By Adv. R. S. Agrawal 

 

IN THE judgement of the case – Pramod Prabhakarrao Deshmukh v. State of Maharashtra and Others delivered on April 28, 2023, Justice Rohit B. Deo and Justice Vrushali V. Joshi, at the Nagpur Bench of the Bombay High Court, have held that the petitioner and other similarly situated non-teaching employees of Aided Social Work colleges are entitled to the benefit of leave encashment in view of Rule 39 of the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Codes (Terms and Conditions of Service of Non-Teaching Employees) Rules, 1984 (Rules of 1984). According to the HC, it was surprised that the State Government was labouring under an impression that a non-teaching employee whose service conditions are governed by the Rules of 1984 shall not be entitled to claim the benefit of Rule 39 of the said Rules unless the State Government extends the benefit by issuing direction.

On this aspect, the HC has pointed out that the benefit conferred by the statutory provision is not dependent on issuance of any direction by the State Government. Nothing was brought to the notice of the Court, as would impel it to consider the stand of the State Government seriously. Indeed, the HC has stated that it has noted the stand of the State Government. and submission advanced consistent therewith and it rejected the said ingenious submission with no hesitation and reservation. The benefit of leave encashment is conferred by the Rules of 1984. The submission by the State Government that the judgment of the High Court is restricted to relief of pension and gratuity and excludes leave encashment, is clearly misconceived. The HC considered the grievance raised, which was that the employees of the Aided Social Work Colleges were not extended the benefit of pension and gratuity. The HC had no occasion to consider a grievance which was not raised, and which indeed did not exist. The right to receive leave encashment benefit flows from Rule 39 of the Rules of 1984, and the petitioners before the HC had no reason or occasion to invite the HC to make any observation as regards leave encashment which right stood crystallised by the statutory service conditions.

The submission canvassed on behalf of the State Government that in view of the exclusion of leave encashment from the Government Resolution of October 29, 2014, the petitioner is not entitled to relief is founded on a pathetic misconception of law. The GR of October 29, 2014 was issued in view of the directions of the HC. The fact that the said GR makes no reference to leave encashment benefit is irrelevant. The GR was issued to ensure the implementation of the directions of the HC which are restricted to the grievance of pension and gratuity, and exclusion of the reference to leave encashment in the GR must be understood in that context. The HC has suggested to the State Government that pleas, even argumentative pleas, in the affidavit in response submitted in the HC or any other Court, may be vetted and approved by the competent legal minds. Such suggestion, unpleasant as the task is, is necessary in view of the stand of the State Government that the employees are not entitled to the benefit of Rule 39 of the Rules of 1984 unless such benefit is extended by the State Govt. by issuing directions. It is slightly disconcerting that such contention is raised by the State Government which is expected to be conscious of the fundamental principle of law that the benefit conferred by statutory provisions cannot be diluted much less obliterated by issuing administrative directions or even in exercise of executive power under Article 162 of the Constitution of India. The HC has noted that there is nothing in the Parent Act or in the Rules of 1984 which make the effect and implementation of Rule 39 conditional upon or subject to the exercise of administrative power by the State Government.

In the Court’s considered view, while the reference to irrelevant GR or Pension Rules may perhaps reflect adversely on the author of the communication, such reference is of no significance in the context of the issue involved. The HC has stated that it has no hesitation in holding that the petitioner and the similarly situated employees are entitled to the benefit leave encashment in view of Rule 39 of the Rules of 1984. The Court has pointed out that while the petitioner’s counsel Prakash D Meghe was justified in placing reliance on the decision of the case – State of Punjab v. Rafiq Masih –(2015) 4 SCC 334 to buttress the submission that recovery of leave encashment benefit paid is impermissible, if not illegal, it has already held that the petitioner is entitled to the benefit of leave encashment, and therefore, de hors the principle enunciated in Rafiq Masih decision, this petition will have to be allowed. Through this petition, the petitioner had challenged the order passed by the respondent-Asst Commissioner of Social Welfare on March 17, 2022, whereby, amount of Rs 5,20,140/- paid to the petitioner towards leave encashment, was directed to be recovered on the premise that the petitioner was not entitled to be paid benefit of leave encashment.

The petitioner was appointed as Asst Librarian at respondent-VYWS ‘College of Social Welfare at Badnera (Amravati), on October 1, 1982 and was superannuated on December 31, 2016. The High Court has quashed and set aside the impugned order of March 17, 2022 (February 10, 2022) issued by the respondent – Asst Commissioner, Social Welfare, Amravati. Further the High Court has directed the respondents to determine the amount of leave encashment based upon fixation of pay of petitioner on the basis of 7th Pay Commission recommendations and to release entire amount of gratuity and leave encashment to the petitioner. The High Court has also directed the respondents to release all other benefits based upon fixation of his pay as per the 7 th Pay Commission to the petitioner, Pramod P Deshmukh, the retired Librarian.