Sikkim High Court | Retired Government employee cannot be denied Leave encashment benefits unless re-employment is contractual

   

Sikkim High Court: While deciding the instant writ petition regarding leave encashment of a retired re-employed employee of the State Government, Bhaskar Raj Pradhan, J., held that the petitioner is entitled to leave encashment for the entire period he served the State Government.

This petition is preferred by the petitioner to quash the impugned Office order dated 21-05-2020 which was issued by Department of Personnel, Administrative Reforms, Training & Public Grievances, Government of Sikkim (‘DOPART’) which was not applicable to the petitioner’s case as it would not have retrospective effect. The petitioner also seeks a leave encashment as per Rule 32 read with Rule 36 of the Service (Leave) Rules, 1982 (‘Leave Rules’) for the period of 2005 to 2019 during the period of his re-employment. The petitioner further seeks that he is also entitled to leave encashment as similarly placed re-employed employees for the same period who were also given the benefit under the said provisions.

Facts:

The petitioner retired from service as a Medical Specialist on 31-01-2005. He was re-employed on 1-02-2005 as Medical Advisor-cum-Chief Consultant for short periods in various capacities until 2019. Finally, on 31-05-2019, he was relieved from his assignment as Principal Medical Advisor to the Chief Minister. The same day, DOPART allowed the petitioner to draw cash equivalent to leave salary in lieu of 300 days unutilized earned leave standing to his credit as on 31-05-2019.

Arguments:

The counsel for the respondents stated that after the formation of the new government in 2019, the same issue was raised regarding leave encashment by re- employed employees, and it was observed that the re-employed employees were erroneously given the double benefit of leave encashment of 300 days at the time of retirement and at the time of being relieved from the re-employment which was putting unnecessary financial burden on the state exchequer.

It was contended by the counsel for the respondent that the petitioner’s claim for encashment for his re-employed period under Rule 36 of the Leave Rules, 1982 is not correct as it provides for encashment of earned leave to the employees who retires from service and not for the petitioner who had already retired in the year 2005 as per Rule 98 of the Sikkim Government Service Rules, 1974, which came into force on 1-04-1981, and who has also availed the benefit of leave encashment under Rule 36 of the Leave Rules.

Rule 36 of the Leave Rule, 1982: “provides to a Government Employee who retires from the service under the Sikkim Government Service Rules, 1974, cash equivalent of leave salary in lieu of earned leave on full day standing at his/her credit on the date of his retirement subject to a minimum of 300 days. Therefore, a maximum of 300 days of earned leave due at credit also includes the period of leave earned by a Government Employee during extension of service, Re-employment etc.”

The counsel for the petitioner submitted that the petitioner was re-employed as per rules and was given all other benefits of a Government Servant. Hence, it would be erroneous to deny him leave encashment as it cannot be disputed that after his re-employment the petitioner had once again served the State Government as a Government Servant for several years until his retirement.

The counsel for the petitioner further contended that the respondent’s objection on a confined interpretation of the phrase “retires from service” in Rule 36 of the Leave Rules is in ignorance of Rule 32 which provides that it would be applicable even in case of re-employment.

Observation and Analysis:

The Court observed that none of the Office orders issued by the respondents through which the petitioner was re- employed mentioned that the period of re- employment is contractual.

The Court held that the petitioner is entitled to leave encashment as per Rule 36 read with Rule 32 of the Leave Rules for the period, on re- employment, he had served the State Government.

[Mool Raj Kotwal v. State of Sikkim, 2022 SCC OnLine Sikk 98, decided on 08-09-2022]


Advocates who appeared in this case:

For the Petitioner: Mr. Karma Thinlay Namgyal, Senior Advocate

Mr. Yashir N. Tamang, Advocate

For the Respondents: Mr. Sudesh Joshi, Additional Advocate General

Mr. Thinlay Dorjee Bhutia, Government Advocate

Mr. Yadev Sharma, Government Advocate

Mr. Sujan Sunwar, Assistant Government Advocate

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