IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 253/2001 Decided on:4.3.2008 M.R. Rana … Petitioner. Versus H.P. Government and others … Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 . no For the Petitioner: M/s. K.D. Sood and Mr. Rajnish K. Lal, Advocates.. For the Respondents: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. Rajiv Sharma, Judge. A challenge has been laid by way of the present petition to the order dated 7th September, 2000 passed by the H.P. State Administrative Tribunal in O.A. No. 1070/91. The brief facts necessary for the adjudication of this petition are that the petitioner while serving as Superintendent Grade-II, was transferred from the office of the District Welfare Officer, Mandi to the office of the District Welfare Officer, Kullu vide order dated 21st April, 1990. He submitted an application for 4 days casual leave with effect from 2.5.1990 to 5th May, 1990. A telegram for extension of the leave was sent on 6th May, 1990. As per the averments contained in the original application, he 1 Whether reporters of local papers may be allowed to see the judgment? . no - 2 - remained under treatment of Dr. O.P. Sharma, Chief Medical Officer (retired), Mandi with effect from May 1, 1990 to November 26, 1990. He submitted an application for medical leave with effect from 1st May, 1990 to 26th November, 1990 along with his joining report on 27th November, 1990. Respondent No.2 sought explanation from the petitioner on 15th December, 1990. He submitted the reply to the explanation called by respondent No.2. Respondent No.2 rejected the application for the medical leave on 21.1.1991. He preferred an appeal under rule 29 of the Central Civil Services (Leave) Rules, 1972 against the office order dated 21.1.1991. The appellate authority rejected the appeal and the same was conveyed to the petitioner on 26th June, 1991. He preferred an original application against the order dated 26th June, 1991 before the H.P. State Administrative Tribunal. The H.P. State Administrative Tribunal dismissed the original application vide impugned order dated 7th September, 2000. Mr. K.D. Sood, Advocate had strenuously argued that the order dated 7th September, 2000 is unsustainable in the eyes of law. He had also contended that the petitioner could not be denied the medical leave for 210 days as per Central Civil Services (Leave) Rules, 1972. Mr. R.M. Bisht, learned Deputy Advocate General has supported the order dated 7th September, 2000. We have heard the learned counsel for the parties and perused the record. What emerges from the facts as enumerated above is that the petitioner was transferred from the office of the District Welfare Officer, Mandi to the office of the District Welfare Officer, Kullu on 21st April, 1990. He submitted an application for leave with effect from 2nd May, 1990 to 5th May, 1990 followed by a telegram for extension of the - 3 - same. The transfer of the applicant was cancelled and thereafter he submitted joining on 27.11.1990. He along with his joining report has submitted application for the grant of leave with effect from 1.5.1990 to 26.11.1990. Respondent No.2 declined to grant the leave to the petitioner as prayed for by him. The petitioner along with application had filed three copies of medical certificate issued by Dr. O.P. Sharma, Chief Medical Officer (Retired) for the period 1st May, 1990 to 14th June, 1990, 15th June, 1990 to July, 1993 and 1st August 1991 to 26th November, 1990. These certificates were for the first time annexed with the application for leave after he had submitted his joining report. These certificates have been issued by a retired Chief Medical Officer. There are no prescription slips issued by any competent/authorised doctor. The last medical certificate makes an interesting reading. It is merely mentioned in the certificate that the petitioner is fit to resume his duties with effect from 27th November, 1990. These three medical certificates do not inspire any confidence with regard to their authenticity. We are of the considered opinion that the petitioner had feigned his illness and had been actively pursuing his case for the cancellation of his transfer. The moment, his transfer was cancelled; on the next day he joined his duties and submitted an application for grant of leave for 210 days. Respondent No.2 after taking into consideration the entire facts and circumstances of the case had rightly declined to grant the leave as prayed for. The order dated 21.1.1991 cannot be faulted with. The petitioner had no right to get the leave sanctioned merely by submitting an application on the basis of medical certificates whose authenticity was always under clouds. It is for the sanctioning authority to consider and to take into consideration in each case individually whether the leave is to be sanctioned or not. The - 4 - leave is sanctioned to an employee to mitigate the hardship. If the medical leave is to be sanctioned there has to be illness duly certified by a competent/authorised doctor. The petitioner cannot be permitted to take advantage of his own wrong by not attending his duties for the period of 210 days and submitting his application immediately on his joining for the grant of medical leave. This Court, in view of the conduct of the petitioner, will not interfere with the appellate order dated 26th June, 1991 as well. It will be apposite to reproduce rule 7 of the Central Civil Services (Leave) Rules, 1972 for appreciating the submissions made by the learned counsel for the parties. Rule 7 reads thus: “7. Right to leave (1) Leave cannot be claimed as of right. (2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.” It is evident from the phraseology employed in rule 7 of the Central Civil Services (Leave) Rules, 1972 that leave cannot be claimed as of right. A Division Bench of Punjab and Haryana High Court in P.D. Shakir versus The State of Haryana, 1968 SLR 235, has held that the leave cannot be claimed as of right. Their Lordships have held as under: “It remains to mention the allegations made in the two petitions as also in the arguments of Mr. Bali that the leave applications of the petitions submitted by them have been rejected without any just or sufficient cause. Attention is invited to clause (iii) of rule 8.116 of the Punjab Civil - 5 - Services Rules, Volume 1, according to which “leave preparatory to retirement may be allowed up to 180 days on full pay, provided it is due”. It may be assumed in favour of the petitioners that some leave was due to them. It has, however, to be borne in mind that as stated in rule 815, “leave cannot be claimed as of right. When the exigencies of the public services so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.” Again, under rule 8.19, “leave shall not be granted to a Government whom a competent authority has decided to dismiss, remove or compulsorily retire Government service.” It cannot be said on strength of these rules that the Government actuated by malice in declining to accede to the requests of the petitioners to proceed on leave preparatory to retirement. In a Full Bench decision of this Court in Mohindra Singh Pannu versus The State of Punjab 1967 P.L.R. 337, it was observed by Chief Justice Mehar Singh, speaking for the court that “there is no mala fide involve in refusal to give leave preparatory to retirement where the Government for the reason of ‘exigencies of services’ was not pleaded as n excuse to reject the applications made by the petitioners. The learned Advocate General, appearing for the State, has stated that the petitioners having taken recourse to legal action he Government may have thought it a prudent course of refuse leave preparatory to retirement. He however, undertakes on behalf of the Government that the applications of the petitioners for such leave would be reconsidered by the Government on merits even after the petitions to challenge the order of compulsory retirement have been dismissed.” Similarly, the learned Single Judge of Allahabad High Court in Shri Chandi Datt Misra versus The Cane Commissioner, U.P. Lucknow and others, 1971 SLR 735 has held that the leave cannot - 6 - be claimed as a matter of right. The learned Single Judge has held as under: “The next question arises whether the servant can claim as of right that the entire leave that is due and admissible to him should be granted to him even if it extends beyond the date of his retirement. In my opinion no Government servant can claim leave as of right even during the continuance of his service – much less to compel – the sanctioning authority to grant him leave extending beyond the date of his retirement. Fundamental Rule 67 lays down that the leave cannot be claimed as of right. Again Fundamental Rule 81 lays down that leave may be granted at the discretion of the authority competent to grant the leave. From these provisions if is clear that leave cannot be claimed by a Government servant as of right.” Though we have held that the employee has no right to get the leave, but the discretion to grant or its refusal must be exercised reasonably by the competent authority. However, in the present case, the authority had exercised its powers reasonably while declining the grant of leave. The act of Director while refusing the leave cannot be termed malicious as projected by the petitioner. The petitioner ought to have made the Director a party in person. The plea of malafide is to be raised specifically and the person against whom the malafides are alleged is to be afforded proper opportunity to meet out the allegations. The upshot of the above discussion is that we do not find any merit in the petition and the order of the H.P. Administrative Tribunal dated 7th September, 2000 is upheld. The writ petition being devoid of any merit is dismissed. There shall be no order as to costs. (Rajiv Sharma), (Deepak Gupta), March 4, 2008 Judge. Judge. *Awasthi*