Dismissed

State of U.P. and 3 Ors. v. kishwar ali

Allahabad HC13 Jul 2018SPLAD/396/2018

Case brief

AI extract

What is this about?

The court examined a special appeal against a single bench judgment that granted leave encashment to a retired Fish Farming Development Agency employee. The court held that a State directive equating society employees with government servants validates the benefit, regardless of internal validity issues with that directive.

What did the court decide?

The special appeal is dismissed, upholding the single bench judge's order granting leave encashment to the respondent.

State of U.P. and 3 Ors. Vs kishwar ali — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 21

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Case :- SPECIAL APPEAL DEFECTIVE No. - 396 of 2018

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Appellant :- State Of U.P. And 3 Ors Respondent :- Kishwar Ali Counsel for Appellant :- Pankaj Rai Counsel for Respondent :- Awadh Behari Singh

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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The appeal is barred by limitation from 114 days. Ignoring the same we examined the merits of the case.

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This appeal is preferred to examine the correctness of the judgement dated 04.01.2018 passed by learned Single Bench in Writ-A No. 33680 of 2016 titled as Kishwar Ali Vs. State of U.P. and 3 Others. Learned single Bench by the order impugned set aside the order dated 25.05.2016 passed by respondent Deputy Director, Fisheries, Bareilly Division, Bareilly denying the payment of leave encashment to the respondent petitioner.

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In brief factual matrix of the case is that respondent petitioner entered in service of the respondent Matsya Palak Vikas Abhikaran, Budaun as a casual workmen, however, subsequently he came to be regularized in service. On attaining the age of superannuation, he was retired from service on 30.09.2015. While making payment of post retiral benefits, the respondent Deputy Director, Fisheries rejected the claim of the respondent petitioner with regard to leave encashment for a period of 300 days. Being aggrieved by the same, the respondent petitioner approached this Court under Article 226 of the Constitution of India with an assertion as per order dated 20.03.1987 issued by the Director, Fisheries, U.P. he is entitled to have all service benefits including the grant of annual grade increments, leave encashment etc. at par with the government servants. It was also urged that the other employees under the same employer received leave encashment and, as such, refusal of the same to him is discriminatory.

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Learned single Bench while accepting the submissions advanced on behalf of respondent petitioner allowed the writ petition by directing the authority competent to make payment of leave encashment amount within a period of two months from the date of production of certified copy of the order.

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In appeal the argument advanced by learned counsel appearing on behalf of the appellants is that respondent petitioner was in employment of Fish Farming Development Agency, a society registered under the Societies Registration Act whereon the rules framed by the State for its employees are not applicable. It is further submitted that the document dated 20.03.1987 was issued by the Director, Fisheries who is not competent to apply the rules pertaining to the government servants for the employees of the Fish Farming Development Agency. So far as the payment of leave encashment to other similarly situated employees is concerned, it

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is stated that if anything is given to any employee in contravention of rules or without authority of law then the same cannot be cited to claim parity as that would amount to perpetuate illegality.

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Having considered the facts relevant, we do not find any merit in this appeal. From perusal of the document dated 20.03.1987 it is apparent that the same was issued in the light of government orders dated 29.01.1987 and 01.03.1985. As per contents of the order dated 20.03.1987 necessary directions were given by the State Government for applying certain necessary amenities, facilities and perquisites for the employees of the Fish Farming Development Agency. The order passed by the Director is only an order consequential. If the State provides certain perquisites to the employees of the Fish Farming Development Agency now at this stage it is not open for the appellant State to deny the same by stating that the order passed by the Director was not correct, he being not the State.

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As a matter of fact the order passed by the Director is nothing but an order consequential to the directions given by the State. In view of it, the leave encashment made in favour of the petitioner is justifiable. On settling the entitlement of respondent petitioner no need is there to examine correctness of the other arguments advanced by the learned counsel for the appellants.

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The appeal is dismissed . It is also relevant to note that if the respondent petitioner retired from service in the year 2015 and any order subsequent thereto was passed in the year 2017 withdrawing the benefits to the employees of the Fish Farming Development Agency, it will not defeat the rights of the respondent petitioner.

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Order Date :- 13.7.2018 Shekhar

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(Chandra Dhari Singh, J.) (Govind Mathur, J.)

State of U.P. and 3 Ors. v. kishwar ali

Case brief

What is this about?

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State of U.P. and 3 Ors. v. kishwar ali

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