O.P Vijh, Retd. Executive Engineer v. The State Of Haryana And Others

D.V Sehgal, J.:— The petitioner joined service as a Junior Engineer in the erstwhile State of Punjab on 25.3.1949 On reorganisation of the State on 1.11.1966 he was finally allocated to the State of Haryana. He was promoted and confirmed as Assistant Engineer with effect from the said date vide Haryana Government Gazette Notification dated 21.2.1973 Later, he was promoted to the post of Executive Engineer. He was due to retire from service on attaining the age of 58 years on 30.11.85 However, the State Government, respondent No. 1, vide notice dated 27.2.1985 Annexure P. 2 invoking the provisions of the note below rule 5.32-A(c) of the Punjab Civil Services Rules Volume II read with rule 3.26(d) of the Punjab Civil Services Rules Volume I, Part I, as applicable to the employees of the State of Haryana, ordered retirement of the petitioner from service with immediate effect on payment of three months salary and allowances in lieu of notice as required by rule 5.32- A(c) ibid.

2. The grievance made by the petitioner herein is that a Government servant is entitled to grant of cash payment in lieu of unutilised earned leave at his credit at the time of his retirement upto a maximum of 180 days. This benefit, however, has been denied to the petitioner on his retirement from service. He contends that cash payment in lieu of unutilised earned leave has been ordered to be paid to the Government servants who retire from the service of respondent No. 1 vide order dated 13.2.1978 Annexure P. 3, as clarified through the subsequent instructions dated 21.8.1978 Annexure P. 4. He further submits that cash payment in lieu of unutilised earned leave has been allowed by respondent No. 1 to the Government servants seeking voluntary premature retirement vide its order dated 21.4.1979 Annexure P. 5, but the Government servants who are compulsorily retired prematurely from service by the Government have been disentitled from receiving this benefit. He contends that the order Annexure P. 5 to this extent is discriminatory and violative of Article 14 of the Constitution.

3. He is entitled to this benefit and he made an application dated 15.3.1985 Annexure P. 6 for the grant of the same to respondent No. 3 and pressed his claim through subsequent letters dated 28.3.1985 (Annexure P. 7), 30.4.1985 (Annexure P. 8) and 3.7.1985 (Annexure P. 9).

4. The petition has been contested by the respondents by filing written statement. It has been averred therein that since the petitioner was prematurely retired from service because of his unsatisfactory service record and as his integrity was doubtful he is not entitled to the cash payment in lieu of the unutilised earned leave at his credit.

5. I have heard the learned counsel for the parties. The learned counsel for the petitioner has relied on a recent judgment of this Court in Amar Singh Superintendent (retired) Printing and Stationery Department, Punjab at Chandigarh v. The Chief Secretary to Government, Punjab, 1986 (1) SLR 686. He contends that the order of his premature retirement Annexure P. 2 does not cast any stigma on the petitioner. The orders were not passed by way of punishment and have no penal consequences. It is beyond dispute that the petitioner is entitled to all pensionary and retirement benefits such as pension and gratuity on his retirement in pursuance of the order Annexure P. 2. Further vide letter Annexufe P. 5 it has been clarified that the Government servants seeking voluntary premature retirement are also entitled to cash payment in lieu of unutilised earned leave on the date of their retirement. The rules provide for two modes of premature retirement. On given conditions the appointing authority can by issuing three months’ notice or by giving three months’ salary in lieu thereof can retire a Government servant. Likewise, a Government servant can by serving such a notice or depositing salary in lieu thereof secure voluntary retirement. Therefore, for grant of pensionary and other retirement benefits, including cash payment in lieu of unutilised earned leave on the date of retirement no reasonable classification can be made between Government servants who are prematurely or compulsorily retired from service and the Government servants who retire either on reaching the age of Superannuation or by seeking voluntary retirement by serving notice on the Government. Therefore, the part of the order dated 21.4.1979 Annexure P. 5 containing the following passage is discriminatory and violative of the rule of equality before law and is, therefore, ultra vires Article 14 of the Constitution.

“These orders shall not, however, be applicable to those Government servants who are compulsorily retired prematurely by the Government.”

6. Consequently, I allow this writ petition, quash the afore quoted passage from the order dated 21.4.1979 Annexure P. 5 and direct the respondents to make to the petitioner cash payment in lieu of unutilised earned leave at his credit subject to a maximum of 180 days along with interest at the rate of 12% per annum which has accrued due with effect from the date of retirement of the petitioner within three months from today. The petitioner shall also be entitled to costs of this writ petition, which are assessed at Rs. 500/-.

7. Petition allowed.