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2024 Supreme(UK) 85
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
PANKAJ PUROHIT, J.
Mahipal Singh Aswal & Others - Petitioners
Versus
State of Uttarakhand and Others - Respondents
Writ Petition (S/S) No. 2529 of 2015
Decided On : 21-05-2024
For the Petitioners: Mr. H.M. Raturi, learned counsel.
For the Respondents: Mr. Sachin Mohan Singh Mehta, learned Brief Holder.
IMPORTANT POINT
Leave encashment is a property right of employees, and deprivation without statutory provision is unconstitutional.
Headnote:
Leave - Government Servants - Uttarakhand School Education Act, 2006 - The court interpreted Section 58 of the Act, affirming that petitioners, as government servants, are entitled to encashment of earned leave accrued prior to their transition to state service.
Fact of the Case:
The petitioners, retired teachers from the U.P. Basic Shiksha Parishad, challenged a government order denying them leave encashment for earned leave accrued before their transition to the Uttarakhand government under the Uttarakhand School Education Act, 2006.
Finding of the Court:
The court found that the petitioners, having become government servants under Section 58 of the Act, are entitled to leave encashment for earned leave accrued prior to their transition, as it constitutes a property right.
Issues: Whether the petitioners are entitled to encashment of earned leave accrued prior to their transition to the Uttarakhand government under the Uttarakhand School Education Act, 2006.
Ratio Decidendi: The court held that leave encashment is a right akin to property, and depriving the petitioners of this right without statutory backing violates Article 300-A of the Constitution.
Result: The writ petition is allowed, and the impugned government order denying leave encashment is set aside.
JUDGMENT :
(Pankaj Purohit, J.) :
Heard learned counsel for the parties.
2. The petitioners are retired Assistant Teachers of Government Primary School in the State of Uttarakhand. Most of them retired between 2010 to 2015 after putting in approximately 40 years of service in the respondent-Education Department. Before creation of State of Uttarakhand, the petitioners were working under the U.P. Basic Shiskha Parishad, but after creation of State of Uttarakhand on 09.11.2000, services of the petitioners were 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. By virtue of Section 58 of the aforesaid Act of 2006, petitioners became Government Servants in the State of Uttarakhand.
3. Section 58 of the aforesaid Act of 2006 is quoted hereinbelow:-
“The services of teachers and employees of Basic Shiksha Parishad to be under the control of State 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.”
4. Thus, there is no doubt that petitioners retired as Government Servants of the State of Uttarakhand.
5. The controversy involved in the writ petition is with regard to encashment of Earned Leave of the petitioners, which is there in their credit prior to 22.04.2006, when they were employees of U.P. Basic Shiksha Parishad. Vide impugned Government Order dated 18.12.2013, Leave Encashment has been denied to the petitioners of the period during which they were in the services of the U.P. Basic Shiksha Parishad. Feeling aggrieved, by the aforesaid government order, the petitioners are before this Court.
6. Counter affidavit(s) have been filed by the respondent-State of Uttarakhand as well as State of U.P., wherein reliance was placed on the impugned Government Order dated 18.12.2013 to submit that petitioners being the employees of U.P. Basic Shiksha Parishad before 22.04.2006 shall be entitled to get the Leave Encashment after 22.04.2006 from which date they became Government Servants. The State of U.P. in its counter affidavit has submitted that Government Employees would entail Earned Leave as per Financial Handbook main Rule 18-kh (1) vide Government Order dated 24.06.1978. Since the Teachers enjoy the leave of summer vacation in calendar years the Earned Leave under Rule 18-kh(1) teachers would not be entitled to get Earned Leave.
7. Rejoinder affidavits have also been filed to the counter affidavits filed by the respondents while reiterating their writ case, it is contended by the petitioners that the petitioners have now become Government Servants by virtue of Section 58 of the Act of 2006 and as per the Government Order dated 06.08.1996 and 17.02.1999, the petitioners are entitled for Leave Encashment.
8. It is also submitted in the rejoinder affidavit that many similarly situated Teachers namely, Satyaprakash Nautiyal have been paid the Leave Encashment and accordingly the petitioners are also entitled for Leave Encashment.
9. It is argued by learned counsel for the petitioners that the respondent-State cannot discriminate its employees. Similarly situated Assistant Teacher who retired before 18.12.2013 have been paid Leave Encashment. Even similarly situated teachers, who superannuated till 2011 in the State of Uttarakhand, were paid their Leave Encashment, but after issuance of government order impugned in the writ petition, the petitioners have been denied Leave Encashment. In reply to this case of the petitioners as specifically set up in para no.19 of the writ petition,
