N G VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner challenges the decision of the respondent authorities in granting extraordinary leave in place of medical/commuted leave applied for by the petitioner on account of sickness of his wife. Challenge is founded on the ground that as per Rule 752 of B.C.S.R., extraordinary leave can be granted only in given set of circumstances which were not prevailant in the case of the petitioner. The second ground is that under Rule 619 of the B.C.S.R., the nature of leave applied for by the government servant cannot be altered at the option of the sanctioning authority. The authority may, however, refuse the leave due and applied for or revoke the leave granted, but it cannot alter the nature of leave.

(2.) Brief facts of the case can be stated thus.

(3.) The petitioner was serving as Taluka Development Officer at Jetpur-Pavi, District Vadodara and retired with effect from 31st March, 2004 on reaching age of superannuation. The petitioner did not attend duty from 9/12/1998 to 17/3/1999 on account of sickness of his wife (petitioner's wife was suffering from paralysis and other ailments). The petitioner applied for medical leave on the said ground alongwith a medical certificate. The respondent No.2 by order dated 25/11/1999 however, granted extraordinary leave without pay for the said period of 99 days instead of commuted leave on medical ground applied for by the petitioner. 1. Against the said order, the petitioner preferred an appeal and / or representation before respondent No.1. Respondent No. 1 by order dated 4/5/2005, rejected the said appeal / representation of the petitioner and confirmed the order of respondent No.2. The ground for rejection was that since the petitioner had already retired from service with effect from 31/3/2003, appeal was not required to be considered. This has given rise to the present petition. 2. Learned Advocate Mr. I.S.Supehia has drawn attention of this Court to the provisions contained in Rules 752 and 619 of B.C.S.R., and submitted that it is not open for the sanctioning authority to change the nature of leave applied for. He also submitted that extraordinary leave may be granted in special circumstances, where no other leave, by rule, is admissible or where other leave is admissible, government servant concerned applies for granting extraordinary leave. 1. Mr. Supehia submitted that there is no dispute that sufficient number of commuted leave was standing to the credit of petitioner and could have been granted. He placed 4 reliance on decision in case of C. G. Govindan v. State of Gujarat and Ors. of 1991 (2) G.L.H. 332 and submitted that sick leave can be availed of even to attend family member who is sick. He also submitted that other side does not dispute the genuineness of the ground for which commuted leave was sought. 2. Mr. Supehia submitted that grant of extraordinary leave of 99 days will have a far reaching effect on retiral benefits of the petitioner and therefore this petition may be entertained. 2. This petition is opposed to by learned A.G.P. Mr. Dabhi. He has drawn attention of this Court to the affidavit-in-reply filed on behalf of respondent No.2. He has also drawn attention of this Court to G.R. dated 25/10/2000 which relates to better management and administration of personnel and requires that leave must be got sanctioned in advance. He submitted that petition, therefore, may be dismissed. 2. At the outset, it would be appropriate to record that following aspects remain undisputed. I. The petitioner had sufficient commuted leave to his credit when he applied for the same. II. The cause of sickness of wife indicated by the petitioner for grant of commuted leave was genuine. 2. In order that the contentions raised before this Court can be better appreciated, it would be proper to refer to Rule 752 and 619 of B.C.S.R., which can be quoted thus.