1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1837 of 2014 Sriniwash Sharma, son of Late Madheshwar Sharma, resident of villagePokhwan, POPandaul, PSShakurabad, District Jahanabad, Bihar ... ... Petitioner Versus 1. The State of Jharkhand 2. Secretary, Drinking Water and Sanitation Department, Government of Jharkhand, Nepal House, PO&PSDoranda, DistrictRanchi 3. Executive Engineer, Drinking Water and Sanitation Department, Mechanical Division, Dhanbad 4. District Provident Fund Officer, Combined Building, PO,PS&DistrictDhanbad ... ... Respondents ----------------- CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Ashok Kumar Yadav, Advocate For the Respondents : Mr. Rajesh Kumar, G.P. V ------------------ 05/22.08.2017 Multiple prayers have been made in this writ petition. Some of the prayers are; payment of GPF amount with interest, quashing payfixation letter dated 22.01.2011, payment of incremental house rent etc. However, during the course of argument the learned counsel for the petitioner addressed the Court only on the issue of grant of extraordinary leave to the petitioner for 753 days. 2. The learned counsel for the petitioner has referred to Rule 179, 180, 232 and 236 of the Jharkhand Service Code, 2001, which are extracted below : Rule 179(a) Leave not due may be granted subject to the following conditions (i) on medical certificate, without limit of amount, and (ii) otherwise than on medical certificate, for not more than three months at any one time and six months in all, reckoned in terms of leave on average pay : Provided that such leave shall not be granted to a Government servant unless there is a reasonable prospect that he will return to duty and earn an equivalent amount of leave. 2 Note .In cases where a Government servant who has been granted leave not due under this clause applied for permission to retire voluntarily the leave not due shall, if the permission be granted, be cancelled and his retirement shall have effect from the date on which such leave commenced. [An undertaking to this effect should therefore be taken from Government servants, who avail of 'leave not due'. The question where a Government servant should be called upon to refund the amount of leave salary should be decided on the merits of each case e.g., if the retirement of such Government servant is voluntary, refund should be enforced but if it is unavoidable by reason of ill health incapacitating him for further service, no refund should be insisted upon.] (b) When a Government servant returns from leave which was not due and which was debited against his leave account, no leave will become due to him until after he has earned a credit of leave equal to the period which he took before it was due. Rule 180 :(a) In special circumstances and when no other leave is under these rules admissible, extraordinary leave may be granted. Such leave is not debited against the leave account. No leavesalary is admissible during such leave. (b) The authority empowered to sanction leave may grant extraordinary leave in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively period of absence without leave into extraordinary leave. Note 1.The State Government may for special reasons dispense with the condition that extraordinary leave may be granted only when no other leave is by rule admissible, provided that a Government servant cannot be compelled to take extraordinary leave when leave with allowances is admissible to him. Note.2 The power of commuting period of absence without leave into extraordinary leave under subrule(b) is absolute; in other words, such commutation is permissible even when other leave was admissible to Government servant at the time his absence without leave commenced. 3 Rule 232 : Half pay leave will be earned without any restriction to the limit of accumulation, in the course of service, at the following rates, for each completed year of service : (a) 20 days in the case of a Government servant in superior service; and (b) 15 days in the case of a Government servant in inferior service. Such leave can be availed of on private affairs as well as on medical certificate. There will be no limit on the half pay leave that can be availed of at a time on medical certificate and this will apply even when such leave is taken preparatory to retirement: Provided that no half pay leave may be granted unless the authority competent to sanction leave has reason to believe that the Government servant will return to duty after its expiry. Explanation 1. The term “completed year of service” used in this rule means continuous service of specified duration under the Government of Bihar or the late Government of Bihar and Orissa, and includes period spent on duty as well as on leave (including extraordinary leave.). Explanation 2. Half pay leave in respect of any completed year of service during which the service rendered by a Government servant has been partly in a superior and partly in an inferior service, should be calculated on prorata basis separately in respect of superior service and inferior service and added up. The fraction, if any, present in the total or half pay leave for the particular year should be ignored if it is less than half, or reckoned as one day if it is half or more. Rule 236 : Extraordinary leave may be granted to a Government servant in special circumstances : (i) when no other leave is admissible under these rules; (ii) when, other leave being admissible, the Government servant concerned applies in writing for the grant of extraordinary leave.
3. In the counteraffidavit, the respondents have pleaded that the petitioner remained absent from duty from 05.03.2003 to 05.07.2005 i.e., for 753 days and from 06.04.2006 4 to 30.11.2006, i.e., for 239 days. The petitioner has superannuated from service on 31.10.2009. The periods of 753 days and 239 days have been sanctioned as extraordinary leave. Referring to order dated 09.11.2010, the learned counsel for the petitioner submits that the aforesaid periods have been sanctioned as medical leave and, therefore, it cannot be treated as extraordinary leave. This contention is bereft of substance. Letter dated 09.11.2010 merely states that taking note of the medical certificate produced by him the aforesaid periods of absence have been sanctioned as extraordinary leave. These periods of leave have been sanctioned on the basis of the medical certificate produced by the petitioner, which is a requirement under the rules.
4. Proviso to Rule 232 expressly provides that half pay leave may be granted to an employee only if the competent authority has reasons to believe that the Government servant will return to duty after its expiry. Evidently, leave under Rule 232 must be sanctioned before the employee proceeds on leave. In fact, except earned leave no other leave can be claimed as a matter of right. The petitioner by letter dated 09.11.2010 has been granted benefit of earned leave by regularising period between 01.01.2003 to 03.02.2003, 04.02.2003 to 04.03.2003, 01.02.2006 to 19.02.2006 and 20.02.2006 to 05.04.2006. Plea that petitioner's halfpay leave accumulated in his account has not been accounted for by the respondentAuthority, in the above facts is untenable. Rule 236 prescribes that extraordinary leave can be sanctioned when no other leave is admissible. Letter dated 09.11.2010 is not under challenge and, moreover, on admitted facts, once it is found that half pay leave cannot be granted to the petitioner, prayer in the writ petition cannot be granted. 5. Under the Jharkhand Service Code, 2001 a permanent government employee can avail earnedleave, 5 commutedleave, halfpay leave and extraordinary leave. He may also be granted leave which at the relevant time was not due. Earnedleave partakes the nature of salary, which a government employee can claim as a matter of right. Sanction of all other leaves under the rules is subject to certain conditions. Obviously, halfpay leave can also be granted subject to conditions under Rule 232 read with Rule 179. Rule 232 merely provides calculation of halfpay leave, earned by a government employee in course of service which can be availed only on medical certificate. Proviso to Rule 232 makes it abundantly clear that halfpay leave must be claimed before the government employee proceeds on leave. Admittedly, no application for halfpay leave was submitted by the petitioner, before the period of absence from duty. The periods of 753 days and 239 days are said to be the periods of unauthorised absence from the duty, however, on production of medical certificate by the petitioner, he has been granted benefit of earnedleave, commutedleave and extraordinary leave. Under Rule 179, on medical certificate leave not due may be granted provided, there is a reasonable prospect that the government employee will return to duty and earn an equivalent amount of leave. The petitioner superannuated from service on 31.10.2009 and he has remained absent from duty from 05.03.2003 to 05.07.2005 and from 06.04.2006 to 30.11.2006. Evidently, he could not have earned an equivalent amount of leave of any kind under the rules and, therefore, he could not have been sanctioned any of such leaves except, extraordinary leave which can be granted under Rule 180. Extraordinary leave under Rule 180 can be granted retrospectively and period of absence without leave can be commuted into extraordinary leave, which is one of the reasons why periods of 753 days and 239 days have been granted as extraordinary leave. Claim of the petitioner that he has earned 435 days of halfpay leave may be true, however, in view of 6 restrictions under the rules for grant of halfpay leave, in my opinion, there is no other provision under which the period of unauthorised absence from duty which is about 3 years could have been regularised except, by sanctioning extraordinary leave for the aforesaid periods. The claim for annual increment from 01.12.2003 to 01.12.2005, thus, has rightly been denied to the petitioner. It needs to be noted that none of the orders passed by the respondentauthority except, order dated 22.01.2011 has been challenged by the petitioner. He has come to this Court about 5 years after his superannuation from service and he has raised a grievance to denial of annual increment vide, letter dated 22.01.2011, three years thereafter. Even otherwise, there is no merit in the contention that the aforesaid periods of unauthorised absence from duty could not have been regularised by sanctioning extraordinary leave to the petitioner. 6. In so far as, GPF amount is concerned, it is stated that in collusion with one Sri Prakash Mishra GPF payment order has been suppressed by the said employee. 7. In the aforesaid facts, the respondentSuperintending Engineer shall cancel previous order vide letter dated 14.12.2011 and issue a fresh order which shall be sent to the address of the petitioner recorded in the service book or the address supplied by him. (Shree Chandrashekhar, J.) Tanuj/