IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.547 of 2008 Date of decision : May 19, 2011 Shekhar Semwal …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. K.S. Thakur, Advocate. For the Respondents : Mr. R.P. Singh, Assistant Advocate General. Surjit Singh, Judge(Oral) Petitioner is aggrieved by order dated 14th September, 2007, copy Annexure-A6A of Director, Ayurveda, whereby he has been sanctioned, ex-post- facto, leave without pay (without break in service), for 18 days, from 14th July, 2007 to 31st July, 2007, and also by the action of his Drawing and Disbursing Officer, who, on the basis of order Annexure-A6A, has recovered the salary, already paid, for the aforesaid period of 18 days. 2. Petitioner had been deputed for some training at HIPA, Fair Lawns Shimla, from 9th July, 2007 to 13th July, 2007. He was to have availed journey day on 14th July, 2007. 15th July, 2007 was a Sunday. He was supposed to have joined duty on 16th July, 2007, after attending the Whether reporters of the local papers may be allowed to see the judgment? …2… training. However, joining time, on account of some earlier transfer, was due to him. He informed District Ayurvedic Officer, Nahan, that from 16th onwards, he would be availing the joining time due to him, on account of his earlier transfer. After availing joining time, petitioner fell sick. He informed the aforesaid Ayurvedic Officer and also submitted medical certificate. Finally, he joined duty on 1st August, 2007. He submitted medical certificate, showing that he remained sick from 23rd July, 2007 to 31st July, 2007. Also, he submitted medical fitness certificate. The certificates were issued by a Medical Officer of Regional Hospital, Nahan. He applied for leave from 23rd July, 2007 to 31st July, 2007 (for nine days). However, Director Ayurveda turned down the request of the petitioner for medical leave or earned leave, based on medical grounds and also did not take into account the fact that the petitioner had availed joining time. He sanctioned leave from 14th July, 2007 to 31st July, 2007 (18 days), without pay. On account of leave having been sanctioned, without pay, salary already paid for the period from 14th July, 2007 to 31st July, 2007, was recovered. 3. In the reply, it is stated that the petitioner had not been sanctioned medical leave, as applied for by him, because the medical certificate had not been issued by the Chief Medical Officer and also the certificate was …3… doubtful, because it was issued on 2nd August, 2007, though the petitioner was certified to be fit to resume duty, with effect from 1st August, 2007. 4. I have heard the learned counsel for the petitioner as also learned Assistant Advocate General and gone through the record. 5. As a matter of fact, without verifying from the Medical Officer of Regional Hospital, Nahan, who had issued the medical certificate, Director Ayurveda should not have treated the certificate to be doubtful, simply for the reason that the date of the certificate is 2nd August, 2007. What I find from the certificate, photocopy Annexure-III, is that initially the date, on which the petitioner was declared to be fit to join his duty, was also written as 2nd August, 2007, but then it was changed to 1st August, 2007, by overwriting. This gives the impression that when issuing the certificate, on 1st August, 2007, the concerned Medical Officer mistook the date to be 2nd August, 2007. He made the change in the body of the certificate, by overwriting date “02/8/07” as “01/8/07”, but probably forgot to change the date of issue of certificate. This observation may not be correct and, therefore, verification was required to be done by Director Ayurveda, before treating the entire period of absence of the petitioner as leave without pay. …4… 6. In fact, term “leave without pay” does not figure in the Leave Rules. When leave is not due to a Government servant, he may be sanctioned Extra- ordinary Leave. This Extra-ordinary Leave can be sanctioned, even when some leave is due to a Government servant, if such Government servant prays for grant of Extra-ordinary Leave, which is, of course, without pay. 7. Learned counsel for the petitioner submits that the petitioner would be satisfied in case the writ petition is disposed of, with a direction that the petitioner may be sanctioned leave of the kind due, from 14th July, 2007 to 31st July, 2007 and his joining period, which he availed during this period, is credited to his leave account and a further direction is given to the respondents that recovery of pay already made from the petitioner be refunded to him, in case it is found that sufficient leave was there in his earned leave account. 8. Accordingly, writ petition is disposed of with a direction to the Director Ayurveda, respondent No.2 herein, that in case the petitioner applies for earned leave from 14th July, 2007 to 31st July, 2007, within one month from today, and the leave is due to him, then he will be sanctioned earned leave, in place of leave without pay, and the pay, for the period from 14th July, 2007 to 31st July, 2007, already recovered, shall be refunded to him. …5… In case sufficient earned leave is not due to cover the entire period, then earned leave for that much of period, for which such leave is due, shall be sanctioned and for the remaining period Extra-ordinary Leave will be sanctioned and in that situation refund of recovery shall be partial, depending upon the period for which earned leave is sanctioned. The said respondent is further directed to credit into the leave account of the petitioner the joining period, which he sought to avail from 16th July, 2007 to 22nd July, 2007. Copy dasti. May 19, 2011(sd) ( Surjit Singh ), J