1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> Tulcha Ram Vs. The State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO.1064/2001. Date of Order :: 16th January 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. G.R. Goyal, for the petitioner. Mr. Rameshwar Dave, Additional Government Counsel, for the respondents. ..... BY THE COURT: By way of this writ petition, the petitioner, having been compulsorily retired from government service, has questioned denial of cash payment in lieu of unutilised privilege leave standing to his credit. The facts of the case are not much in dispute. The petitioner, while working on the post of Patwari, came to be compulsorily retired under the order dated 09.08.2000 (Annex.1) issued under Rule 53(1) of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’). At the time of retirement, the petitioner had 290 days' privilege leave standing to his credit, as certified by the Tehsildar (Land Records), Sadulshahar on 02.02.2001 (Annex.3). The petitioner has stated his grievance that though he requested for encashment of 2 unutilised privilege leave and sent a notice through his lawyer but when the respondent No.3, the Tehsildar, Sadulshahar sought guidance, the respondent No.2, the Collector, Sriganganagar stated in his communication dated 19.01.2001 (Annex.5) that the employees compulsorily retired under Rule 53 (1) of the Rules of 1996 were not entitled for encashment of the privilege leave standing to their credit. Challenging the proposition aforesaid, the petitioner has contended in this writ petition that retirement under Rule 53(1) is not penal in character and does not carry any element of punishment; that there is no distinction between the employees who seek voluntary retirement under Rule 50 (1) and those who are compulsorily retired under Rule 53(1) of the Rules of 1996 so far encashment of privilege leave under Rule 93-B(1) of the Rajasthan Service Rules ('the RSR') is concerned; and if any distinction is sought to be brought about, the same would remain invalid for discrimination. It is also contended that the case of the petitioner is squarely covered by the ratio of the decision of this Court in Deen Dayal Khuntenta Vs. State of Rajasthan & Anr.: 1995 (1) RLR 50. The respondents, while not disputing on the basic facts, contend that having been compulsorily removed from service, the petitioner is not entitled for encashment of unutilised privilege leave as is available in the case of voluntary retirement. The stand taken by the respondents in denying leave encashment to the petitioner even after the law declared by this 3 Court in Deen Dayal Khunteta's case (supra) cannot be said to be justified. In Deen Dayal Khunteta's case, the Division Bench of this Court has specifically dealt with the then operative provisions of Rule 244(1) [voluntary retirement] and Rule 244(2) [compulsory retirement] of RSR vis-a-vis Rule 91-B of the RSR and has held that even the person compulsorily retired from service is entitled to the benefits under Rule 91-B of RSR, of payment in lieu of unutilised privilege leave, that are given to the employees who seek voluntary retirement. The Hon'ble Division Bench has observed and held,- “14. The only distinction between sub-rules (1) & (2) of Rule 244 is that the one relates to voluntary retirement and the other compulsory retirement, but the result in both the cases is the same. The employee ceases to be in Government service. Applying the guiding principles of Article 14, in the instant case, we find no justification to see the existence of two different classes of such employees. There is hardly any intelligible differentia which distinguishes one from the other. Moreover, there is no rational to the object for which the rule has been framed. 15. If Rule 91-B provides for cash payment in lieu of unutilised privilege leave due on the date of retirement to the employee covered under Rule 244 (1) then why should it be denied to those employees who retired under sub-rule (2) of Rule 244 of Rules. The object of providing cash payment of unutilised leave is that the Government servant who retires from service may have some cash in his hand to arrange his affairs after retirement. The learned Advocate General appearing on behalf of the State has not been able to justify the denial of this previlege to the petitioner and creation of a separate class under sub-rule (2) of Rule 244. 16. After hearing the learned counsel for the parties and giving our anxious thought over the 4 matter, we are of the view that the petitioner, though, was compulsorily retired under Rule 244 (2), is also entitled to the benefits contained under Rule 91-B giving benefit to the employees who sought voluntary retirement under Rule 244 (1) of the Rules.” (underlining supplied for emphasis) It may be pointed out that Rule 91-B was inserted to RSR by the notification dated 22.02.1983. In its original form, the said Rule provided for leave encashment to the employees covered under the then operative Rule 244(1) of RSR dealing with voluntary retirement; and, as noticed above, the Hon'ble Division Bench in Deen Dayal Khunteta's case held that even the persons compulsorily retired under Rule 244(2) of RSR are entitled to such benefits contained under Rule 91-B of RSR. With the law declared in no uncertain terms by the Division Bench of this Court, Rule 91- B(1) was required to be read as providing for cash payment in lieu of unutilised privilege leave for an employee retiring from service, be it by way of superannuation, or voluntary retirement, or compulsory retirement. It appears that with coming into force of the Rules of 1996 from 01.10.1996, the said Rule 244 of RSR became inoperative by virtue of Rule 168 of the Rules of 1996 for the reason that the aspect dealt with by the said Rule 244 of RSR came to be dealt with by Rules 50 & 53 of the Rules of 1996. It further appears that bringing forth an amendment to Rule 91-B(1) under the notification dated 29.12.1997, the expression referring to Rule 244 (1) of RSR was substituted by the expression 5 referring to Rule 50 of the Rules of 1996; and then, by another amendment under the notification dated 20.08.2001 such expression has further been changed, now referring to Rule 50 and 53 of the Rules of 1996. Thus, Rule 91-B(1) in its present form provides for grant of leave encashment, inter alia, to the persons retiring under Rule 50 and so also under Rule 53 of the Rules of 1996; and reads as under:- “(1) A Government servant on retirement from service on superannuation, invalid compensation pension or retirement pension under rule 50 and 53 of Rajasthan Civil Services (Pension) Rules, 1996 shall be paid cash equivalent to leave salary in respect of the period of unutilised privilege leave not exceeding 300 days at his/her credit at the time of retirement. Note:- The benefit under this sub-rule shall not be admissible to the Government servants retired compulsorily as a measure of penalty under the Rajasthan Civil Services (CC & A) Rules, 1958.'' However, the decision in Deen Dayal Khunteta's case was rendered by the Division Bench of this Court on 09.02.1995 and thus was available even at the time of promulgation of the Rules of 1996 and bringing about amendment to Rule 91-B on 29.12.1997. Yet, the Rule making authority had, for inexplicable reasons, chosen to ignore the ratio of Deen Dayal Khunteta and even while amending, did not bring Rule 91-B in conformity with the ratio of Deen Dayal Khunteta; and such correction was made only by way of later amendment under the notification dated 20.08.2001. The litigation of the present nature was obviously an avoidable litigation if the principles of the decision in Deen Dayal 6 Khunteta were kept in view by the authorities concerned. It appears that while issuing the communication dated 19.01.2001, the Collector (Land Records), Sriganganagar was aware of the decision rendered by this Court on the issue but in a cryptic and rather questionable manner, made a comment that the decision would be applicable only to the particular person who had taken up such matter. A principle of law when was declared by this Court in no uncertain terms, the Collector was not justified in suggesting the same as applicable only to the petitioner who took up the said litigation and thereby forcing the similarly situated persons like the present petitioner to take resort to an avoidable litigation. In the face of the law declared by the Division Bench of this Court, there is not an iota of doubt that when he was compulsorily retired from service, and such compulsory retirement was not of penalty, there was no reason wherefor the petitioner could have been denied the benefit of leave encashment under Rule 91-B of the RSR. It makes no difference that the provisions of Rule 91-B (1) of RSR were suitably amended only by the notification dated 20.08.2001 to provide for leave encashment in explicit terms to the persons compulsorily retired under Rule 53 of the Rules of 1996 because, as noticed above, on the principles enunciated by this Court in Deen Dayal Khunteta's case, such leave encashment was nevertheless available for the petitioner who was compulsorily retired under Rule 53(1). The present petition 7 deserves to be allowed with costs; and the petitioner having been unnecessarily deprived of his legitimate dues deserves to be allowed interest on the amount payable towards leave encashment. Accordingly, this petition succeeds and is allowed; the denial of leave encashment to the petitioner is held illegal and unjustified; and the respondents are directed to make cash payment to the petitioner towards leave encashment in terms of Rule 91-B of RSR within a period of 30 days from today together with interest @ 6% per annum from the date of of filing of this petition, i.e., 14.03.2001. The petitioner shall also be entitled to the costs of this petition quantified at Rs.2,200/-. (DINESH MAHESHWARI), J. Mohan/