1. Heard Smt. Fasiha Fatma, learned counsel for the petitioner.
2. The petitioner has sought the following reliefs:
i) a writ, order or direction in the nature of certiorari to quash the impugned order dated 10-8-99 and 30-9-1999 (Annexure Nos. 14 & 18) respectively to this writ petition.
ii) a writ, order or direction in the nature of mandamus commanding the respondent authorities to grant/sanction leave without pay to the petitioner.
iii) to issue a suitable writ, direction or order or a writ in nature of mandamus commanding the School Authorities, the respondent Nos. 2, 3 and 4 to permit the petitioner to resume duties as Head Clerk in the Respondent's College.
iv) to issue a suitable writ, direction or order or a writ in nature of mandamus commanding the Respondents to pay the petitioner his full salary from the date he had applied for the recall of the leave application and had submitted a joining report praying that he be permitted to discharge duties as Head Clerk to the date of his being permitted to resume duties in case this Hon'ble Court passes such an order by granting the relief No. (iii).
v) to issue a writ in the nature of mandamus or any other writ, direction or order commanding the College Authorities to bring up the records of the case and command not to enforce its order dated 12-12-2002, (Annex-ure-SA-3) and quash the same.
vi) any other writ order or direction as this Hon'ble Court may deem fit and just in the facts and circumstances of the case.
vii) to award cost throughout.”
3. The order dated Annexure-14 to the writ petition is a letter dated 10-8-1999 of the Manager of Committee of Management of Hamidiya Girls Degree College, Allahabad (hereinafter referred to as the “College”) communicating, to, the petitioner that he is absent from duty since 4-4-1998 and has not submitted any leave application or medical certificate requesting for leave for the period of absence. It is further said that the application dated 1-9-1998 requesting for grant of leave without pay up to 30-6-1999 on the ground of personal reasons has already been rejected by the Manager and communicated vide letter dated 4-9-1998, therefore, the application dated 30-7-1999 seeking leave without pay from 1-7-1999 to 3-4-2003 is being rejected. Annexure-18 is Manager's letter dated 30-9-1999 in reply to the petitioner's letter dated 29-9-1999 stating that the petitioner's leave application has already been rejected but he has misconception of assuming that his leave has been granted. Besides, Annexure-SA-3 is Manager's letter dated 12-12-2002 which has been sent in reference to petitioner's letter dated 25-11-2002 whereby he requested to join the College but the Management declined to permit the same after such a long absence on the ground that so long as the Writ Petitions Nos. 12251 of 1998 and 49970 of 1999 are pending no joining can be permitted.
4. The facts stated in the writ petition, in brief, are that by application dated 21-3-1998, Annexure-1 to the writ petition, the petitioner requested the Manager to grant him leave from 17-3-1998 to 21-3-1998 on medical ground with the undertaking that he will submit medical certificate at the time of joining. Vide letter dated 30-3-1998 he sought further leave up to 3-4-1998 on medical ground. On 06.04.1998 the Principal of the College sent a letter to the petitioner stating that he is on medical leave and in the meantime the audit for the year 1997–98 has been done since the audit team has come but all cash books, cheque books, fee books etc. were in the possession of petitioner hence, he should handover all the documents for the purpose of audit. On the said letter the petitioner wrote on 17-4-1998 that he is applying for leave up to 18-4-1998 and may also seek extension thereof, hence had handed over all the required documents to Sri Vakeel Ahmad Siddiqui. Vide letter dated 18-4-1998 the petitioner informed the Principal that he has handed over the key of his Almirah to Sri Vakil Ahmad Siddiqui, Routine Clerk and a list of all the documents lying in the Almirah may be got prepared. On 25-5-1998 the Principal of the College sent letter informing the petitioner that he was absent on medical ground till 3-4-1998 but thereafter neither he has joined nor sent any leave application which is unauthorised and, therefore, he should inform the reasons of his absence. The petitioner vide letter dated 13-8-1998 informed the Principal that due to the sad demise of his father, he has got highly upset and, therefore, not in a position to join the duty in near future, therefore, requested to grant leave without pay up to 30-6-1999 on personal ground. The Principal vide letter dated 27-8-1998 informed the petitioner that leave without pay cannot be sanctioned by the Principal but by the Management/Manager and, therefore, he may sent his application to the competent authority. Consequently, the petitioner sent a letter dated 1-9-1998 addressed to the Manager requesting him to grant leave without pay on personal ground up to 30-6-1999. Another application to the same effect sent by the petitioner on 30-7-1999 which was rejected by the Manager vide impugned order dated 10-8-1999. The petitioner further give a detailed representation dated Nil filed as Annexure-16 to the writ petition, which has been replied and rejected by the Manager vide letter dated 30-9-1999 (Annexure-18 to the writ petition) whereagainst the present writ petition was filed.
5. During the pendency of the matter the petitioner got his writ petition amended since it appears that he was served with a charge sheet on account of his unauthorised absence and was also not paid salary, therefore, seeking a writ of mandamus commanding him to join pursuant to his application for joining submitted on 12-12-2002 the writ petition was amended adding reliefs Nos. (iii), (iv) and (v). A counter affidavit has been filed on behalf of respondent Nos. 1 to 4 giving details of two other writ petitions filed by the petitioner i.e Writ Petition Nos. 35060 of 1992 and 12251 of 1998. It appears that in 1998 the petitioner's promotion to the post of Head Clerk/Office Superintendent Grade-II was sought to be cancelled on the ground that he had obtained promotion on the fabricated documents whereagainst he filed Writ Petition No. 12251 of 1998 and thereafter he was not attending his duties, after receiving order dated 28-2-1998 whereby the Director of Education cancelled approval to the petitioner's promotion on the post of Office Superintendent/Head Clerk/Head Clerk-cum-Accountant.
6. It is said that Statute 37.01 of the First Statute of Allahabad University, 1977 (hereinafter referred to as the “Statute”) provides that the leave rules as applicable to Government servants from time to time shall mutatis mutandis apply to the non-teaching staff of the affiliated and associated Colleges of Allahabad University. The extraordinary leave are governed by Rule 81-B(5) of the U.P Fundamental Rules (hereinafter referred to as the “F.R”) providing that the same may be granted in accordance with the provisions of F.R 85 read with F.R 80. F.R 85 provides that extraordinary leave may be granted in special circumstances when no other leave by Rule is admissible or when other leave is admissible but the Government servant concerned applies in writing for grant of extraordinary leave. Such leave is not debited against the leave account and no leave salary is admissible during said leave. It is said that the leave cannot be claimed as a matter of right and relying on F.R 73 it is said that non joining of service after end of leave will result in denial of salary to the employee concerned and further wilful absence from duty after the expiry of leave may be treated as mis-behaviour for the purpose of F.R 15.
7. Learned counsel for the petitioner vehemently contended that the scheme of the leave rules clearly show that except of compelling circumstances, extraordinary leave i.e leave without pay cannot be denied. The petitioner was entitled for grant of extraordinary leave besides the leave which he had sought on medical ground and the respondents in refusing to grant such leave has erred in law and, therefore, the impugned orders are liable to be set aside.
8. I have heard learned counsel for the petitioner at great length and perused the record.
9. From the averments contained in the writ petition it is thus clear that from 17-3-1998 the petitioner absented himself from the College. From the record it is evident that from 17-3-1998 to 21-3-1998 and thereafter up to 3-4-1998 two applications, Annexures-1 & 2 were submitted by the petitioner seeking leave from 17-3-1998 to 3-4-1998 on medical ground. From the letter of the Principal of the College, Annexure-9 to the writ petition, as well as the Manager's letter dated 10-8-1999, Annexure-14 to the writ petition, it does appear that the College authorities have treated the petitioner's absence from 17-3-1998 to 3-4-1998 as “medical leave” and the said period has been regularised as such. Therefore, there is no dispute about the said period whatsoever.
10. The dispute is in respect to the period commencing from 4-4-1998 and onwards at least till 12-12-2002 when the petitioner claims to have submitted his joining and thereafter. It does appear that for leave commencing from 4-4-1998 and onwards no application has been submitted by the petitioner inasmuch as on the Principal's letter dated 6-4-1998 he made the following endorsement.
“Since, I am applying for leave upto 18th April (may be extended further). Therefore, handing over all the required documents to Mr. Vakeel Ahmad Siddiqui in compliance to above order. (List of documents is being prepared).”
11. The words “I am applying for leave up to 18th April, (may be extended further)” show that till the date of making the afore said endorsement i.e 7-4-1998 no further leave application was submitted by the petitioner. In these circumstances, the Principal of the College had no option but to sent letter dated 25-5-1998,’ Annexure-9 to the writ petition, informing the petitioner that he is unauthorisedly absent after completion of his leave on medical ground up to 3-4-1998 and had not joined service even after expiry of the aforesaid period. It is only thereafter that on 13-8-1998 the petitioner appears to have submitted application seeking leave without pay up to 30-6-1999 on personal ground. That letter was addressed to the Principal of the College but on information of the Principal to petitioner that the leave without pay can be sanctioned by Manager/Management, the application was submitted by the petitioner on 01-9-1998 to the Manager seeking leave without pay up to 30-6-1999 on the ground of personal affairs. Another application was submitted by the petitioner on. 30-7-1999 seeking leave without pay from 1-7-1999 to 3-4-2003 which has been rejected by Manager of the College vide order dated 10-8-1999. The question is whether the petitioner was entitled as a matter of right “leave without pay” under the Rules.
12. Statute 37.01 of the Statutes provides for leave and reads as under:
“37.01 The leave rules applicable to the Government servants from time to time shall mutatis mutandis apply to the employees of like status.”
13. Statute 24.01 provides that for Class-III post, the appointing authority is “Management of the College” and for Class-IV post it is the “Principal”. The power to take disciplinary action has been conferred upon the appointing authority vide statute 24.02 Statute 37.02 provides that the Principal shall be the authority to sanction all kinds of leave for Class-IV employees and casual leave to other employees. In respect to the employees other than Class-IV and seeking leave other than casual, Statute 37.03 provides that the leave application shall be forwarded to the Management by the Principal along with his comments and the Manager of the College shall be the authority to sanction the same. Statutes 37.02 and 37.03 are reproduced as under:
“37.02 The Principal shall be the authority to sanction all kinds of leave to class IV employees and casual leave to other employees,”
“37.03 Application of an employee other than class IV for leave (other than casual leave) shall be forwarded by the Principal with his recommendation to the Manager of the College who shall be the authority to sanction the same.”
14. Statute 37.04 provides for communication of the leave sanction record to the Regional Deputy Director of Education or the authority or the person authorised by him competent to disburse salary of the employees.
15. The Government servants in the matter of leave are governed by Chapter X, Vol. II, Parts II to IV of the Financial Handbook, i.e U.P Fundamental Rules. Before proceeding further it would be necessary to understand the concept of leave. It is not that an employee who is appointed on a particular date, on the next very date may proceed on leave but the leave has to be earned by the employee concerned in accordance with the Rules.
16. F.R 59 provides that a leave is earned by a Government servant and the conditions whereunder the same can be earned, are as under:
“59. Except as provided in Fundamental Rules 83 and 83-A, leave is earned by a Government servant under Sections I to V of this Chapter if he holds a lien on a permanent post or would hold a lien on such a post had his lien not been suspended.
Exception— Government servants who hold quasi-permanent posts in the settlement Department in a substantive capacity shall earn leave under Sections I to V of this Chapter.”
17. F.R 60 further provides that the leave is earned by duty only. Meaning thereby it is not a mere incident of appointment but the actual duty by the employee concerned which would cause him earning of leave and not otherwise. F.R 60 reads as under:
“60. Leave is earned by duty only. For the purpose of this rule a period spent in foreign service counts as duty if contribution towards leave salary is paid on account of such period.”
18. Thereafter the kind of leave which may be granted to a Government servant are pro vide in F.R 66 and reads as under:
“66. Except as expressly mentioned otherwise, leave, other than special disability leave and leave extending beyond the date of compulsory retirement, may be granted by such authorities subordinate to the Government as the Governor may by rules or orders, specify.”
19. F.R 67 provides that leave cannot be claimed as of right and in the exigencies of service, the discretion to refuse or revoke leave is reserved to the authority competent to grant the same. F.R 67 reads as under:
“67. Leave cannot be claimed as of right, when the exigencies of the Public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.”
20. A Government servant when can be permitted to join duty after availing medical leave, the procedure is provided vide F.R 71 which reads as under:
“71. No Government servant who has been granted leave on Medical Certificate may return to duty without first producing a medical certificate of fitness in such form as the Governor may be rule or order prescribe. The Government may require a similar certificate in the case of any Government servant who has been granted leave for reasons of health, even though such leave was not actually granted on a medical certificate.”
21. F.R 73 deals with exigencies where the Government servant has not joined service after end of leave and reads as under:
“73. A Government servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of Rule 15.
Note.-In the case of a Government servant governed by leave rules laid down in Fundamental Rule 81-B and Subsidiary Rule 157-A, who remains absent after the end of his leave, the period of such over stayal of leave should, unless their leave is extended by the competent authority, be treated as follows:
(a) if the Government servant is in superior service and holds a lien on a permanent post.-
(i) as leave on private affairs to the extent such leave is due, unless the overstayal is supported by a medical certificate;
(ii) as leave on medical certificate to the extent such leave is due, if the overstayal is supported by the medical certificate;
(iii) as extraordinary leave to the extent the period of leave on private affairs and/or on
medical certificate falls short of the period of overstayal;
(b) if the Government servant is in superior service without a lien on a permanent post or in inferior service, as in (a) (ii) and (iii) above mutatis mutandis.
The period of overstayal of leave will be debited as leave taken out no leave salary will be paid for such period unless it is covered by an extension of leave granted by the competent authority.”
22. F.R 81 provides that the leave may be granted at the discretion of the authority competent to grant the same and reads as under:
“81. Leave may be granted at the discretion of the authority competent to grant the leave, subject to the following restrictions in respect of Government servants for whom a leave account is maintained:
(a) The maximum amount of leave which may be granted expressed in terms of leave on average pay is—
(i) one-eleventh of the period spent on duty; on in the case of a Government servant recruited before January 1, 1922, who his formerly been subject to the leave rules in the Civil Service Regulations, the period of privilege leave which was permissible to grant to him under those rules on the date on which he ceases to be subject to them, plus one-eleventh of the period spent on duty subsequent to the date; plus
(ii) two and half years:
Provided that special disability leave on half average pay or on average pay under Rule 83(7) (a) shall not be take into account in calculating the maximum prescribed by this clause, and in the case of such leave taken on average pay, under Rule 83(7)(b), account shall be taken of only half the period thereof.
(b) The maximum amount of leave on average pay including any furlough on average salary taken under rules in force prior to January 1, 1922, but excluding special disability leave on average pay under Rule 87(7)(a) which may be granted is—
(i) four months at any one time; and
(ii) in all, one-eleventh of the period spent on duty; or in the case of a Government servant recruited before January 1, 1922, who has formerly been subject to the leave rules in the Civil Service Regulations, the period of privilege which was permissible to grant to him under those rules on the date on which he ceased to be subject to them, plus one-eleventh of the period spent on duty subsequent to that date:
Provided that in the case of a Government servant, who either takes leave on medical certificate other than leave preparatory to retirement or spends his leave elsewhere than in India, Pakistan, Ceylon, Nepal, Burma or Adan, the maximum leave on average pay which may be granted to him is eight months at any one time if he was recruited before January 1, 1931, and six months at any one time if he was recruited on or after January 1, 1931, and before January 1, 1936, and, in all, the total period mentioned in Clause (b) (ii) above, plus one year or six months according as he was recruited before; January 1, 1931, or on or after that date but before January 1, 1936.
(c) Save in the case of leave preparatory to retirement, leave not due may be granted subject to the following conditions:
(i) on medical certificate, without limit of amount; and
(ii) otherwise that on medical certificate, for not more than three months at any one time and six months in all, reckoned in terms of leave on average pay.
Note.—In case where a Government servant who has being granted leave not due under this clause applies for permission to retire voluntarily the leave not due shall, if the permission be granted, be cancelled and his retirement shall have effect from the date on which such leave commenced.
(d) The maximum period of continuous absence from duty on leave granted otherwise than on medical certificate is twenty-eight months. This period shall in no circumstances be exceeded by a Government servant who is on leave preparatory to retirement.
(e) When a Government servant returns from leave which was not due and which was debited against his leave account, no leave will become due to him until the expiration of a fresh period spent on duty sufficient to earn a credit of leave equal to the period of leave which he took before it was due.”
23. F.R 81-B(2) and (3) deals with leave on medical certificate and leave on private affairs and reads as under:
“(2) Leave on medical certificate.—(i) A Government servant to whom these rules apply may be granted leave on medical certificate not exceeding twelve months in all during his entire service. Such leave shall be given only on production of a certificate from such medical authority as the Governor may by general or special order specify in his behalf and for a period not exceeding that recommended by such medical authority:
Provided that when the maximum period of twelve months is exhausted further leave on medical certificate not exceeding six months in all during entire service may be granted in exceptional cases on the recommendation of a medical board;
Provided further that in all cases in which Government servants' may have before the date of application of these rules to them availed of leave on medical certificate under Fundamental Rule 81-B and Subsidiary Rules 157 or 157-A, as the case may be, the period of such leave availed of, under Fundamental Rule 81-B and Subsidiary Rule 157-A, as the case may be, and half the period of such leave availed of under Subsidiary Rule 157, shall be taken into account in calculating the leave due to them under this rule.
(ii) Under this rule leave up to sixty days may be granted by the competent authority on recommendation of the authorised medical authority. Leave exceeding this period may not be granted unless the competent authority is satisfied that there is a reasonable probability that the Government servant will be fit to return to duty on the expiry of the leave applied for.
(3) Leave on private affairs.—A Government servant to whom these rules apply may also be granted leave on private affairs not exceeding three hundred and sixty-five days in all during his entire service.
(i) He shall be entitled to thirty-one days leave on private affairs in every calendar year.
The following procedure shall be deemed to have come into force with effect for 1st July, 1979; in regard to calculation of leave on private affairs in respect of Government servants serving in the State.
(ii) Leave on private affairs shall be credited in advance, in the leave account of every Government servant in two half-yearly instalments in each calendar year.
Sixteen days' leave on private affairs shall be credited on the first day of January and fifteen days' leave on private affairs on the first day of July of every calendar year.
(iii) When the total of leave on private affairs amounts to three hundred and sixty-five-days, a Government servant shall cease to earn such leave.
(iv) The leave on private affairs at the credit of a Government servant at the close of the previous half year shall be carried forward to the next half year, subject to the condition that the leave so carried forward plus the credit for the half year do not exceed a maximum limit of three hundred and sixty-five days.
(v) In the case of a Government servant appointed on or after July 1, 1979, the leave on private affairs shall be credited at the rate of 2½ (two and half) days for each completed calendar month of service which he is likely to render in a half year of the calendar year in which he is appointed.
(vi) The credit of leave on private affairs under Clauses (i) and (ii) above shall be reduced by one-tenth of the period of extraordinary leave availed of during the previous half year subject to a maximum of fifteen days.
(vii) In the case of a Government servant who creased to be a Government servant due to retirement, resignation, death or any other reason in a particular half year, the leave on private affairs shall be credited to his leave account at the rate of 2½ (two and a half) days for each completed calendar month up to the date he ceases to be a Government servant. In such cases the deduction on account of extraordinary leave availed of from the beginning of that particular half year up to the date he ceases to be a Government servant, shall be made from leave on private affairs credited to his leave account for that particular half year. If the leave on private affairs already availed of is more than the credit so due to him necessary adjustment shall be made in respect of leave salary, if any, overdrawn. Therefore, before any payment of leave salary and/or pay is made to the government servant concerned in respect of that month in which he ceases to be a Government servant, it shall be duly ensured by the competent authority that the leave on private affairs in excess of the credit so due to him has not been sanctioned and overpayment of leave salary has not been made;
(viii) While affording credit of leave on private affairs factions of a days shall be rounded off to the nearest day;
(ix) A Government servant on leave on the last day of a half year shall be entitled to avail of the leave on private affairs to be credited to his” leave account on the first day of the following half year of the calendar year, subject to the condition that the competent authority has reason to believe that the Government servant shall return to duty on its expiry;
(x) The leave accounts of Government servants in respect of leave on private affairs as they existed before the commencement of these rules shall be closed and leave on private affairs at their credit on June 30, 1979 shall be carried forward to their new leave account to be maintained in Form 11-E enclosed to these rules;
(xi) Every order sanctioning leave on private affairs, issued by the competent authority in respect of Government servants subordinate to him shall indicate the balance of leave on private affairs at the credit of the Government servant concerned at that time;
(xii) The maximum period of leave on private affairs that may be granted to a Government servant at a time shall be ninety days if spent in India. Leave on private affairs may be granted to him exceeding a period of ninety days but not exceeding one hundred and eighty days if the entire leave so granted or any portion thereof is spent outside India but the period of such leave spent in India shall not in the aggregate exceed the limit of ninety days;
(xiii) No leave may be granted under this sub-rule unless the authority competent to sanction leave has reason to believe that the Government servant will return to duty on its expiry or unless it is included in leave preparatory to retirement;
(xiv) In all cases in which Government servants may have, before the commencement of these rules, availed of leave on private affairs under Fundamental Rule 81-B and Subsidiary Rule 157-A, the period of leave so availed of shall be taken into account in arriving at the amount of leave on private affairs admissible under this sub-rule. For this purpose, the Government servant shall be deemed to have earned the leave on private affairs, not three hundred and sixty-five days, under the provision of these rules, from the date of their continuous service, whether in a temporary or a permanent capacity. If leave in excess of three hundred and sixty-five days has been taken by a Government servant before the application of this sub-rule in his case, the minus balance shall be waived and no further leave shall be earned by him. In other cases where a Government servant has availed of leave in excess of the leave admissible on the date but not exceeding the list of three hundred and sixty-five days, it shall be adjusted against the leave on private affairs that will be earned by him subsequently.”
24. The provision pertaining to leave on medical certificate has been substituted vide notification dated 19-8-1996 published in U.R Gazette dated 26-10-1996 and in respect to leave on private affairs, vide notification dated 21-12-1992 published in U.R Gazette dated 5-3-1994.
25. F.R 81-B(5) provides for extraordinary leave and reads as under:
“(5) Extraordinary leave.:— A Government servant to whom these rules apply may be granted extraordinary leave in accordance with the provisions of Fundamental Rule 85, read with Fundamental Rule 18.”
26. F.R 85 thereafter deals with the extraordinary leave and reads as under:
“85. (a) Extraordinary leave may be granted in special circumstances (1) when no other leave is by rule admissible, or (2) when, other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave salary is admissible during such leave.
(b) The authority which has the power to sanction leave may grant extraordinary leave as in Clause (a) in combination with, or in continuation of, any leave that is admissible and may commute retrospectively period of absence without leave into extraordinary leave.”
27. The petitioner in the case in hand applied for leave without pay on account of personal affairs from 4-4-1998 to 30-6-1999 and thereafter from 1-7-1999 to 3-4-2003. F.R 81-B(2) says that the maximum leave on account of personal affairs could be granted for a period of 360 days in the entire service though the period for which the petitioner has sought such leave was much beyond. The extraordinary leave, if any, under F.R 85 could be granted in special circumstances or when the concerned employee specifically seeks grant of such extraordinary leave and not otherwise. It is not the case of the petitioner that he applied for extraordinary leave by making any such application.
28. Learned counsel for the petitioner could not show as to how and under which provision he was entitled for such a long leave and the competent authority in rejecting the petitioner's application for leave without pay on personal affairs has faulted. Since the petitioner's application seeking leave without pay on personal affairs was not in conformity with the above mentioned rules, I do not find any error in the order of the competent authority in rejecting petitioner's leave application.
29. Even otherwise there is nothing on record to show that the petitioner was entitled even for 360 days of leave on account of private affairs. I, therefore, do not find any merit in this writ petition. However, this order shall not deprive the petitioner from submitting an appropriate application under the relevant provision for seeking appropriate leave and if any such application is made, the competent authority shall consider the same in accordance with law and pass appropriate order.
30. With the above observation the writ petition being devoid of merit is dismissed. Interim order, if any, stands vacated. No order as to costs.
31. Petition dismissed.
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