Sikkim Govt Service Rules | Retired Re-Employed Employees Can't Be Denied Leave Encashment Benefits Unless Contractual: High Court

Referring to Rule 36 of the Sikkim Government Service (Leave) Rules, 1982, Justice Bhaskar Raj Pradhan observed:

"The respondents' suggestion that there was financial burden upon the state exchequer by providing the retired reemployed Government Servants leave encashment for earned leave again for the period of re-employment is not justified considering the fact that several others similarly placed had been given the benefit. As such, isolating the petitioner's accrued benefit to save the purported burden on the state exchequer would be arbitrary and discriminatory."

The petitioner, was re-employed as a Medical Advisor-cum Chief Consultant in the STNM Hospital after retirement, had challenged an Office Order issued by the Home Department which cancelled a previous Office Order dated 31.05.2019, which allowed the petitioner to draw cash equivalent to leave salary in lieu of 300 days of unutilized earned leave standing due to his credit.

The Respondents stated that after the formation of the new government in 2019, when the issue regarding encashment of unutilized earned leave by the re-employed employees at the time of their termination from re employment came to light, it was observed that the re-employed employees were being erroneously given the double benefit of leave encashment at the time of retirement and at the time of being relieved from the re-employment, putting unnecessary financial burden on the state exchequer.

It is submitted that the petitioner's claim for encashment of unutilized earned leave for his re-employed period under Rule 36 of the Leave Rules is not correct as it provides for encashment of earned leave to the employees who retires from service and not for the petitioner who had already retired in the year 2005 and who had also availed the benefit of leave encashment under Rule 36 of the Leave Rules.

The central issue relevant to decide the controversy between the petitioner and the respondents was the meaning of the phrase "retires from service" as used in rule 36 of the Leave Rules.

Court noted that the petitioner has contended that on his reemployment, he continued as regular employee availing all the benefits. He further asserted that during the period of re-employment, benefits like annual increments were being granted to the petitioner on regular intervals. The respondents admit the facts stated therein as matters of record.

"The pleadings in the present proceedings also make it clear that the petitioner was re-employed giving all benefits of a regular Government Servant although for short durations, extended again and again from the year 2005 till 2019," Court said

The Court also noted that none of the office orders issued by the respondents re-employing the petitioner and thereafter, extending his period of re-employment, state that the period of re-employment is contractual.

"If it was contractual employment then Rule 2 (f) of the Leave Rules would disentitle the petitioner in claiming any benefit under it unless when the contract provided otherwise. It is neither the claim of the petitioner nor the contest of the respondents that his re-employment was contractual. If it was so, there would have been a contract."

In view of the above, the writ petition was allowed.

Case Title : Dr. Mool Raj Kotwal v State of Sikkim and ors

Citation: 2022 LiveLaw (Sik) 11

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