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2010 Supreme(All) 3979
ALLAHABAD HIGH COURT
F.I.Rebello;CJ, A.P.Sahi, J.
Rajendra Singh Negi -Appellant
Versus
State of U.P. and another -Respondent
Special Appeal Defective No. 1017 of 2010
Decided On : 10-11-2010
Sri Vinay Kumar Rai and Sri Anil Kumar Aditya, for the appellant; C.S.C., for the resoondents
The discretion to sanction employment leave rests with the appropriate authority, and no employee can proceed on leave without a sanction. The rules do not provide for ex post-facto sanction.
Headnote:
Employment Leave - State of U.P. Government Servants - The court interpreted the Uttar Pradesh Government Servants (Employment Leave) Rules, 2003 and emphasized that the discretion to sanction employment leave rested with the appropriate authority, and no employee could proceed on leave without a sanction. The court held that the rules did not provide for ex post-facto sanction and dismissed the appeal.
Fact of the Case:
The appellant applied for employment leave under the Uttar Pradesh Government Servants (Employment Leave) Rules, 2003, but the leave was not sanctioned. The appellant proceeded on leave and filed a writ petition, seeking sanction for the leave.
Finding of the Court:
The court found that the discretion to sanction employment leave rested with the appropriate authority, and no employee could proceed on leave without a sanction. The court also noted that the rules did not provide for ex post-facto sanction and dismissed the appeal.
Issues: The issues revolved around the appellant's entitlement to employment leave, the discretion of the sanctioning authority, and the absence of provision for ex post-facto sanction.
Ratio Decidendi: The court emphasized that the discretion to sanction employment leave rested with the appropriate authority, and no employee could proceed on leave without a sanction. The court also held that the rules did not provide for ex post-facto sanction.
Final Decision: The appeal was dismissed, and the court directed the concerned authorities to consider the appellant's application for resuming duties and pass appropriate orders within fifteen days.
This appeal has been preferred against the judgment of a learned Single Judge dated 19.7.2010.
2. The State of U.P. framed a rule known as the Uttar Pradesh Government Servants (Employment Leave) Rules, 2003 (hereinafter referred to as the rules). The rules were to remain in force only upto 31st March, 2008.
3. The appellant herein applied for employment leave under the aforesaid rules. The leave was not sanctioned, inspite of that the appellant proceeded on leave. The appellant sent various reminders but no action was taken on his application. Thereafter he filed a petition being Writ Petition No. 5578 of 2010 which was disposed of by this Court on 3.2.2010.
4. The grievance of the appellant before this Court was that he is entitled for sanction for employment leave which he availed of in the expectation that the same would be sanctioned in accordance with the rules. The learned Single Judge after considering the contentions was pleased to observe that the appellant herein may approach the Director Panchayat Raj U.P. alongwith the copy of the order who shall proceed to process the request of the petitioner and pass an appropriate order within a period of six weeks.
5. The grievance of the appellant is that considering the object for which the rules had been framed the employee had a right to apply for leave and the same will have to be considered and be sanctioned. The appellant herein so applied for leave and then his leave ought to be sanctioned. In these circumstances he has proceeded on leave. The leave application was not decided for no fault of the appellant and in these circumstances considering the judgment of the learned Single Judge the respondents were bound to pass appropriate orders on his application.
6. By the time application came up for consideration, the rules were no longer in force. The appellant applied for a period of three years leave before the enforcement of the rules. Subsequently, after the aforesaid period rules had come to an end but that by itself would not disentitle the appellant for leave for the period for which he was entitled to proceed to leave.
7. We have heard learned counsel for the appellant. Under the rules of employment leave has been defined under Rule 3(b) which rule is as under:
Rule 3(b): "Employment Leave" means such leave which is sanctioned by the competent authority to a Government servant for undertaking any kind of private trade or business or employment etc. in an organisation other than the Government Departments, Semi-Government Departments, a Corporation, a Board, a Public Undertaking or a Body owned or controlled by the State Government of Uttar Pradesh.
Similarly what is relevant is Rule 5(1) and 5(2).
5. Conditions of Employment Leave. - (1) Government servants may be sanctioned Employment Leave for a minimum period of three years and a maximum period of five years. Such Government servants shall, in no case, be allowed to return to duty in the Government service from the Employment Leave before the completion of three years.
(2) State Government in case of Government servants belonging to Group 'A' and Group 'B' posts and the Head of the Department in case of Government servants belonging to Group 'C' and Group 'D' posts will be empowered to sanction/disallow the Employment Leave.
8. From a reading of Rule 5(1), it would be clear that the language used is "may" and not shall. The expression may also considering the definition clause of Rule 3(b) cannot be read as shall. In other words it was for the appropriate authority either to sanction leave or not to sanction leave. From this it has to be inferred that it was the discretion of the sanctioning authority to grant leave or not to grant leave.
9. The employee could not have proceeded on leave as the expression used in Rule 5(3) is during employment of leave. Therefore, the employee could proceed to go on leave only after sanction. In the absence of a sanction there was no question of the employee proceeding on e
