M.S Liberhan, J. (Oral):— The only controversy in this appeal is whethier the appellant is entitled to leave encashment benefits at the time of his seeking voluntary retirement in terms of instructions dated 21.4.1979, Exhibit P. 5.
2. The trial Court found that constitutional validity of instructions P. 7 dated 13.7.1978 and P. 5 dated 21.4.1979 cannot be gone into by Civil Courts and admittedly under these instructions the plaintiff was not entitled to any benefit.
3. The lower Appellate Court held that the validity or vires of the rules has not been challenged by the plaintiff, he derived no benefits under the instructions as the department had specifically stated in the instructions dated 21.4.1979 P. 5 that persons who had retired prior to 1.1.1979 would not be entitled to any leave encashment. The appeal was, therefore, dismissed.
4. Learned counsel for the appellant cited O.P Vijh Retd. Executive Engineer v. The State of Haryana, 1988 (1) SLR 741 in which an Hon'ble Judge of this Court had quashed the instructions dated 21.4.1979, Exhibit P. 5 to the extent they were not made applicable to those Government servants who were compulsory retied by the Government.
5. Learned counsel for the respondent has no quarrel with the laid proposition. He contends that still the date i.e 1.1.1979 prior to which the prescribed benefit could not be given have to be adhered to. The plaintiff having retired prior to the said date was not entitled to any benefit under the instructions. Counsel for the appellant contends that according to instructions dated 13.2.1978 Exhibit P. 7 the plaintiff-appellant is entitled to the benefit as the clause restricting the benefit of leave encashment to those employees who have retired on superannuation and excluding those who sought voluntary retirement has been held to be ultra vires. He further relies upon Amar Singh, Superintendent (Retired) Printing and Stationery Department, Punjab at Chandigarh v. The Chief Secretary to Government Punjab, 1986 (1) SLR 686, wherein a similar clause in the instructions issued by the Punjab Government was held to be ultra vires the Constitution. Following the said judgment this Court in Civil Writ Petition No. 6259 of 1987 (Ved Parkash Bansal v. The State of Haryana through the Secretary, Finance Department, Haryana, Chandigarh) decided on December 1, 1987 found on the concession given by the counsel for the State of Haryana that the instructions dated 13.2.1978 Exhibit P. 7 to the effect that only those employees who retired on attaining the age of 58 years shall be entitled to the benefit were found to be ultra vires.
6. No distinction in the said judgment has been pointed out. The argument raised by the counsel for the appellant is squarely covered by the precedents cited above and the contention raised by the respondents has no force.
7. In view of the above observations, the finding returned by the lower appellate Court to the effect that the plaintiff shall not be entitled to the benefit of leave encashment due to him at the time of his retirement are set aside and the suit of the plaintiff is decreed to the extent that he shall be entitled to encash the leave due at the time of his seeking voluntary retirement.
8. In view of the peculiar circumstances of this case, there is no order for awarding of interest as well as the costs.
9. Appeal allowed.