IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:8698 of 1998 Between: C.Raghurama Reddy S/o Sesha Reddy R/o Nellore, Nellore District. ..... PETITIONER AND 1 The Secretary to Government, Education Department, Secretairat, Hyderabad. 2 The Commissioner of Collegiate Education,State of A.P., Nampally,Hyderabad. 3 The Regional Joint Director,Higher Education, State of A.P., Guntur ,Guntur District. 4 The Secretary and Correspondent,V.R.College, Nellore,Nellore district. .....RESPONDENTS Counsel for the Petitioner:MR. M.SURENDER RAO FOR MR.D.SETHURAMI REDDY Counsel for Respondent Nos.1 to 3:AGP FOR HIGHER EDUCATION The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare the action of the respondents in denying pensionary benefits from 01.08.1992 to 31.07.1993 and in not permitting to encash the unavailed earned leave of 165 days as illegal, arbitrary and violative of the Andhra Pradesh Education (Amendment) Act 17 of 1993. The petitioner sought for appropriate consequential directions. At the hearing, Sri M.Surender Rao, learned counsel representing Sri D.Sethurami Reddy, learned counsel for the petitioner submitted that the petitioner is not pressing the first part of the relief, namely, payment of pensionary benefits for his services rendered from 01.08.1992 to 31.07.1993. He, however, advanced his arguments on the relief pertaining to encashment of earned leave. The petitioner was appointed as tutor in Economics in respondent No.4 College. His post was subsequently converted as Assistant Librarian and later, he was promoted as Upper Division Clerk in 1961. He completed 58 years of age by 05.07.1992. He was however, continued in the post beyond the said date in view of interim order, dated 19.06.1992 passed in WPMP.No.9093 of 1992 in Writ Petition No.7355 of 1992. The State Government issued ordinance No.2 of 1993, which was published in the A.P. Gazette on 13.07.1993 wherein it had prescribed that every teacher or member of the non-teaching staff employed in any private aided educational institution, not belonging to the last grade of service, shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years and in case of those who continued in service beyond 58 years of age, they shall retire on the afternoon of the last day of the month of commencement of the said ordinance. In view of the said ordinance, the petitioner retired from service on the after noon of 31.07.1993 on attaining the age of 59 years. In the second part of the prayer, as noted, the petitioner is seeking encashment of accumulated earned leave. As the respondents have not permitted encashment of the same, he claimed the said relief in this writ petition. This issue is squarely covered by order, dated 02.12.2008 of this Court in Writ Petition No.9955 of 1998, wherein an identical issue was considered and this Court held as under: “Along with the Writ Petition, the petitioners filed various Government Orders issued from time to time. By G.O.Ms.No.208, Finance & Planning (FW FR.I) Department, dated 16.03.1975, the Government, inter alia, provided that the Government Servants shall be allowed to encash earned leave/privilege leave at their credit on the date of superannuation subject to a maximum of 120 days by the authority competent to sanction pension. By G.O.Ms.No.415, Finance & Planning (Fin.Wing FR-I) Department, dated 30.11.1977, the period of 120 days was enhanced to 180 days for the purpose of encashment of earned leave. The petitioners placed reliance on proceedings, dated 29.11.1983 of the Director of Higher Education, Andhra Pradesh, Hyderabad, wherein he directed that G.O.Ms.No.232, Education Department, dated 17.08.1983, which governed the revised surrender leave of the Government Servants, shall be extended to the teaching and non-teaching staff of aided colleges. The petitioners also relied on proceedings dated 25.06.1985 of the Government of Andhra Pradesh, wherein it is provided that all the benefits/concessions extended to the teaching and non-teaching staff of aided colleges, from time to time, shall also apply mutatis mutandis to the teaching and non-teaching staff of the Aided Oriental Colleges and Colleges of Education. At the hearing, learned counsel for the petitioners relied on the judgment of the Supreme Court in State of Rajasthan and another v. Senior Higher Secondary School, Lachhmangarh and others – (2005) 10 SCC 346 – wherein the Supreme Court, having considered the definitions of ‘salary’ and scales of “pay and allowances of employees” in Sections 2(r) and 29 respectively of the Rajasthan Non-Government Educational Institutions Act, 1989, held that leave encashment is part of ‘salary’ as defined in Section 2(r) and covered in the wider expression “scales of pay and allowances” in Section 29. The Supreme Court further held that the teachers working in aided educational institutions are entitled to parity in the matter of leave encashment with teachers in the Government Educational Institutions. On an analysis of the material and the judgment of the Supreme Court referred to above, I am of the view that there is no justification for the respondents to deny petitioner No.1 the facility of leave encashment as, undisputedly, petitioner No.1 was holding an aided post in respondent No.1-College. None of the respondents have (sic – has) filed any counter-affidavit to persuade this Court to deny the said relief to petitioner No.1.” In the instant case, though a counter-affidavit is filed by the respondents, I am of the view that the reasoning contained in the order reproduced above applies in all fours to this case. Accordingly, the writ petition is allowed to the extent of encashment of earned leave accumulated to the credit of the petitioner up to his completing 58 years of age and the same shall be allowed to be encashed. The amount found to be due to the petitioner shall be paid within a period of three (3) months from the date of receipt of a copy of this order. C.V.NAGARJUNA REDDY, J 15th DECEMBER, 2008. kvni