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Judgment
Pramath Patnaik, J
In the instant writ application, the petitioner has interalia prayed for issuance of mandamus commanding upon the respondents for payment of salary
for the weekly holidays.
The brief facts as has been delineated in the writ application is that petitioner was appointed on 27.09.1973 as Chaukidar in Class-IV posts in State
Institute of Rural Development, Hehal, Ranchi. From the date of appointment, the petitioner has not been granted  the weekly holidays specially
on Sunday nor being paid any salary. In pursuance to the representation given by the petitioner to the competent authority for grant of holidays, the
petitioner was informed that as per the Government circular, there is no provision for providing gazetted leave and weekly holidays, as the duty of
Night Guard comes under the emergency duty as per ‘Annexure-2 to the writ application. In the year 1992, charges were framed against the
petitioner for taking leave and in the said charge, it was mentioned that the petitioner took weekly leave on Sunday which is a misconduct and
negligence in violation of Bihar Service Code and Conduct Rules as per charge sheet dated 07.01.1992 vide Annexure-3 to the writ application. In
pursuance to the said departmental proceeding, the petitioner was suspended. On 04.04.2008, the petitioner submitted representation (vide Annexure-
5) before the respondent no.3 for making of compensatory payment as the petitioner was denied the weekly holidays (Sunday) as well as gazetted
holidays under N.I Act since the date of his appointment w.e.f. 28.09.1973. Thereafter, the petitioner sought for information under RTI Act as to
whether Night Guard is entitled for weekly holidays or any other holidays as per Annexure-6 and 6/1 and the Establishment officer of the State
Institute of Rural Development (SIRD) informed the Public Information Officer that there is no government order/circular which prohibits weekly
holiday to Night guard including the petitioner as evident from Annexure-7 to the writ petition. It has been averred in the writ application that as per
provisions of Minimum Wages Act, employee/workman is entitled for weekly holidays and it is mandatory for the employer/authority to provide
weekly holiday.
Being aggrieved by inaction of the respondents for not granting weekly holidays as well as other gazetted holiday, the petitioner left with no other
alternative, efficacious and speedy remedy, has knocked the door of this Court under Article 226 of the Constitution of India for redressal of his
grievances.
Learned counsel for the petitioner has vehemently submitted that denial by the respondent authorities for grant of weekly holidays and other
gazetted holidays to the petitioner on tenable grounds as indicated in Annexure-2 is in the teeth of provisions of Minimum Wages Act which interalia
provide for grant of weekly holidays. Learned counsel for the petitioner further submits that the action of the respondents in refusing for grant of
weekly holidays being illegal, void and bereft of jurisdiction, smacks of arbitrary exercise of power.
Controverting the averments made in the writ application, counteraffidavit has been filed by respondent nos. 2 and 3. In the counter-affidavit, it has
been submitted that since the date of his appointment, the petitioner has availed all facilities as per the provisions of Government Service Rules. His
performance is not as satisfactory with respect to the other night guards working in the institute. Though, the petitioner was given duty for eight hours
after the office hour and was supposed to remain present in the office premises but number of times he left the premises without any prior intimation
which sometimes causes difficulty in need. The petitioner has also been allowed compensatory leave for the duty he does on holidays. It has further
been submitted that against the four sanctioned posts of Chaukidars, 3 persons used to work sincerely but the petitioner generally availed holiday
though the Chaukidars are not allowed to avail holidays as other employee do. Chaukidars duty is to take care of office campus after office hour and
also during night. Therefore, it is understood that without prior permission, the Chaukidar should not avail holidays including Sunday. Therefore,
keeping in view, the limitation of Chaukidars in availing holidays, compensatory holidays is subject to maximum 20 days which are allowed under the
provisions of resolution dated 27.09.1973 (Vide annexure-A of the counteraffidavit) issued by the State Government. It has further been submitted
that since the petitioner is a Chaukidar, he is to obtain prior approval from the concerned authority to avail gazetted holidays and Sunday. It has further
been submitted that as per the resolution issued by the Finance Department dated 27.09.1973, maximum number of compensatory leave to be allowed
is 20 days in a Calendar year. Besides above provision, the constraint on a Government servant is that leave cannot be claimed as of right as per rule
152 of Bihar Service Code, 1952. It has further been submitted that the petitioner has availed compensatory leave which would be clear by some of
applications dated 03.05.2007, 14.05.2007, 17.07.2007, 30.07.2007, 21.09.2007, 27.09.2007, 28.09.2007, 23.10.2007, 15.10.2007, 11.12.2007,
01.02.2007, 12.03.2008, 01.01.2008, 21.01.2008, 10.05.2008, 18.09.2008 as per Annexure-B series.
Another counter-affidavit dated 27.01.2010 has been filed by respondent no.2 wherein the leave chart of the petitioner has been annexed as
Annexure-A and it has been stated that so far as the nature of the work of the Chaukidar is concerned, Chaukidars are not attached to the offices but
they are Class-IV employees whose work is associated with general duties i.e. specific to their posts as per the P.W.D. Code, Rule 4 and 10 is
annexed as Annexure-B to the counter-affidavit. Further, it has been stated that Rule 239 of the Jharkhand Service Code makes a provision for
granting compensatory leave to those employees in lieu of the work done on government holidays and also Rule 248(a) of the Jharkhand Service Code
provides that the leave payment of Government employees when the employee avails following leaves i.e. Earned leave, Half Pay Leave and
Commuted Leave.
Another counter-affidavit dated 29.08.2017 has been filed by respondent nos.1 to 3 in pursuant to direction of this Court for clarification as to
whether the State Government resolution/circular as far as grant of weekly holiday (Sunday) to a Chaukidar (Night Guard) is concerned. In the
counteraffidavit, it has been submitted that the opinion sought from the Department of Personnel, Administrative Reforms and Rajbhasha, Government
of Jharkhand, Ranchi regarding the existence of any such circular and the Government of Department of Home vide letter dated 21.08.2017 has been
stated that on 07.04.2015 the Government of Jharkhand incorporated the Jharkhand Chaukidar Cadre Rules, 2015 and the said rule does not contain
any provisions pertaining to leave as such and therefore, as per Rule 16 of the Jharkhand Chaukidar Cadre Rules, 2015 it has been stated that if the
Rule 2015 is silent on certain aspect in that case the prevalent rules existing at present for the Grade-IV employees would be made applicable as per
annexure-C to the counter-affidavit. It has further been submitted that service condition of petitioner is guided by the provision of Jharkhand Service
Code, 2001 and as per rule 22 of the Jharkhand Service Code holiday means- (a) It is prescribed or notified under Section 25 of the Negotiable
Instruments Act, 1881 or notified by the High Court of Judicature at Patna under Section 15 of the Act XII of 1887. (b) In relation to any particular
office, a day on which such office is ordered by notification of the Government in the Gazette to be closed for transaction of the Government business
without reserve of qualification. Further, Rule 222(A) of the Jharkhand Service Code has been referred wherein leave includes ‘earned leave’,
‘half pay leave’, ‘commuted leave’, ‘leave not due’ and extraordinary leave.
After bestowing my anxious consideration to the pleadings of the respective parties and having heard learned counsel for the respective parties at
length, this Court is not inclined to accede to prayer of the petitioner in view of the fact that from the date of appointment, the petitioner has been paid
salary and on several occasion, during the service Career, the petitioner has been granted leave which has been evident from Counter-affidavit.
Moreover, the petitioner cannot claim for extra wages or extra salary for the work he has been given by competent authority on holidays because, it
would be apposite to refer Rule 55 of the Jharkhand Service Code:-
“Rule-55. Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government
which pays him, and he may be employed in any manner required by proper authority without claim for additional remuneration, whether the services
required of him are such as would ordinarily be remunerated from general revenues or from a local fund ( or from the funds of a body incorporated or
not, which is wholly or substantially owned or controlled by the State Government or Government of India, which operates, or would operate in
Jharkhand, even though its headquarters may be outside the State).â€
On perusal of the aforesaid provision, since the services of the petitioner was at the disposal of the Government and the nature of duties performed by
the petitioner was working for round the clock and there is also provision for compensatory leave, the petitioner would not be entitled to avail any other
extra leave, any other salary for extra duties done on holidays. 9. Resultantly, the writ petition is dismissed being devoid of any merit.
In view of the dismissal of the writ application, I.A. No.3723 of 2009 also stands dismissed.    Â