Statutory leave rules for vacation duties prevail over executive circulars; cannot retrospectively deny encashment of earned leave.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

a) Directing the respondents to accord sanction of earned leave equivalent to cash in lieu of leave salary in favour of the applicant in terms of Rule 26 (A) and 37 (1) of J&K Civil Services Leave Rule 1979 for 89 days for which the applicant is entitled for cash in lieu leave salary on account of actual duties rendered by the applicant in the year 1987 i.e. prior to the issuance of circular no. 34 dated 09.12.2020, thus, the said circular is not applicable in the case of the applicant.

b) Any other relief which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case be passed in favour of the applicant and against the non-applicants /respondents. 

2. The facts of the case as averred by the applicant in her pleadings, are as follows: -

a) The applicant, Smt. Santosh Kumari, is a permanent resident of the erstwhile State of Jammu and Kashmir and presently of the Union Territory of Jammu and Kashmir. She entered government service in the Education Department in the year 1987 as a Teacher and remained in continuous service till attaining the age of superannuation on 31.12.2022. During her long tenure, she served at various educational institutions and rendered uninterrupted service to the department.

b) It is the specific case of the applicant that, during her service career, she was repeatedly deputed by the competent authorities to perform duties connected with the affairs of the State during vacation periods and non-teaching days. These assignments included, inter alia, Massive Orientation Courses, English Orientation Courses conducted in December 1987, long-term Orientation Courses extending up to 36 days, Dogri Orientation Programme in the year 2002, Capacity Building Programmes, Map Orientation exercises, workshops under Sarva Shiksha Abhiyan including PLM/SLM programmes in June 2005 extending to 66 days, and other officially sponsored training and teaching assignments. According to the applicant, all such deputations were made under official orders and the duties were acknowledged by the department, details whereof were duly furnished before the respondents.

c) The applicant asserts that, in terms of Rule 27 read with Rule 37 of the Jammu and Kashmir Civil Services Leave Rules, 1979, a government servant who is required to perform duties during vacations or non-vocational periods pursuant to official orders is entitled to earn earned leave for such period, which can be encashed in cash at the time of superannuation. The said Rules are statutory in nature and were applicable throughout the service career of the applicant.

d) Upon her retirement, the applicant submitted her claim for settlement of pensionary and retiral benefits, including cash equivalent of leave salary for the earned leave accumulated on account of duties performed during vacation periods. However, the respondents relied upon Circular No. 34 dated 09.12.2020 to deny a substantial portion of her claim. The applicant contends that the said circular was prospective in nature and, in any case, stood clarified subsequently by the Director, School Education, whereby it was expressly stated that teaching assignments such as winter tutorials, special programmes, and other duties performed during vacations pursuant to orders of the Head of Department would qualify for earned leave under Rule 27 of the Leave Rules.

e) Despite the clarification, the respondents sanctioned only 07 days of earned leave ini