Satinath Das & Ors vs State Of W.B. & Ors

Affidavit of service filed be taken on record.

The writ petitioners are all retired employees of the Ramkrishna Mission Ashram, Narendrapur, South 24 Parganas.

By an order dated 01.09.2008, the Deputy Secretary, Govt. of W.B. wrote to the Director, Public Instructions, Govt. of W.B. that the Governor of West Bengal has accorded approval to the proposal of the State Government for extending of benefit of leave encashment at the time of retirement and or superannuation at par with non-teaching of Non-Government Colleges, to the employees of the three units of the said Ramkrishna Mission Ashram, Narendrapur, South 24 Parganas.

The three units are the Central Office, the Assembly Hall-cum-Auditorium and Commercial Institutes.

Thereafter, one Guru Prasad Pal, a retired employee of Ramkrishna Mission Agricultural Training Centre applied before this court by W.P. 2764(W)/2012 for being granted leave encashment which was allowed by an order dated 03.06.2014 passed by a Coordinate Bench of this court.

Soon thereafter, 10 other retired employees also filed W.P. 9144(W)/2015 whereby a similar prayer for leave encashment upon retirement was made. The said writ petition was disposed of by order dated 16.07.2018 by directing the Director of Agriculture to consider the case of the writ petitioners for such benefit.

A further writ petition being W.P. 19253(W)/2015 was filed by 25 other retired employees of the said Ramkrishna Mission Ashram, Narendrapur was disposed of by an order dated 13.08.2015 directing the Director of Agriculture, Govt. of W.B. to consider the prayer of such petitioners for leave encashment.

On failure of the said Director of Agriculture, Govt. of W.B. to comply with the directions of the Coordinate Bench of this court in the writ petitions mentioned hereinabove, an application for contempt was taken out being CPAN 2067/2015.

In the said contempt application, the O.S.D., Ex Officio, the Director of Agriculture, Govt. of W.B. filed an affidavit dated 06.04.2016 in which it was stated that the said Department of Agriculture, Govt. of W.B. had decided to allow encashment of leave salary to the said 35 persons.

It was further averred in the said affidavit affirmed on 06.04.2016, that the Department of Agriculture, Govt. of W.B. is taking steps to move the Finance Department, Govt. of W.B. for release of funds for the leave encashment benefit to be granted to those aforesaid 35 retired employees.

In a further writ petition being W.P. 8820(W)/2016 that was disposed of on 26.07.2016 filed by these 35 persons for failure on the part of the State to make payment as undertaken in the affidavit dated 06.04.2016 (supra). It is transpired that such benefit was granted to the said 35 persons.

When the petitioner herein filed the writ application being W.P. 27122(W)/2017 upon being denying the leave encashment, despite being similarly situated as the aforesaid 35 persons by an order dated 07.12.2017, a Coordinate Bench of this court directed the Principal Secretary, Govt. of W.B. to hear out and decide a representation to be made by the petitioners for grant of leave encashment.

Such representation was duly made by the petitioners that were received by the Finance Department, Govt. of W.B. on 10.01.2018.

In reply thereto and in compliance of the orders of Coordinate Bench of this court dated 07.12.2017 (supra), the Additional Chief Secretary, Finance Department, Govt. of W.B. has passed the impugned order dated 11.06.2018 denying such benefit.

In the said impugned order, the Finance Department, Govt. of W.B. reiterated the stand in a letter of the Joint Secretary, Govt. of W.B. dated 21.04.2010 that leave encashment cannot be granted to Sponsored Agricultural Training Institutes until suitable service rules are framed to provide for leave holidays, attendance and leave hours etc. at par with Government Controlled Agricultural Training Centres.

The learned Senior Counsel for the State reiterates the said position that the leave encashment to the petitioners cannot be granted in the absence of any service rules being framed in this regard.

This court has noted rival contentions of the parties.

The entitlement of leave encashment has already been decided sanctioned by the Governor of the State as already stated hereinabove, in the letter dated 01.09.2008 passed by the Deputy Secretary, Govt. of W.B. to the Director of Public Instruction of the State.

Thereafter, the Finance Department, Govt. of W.B. by affidavit of dated 06.04.2016, has specifically averred before this court that such leave encashment would be granted to 35 retired employees of the said Ramkrishna Mission Ashram, Narendrapur in an affidavit filed before this court and payment was made.

The refusal by the Finance Department, Govt. of W.B. in the impugned order is therefore a clear case of discrimination and wrongful denial by the Finance Department, Govt. of W.B. and an attempt to resile from an undertaking given to this court, albeit in respect of 35 other similarly placed employees.

The Finance Department, Govt. of W.B. against their own conduct and after refusing to challenge the orders passed by a Single Benches of this court (supra) cannot deny the same benefit to the writ petitioners.

Mr. Tapan Kr. Mukherjee, learned Senior Counsel for the State would rely upon a judgment of the Hon'ble Supreme Court in the case of State of Odisha vs. Mamata Mohanty reported in 2011 (3) SCC 436, particularly, paragraph 56 and 57 thereof.

In the said decision, the Hon'ble Supreme Court was explaining the principle of negative equality that any benefit being claimed under Article 14 seeking parity with a benefit granted improperly to persons both from Administrative and judicial orders cannot be allowed. The principle of negative equality as enunciated by the Hon'ble Supreme Court to the effect that an illegal benefit obtained by any person cannot create any corresponding right to others under Article 14 of the Constitution of India.

I am of the view that the said decision has no manner of application in the facts of the case. It cannot be said by any stretch of imagination that the benefit granted to the 35 persons was in any way illegal or wrong.

The Governor of the State has already accorded approval for allowing leave encashment to the employees of the three units of the Ramkrishna Mission Ashram, Narendrapur.

The Govt. of W.B., particularly, Department of Agriculture as also the Finance Department, Govt. of W.B. allowed such benefit to the earlier mentioned 35 persons as undertaken by way of affidavit before this court.

In such circumstances, the claim of the petitioner inter alia based on the similar benefit granted to the said 35 persons cannot be rejected or be categorized as a claim based on negative equality.

There is another vital aspect of the matter. Right from the year 2010 the State Government has been contemplating framing of rules, particularly, leave rules for the employees of the Ramkrishna Mission Ashram, Narendrapur. It is completely un-understood as to why despite a lapse of 9 years, no rules could be framed by the State. The State thus cannot take advantage of its own wrong.

The rules proposed to be framed under which the leave encashment to be allowed to the employees of Ramkrishna Ashram, cannot be any different from those in the employees of the State Government.

At the risk of repetition, the Governor himself has ordered leave encashment to the retired/superannuated employees of the Ramkrishna Mission Ashram, Narendrapur similar to the benefit granted to the State Government employees.

The absence of rules in this regard being taken as a defense is therefore a lame excuse by the Finance Department to cover up their failure in framing such Leave rules, for the benefit of the Agricultural Training Centre at the Ramkrishna Mission Ashram, Narendrapur.

For the reasons stated hereinabove, I am of the view that the impugned order is liable to be quashed and/or set aside.

The Finance Department, Govt. of W.B. shall within a period of 15 days from date of receipt of the copy of this order transmit to the Department of Agriculture, Govt. of W.B. the funds towards the leave encashment of the four writ petitioners within 15 days from the date of communication of a copy of this order.

Upon receipt of such funds, the Director of Agriculture, Govt. of W.B. shall as expeditiously as possible but not later than a period of 45 days thereafter disburse such leave encashment benefit to the writ petitioners as aforesaid.

It is made clear that the quashing of the impugned order shall not prevent the State Government from framing rules thereunder in this regard as observed by the Joint Secretary, Govt. of W.B. in the letter dated 21.04.2010.

Till such time the rules are not framed, the Govt. of W.B. shall follow applicable rules in this regard for State Government employees as was already been followed in the case of the aforesaid 35 persons.

With the above observations, the instant writ application stands allowed and disposed of.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.