High Court · 2025

1. Heard Sri W.H. Khan, learned Senior Counsel assisted by Sri R.P. Tiwari, learned counsel appearing for the petitioners, learned counsel for the University-respondents and learned Standing Counsel for the State-respondents.

2. The present writ petition is filed by the petitioners questioning the Government Order dated 22.08.2012 wherein bar has been created for payment of leave encashment / benefits to the petitioners who retired as non-teaching employees of the University.

3. All the petitioners are superannuated as non-teaching employees of the University on different dates. They have received post retiremental benefits except leave encashment amount for 300 days which is to be paid by the University without any financial assistance of the State Government. As with regard to some Universities when employees made request for release of leave encashment amount, the State Government considered and granted no objection/permission vide communication dated 15.02.2005. The State Government further vide communication dated 22.03.2011 has issued general directions to the Registrars of the Universities informing that the matter relating to payment of leave encashment amount be considered by the Universities, placing the proposal before the Executive Council.

4. Accordingly, the 2nd respondent - University has placed proposal before the Executive Council. In its meeting held on 07.10.2013, the Executive Council resolved the issue in favour of release of the leave encashment to the non-teaching employees. But surprisingly, the said recommendation was not accorded consent by the State Government in view of the Government Order dated 22.08.2012. Hence the present writ petition.

5. Learned Standing Counsel appearing for the State-respondents has filed counter affidavit wherein the respondents have admitted the resolution passed by the respondent - University on 07.10.2013 and 13.12.2013. Further, the respondents have relied on the terms of Clause (3) and (4) of Section 21 of the U.P. State Universities Act, 1973 and contended that approval of the State Government is required and along with respondent - University i.e. Bundelkhand University, and certain other Universities have also allowed benefits of leave encashment to its non-teaching employees. The State Government issued orders on 22.08.2012 barring the benefits of leave encashment to the non-teaching staffs of the said University.

6. Even in the instant case, as per general directions issued by the State Government on 22.08.2012, the proposal for extending benefits of the leave encashment to the non-teaching staff of the University was placed before the Executive Council and the said resolution of the Executive Council was forwarded to the State Government for its approval.

7. On perusal of the averments made in the writ petition as well as counter affidavit filed by the State, it transpires that only objection is with regard to prior approval of the State Government as per Clause (3) and (4) of Section 21 of the U.P. State Universities Act, 1973. In such circumstances, learned Senior Counsel appearing for the petitioners has relied on the orders passed by this Court in Writ-A No.62389 of 2014 Ram Kumar and 9 others Vs. State of U.P. and 5 others wherein identical issue was considered and decided by this Court disposing of the said petition on 27.05.2019, operative portion whereof reads as under:

13. So far as argument of Sri Tripathi, learned Additional Advocate General, with reference to Section 21(3) and 21(4) of the Act of 1973 is concerned, it would be worth noticing that Sub-clause (3) of Section 21 merely provides that no expenditure in respect of which approval of the State Government is required by this Act or the Statutes or Ordinances shall be incurred except with such approval previously obtained, and no post shall be created either in the University or in any Institute or constituent college maintained by the University except with the prior approval of the State Government. Sub- clause (3), therefore, would have no applicability, inasmuch as the Act, Statutes or Ordinances do not require any specific approval of the State Government for grant of approval to leave rules upon the employees. Sub- clause (4) of Section 21 also deals with the pay and other allowances to various categories of the employees, as may be approved by the State Government. The respondents would have been justified in resisting petitioners' claim in case a provision like Clause 36.01 was not in existence in the First Statutes and no approval was granted by the State in that regard. The provisions of sub-clause (4) of Section 21 cannot be pressed into service to deny petitioners' entitlement once the Statutes of the University are specific in applying provisions of leave rules upon non-teaching employees mutatis mutandis. Applicability of leave rules, therefore, cannot be denied or disputed by the respondents, in so far as non-teaching staff of affiliated colleges are concerned. Leave rules otherwise are not shown to have been modified in its applicability to such class of employees by virtue of any provisions contained in the Statutes or any other applicable provisions of law. In that circumstances petitioners would clearly be entitled to all benefits which are otherwise admissible to similarly placed employees of the Government regarding grant of leave. The applicable provisions of the financial rules contained in Financial Handbook in Volume 2 Part 4 under Fundamental Rules 58 to 104 including Sub-rule (1)(12) of Rule 81(b) of the Fundamental Rules, which provides that leave shall be admissible to Government servants and if such Government servant surrenders such leave he shall be entitled to encashment of leave, would be applicable in the facts of the present case also.

14. So far as respondents' objection with reference to Government Order dated 22nd August, 2012 is concerned, a perusal thereof would go to show that a specific approval of the State has been found to be wanting for the purpose of extending benefit of leave rules to non-teaching staff of the University. This Government Order apparently would have no applicability in the facts of the present case, inasmuch as service conditions of non-teaching staff of the University are governed by a separate set of rules contained in Chapter 34 of the Ordinances framed for Meerut University, wherein no such provision is shown to exist as is contained under Clause 36.01, meant for non-teaching staff of the affiliated college. Law is otherwise settled that in hierarchy of laws a provision contained in Statute would stand on a higher pedestal and in the event of conflict with the Government Order, the provision of the Statute would prevail. This Government Order, therefore, cannot be relied upon to deny consideration to petitioners' claim.

15. In view of the discussions aforesaid, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents including State of U.P. to extend benefit of leave rules to the petitioners and other employees of the Post-graduate and Graduate Degree Colleges affiliated to different State Universities established under the Act of 1973, including the benefit of leave encashment in accordance with Rule 81(b) of the Fundamental Rules as are available to similarly placed employees of the Government. A specific order would be passed in that regard and the benefits due thereunder would be disbursed to petitioners, within a period of four months from the date of presentation of certified copy of this order. The respondents while calculating the benefits due and payable to petitioners would take note of any subsequent modification, which may have been made in leave rules or the Government Orders, which may have been issued specifying the entitlement in that regard including Government Order dated 1st July, 1999. No order is passed as to costs.

8. Learned Senior Counsel has also relied on the decision of the division Bench of this Court in the case of State of U.P. Vs. Vidyottma Dwivedi and another, 2022 LawSuit (All) 1370 wherein the division Bench has confirmed relief in favour of the employees.

9. Considering the orders passed by this Court as issue has already been decided and controversy is that the State Government has not held that employees of the respondents - University are not entitled for leave encashment. Only embargo is that the Universities have to take prior permission / approval before granting such benefits to the employees. In the instant case, as the University has already placed the matter before the Executive Council. Accordingly, the Executive Council resolved in favour of the employees vide orders dated 01.08.2011 and 07.10.2013. The said fact was also admitted by the State-respondents in the counter affidavit.

10. In view of the said circumstances as also the decision of the coordinate Bench as well as the division Bench of this Court, the present writ petition is allowed directing the respondents to consider the case of the petitioners as per resolution of the University dated 01.08.2011 and 07.10.2013 and release the benefits to the petitioners within a period of two months from the date of receipt of this order. Order Date :- 14.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Sri W.H. Khan, learned Senior Counsel assisted by Sri R.P. Tiwari, learned counsel appearing for the petitioners, learned counsel for the University-respondents and learned Standing Counsel for the State-respondents.

2. The present writ petition is filed by the petitioners questioning the Government Order dated 22.08.2012 wherein bar has been created for payment of leave encashment / benefits to the petitioners who retired as non-teaching employees of the University.

3. All the petitioners are superannuated as non-teaching employees of the University on different dates. They have received post retiremental benefits except leave encashment amount for 300 days which is to be paid by the University without any financial assistance of the State Government. As with regard to some Universities when employees made request for release of leave encashment amount, the State Government considered and granted no objection/permission vide communication dated 15.02.2005. The State Government further vide communication dated 22.03.2011 has issued general directions to the Registrars of the Universities informing that the matter relating to payment of leave encashment amount be considered by the Universities, placing the proposal before the Executive Council.

4. Accordingly, the 2nd respondent - University has placed proposal before the Executive Council. In its meeting held on 07.10.2013, the Executive Council resolved the issue in favour of release of the leave encashment to the non-teaching employees. But surprisingly, the said recommendation was not accorded consent by the State Government in view of the Government Order dated 22.08.2012. Hence the present writ petition.

5. Learned Standing Counsel appearing for the State-respondents has filed counter affidavit wherein the respondents have admitted the resolution passed by the respondent - University on 07.10.2013 and 13.12.2013. Further, the respondents have relied on the terms of Clause (3) and (4) of Section 21 of the U.P. State Universities Act, 1973 and contended that approval of the State Government is required and along with respondent - University i.e. Bundelkhand University, and certain other Universities have also allowed benefits of leave encashment to its non-teaching employees. The State Government issued orders on 22.08.2012 barring the benefits of leave encashment to the non-teaching staffs of the said University.

6. Even in the instant case, as per general directions issued by the State Government on 22.08.2012, the proposal for extending benefits of the leave encashment to the non-teaching staff of the University was placed before the Executive Council and the said resolution of the Executive Council was forwarded to the State Government for its approval.

7. On perusal of the averments made in the writ petition as well as counter affidavit filed by the State, it transpires that only objection is with regard to prior approval of the State Government as per Clause (3) and (4) of Section 21 of the U.P. State Universities Act, 1973. In such circumstances, learned Senior Counsel appearing for the petitioners has relied on the orders passed by this Court in Writ-A No.62389 of 2014 Ram Kumar and 9 others Vs. State of U.P. and 5 others wherein identical issue was considered and decided by this Court disposing of the said petition on 27.05.2019, operative portion whereof reads as under:

13. So far as argument of Sri Tripathi, learned Additional Advocate General, with reference to Section 21(3) and 21(4) of the Act of 1973 is concerned, it would be worth noticing that Sub-clause (3) of Section 21 merely provides that no expenditure in respect of which approval of the State Government is required by this Act or the Statutes or Ordinances shall be incurred except with such approval previously obtained, and no post shall be created either in the University or in any Institute or constituent college maintained by the University except with the prior approval of the State Government. Sub- clause (3), therefore, would have no applicability, inasmuch as the Act, Statutes or Ordinances do not require any specific approval of the State Government for grant of approval to leave rules upon the employees. Sub- clause (4) of Section 21 also deals with the pay and other allowances to various categories of the employees, as may be approved by the State Government. The respondents would have been justified in resisting petitioners' claim in case a provision like Clause 36.01 was not in existence in the First Statutes and no approval was granted by the State in that regard. The provisions of sub-clause (4) of Section 21 cannot be pressed into service to deny petitioners' entitlement once the Statutes of the University are specific in applying provisions of leave rules upon non-teaching employees mutatis mutandis. Applicability of leave rules, therefore, cannot be denied or disputed by the respondents, in so far as non-teaching staff of affiliated colleges are concerned. Leave rules otherwise are not shown to have been modified in its applicability to such class of employees by virtue of any provisions contained in the Statutes or any other applicable provisions of law. In that circumstances petitioners would clearly be entitled to all benefits which are otherwise admissible to similarly placed employees of the Government regarding grant of leave. The applicable provisions of the financial rules contained in Financial Handbook in Volume 2 Part 4 under Fundamental Rules 58 to 104 including Sub-rule (1)(12) of Rule 81(b) of the Fundamental Rules, which provides that leave shall be admissible to Government servants and if such Government servant surrenders such leave he shall be entitled to encashment of leave, would be applicable in the facts of the present case also.

14. So far as respondents' objection with reference to Government Order dated 22nd August, 2012 is concerned, a perusal thereof would go to show that a specific approval of the State has been found to be wanting for the purpose of extending benefit of leave rules to non-teaching staff of the University. This Government Order apparently would have no applicability in the facts of the present case, inasmuch as service conditions of non-teaching staff of the University are governed by a separate set of rules contained in Chapter 34 of the Ordinances framed for Meerut University, wherein no such provision is shown to exist as is contained under Clause 36.01, meant for non-teaching staff of the affiliated college. Law is otherwise settled that in hierarchy of laws a provision contained in Statute would stand on a higher pedestal and in the event of conflict with the Government Order, the provision of the Statute would prevail. This Government Order, therefore, cannot be relied upon to deny consideration to petitioners' claim.

15. In view of the discussions aforesaid, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondents including State of U.P. to extend benefit of leave rules to the petitioners and other employees of the Post-graduate and Graduate Degree Colleges affiliated to different State Universities established under the Act of 1973, including the benefit of leave encashment in accordance with Rule 81(b) of the Fundamental Rules as are available to similarly placed employees of the Government. A specific order would be passed in that regard and the benefits due thereunder would be disbursed to petitioners, within a period of four months from the date of presentation of certified copy of this order. The respondents while calculating the benefits due and payable to petitioners would take note of any subsequent modification, which may have been made in leave rules or the Government Orders, which may have been issued specifying the entitlement in that regard including Government Order dated 1st July, 1999. No order is passed as to costs.

8. Learned Senior Counsel has also relied on the decision of the division Bench of this Court in the case of State of U.P. Vs. Vidyottma Dwivedi and another, 2022 LawSuit (All) 1370 wherein the division Bench has confirmed relief in favour of the employees.

9. Considering the orders passed by this Court as issue has already been decided and controversy is that the State Government has not held that employees of the respondents - University are not entitled for leave encashment. Only embargo is that the Universities have to take prior permission / approval before granting such benefits to the employees. In the instant case, as the University has already placed the matter before the Executive Council. Accordingly, the Executive Council resolved in favour of the employees vide orders dated 01.08.2011 and 07.10.2013. The said fact was also admitted by the State-respondents in the counter affidavit.

10. In view of the said circumstances as also the decision of the coordinate Bench as well as the division Bench of this Court, the present writ petition is allowed directing the respondents to consider the case of the petitioners as per resolution of the University dated 01.08.2011 and 07.10.2013 and release the benefits to the petitioners within a period of two months from the date of receipt of this order. Order Date :- 14.5.2025 (Donadi Ramesh, J.) RAKESH KUMAR GAUTAM RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad High Court of Judicature at Allahabad