1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND NO.241 OF 1991 Hakkanikhan s/o Hussainkahn Pathan Age: 57 yrs., occu. Retd.Govt. Servant, r/o Latur, Dist. Latur .. APPELLANT VERSUS 1) State of Maharashtra Through Collector, District Latur. 2) District Superintendent of Police, Dist.Latur. 3) The Secretary, Home Department, Govt. of Maharashtra, Mantralaya, Bombay. .. RESPONDENTS ***** Smt.Anjali Bajpai – Dube, Advocate for Appellant; Mrs.RR Mane,AGP for Respondents. CORAM : K.U.CHANDIWAL, J. DATE : 24th June, 2009. ORAL JUDGMENT : 1) Heard learned Counsel extensively. 2) In an unfortunate event, the appellant, a Head Constable, is dragged. His claim for leave encashment of 180 days has been turned down at the levels of the Government. He filed a suit 2 for recovery thereof with calculations. Learned CJSD, Latur, by order dated November 16, 1989 decreed the suit, accepting entitlement of the plaintiff to claim salary for the period of leave of 180 days as per the prevailing scale. The State took the matter in first appeal by RCA No. 61/1990 and the learned District Judge by the judgment dated August 3, 1990, did not agree to the observations of the Court of first instance and allowed the appeal of State thereby set aside the decree of recovery or entitlement. It is in this scenario, this Second Appeal. 3) The appeal is admitted on 4.10.1991 without there being formulation of any substantial question of law. The following substantial question of law is formulated. “Whether the correspondence effected by the appellant could not be treated as intention to avail benefit of leave encashment of 180 days ?” 4) There is no controversy that the plaintiff has been compulsorily retired on attaining the age of 55 years, it was the order in conformity with Rule 10(4)(B) of Maharashtra Civil Services (Pension) Rules, 1982. Though the Counsel urged the plaintiff has, at his own, several awards, however, for the purposes of orders in this appeal, this Court need not travel to those awards, as it is not open for this 3 Court. The matter has been dealt at several levels of the superiors of the plaintiff, and his claims to continue in service for three years or for encashment of leave have been negatived. 5) Before the Court of first instance, no oral evidence was adduced. It was only, based on the documents and legal point, the matter was dealt with. 6) It was canvassed that since there was a communication from the State to the plaintiff that 180 days earned leave is at his credit, since the plaintiff has not availed this facility by his reply dated 7.7.1983, the plaintiff is not entitled for the salary of unutilized 180 days of earned leave. The law prevalent at the material time is covered under Rule 66(1) and (2) of the Maharashtra Civil Services Rules, 1981, which has inhibited extension of earned leave beyond the date of compulsory retirement. In this scenario of the matter, taking recourse to the Government Circular dated 1st October, 1984 will not have retrospective effect on the case of the appellant as he has been compulsorily retired by virtue of directions dated 1st September, 1983, effective from 16.11.1983. The communication of the plaintiff dated 7.7.1983 does not indicate his intention to avail the leave facility, but it says he wanted to serve for 508 days in the leave period. Taking recourse to above facts, it cannot be said that there was entitlement for the 4 plaintiff/appellant for the encashment of leave. The amendment subsequently effected to the Rules will not have its retrospective effect to be availed by the plaintiff. Consequently, the Second Appeal sans merit, it is dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/office/sa241-91