the pe­titioners had more than 300 days of earned leave credit on retirement and, are therefore, entitled to encashment benefit of the earned leave accumulated in their accounts to the maximum ceiling of 300 days, like an em­ployee of a non-vacation department and the outer limit of 80 days stipulated through the 2 impugned memorandums, is discriminatory and is violative of their legal and constitutional rights.

5. The petitioner have also given instances of retired Headmasters serving in vacation department, who were granted encashment benefits of 240 days of earned leave and also instance of employee of another vacation es­tablishment i.e. the Gauhati High Court of being granted encashment benefit of unutilized earned leave, for maximum of 300 days, at par with an employee in a non-vacation de­partment.

6. Mr. B. Sarma, learned counsel refers to the provisions of S.R. 114 to point out that vacation department employees are per­mitted to be absent from duty during their va­cation time. The counsel also refers to the Finance (Estt. A) department notification dated 15.6.1995 (Annexure-3) to show that original Rule 12(a) of the Leave Rules was sub-1 stituted and an employee in a vacation de­partment was made entitled to 10 days earned leave in lieu of 20 days half pay leave, as was earlier admissible to such category of employees.

7.1. Referring to the definitions given in Rule 3 of the Leave Rules, the learned coun­sel points out from Rule 3(iii) that, 'half pay leave' means leave earned in respect of completed years of service, and accordingly, he contends that even prior to the notification of 15.6.1995, accumulation of earned leave was possible to the credit of an employee in the vacation department. Elaborating the arguments, Mr. Sarma, points out that employees in the vacation department can take the ben­efit of earned leave under 4 different circum­stances, firstly, earned leave can be availed under Rule 12(b) of the Leave Rules to the extent of those many days of vacation, not availed off by the employee. Secondly, on the eve of retirement, an employee