Heard Mr. Raval, learned AGP, for the petitioner - State and Mr. J.M.Thakkar, learned advocate, for M/s. S.G.Associates, learned advocate for the respondent.
2. The petitioner - State has taken out present petition seeking below mentioned reliefs/directions:-
"8b. Be pleased to issue appropriate order or directions, quashing and setting aside the order passed by Learned Gujarat Secondary Education Tribunal at Ahmedabad in Application No.214 of 2009 dated 17.06.2010;
c. Be pleased to held that the present respondent No.1 is not entitled for the 300 days leave encashment as per the amendment in Rules'"
3. The dispute involved in present petition is about the quantum of number of leave, which would be available for encashment to an employee upon retirement. The petitioner has come out with the case that the respondent No.1 is entitled for encashment of 150 days leave and not 300 days of leave as directed by the learned Tribunal.
4. Having regard to the dispute raised by the petitioner, the Court had issued notice to the respondents and ad-interim relief in terms of para 8(d) was granted. Thereafter, the respondent No.1 filed reply affidavit dated 5.8.2011. The petitioner - State has filed counter affidavit dated 13.12.2011 in rejoinder.
5. The facts involved in present petition are that, the respondent No.1 was working in educational institute which was receiving grant-in-aid. The respondent No.1 herein was working as a teacher. She was appointed on 16.6.1969 and she retired upon attending age of superannuation, after office hours on 31.5.2005. The respondent No.1 has claimed that the provisions under the Gujarat Civil Services (Leave) Rules, 2002 [hereinafter referred to as "Rules of 2002"] apply to the institute where the respondent No.1 was working and the amendment dated 21.4.2007 in sub-rule (4) of Rule 65 of Rules of 2002. The respondent No.1 has claimed that when she retired, she had 609 half pay leave available in her credit/account. Therefore, she was entitled for encashment of 300 days leave, however, she was granted encashment for only 150 days leave.
5.1 Aggrieved by the said action of the authority, the respondent No.1 preferred an application before the Gujarat Secondary Education Tribunal. The application was registered as application No.214 of 2009. The application was resisted by the respondents therein i.e. the petitioner on the ground that the amendment in sub-rule (4) of Rule 65 of Rules of 2002 had come into operation w.e.f. 21.4.2007 whereas the respondent No1. had retired w.e.f. 31.5.2005 and that therefore, she was not entitled for the said benefit. The learned tribunal considered rival contentions. Learned Tribunal also considered the amended provision, i.e. amendment made in sub-rule (4) of Rule 65 of Rules of 2012. After considering the rival submissions and the applicable provisions, learned tribunal disposed the application vide order dated 17.6.2010 holding, inter alia, that the applicant was entitled to receive leave encashment for 300 days. In the said order dated 17.6.2010, learned tribunal made below mentioned observations:-
"The above-referred clause has been amended vide govt. notification dt. 21st April 2007 and by this amendment the words "limited to one hundred fifty days" came to be deleted. By deletion of the above-referred words I am in agreement with learned advocate for the applicant that this amendment has to be considered in favour of the employee concerned and not against him. According to the said clause if the earned leave to any employee falls short of 300 days then it was open for the employer to add 150 days leave from the other leave account/leave head. The said limit of 150 days is now deleted by this amendment. In the instant case, however, that situation does not exist. Admittedly, leave of 609 half-pay leave was available to the creditor of the applicant on the date of her retirement and, therefore, she was certainly entitled to 300 days full encashment as per the said provision. The question of addition of leave in the case of the applicant did not arise. In my view, therefore, the said amendment will have no effect in this case and, therefore, the view taken by the D.E.O. i.e. in view of this amendment the applicant was only entitled for 150 days leave encashment is erroneous, incorrect and against the rules and hence not sustainable.
In the result and for the foregoing reasons, this application is allowed. The applicant is held entitled to receive 300 days leave encashment. Since the D.E.O. has already passed the bills for 150 days encashment he shall now pass the bills remaining 150 days leave encashment. At this stage, it is pointed out that the D.E.O. has returned the bill to the school. The school management is, therefore, directed to send the bill for 150 days leave encashment to the D.E.O. within 15 days from to day. Upon receipt of that bill the D.E.O. shall pass the same within 15 days. It is made clear that the applicant has retired in the year 2005 and already the delay of 5 yrs. has occurred. If the parties make unnecessary delay further in the matter they shall be held liable for payment of interest at the rate of 9% to the applicant. It is made clear that if the above-referred time frame is not maintained and the payment is not made accordingly the erring party shall have to pay the above-mentioned interest to the applicant on the delayed payment. The request of the applicant for costs is negatived with a caveat that if she is made to approach this Tribunal again by the respondents then in that litigation the request for exemplary heavy costs will be considered. No order as to costs."
5.2 Aggrieved by the said order of learned tribunal, the petitioner - State has preferred present petition.
6. During the proceedings of present petition, the respondent No.1 (i.e. the retired employee) filed her affidavit stating, inter alia, that according to her information, similar benefit, i.e. benefit of encashment of leave for 300 days, has been granted by the respondent authorities to the employee in Rajkot district. The respondent No.1 has also mentioned name of the persons in whose favour similar benefit is granted.
7. So as to counter the said assertion by the respondent No.1 - retired employee, the petitioner - State has filed rejoinder affidavit. The claim of the respondent No.1 is opposed only on one ground viz. the person whose name is mentioned in the reply affidavit by the respondent No.1, had tendered voluntary resignation and the said person was working on the post of education inspector and not teacher. On such spacious ground, the petitioner has tried to make out distinction so as to deny the benefit to the respondent No.1.
8. On perusal of the relevant provisions, particularly sub-rule (4) of Rule 65 of Rules of 2002, it becomes clear that the said Rule does not make any distinction on the ground of posts which the person was holding at the time of retirement. The Rule also does not make distinction on the ground of class of the post on which the retired employee was working. The said provision is applicable to all class of employees and that therefore, the attempt of the respondent authority to distinguish the case of the respondent No.1 from the case of person, whose reference is made by the respondent No.1 in her affidavit, is unjustified and unsustainable.
9. In view of the details mentioned by the respondent No.1 in her application, it appears that present application can be disposed of, at this stage, with below mentioned directions:-
9.1 The competent authority of the respondent will take up the case of present respondent No.1 for reconsideration in light of the details mentioned by the respondent No.1 in paragraph Nos.2 to 4 of her reply affidavit dated 5.8.2011. If the petitioner - State finds that the details mentioned in the affidavit are correct, then, the case of the respondent No.1 will accordingly be considered and the competent authority of the respondent will not deny similar benefit to the respondent, if such benefit is granted to other persons of same or another district. Similar benefit will also not been denied to the respondent No.1 only on the ground that the respondent No.1 was holding different post, i.e. post other than the post held by the persons to whom the benefit has been granted, because the relevant Rule does not make any distinction on the ground of post held by the retired employee.
9.2 Appropriate decision shall be taken by the competent authority of the respondent within 4 weeks from the service of certified copy of present order.
9.3 It would be open for the respondent No.1 to serve a certified copy of present order directly to the competent authority of the respondent, in addition to the normal mode of service through office.
9.4 It is clarified that in view of the facts which are placed on record, i.e. the detail of other persons to whom similar benefit is granted, the decision dated 17.6.2010 passed by the learned tribunal is not further examined and/or disturbed on merits since the matter can be decided at this stage on limited ground viz. discrimination inasmuch as, when similar benefit of encashment of leave of 300 days is made available other similarly situated person, then, there would not be any justification for the petitioner - State to discriminate the respondent No.1 on the ground that she was holding different post before retirement.
9.5 If, however, the competent authority of the respondent finds that the case of the respondent No.1 does not deserve to be accepted on any other ground (e.g. not fulfilling requirement of minimum length of service etc.) then, it would be open to the petitioner to pass reasoned order and likewise, it would be open to the respondent No.1 herein to take out appropriate proceedings before the said order.
It is further clarified that the order of the learned Tribunal will not be cited or relied on in any other matter or for any purpose, as a precedence.
With the aforesaid observations, clarifications and direction, present petition stands disposed of. Notice is discharged. Ad-interim relief, granted earlier, stands vacated forthwith.
Direct service is permitted.
(K.M.Thaker, J.) kdc Top