All Pensioners Welfare Council, Churachandpur District vs State of Manipur

KH. Nobin Singh, J.—Heard Shri B.P. Sahu, the learned Senior Advocate assisted by Shri Moses, Advocate, the learned counsels appearing for the petitioner association and Shri R.K. Umakanta, the learned Government Advocate appearing for the respondents.

The instant writ petition has been filed by the petitioner association praying for directing the respondents to extend the benefits of 300 days unutilized earned leave to the State Government employees who retired from service in between 14-03-2001 and 30-06-2005 by rectifying/amending/reviewing the related Office Memoranda.

3.1 According to the petitioner association, it is a registered body formed by the pensioners of the Churachandpur District, Manipur for the welfare of its members and also to espouse their common cause.

3.2 The Central Civil Service (Classification, Control and Appeal) Rules, 1965 and other service rules of the Government of India were adopted by the Government of Manipur and as per the said rules, the maximum limit of unutilized earned leave of a State Government employee, prior to the publication of the Office Memorandum dated 02-06-1999 issued by the Joint Secretary (PIC), Government of Manipur and published in the Manipur Gazette on 09-06-1999, was 240 days. From the date of publication of the said Office Memorandum dated 09-06-1999, the maximum limit of unutilized earned leave of a Government servant was enhanced to 300 days and in consequence thereof, the Government employees who retired from services with effect from the date of publication of the said Office Memorandum enjoyed the benefits of the extended 300 days of unutilized earned leave. While the State Government employees were enjoying the benefits of 300 days unutilized earned leave, the Deputy Secretary (Finance), Government of Manipur issued an Office Memorandum dated 14-03-2001 whereby the maximum limit of unutilized earned leave was reduced to 240 days with immediate effect and until further order. However, the Commissioner (Finance), Government of Manipur issued another Office Memorandum dated 20-07-2005 whereby the number of days of leave encashment for unutilized earned leave, entitled to by the employees of the State Government, was restored to 300 days with effect from 01-07-2005, as a result the State Government employees who retired from service in between 14-03-2001 and 30-06-2005 have been deprived of the benefits of 60 days unutilized earned leave, while the benefits of full 300 days unutilized earned leave have been allowed to be enjoyed by the other State employees who retired from service from 01-07-2005.

3.3 Being aggrieved by the denial of the benefits of a total of 300 days unutilized earned leave, the petitioner association submitted a representation dated 14-03-2008 to the Commissioner (Finance), Government of Manipur for enhancement of unutilised earned leave to 300 days in respect of the employees also who retired from service in between 14-03-2001 to 30-06-2005 modifying the related Office Memoranda and the same is still pending for consideration by the respondents. The acts of the respondents in not extending the benefits of a total of 300 days unutilized earned leave to the members of the petitioner association who retired from service in between 14-03-2001 and 30-06-2005, are arbitrary, discriminatory and mala fide for the reason that their fundamental rights have been infringed.

Contesting the writ petition, an affidavit-in-opposition on behalf of the respondent Nos. 2 and 3 has been filed wherein it is stated that the Office Memorandum dated 14-03-2001 was issued under the provisions of the Manipur Civil Services (Leave) Rules, 1979 as a part of austerity measures taken up by the State Government due to financial constraints and the Office Memorandum dated 20-07-2005 was issued restoring the maximum limit of unutilized earned leave to 300 days with effect from 01-07-2005 as a policy of the State Government; that the said Office Memorandum dated 20-07-2005 which was made effective from 01-07-2005 had not been challenged by the petitioner association and that it is a well settled law that the wisdom and advisability of economic policy are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or any provisions of the Constitution of India.

Shri B.P. Sahu, the learned senior counsel appearing for the petitioner association has submitted that the members of the petitioner association have been discriminated by denying the benefit of encashment of unutilised earned leave for a total of 300 days, when the employees who retired from service after 01-07-2005 have been allowed to enjoy it and therefore, the acts of the respondents in not extending the said benefit to them are illegal, arbitrary, discriminatory and mala fide being violative of their fundamental rights. In support of his contention, he has placed reliance on the decision rendered by the Hon''ble Supreme Court in Brij Mohan Lal v. Union of India & ors., reported in (2012) 6 SCC 502 and in particular, the para137 wherein the Hon''ble Supreme Court held:

Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39-A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens.

On the contrary, Shri R.K. Umakanta, the learned Government Advocate has submitted that the said decision of the Hon''ble Supreme court is not applicable to the facts and circumstances of the present case. On a careful reading of the said decision of the Hon''ble Supreme Court, his contention appears to be correct for the reason that in para 137 of its judgment, the Hon''ble Supreme court has observed that the plea of financial limitations or constraints can hardly be justified, when the rights like right to expeditious and fair trial which are accepted as basic and fundamental to human rights, are infringed. In the instant case, such rights are not involved at all and it relates to the question of entitlement of benefit of encashment of unutilised earned leave as per the existing Office Memoranda. To substantiate his contention, the learned Government Advocate has relied upon the decisions rendered by the Hon''ble Supreme Court and Hon''ble Gauhati High Court in the following cases:

(a) Union of India v. P.N. Menon - (1994) 4 SCC 68;

(b) State of Punjab v. Boota Singh - (2000) 3 SCC 733;

(c) Balco Employees'' Union (Regd.) v. Union of India - (2002) 2 SCC 333;

(d) State of Punjab v. Amarnath Goel - (2005) 6 SCC 754;

(e) State of Bihar v. Bihar Pensioners Sama - (2006) 5 SCC 65;

(f) Kuus (Pvt) Ltd. v. Kerala SEB - (2008) 13 SCC 213;

(g) Villanur Iyarkkal Padukappu Malyam v. Union of India - (2009) 7 SCC 561;

(h) State of Manipur v. ALL M.A Under Die-in-HAS - 2004 (1) GCT 279.

On perusal of the said decisions, it is seen that all the above cases, by and large, relate to various issues including the one as regards the interference by the Court with policy decisions taken by the Government and in particular, on economic policy. In the instant case, no question relating to policy decision is involved, in the sense that neither the policy decision nor the Office Memorandum dated 14-03-2001 issued based on policy decision, has been questioned in the writ petition and therefore, this court as stated herein above, cannot go into the validity or correctness thereof. The aforesaid decisions relied upon by the learned Government Advocate will have no application to the facts and circumstances of the present case and therefore, the same are not being elaborately referred to herein.

The facts which are not in dispute between the parties, are that the members of the petitioner association are the State Government employees who retired from service in between 14-03-2001 and 30-06-2005. Although the ceiling for availing benefit of encashment of unutilised earned leave was 240 days under the provisions of the Manipur Services (Leave) Rules, 1979, it was enhanced to 300 days vide Office Memorandum dated 02-06-1999 issued by the Finance Department and accordingly, the Government employees who retired from service with effect from the date of publication of the said Office Memorandum, enjoyed the benefits of encashment of unutilized earned leave for 300 days. While the State Government employees were enjoying the said benefit of encashment of unutilized earned leave for 300 days, the Deputy Secretary (Finance), Government of Manipur issued an Office Memorandum dated 14-03-2001 whereby the ceiling of 300 days was reduced to 240 days, with immediate effect and until further order, as a part of the austerity measure taken up by the State Government. However, the Commissioner (Finance), Government of Manipur issued another Office Memorandum dated 20-07-2005 whereby the maximum amount of leave encashment for unutilized earned leave was restored to 300 days with effect from 01-07-2005, the result thereof which has given rise to the grievance of the petitioner association is that the members of the petitioner association who retired from service in between 14-03-2001 and 30-06-2005 have been deprived of the benefit of 60 days more unutilized earned leave and thus, the short question that arises for consideration by this court is as to whether the members of the petitioner association are entitled to the benefit of encashment for a total of 300 days unutilised earned leave and not for 240 days or not in the given facts and circumstances of the present case. It may be noted that the question of entitlement of such a benefit is to be examined with reference to a provision in a statute or in the absence thereof, any guideline or instruction contained in the executive order or Office Memorandum issued by the State Government. So far as the members of the petitioner association are concerned, the Office Memoranda which are relevant for the purpose of considering the issue involved herein, are the Office Memorandum dated 14-03-2001 and Office Memorandum dated 20-07-205. It is the Office Memorandum dated 14-03-2001 by which the ceiling of 300 days for availing the benefit of encashment of unutilised earned leave was reduced to 240 days, which was in vogue at the time when the members of the petitioner association retired from service and moreover, the benefit of encashment of unutilised earned leave was granted to them as per the provisions of the said Office Memorandum dated 14-03-2001. Neither the validity and correctness of the Office Memorandum dated 14-03-2001 nor has the validity of the Office Memorandum dated 20-07-2005 been challenged by the petitioner association in the petition and without them being challenged by the petitioner association, it is not proper for this court to delve into their legality. It is not the case of the petitioner association that although some of the State Government employees who retired from service in between 14-03-2001 and 30-06-2005, like the members of the petitioner association, have been given the benefit of encashment of unutilised earned leave for a total of 300 days, they have been denied the same and had it been their case, this court could have definitely looked into the legality and correctness of the actions of the respondents even in the absence of the validity of the said office Memoranda being challenged before this court. But this is not so in the present case and therefore, the question of discrimination or the action of the respondents being arbitrary and mala fide will not arise at all when the members of the petitioner association were given benefit under the existing Office Memorandum which remained unchallenged by them. But the facts remains that the members of the petitioner association have been denied the benefit of encashment of unutilised earned leave for 60 days, over and above 240 days, for no fault of theirs but because of the temporary change of policy made by the State Government for about four years. Since it cannot be claimed as of right by them, it is open to the respondents to consider their case sympathetically keeping in mind the contention of the learned counsel appearing for the petitioner association that the financial burden to be shouldered by the respondents by granting the said benefit to them, is not that very heavy, say hardly 20 lakhs.

In view of the above, the instant writ petition is disposed of with the direction that the respondents and in particular, the respondent No. 2 shall consider the case of the petitioner association as reflected in its representation dated 14-03-2008 submitted by the petitioner association to the Commissioner (Finance), Government of Manipur, sympathetically, within thirty days from the date of receipt of a copy of this judgment and order and issue an order in respect thereof.