WP(C) 9851/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. Brijesh Sarma, learned counsel appearing for the petit ioners. The respondents are represented by Mr. D.Saikia, learned standing couns el for the Finance Department. 2) The petitioners were Headmasters of different ME Schools and hav e retired from service between 30.9.2000 to 30.6.2003. They challenge the Offic e Memorandum (O.M.) dated 21.2.2000(Annexure-2A) and 11.12.2006 (Annexure-4A) wh ereby 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 s econd office memorandum dated 11.12.2006 also specified the maximum limit to ear ned 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 pe riod and could not remain away from duties, despite being in a vacation departm ent and accordingly, they are entitled to cash payment to the extent of credit o f unutilized earned leave, at par with the employees of a non-vacation departme nt. 3) The petitioners also contend that benefit of earned leave accrue s 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 earn ed leave credited in the account of retiring employees, is inconsistent with the provisions of the Leave Rules and is discriminatory vis-à-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 r etirement and, are therefore, entitled to encashment benefit of the earned leave accumulated in their accounts to the maximum ceiling of 300 days, like an emplo yee of a non-vacation department and the outer limit of 80 days stipulated thro ugh the 2 impugned memorandums, is discriminatory and is violative of their lega l 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 e arned 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. 11 4 to point out that vacation department employees are permitted to be absent fro m 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 R ule 12 (a) of the Leave Rules was substituted and an employee in a vacation depa rtment was made entitled to 10 days earned leave in lieu of 20 days half pay lea ve, 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 le ave earned in respect of completed years of service, and accordingly, he contend s 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. Elaborat ing the arguments, Mr. Sarma, points out that employees in the vacation departme nt 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 t he eve of retirement, an employee can take the benefit of earned leave. In these 2 circumstances, even though the employee is not attending his duty by availing earned leave, he is paid his salaries by the Government. Thirdly, under Rule 12(d) of the Leave Rules, in case of death of a serving Government servant, the cash equivalent to the leave accrued to the account of the deceased is given, su bject to a upper ceiling of 300 days, to the surviving family members. Mr. Sha rma, submits that in all these 3 circumstances, the benefit of earned leave is g ranted without their being any upper cap of 80 days or 150 days and the extent o f benefit for an employee of the vacation department is no different so far as t he number of days are concerned from those in the non-vacation department. 7.2) It is argued by the petitioners that to restrict the cash equiva lent claim at the time of retirement for a vacation department employee to maxim um of 80 days or 150 days, would be arbitrary as the same vacation employee whil e availing the earned leave benefits in the first 3 circumstances (as mentioned in the preceding paragraph), are give the maximum extent of benefits permissible as in the case of non-vacation employees. 8) The counsel for the petitioners contended that the provisions of S.R. 114 was incorporated to regulate the E.L. benefit in the vacation departme nt and it has nothing to do with encashment of the accumulated earned leave and if higher credit of earned leave is available on account of a retiring vacation employee, encashment benefit should be at par, with non-vacation employee, since neither categories of employees get any higher encashment benefits beyond what is credited in their earned leave account, subject to the ceiling limit of 300 d ays. 9) The provision of earned leave encashment benefits for the Centra l Govt. employees, similarly serving in the vacation department have been referr ed to by the learned counsel to point out that this category of the Central Govt . employees are given leave encashment benefits upto 300 days at par with non-va cation departments. The counsel submits that since such benefits for the State Govt. employees are usually parimateria with the Central Govt. employees and sin ce the State Governments invariably adopts the amendments in F.R. and S.R. made by the Central Govt., the leave encashment benefit cannot be restricted for a re tired employee in a vacation department, to less than 300 days, through the impu gned Notification(s). 10) The petitioners refer to the recent State Govt. Notifications of 19.2.2011 to show that the recommendation of the Anomaly Committee of the Assam Pay Commission, 2008 was accepted by the State to the extent that, encashment of earned leave for employees in the vacation department be enhanced to 300 days w.e.f 1.1.2011. Accordingly, Mr. Sarma submits that if the State Govt. has acce pted the pre 1.1.2011 position to be an anomaly, the encashment benefit must be considered to the same number of days, as made available for employees in the no n-vacation department, in the pre 1.1.2011 period. 11) Per contra, Mr. D Saikia challenges the locus standi of the peti tioners to challenge the two O.M.s dated 21.2.2000 and 11.12.2006, as according to the learned counsel, the petitioners have not stated that they have more than 80 days earned leave credit in their leave account, at the time of their supera nnuation from service. He submits that prior to 15.6.95, the employees in the va cation department were not entitled to any earned leave and since 10 days earned leave has been granted only from 15.6.1995, the maximum encashment benefit of t he earned leave was stipulated initially as 80 days through the Notification dat ed 21.2.2000 and was subsequently raised to 150 days (through the Notification d ated 9.7.2010) and 300 days (through the Notification dated 19.2.2011). Mr. Sa ikia submits that upper limit of leave encashment for the vacation department em ployee were decided, bearing in mind the likely number of days that E.L. credit will be available for a vacation department employee at that point of time and a ll the petitioners having retired by the year 2003, cannot claim the enhanced ea rned leave encashment benefit of 150/300 days given subsequently, through the O. M. dated 9.7.2000 and 19.2.2011, which can have only prospective effect. 12) Pointing out that an employee in the vacation department cannot be treated to be in the same class as an employee in the non-vacation department , who have no benefit of vacation during their service career. Mr. Saikia conten ds that when non-vacation department employees are entitled to 30 days earned le ave as compared to 10 days for the vacation department employees, the upper ceil ing on encashment benefit of the earned leave credit for the two categories of e mployees, cannot be at par with each other. 13) The departmental counsel further submits that the cash equivalen t of earned leave credit is being granted for the vacation department employees through policy decision of the Government having regard to the State Government’ s resource position and no enforceable right is available with the petitioners t o demand fiscal benefits, when their claim is not based on any statutory enactme nt. 14) The specific instances of the vacation employees being granted l eave encashment benefit of 300 days cited by the petitioners are contended to be mistakenly given and, accordingly Mr. Saikia submits that the petitioners canno t claim similar benefits on the basis of erroneous decision of the concerned off icials. 15) Before the arguments of the learned counsels are considered, it would be appropriate to understand what is the nature of the leave encashment be nefit granted to a Government servant. In Union of India Vs. Justice S.S. Sand hawalia, reported in 1994 (2) SCC 240, the Supreme Court had proceeded on the ba sis that provision of granting cash equivalent for credit in leave started becau se, earned leave had to be refused for pressure of work, despite leave credit in the account of the Government servant. By refusing leave in public interest, i n order to avoid administrative disturbances, it was felt that leave be denied a nd the deprived employee be paid cash equivalent and on this basis, the leave en cashment system was formalized into Rule, with a view to compensate for the refu sed earned leave and encouraging accumulation of earned leave, to claim monetary benefits upon retirement. 16.1) Construing the leave encashment benefit in the above light, it w ould now be appropriate to deal with the relevant provisions of Leave Rules. Und er Rule-9, employees in the non-vacation departments are given earned leave for 30 days in a calendar year, whereas under Rule-12(a), a Government servant in a vacation department is granted 10 days earned leave, in lieu of 20 days half pay leave with effect from 15.6.1995, as the Rule in question was substituted by th e amending Notification dated 13.6.1995. Previously, under the un-amended provis ion of Rule 12, the earned leave was not admissible to an officer in the vacatio n department. Rule 12(b) provides that if the officer in the vacation department is prevented from availing the full vacation, such proportion of the unavailed leave, would be admissible to him in respect of the concerned year, in accordanc e with the provisions of Rule-9. 16.2) Sub-Rule(c) of Rule 12 further provides that when earned leave i s taken in combination with other leave, it shall not exceed the amount of earne d leave due and admissible to the officer at a time under Rule 9. Under the un amended Rule-13, half pay leave is admissible to an officer for 20 days in a cal endar year. Through the amendment incorporated by the notification date 15.6.199 5, 20 days half pay leave as earlier admissible under Rule 13(a)(i), was withdra wn and a Government servant in the vacation department was given the benefit of 10 days earned leave. However, the existing provision made under Sub-Rule (b) an d (c) of proportionate benefit under Rule-9 given to the employees of non-vacat ion department continued to be made available, even for the employees serving in a vacation department. 16.3) A reading of the Rule-12(b) and 12(c) of the Leave Rules which h ave remained unchanged, suggests that earned leave was available to the proporti onate extent of days, when vacation was not availed in a given year, by a vacati on department employee. 17) This takes us to the question as to whether cash equivalent of e arned leave at par with the non-vacation department employees is available to th e retiring employees from a vacation department. When cash payment in lieu of unutilized earned leave was first granted through Notification dated 19.7.1978 ( Annexure-1), the Govt. did not make any distinction between vacation and non-vac ation department as it was decided that State Government Servants will be paid c ash equivalent of leave salary in credit of the retiring State Government Employ ees, subject to maximum of 240 days earned leave. Since no distinction in the sa id Notification was made between the vacation and non-vacation department employ ees, it would normally cover all Govt. employees, serving under both kinds of es tablishments. But since no specific provision was earlier available for granting earned leave to an employee in a vacation department, through the Notification dated 15.6.1995, this category of employees was granted 10 days earned leave, in lieu of the earlier 20 days half pay leave. 18) In the definition of ’earned leave’ given in Rule 3 of the Leave Rules, it is defined to mean leave earned under the provision of Rule 9 which o bviously are applicable for employees in non-vacation department. But under Su b-Rule (iii) of Rule 3, ’half pay leave’ is defined to mean leave earned in res pect of completed years of service. 19) Prior to the Notification of 19.7.1978, no category of Governmen t servant was entitled to encashment of the earned leave credited in his account and no cash benefit accrued to him for unutilized earned leave. But from the N otification dated 19.7.1978, the State Govt. employees became entitled to cash e quivalent of the accumulated E.L. subject to the maximum of 240 days of leave cr edit. 20) Rule 12 of the Leave Rules applicable to the vacation department has various sub-clauses which shows the entitlement of those employees in vacat ion department, to the benefits under Rule 9 (applicable to non-vacation departm ent) and interpretation of provision of Sub-Rule (b), (c) and (d) of Rule 12, su ggest that the employees of the vacation department too, are entitled to the ben efit of earned leave. Furthermore cash equivalent of leave salary was also admi ssible to the family of a deceased employee under Sub-Rule (d) of Rule 12 to the maximum of 300 days, which is at par with the non-vacation department. 21) An analysis of the provisions of the Leave Rules projects that S tate Govt. employees of both departments are entitled to earned leave benefits i n their respective accounts and cash equivalent of earned leave benefit under th e Rules is same for the employees in the two departments. The basis for such a conclusion can be culled out from the fact that an employee in a vacation depart ment can avail paid leave benefits even while he is on half days pay leave or 10 days earned leave. Likewise cash equivalent of leave salary is also admissibl e to the family members of a deceased Govt. servant. 22) The next question is whether any ceiling on the number of days o f accumulated earned leave for the purpose of encashment benefits, can be placed for a retiring employee of a vacation department. It is seen that State Govt. after limiting the benefit to 80 days through the impugned notification of 21.2. 2000, had subsequently increased the number of days to 150 days (through the Not ification dated 9.7.2010) and to 300 days (through the Notification dated 19.2.2 011), after accepting the recommendation of the Anomaly Committee. Thus w.e.f. 1 .1.2011, the encashment of earned leaved for an employee of the vacation departm ent is admissible for 300 days which is at par with the employees of non-vacatio n department. Whether an employee of a vacation department will have earned lea ve accumulated in his account, to the extent of 300 days is something, which wil l depend upon how much of his permissible 10 days of earned leave, remains unuti lized each year and also the number of days on which, the employee in the vacati on department can’t avail their vacation, because of exigency of work. But to s ay that since only 10 days of earned leave is available to a vacation departmen t employee, it would not be correct in my view, to put fetters on the number of days of unutilized earned leave, which the vacation department employee can enca sh, at the time of superannuation from service. 23) However, the above conclusion is found reasonable not because in stances have been cited by the petitioners, of encashment of earned leave to th e extent of 300 days, permitted for similarly situated retired Headmasters of ME schools and also the employees of vacation departments like the High Court. Bu t the basis for the conclusion is found from the provision of the Leave Rules wh ich, even before the 1995 Notification, had provided the employees of the vacati on department, the benefits of earned leave in various manners, as prescribed un der Sub-Rule (b),(c) and (d) of Rule 12 of the Leave Rules. 24) Although it is within the discretion of the State Government to decide on the policy for granting leave encashment benefits to its employees in the vacation department, having regard to the notifications dated 21.2.2000, 9.7 .2010 and 19.2.2011, it can be gathered that even the State Government has come round to the view that, full leave encashment benefit at par with non-vacation e stablishments, should be granted for employees in the vacation department. 25) As regard the submissions made by Mr. Saikia that employees in t he vacation department are in a separate class vis-à-vis the employees in the non-vacation department, on examination of the provisions of the Leave Rules an d the Notification dated 19.7.1978, I am of the considered opinion that for the purpose of leave encashment benefits, there is no distinguishing factors for the employees of the two departments. Significantly both categories can claim enca shment benefits to the extent of leave credited in their accounts at the time of retirement and since it is theoretically possible for a vacation department emp loyee to accumulate leave to a maximum permissible 300 days by for-going his vac ation and accumulating the permissible 10 days earned leave, the benefit of leav e encashment for a vacation department employee cannot be restricted, in my view , to any lesser number of days, than what is granted to a non-vacation departmen t employee. 26) On the plea of financial stringency raised by the State Counsel, it is contended on behalf of the petitioners by Mr. Sarma, that the Central Gov t. has committed itself to meet the expenditures of leave encashment benefits, f or the State Govt. employees and this decision is incorporated in the O.M. dated 23.10.1999. But in response, Mr. Saikia submitted that the entire expenditure for payment of leave encashment benefits to the State Govt. employees, are borne by the State Govt. and no claim for reimbursement for this amount has so far be en made to the Central Govt. notwithstanding the O.M. dated 23.10.1999. A copy of the written instruction of 2.6.20011 containing the said instruction is also produced by the departmental counsel. 27) In the above context, while it is important to bear in mind the resources of the State, it cannot be overlooked that recommendation was made by an expert body like Anomaly Committee, for raising the limit of earned leave ben efits to 300 days to make it at par with the non-vacation department employees a nd this recommendation has been accepted by the State Govt., as can be seen from the Notification dated 19.2.2011. Therefore, it is apparent that financial st ringency has not be considered to be a relevant factor by the State Govt. for ac cepting the recommendation of the Pay Anomaly Committee. The only thing is that encashment of earned leave benefit for 300 days has been extended w.e.f. 1.1.20 11. 28) In order to answer as to whether the maximum permissible days sh ould be at par with non-vacation department employees, it would useful to examin e once again the Govt. Notification of 19.7.1978. In the said Notification, no distinction is made of employees of the vacation and non-vacation department and the benefit of cash equivalent of unutilized leave credit, was given to all cat egories of State Govt. employees. Whether the examples cited by the petitione rs, of benefits being granted to the retired ME school teachers and High Court e mployees (both vacation department employees) are on the basis of the said Govt. Notification dated 19.7.1978, is not clearly discernible. But in the absence o f any other documents which permits leave encashment benefits to the State Govt. employees (barring the Notification dated 19.7.1978), it would be fair to assum e that employees in the vacation department were also conferred similar benefits at par with their brothers in the non-vacation department and that is how the b enefits was granted to them, in the cases of vacation establishment employees, c ited by the petitioners. 29) That apart, since encashment benefits to retired employees of th e vacation department is limited to 300 days, the cash outflow from the State co ffer is not unlimited. When vacation is availed by employees of a vacation depa rtment, they shall not be entitled to any leave encashment benefit for the avail ed vacation. But that does not mean that when the earned leave at the permissib le rate of 10 days are in the credit of the retiring vacation department employe e, there is no reasonable basis for restricting the leave encashment benefits to any lesser days, than what is available to a non-vacation department employee. 30) It may also be recorded in passing that, amendments made by the Central Govt. covering similar conditions of services of leave for the Central G ovt. employees, are usually adopted and incorporated in the relevant F.R. and S. R. for the State employees and from the history of changes incorporated by the S tate Govt. from time to time, it is apparent that all major leave and retirement benefits decided for the Central Govt. employees, have also been made available subsequently for the State Govt. employees. This is reflected in the amendment s made in Rule 12 of the Leave Rules and also the Notification(s) issued by th e State Govt., increasing the limit of leave encashment benefits. Therefore, th e support for the conclusion reached in the preceding paragraphs, are also taken from the past practice of the State Govt. which made consequential amendments i n the relevant State provisions. 31) On the question of locus raised by Mr. Saikia, I find that petit ioners have given sufficient details to show that they are entitled to leave enc ashment benefits at par with others in the non-vacation department and according ly this issue is answered in their favour. 32) Before parting with the case, it must be recorded that a benefit for the Govt. employees is being considered in this case. The actions of the S tate shows that they have given the leave encashment benefits to the vacation de partment employees and through