B.D.Dwivedi vs State Of Chhattisgarh And Ors.

The challenge in the present Writ Petition is to the Annexure-P/1 dated 06/03/2014 whereby the respondents have rejected the representation for

grant of leave encashment to the petitioner holding that the Teachers engaged in the Non-Government Private Aided Educational Institutions (In short

“the Institutionsâ€​) would not be entitled for the said benefit.

The facts of the case in brief is that, the petitioner stood retired as a 'Lecturer' from Shri Waman Rao Lakhe Higher Secondary School, Raipur. He

had superannuated from services on 30/04/2001. On his retirement, the petitioner has been paid all other retiral dues except for the leave encashment

which he has claimed in the present Writ Petition.

The petitioner on an earlier round of litigation had filed a Writ Petition i.e. WPS No.91/2014 which got disposed off with a direction to the petitioner

to file a fresh representation to the respondents and the respondent authorities were directed to decide the said representation. Subsequently, the

petitioner is said to have moved a representation which stood rejected vide the impugned order â€" Annexure-P/1 which is under challenge in the

present Writ Petition.

The contention of the counsel for the petitioner is that, the erst while State of Madhya Pradesh as early as on 25/08/1986 had issued a notification in

the name of the Governor of the State holding that the Teachers and employees working in the Aided Institutions would also be entitled for H.R.A.,

Leave Encashment and Ex-Gracia payment in the same manner as was being provided to the teaching and non-teaching staff in the Government

School. According to the counsel for the petitioner, the said circular dated 25/08/1986 has till date not been withdrawn or recalled or superseded by

any other circular of the State Government till date. Therefore he submits that the rejection of the representation of the petitioner by the respondents is

bad in law and thus he prayed for issuance of direction to the respondents for grant of leave encashment applicable upon the Government Employees

to the petitioner as well.

The respondents in their return have opposed the petition only on the ground that, they had sought an instruction from the erst while State of

Madhya Pradesh and the Additional Director, Public Instructions, Madhya Pradesh vide Annexure-R/1 dated 05/09/2011 as intimated a counter part in

the State of Chhattisgarh that, so far as the teaching and non-teaching staff in the Aided Institutions are concerned, the State of Madhya Pradesh has

been providing a en-block grant of 50% of basic pay, dearness allowance and H.R.A. and apart from this en-block grant, no other benefit is being

provided to such employees in the State of Madhya Pradesh.

According to the State counsel, the said benefit of en-block grant has been facilitated since 01/04/2000 onwards and therefore it is presumed that

the circular dated 25/08/1986 stands superseded by the subsequent circular. According to him, since the petitioner and similarly placed persons in the

State of Madhya Pradesh are being provided the en-Block grant by implication of this the circular dated 25/08/1986 stands superseded and thus the

said circular does not have any force of law in the State of Chhattisgarh and therefore the said circular cannot be invoked by the petitioner claiming

for grant of similar benefit of leave encashment in the State of Chhattisgarh.

Having heard the contentions put forth on either side and on perusal of record it would be relevant at this juncture to quote the contents of

Annexure-P/3 which is the basis of the entire claim of the petitioner. The said document â€" Ex-P/3 is a document issued in the name of the

Governor. For ready reference, the contents of the said circular is being reproduced herein under:-

 ^^jkT; 'kklu us fu.kZ; fy;k gS fd ftu v'kkldh; vu qnku izkIr f'k{k.k l aLFkkvk sa esa dk;Zjr f'k{kd deZpkfj;k sa dk s osruk sa dk Hk qxrku djus d s fy,

jkT; 'kklu d s }kjk e/;i zn s' k v'kkldh; f'k{k. k l aLFkk ¼v/;kidk sa rFkk vU; deZpkfj;k sa d s osruk sa dks lank;½ vf/kfu;e 1678 ds izko/kkuk sa ds

rgr vu qj{k . vu qnku fn;k tkrk gS] mu v/;kidk sa rFkk vU; deZpkfj;k sa dks edku fdjk;k HkRrk] vodk'k uxnhdj. k ,o a vu qx zg ¼,Dlx zsf l;k½ jkf'k

dh ik=rk Hkh Bhd mlh i zdkj l s gk sxh tSl s fd led{k Lrj ds 'kkldh; fo|ky; d s f'k{kd deZpkfj;k sa dh gk srh gSA

2 - edku fdjk;k HkRr s dk Hkqxrku 'kkldh; deZpkfj;k sa@ f'k{kdk sa ds leku o sru n s;d ds lkFk gh djuk gksxkA

3 - ,Dlx zsf l;krFkk vodk'k uxnhdj.k dk Hkqxrku izFker;k lfefr }kjk fd;k tko sxkA rr~i'pkr i zfriwfrZ Lo:I 'kklu }kjk l aLFkk dk s ns; gksxkA

4 - ;g vkns'k fnuk ad 1&7&86 l s i zHkko'khy gk sx saA * *

Thus, for all practical purposes, it has to be considered as an instructions issued by the State Government under Article 166 of the Constitution of

India.

Needless to mention that, the said circular was in force till the bifurcation of the State which took place on 01/11/2000.

Perusal of the impugned order â€" Annexure-P/1 would reveal that, there is no specific order referred to or quoted by the authorities while

rejecting the claim application of the petitioner except for taking reference of rejection of similar claim on an earlier occasion in respect of one

Radheshyam Sharma.

It is made clear that unless the statues provide or there is an order, circular or rule applicable in the State of Chhattisgarh specifically denying the

teachers and the employees of the Aided Institutions, the said benefit cannot be withheld under any circumstances.

Section 79 of the Madhya Pradesh Reorganization Act, 2000 deals with the issue of adaptation of the rules applicable in the State of Madhya

Pradesh to be applicable in the State of Chhattisgarh as well until unless by order there is a modification to the law made or the law is subsequently

repealed or amended.

The respondents in their return have only relied upon the document â€" Annexure-R/1 to substantiate their contention. However, the said

document does not disclose any reference of any order or circular by which the earlier circular of the State Government dated 25/08/1986 has been

recalled or superseded.

Unless the circular dated 25/08/1986 is expressly superseded by either the State of Madhya Pradesh or for that matter subsequently by the State

of Chhattisgarh, the said circular will definitely have a force of law which would be enforceable.

A plain reading of the contents of the circular would by itself reveal that, the contents of the circular is as emphatic as it can be. It has been in a

very categorical terms decided that the Teachers and employees working in an aided institutions would be entitled for H.R.A., leave encashment and

Ex-Gracia payment at par with their counter parts in the Government School.

In the absence of any order, circular or law by either the State of Madhya Pradesh or by the State of Chhattisgarh, it is difficult to presume that

the said circular is not in force as on date in the State of Chhattisgarh.

In view of the same, this Court has no hesitation in holding that Annexure P/1 is to be bad in law and deserve to be and is accordingly set

aside/quashed.

The petitioner would be entitled for leave encashment as was applicable to the Government Teacher or employee in a Government School.

It is directed that the respondent No.2 shall immediately process the case of the petitioner and provide him the benefit of leave encashment at par

that of a Government Teacher.

The Writ Petition accordingly stands allowed and disposed off.