IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 12489 of 2008 Judgment reserved on: 5.4.2011 Date of decision: 7.4.2011 Kamaljeet Kaur …Petitioner. Versus State of H.P. and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. J.P.Upadhya, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh, Judge The petitioner has prayed for quashing of order dated 24.11.2004 and to declare that the petitioner is entitled to 175 days medical /commuted leave and 15 days earned leave for the period 1.3.2004 to 6.9.2004 instead of 180 days earned leave and 10 days commuted leave granted to her vide order dated 24.11.2004. Further a direction has been sought against the respondents granting cash equivalent to leave salary for balance earned leave at the credit of the petitioner on the date of her retirement. 2. The brief facts of the case are that the petitioner served Medical Department under respondents from 4.6.1979 to 31.12.2004 when she retired on attaining the age of superannuation. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 petitioner at the time of retirement was holding the post of Female Health Supervisor/Lady Health Supervisor. At the time of retirement, the petitioner had 311 days earned leave, 350 days medical/half pay leave to her credit. 3. The petitioner on account of her ill health remained on leave w.e.f. 1.3.2004 to 6.9.2004 for a period of 190 days. She applied for 190 days medical/commuted leave. The petitioner was entitled to 175 days medical/commuted leave on full pay against 350 days half pay leave. It has been stated that in such contingency twice the amount of medical leave/commuted leave should have been debited in the leave account of the petitioner so as to make it necessary for the concerned authority to pass sanction order on full pay, only the left out period of 15 days was required to be treated as earned leave to be debited against total of 311 days, leaving balance of 296 days earned leave in her leave account being unutilized period. 4. The petitioner was on medical/commuted leave and was entitled to encashment of earned leave in her credit. The petitioner is entitled to 175 days medical/commuted leave and 15 days earned leave and leave salary equal to the pay. The petitioner had made representation dated 9.12.2004 regarding her grievance but without any result. 5. The petition has been contested by respondents by filing reply. It has been stated that after her joining at Mahakal on 8.9.2004, the petitioner submitted her leave application on medical ground on 20.9.2004 accompanied by four enclosures for sanction of commuted leave w.e.f.1.3.2004 to 6.9.2004. The claim of the 3 petitioner was contradictory, on one hand the petitioner was on duty on 1.3.2004 and on the other hand she applied for leave w.e.f. 1.3.2004 on medical ground by showing her departure on 28.2.2004 (A.N.). On 1.3.2004 the petitioner was on duty and she had marked her attendance on 1.3.2004 in the Attendance Register of Sub Centre Ustehar (Kangra), she had also received her salary for the month of February, 2004 on 1.3.2004. 6. The petitioner had been shown to be on medical leave from 1.3.2004 to 15.3.2004 vide certificate issued by Dr. Sunil Dutt Sharma, Hospital Palan (Bundi), Rajasthan. The petitioner cannot be at Mahakal on 1.3.2004 and at Palan (Bundi) Rajasthan on 1.3.2004 to take treatment. 7. The petitioner is shown to have been taking treatment in Rajasthan from 1.3.2004 to 1.6.2004, but on 14.3.2004 she filed OA (M) No. 114 of 2004 in the erstwhile Tribunal. In OA (M) No. 114 of 2004, the petitioner has stated that she had collected the copy of office order dated 11.2.2004 from the office of Chief Medical Officer, Dharamshala personally on 5.3.2004. 8. It has been stated that for the purpose of getting leave on medical grounds, proper medical certificate on Form 4 is required to be furnished by an employee. The enclosures filed with the leave application were not on the prescribed form 4 of CCS (Leave) Rules, 1972 (for short Rules), rather these enclosures were prescriptions. The certificates produced by the petitioner did not cover the complete period of her absence from 31.3.2004 to 3.4.2004. In the reply, the respondents have tried to highlight other discrepancies in the documents submitted by the petitioner. 4 9. It has been stated that the Chief Medical Officer, Dharamshala has rightly sanctioned the leave in favour of the petitioner vide office order dated 24.11.2004. After the sanction of the leave of the petitioner, she had 150 days of unutilized earned leave for encashment which shall be sanctioned and amount paid to petitioner strictly in accordance with the admissibility. The petitioner from 1.3.2004 afternoon remained absent till she was deployed to work in the Primary Health Centre, Mahakal vide order dated 4.9.2004. It has been stated that lenient view has been taken in view of retirement of petitioner which was due on 31.12.2004 and her joining on 8.9.2004. 10. I have heard the learned counsel for the parties. On behalf of the petitioner Rules 7, 30, 39 and 40 have been relied. It has been submitted that the petitioner had applied the medical leave w.e.f. 1.3.2004 to 6.9.2004 for 190 days. The respondents could not alter the kind of leave. The competent authority could either allow the leave or reject the leave application, but the competent authority could not sanction 180 days earned leave and 10 days commuted leave vide office order dated 24.11.2004. The sanction of 180 days earned leave has caused pecuniary loss to the petitioner. The petitioner was entitled to 175 days commuted leave and at the most 15 days earned leave could have been granted. 11. The learned Additional Advocate General has submitted that the leave application of the petitioner was not complete. The documents annexed with the leave application were not on Form-4 prescribed in the rules. The documents were contradictory; the petitioner was shown at two places as per the documents annexed 5 with the leave application whereas it was not physically possible for the petitioner to be at two places in Himachal Pradesh and Rajasthan keeping in view the distance between the two places. The petitioner was nearing retirement, she had also joined on 8.9.2004, therefore, instead of treating the petitioner absent from duty, she was granted 180 days earned leave and 10 days commuted leave. After sanction of the leave vide office order dated 24.11.2004 the petitioner still had 150 days of unutilized earned leave. 12. The Rule 7 provides as follows:- “(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.” The respondents have taken the stand that the application of the petitioner for medical leave was not proper, the documents enclosed with the application were not as per Form No.4 of the rules, therefore, instead of treating the petitioner absent from duty, her application was considered and the competent authority granted her 180 days earned leave and 10 days commuted leave. This was done keeping in view the fact that the petitioner was nearing retirement and rejection of her application would have consequences of treating her absent from duty. Assuming the application for grant of medical leave by the petitioner was not in accordance with the rules and Form No.4, but still the question is whether respondent No.3 was competent to alter the kind of leave 6 applied in the teeth of Rule 7 which categorically provides that it shall not be open to the competent authority to alter the kind of leave due and applied for except at the written request of the government servant. The respondents have not put forward the case that the petitioner in writing applied for changing her leave from medical leave to earned leave. 13. The respondent No.3 was not competent to alter the kind of leave of his own without a written request from the petitioner. In case respondent No.3 was satisfied that the medical leave application of the petitioner was not in accordance with rules, he could have rejected the application inasmuch as Rule 7 also provides that leave cannot be claimed as of right. The respondent No.3 never asked the petitioner to submit the documents enclosed with leave application as per form No.4 of the rules. The respondent No.3 did not reject the leave application of the petitioner, rather after entertaining the application he altered the kind of the leave applied by the petitioner without authority of law. 14. According to petitioner, she had 311 days earned leave and 350 days medical/half pay leave to her credit. As per Rule 39 (2) (C ) the Government servant is entitled to granting cash equivalent of leave salary for both earned leave and half pay leave, if any, at the credit of the Government servant on the day of his/her retirement subject to a maximum of 300 days. In view of sanctioning of 180 days earned leave vide office order dated 24.11.2004, the petitioner has lost 180 days of earned leave which she could have encashed at the time of retirement. The petitioner had 350 days medical leave/half pay leave to her credit, therefore, 7 from this leave, she could get medical leave. Thus, seen from any angle, the office order dated 24.11.2004 is not sustainable. 15. In view of the above, the petition is allowed, office order dated 24.11.2004 is quashed. The respondent No.3 is directed to consider the medical leave application of the petitioner in the light of observations made above and take a decision on the leave application of petitioner within a period of two months from the date of supply of a copy of this judgment by the petitioner, thereafter the respondents shall pay leave encashment amount, if any, to the petitioner within a further period of two months. ( Kuldip Singh ), April 7, 2011 Judge. (GR)