Civil Writ Petition No. 8659-CAT of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Civil Writ Petition No. 8659-CAT of 2004 Date of decision: 16.01.2009 Smt. Harbir K Singh and another ........Petitioner Versus Chandigarh Administration, Chandigarh and others .......Respondents Coram: Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Ravi Verma, Advocate for the petitioners -.- Nirmaljit Kaur , J. Facts of the case, in brief, are that petitioner No. 1 (Harbir K Singh) was initially appointed as Hostel Superintendent on 07.11.1970 in Government College for Girls, Sector 11, Chandigarh and retired on attaining the age of superannuation on 28.02.1999. Similarly, petitioner No. 2 (Shanti Lawrance) was appointed as Hostel Nurse in Government Girls for College, Sector 11, Chandigarh, on 11.07.1966, and later on was appointed as Hostel Superintendent on 31.12.1992 in that college and retired on 30.09.2000 on attaining the age of superannuation. They claimed entitlement for the benefit of leave encashment for 300 days in lieu of un- utilized earned leave. It is stated that prior to 01.04.1991, the petitioners were governed by the Central Civil Services (leave) Rules, 1972 ( hereinafter to be called as the 1972 Rules), but vide notification dated 13.01.1992, the Government of India have notified the Rules, according to Civil Writ Petition No. 8659-CAT of 2004 2 which, the petitioners were to be governed as per Rules applicable to their counter parts in Punjab State with effect from 01.04.1991. The Punjab Government has decided vide letter dated 08.03.1990 that the employees of the Education Department shall be entitled to 8 days earned leave for every completed years spent on duty, and accordingly, the petitioners were entitled to get the benefit of 8 days earned leave in respect of the completed years of service, which they performed after 01.04.1991 and prior to 01.04.1991 they were entitled to the benefit of earned leave in terms of provisions of sub rule 2(b) of Rule 28 of the 1972 Rules, in respect of duties performed by them during vacations. The aforesaid rule is being extracted hereunder:- “28. Earned leave for persons serving in Vacation Departments- (1) A Government servant (other than a military officer) serving in a Vacation Department shall not be entitled to any earned leave in respect of duty performed in any year in which he avails himself of the full vacation. (2) (a) In respect of any year in which a Government servant avails himself of a portion of the vacation, he shall be entitled to earned leave in such proportion of 30 days, or 45 days, when governed by the Exception to sub rule (1) of Rule 26, as the number of days of vacation not taken bears to the full vacation. Provided that no such leave shall be admissible to a Government servant not in permanent employee or quasi permanent employee in respect of the first year of his service. (b) If, any year, the Government servant does not avail himself of any vacation, earned leave shall be admissible to him in respect of that year under Rule 26. Explanation:- For the purpose of this rule, the term 'year' shall Civil Writ Petition No. 8659-CAT of 2004 3 be construed not as meaning a calendar year in which duty is performed but as meaning twelve months of actual duty in a Vacation Department.” The grievance of the petitioners is that at the time of retirement, they were granted the benefit of leave encashment of earned days for 62 days and 72 days, respectively (which they earned after 01.04.1991 at the rate of 8 days earned leave in respect of completed years of service performed by them after 01.04.1991), but benefit of leave encashment in lieu of earned leave which was admissible to them in respect of earned leave which they earned up to 31.03.1991, in terms of provisions of Rule 28 of the 1972 Rules, for not availing vacation read with Chandigarh Administration letter dated 12.09.1969, was not granted to them. However, the claim of the petitioners was rejected by the Director Public Instructions (Colleges) in violation of the instructions/rules as per order dated 02.08.2002 on the ground that no orders by the Principal directing the petitioners to perform the duties on particular days during vacations are available in the office. Accordingly, the petitioners challenged the aforementioned order dated 02.08.2002 by filing O.A. No. 936/CH/2002 before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh. A perusal of the Rule 28 of the 1972 Rules, shows that the respondent-department in which the petitioners were working, is Education Department, which is a vacation department, and as such, they were not entitled to any earned leave in respect of the duty performed in any year, in which they enjoyed the full vacations. It is further evident from the reading of sub rule 2(b) of Rule 28 of the 1972 Rules that the earned leave shall be Civil Writ Petition No. 8659-CAT of 2004 4 admissible to such an employee only if the employee is restrained from availing the vacation. On this score, the petitioners have disputed the non- payment of leave encashment by submitting that they were not allowed to avail of the vacations during the period from 1968 to 1991. However, from the reading of the paper books, it appears that no order was placed on record to show that they were forced to work during the vacations. In fact, while dismissing the O.A., learned Tribunal has relied on the Circular letter dated 12.09.1969, issued by the Director Public Instructions, Chandigarh Administration, wherein it has been mentioned that 'The Hostel Superintendent, Nurse and Dispenser continued to be treated as Vacation Staff and in view of the difficulties encountered by the Principal concerned, they may be allowed to proceed on summer vacation only when the examinations are over.” In the absence of any clinching evidence or proof to show that the petitioners were restrained from availing their summer vacations, no earned leave can be granted to them, and it is to be presumed that they were allowed to enjoy their summer vacations. No other argument has been raised. Accordingly, the present writ petition is dismissed. No order as to costs. [Nirmaljit Kaur] Judge [Ashutosh Mohunta] Judge January 16, 2009 mohan