Amar Singh Malhotra @ A.S. Malhotra And Others vs State Of Haryana And Another
- Court
- Punjab and Haryana High Court
1
CWP-22766-2023 & two connected matters
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
243(3 cases)
Date of Decision: 02.09.2026
1. CWP-22766-2023
AMAR SINGH MALHOTRA @ A.S MALHOTRA AND OTHERS
.....Petitioners
VERSUS
STATE OF HARYANA AND ANOTHER
….Respondents
2. CWP-1703-2024
UDEY VIR SINGH @ U.V SINGH AND OTHERS
.....Petitioners
VERSUS
STATE OF HARYANA AND ANOTHER
….Respondents
3. CWP-24725-2023
RANDHIR SINGH HOODA AND OTHERS
.....Petitioners
VERSUS
STATE OF HARYANA AND ANOTHER
….Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present : Mr. K.L Arora, Advocate for the petitioners in CWP-22766-
2023.
Mr. Ranjit Saini, Advocate for the petitioners in CWP-24725-
2023.
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CWP-22766-2023 & two connected matters
Mr. Amit Kumar, Advocate for Mr. Gopal Sharma, Advocate
for the petitioners in CWP-1703-2024.
Mr. Naveen Singh Panwar, DAG, Haryana.
HARPREET SINGH BRAR , J. (Oral)
1. With the consent of both the parties, the aforementioned writ
petitions are taken up together and are being decided by this common
judgment. However, for the sake of brevity, the facts are being taken from
CWP-22766-2023.
2. This Civil Writ Petition has been filed under Article 226/227 of
certiorari
the Constitution of India seeking issuance of a writ of for
quashing impugned order dated 21.07.2023 (Annexure P-9) which has
withdrawn the benefits of leave encashment for 36 days of strike period,
already granted to them. Further directing respondents to treat the strike
period of 36 days from 04.08.1987 to 08.09.1987 as duty period and release
the leave encashment for these 36 days period of strike of petitioners at par
with retirees of Govt. Colleges. Lastly praying for the arrears of salary be
ordered to be paid to petitioners along with interest @ 12% p.a. from the
date these benefits of leave encashment were given to Govt. College retirees.
inter alia
3. Learned counsel for the petitioners, , submits that the
petitioners are retired Lecturers/teachers who had served in various
Government-aided colleges in the State of Haryana and had retired on
different dates. The particulars of the petitioners, including their respective
dates of joining and retirement, have been placed on record as Annexure
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CWP-22766-2023 & two connected matters
P-1. It is submitted that in the year 1987, the Lecturers/teaching staff of
Government Colleges, Government-aided Colleges and Universities in the
State of Haryana had gone on a general strike for a period of 36 days, from
04.08.1987 to 08.09.1987. In respect of the teachers serving in Government
Colleges and Universities, the said period was treated as duty period and the
consequential benefit of leave encashment was extended to them.
4. Learned counsel further submits that, subsequently, vide letter
dated 29.10.2002 (Annexure P-11) , the position with regard to the strike
period was clarified by the Higher Education Commissioner, Haryana. The
said communication referred to the earlier decision dated 13.05.2002
whereby the strike period was treated as leave of the kind due and further
provided for the cases of teachers who had already retired or died before the
said date. It is further submitted that the State Government, vide
communication dated 14.08.2018 (Annexure P-10), specifically decided, in
the light of the judgment passed by this Court in CWP-12179-2011, Dr. K.L.
Johar and others versus State of Haryana and others , decided on
10.11.2016, to extend the benefit of earned leave encashment to all teaching
and non-teaching employees of Government-aided private colleges at par
with their counterparts working in Government Colleges.
5. Learned counsel for the petitioners submits that despite the
aforesaid position, the petitioners, who are retirees of Government-aided
colleges, continued to be deprived of leave encashment for the aforesaid 36
days. The petitioners and the Federation representing them submitted
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CWP-22766-2023 & two connected matters
various representations before the competent authorities. Ultimately, after
consideration of the matter, the Director of Higher Education, Haryana
issued communication dated 30.08.2022 (Annexure P-6). Vide the aforesaid
communication, it was specifically informed that the retired officers/officials
of Government-aided colleges who had participated in the strike from
04.08.1987 to 08.09.1987, and whose earned leave had earlier been
sanctioned, would have the said period treated as duty period at par with the
retired officers/officials of Government Colleges. It was further decided to
grant them leave encashment for the said 36 days. The Principals of the
concerned colleges were directed to forward complete cases to the
Directorate for taking further necessary action.
6. It is submitted that thereafter, vide communication dated
02.06.2023 (Annexure P-7), the respondents directed the Principals of
Government-aided colleges not to disburse any payment towards leave
encashment of 36 days of the strike period and fresh leave encashment till
further orders. The Federation representing the petitioners thereafter
submitted representation dated 09.06.2023 (Annexure P-8) requesting the
authorities to disclose the reasons for withholding the aforesaid benefit.
7. Learned counsel submits that, instead of considering the
representation, the Director of Higher Education passed the impugned order
dated 21.07.2023 (Annexure P-9), whereby the earlier communication dated
30.08.2022 (Annexure P-6) was withdrawn and the strike period from
04.08.1987 to 08.09.1987 was again directed to be treated as leave of the
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CWP-22766-2023 & two connected matters
kind due. The impugned order further directed recovery of the amount in
case any payment had already been released to any pensioner.
7.1 It is argued that the impugned order is arbitrary, discriminatory
and contrary to the earlier conscious decision of the competent authority. It
is also submitted that the impugned order does not deal with the judgment of
this Court in Dr. K.L. Johar (supra) or the subsequent Government
instructions dated 14.08.2018, whereby parity in the matter of leave
encashment between Government-aided colleges and Government Colleges
had already been recognized.
Per contra
8. , learned State counsel submits that the
communication dated 30.08.2022 (Annexure P-6) was issued inadvertently.
The matter had already been considered by the Government and, vide
instructions dated 13.05.2002 (Annexure R-II), it had been decided to treat
the strike period as leave of the kind due. Reliance has also been placed
upon the Finance Department instructions dated 19.09.2002 (Annexure R-
III).
8.1 It is submitted that after examining the aforesaid instructions,
the answering respondent realized the inadvertent mistake committed while
issuing the communication dated 30.08.2022 and, accordingly, withdrew the
same vide order dated 21.07.2023. It is contended that the impugned order
was passed in compliance with the Government instructions and, therefore,
no interference is called for.
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CWP-22766-2023 & two connected matters
OBSERVATIONS
9. I have heard learned counsel for the parties and have gone
through the pleadings, documents placed on record and the judgments relied
upon.
10. The controversy, in essence, is whether the petitioners, being
retired employees of Government-aided colleges, can be denied the benefit
of leave encashment for the 36-day strike period from 04.08.1987 to
08.09.1987, after the competent authority had consciously extended the said
benefit to them vide communication dated 30.08.2022, particularly when the
Government had already recognized parity between employees of
Government-aided colleges and their counterparts in Government Colleges
in the matter of leave encashment.
11. Learned State counsel, however, could not controvert the
factual position that the benefit of leave encashment for the aforesaid 36
days had been extended to teachers serving in Government Colleges and
Universities and that the communication dated 30.08.2022 had specifically
extended the same benefit to the retired employees of Government-aided
colleges. The written statement itself acknowledges that the communication
dated 30.08.2022 had treated the said period as duty period, though the
respondents subsequently withdrew the same on the basis of the earlier
instructions.
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CWP-22766-2023 & two connected matters
12. The relevant chronology is not in dispute. The teachers of
Government Colleges, Government-aided Colleges and Universities
participated in the general strike for 36 days from 04.08.1987 to 08.09.1987.
The record placed before this Court demonstrates that the benefit in respect
of the said period had already been extended to teachers of Government
Colleges and Universities. The petitioners, being retirees of Government-
aided colleges, thereafter pursued their claim through various
representations.
13. The claim of the petitioners ultimately culminated in the
issuance of communication dated 30.08.2022 (Annexure P-6), whereby the
competent authority specifically approved the treatment of the aforesaid
period as duty period and decided to grant leave encashment for 36 days to
the retired employees of Government-aided colleges. The language of the
said communication leaves no ambiguity in this regard.
14. The subsequent withdrawal of the aforesaid benefit is sought to
be justified solely on the basis of the instructions dated 13.05.2002
(Annexure R-II) and 19.09.2002 (Annexure R-III). It is true that the
communication dated 13.05.2002 had provided for treating the strike period
as leave of the kind due. However, the respondents themselves subsequently
took a conscious decision in the year 2022 to extend the benefit to the retired
employees of Government-aided colleges. The respondents have described
the 30.08.2022 (Annexure P-6) decision as an inadvertent mistake.
However, the material placed on record does not support such a conclusion.
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CWP-22766-2023 & two connected matters
15. The petitioners had been pursuing the matter for a considerable
period of time. Their representations dated 28.01.2020 (Annexure P-2),
04.04.2021 (Annexure P-4) and 25.05.2022 (Annexure P-5) demonstrate
that the issue had been specifically raised before the Directorate of Higher
Education. The communication dated 30.08.2022 (Annexure P-6) was thus
not shown to be a spontaneous or isolated administrative act passed without
consideration of the claim. Rather, it followed repeated representations
concerning the very benefit which had already been extended to similarly
situated employees.
16. The controversy with regard to entitlement of employees of
privately managed Government-aided colleges to leave encashment at par
with their counterparts in Government institutions is no longer res integra.
This Court, in Dr. Karan Singh Rathee and others versus State of Haryana
and others, CWP No.3732 of 2001 , decided on 20.08.2007, had held that
the employees of privately managed Government-aided colleges are entitled
to the benefit of gratuity and leave encashment at par with the Lecturers
serving in Government Colleges.
17. The aforesaid view is also fortified by the judgment of the
Hon'ble Supreme Court in State of Rajasthan and another versus S.R.
Higher Secondary School, Lachhmangarh and others, Civil Appeal
, wherein the Hon'ble Supreme Court, while considering the
No.9166 of 2003
entitlement of employees of aided educational institutions, emphasized that
the provisions concerning service conditions of employees of aided
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CWP-22766-2023 & two connected matters
institutions are required to be construed so as to promote education and
improve the service conditions of the teaching class. The Hon'ble Supreme
Court held that there was no justification for denying to the employees of
aided private educational institutions the benefit of leave encashment at par
with employees of Government institutions. The said principle was
thereafter noticed and applied by this Court in Dr. K.L. Johar (supra) ,
wherein, after considering the earlier judgments including Dr. Karan Singh
Rathee (supra) and the judgment of the Hon'ble Supreme Court in State of
Rajasthan (supra) , this Court held that the employees of privately managed
Government-aided colleges are entitled to leave encashment at par with their
counterparts working in Government Colleges.
18. Significantly, the aforesaid judicial pronouncements were
thereafter given effect to by the State Government itself. Vide
communication dated 14.08.2018 (Annexure P-10), issued by the Additional
Chief Secretary, Higher Education Department, Haryana, the State
Government, specifically taking note of the judgment in Dr. K.L. Johar
(supra) , decided to grant the benefit of earned leave encashment to all
teaching and non-teaching employees of Government-aided private colleges
at par with their counterparts working in Government Colleges.
19. There is yet another aspect which cannot be overlooked. The
communication dated 30.08.2022 (Annexure P-6) was subsequently
withdrawn by the very department i.e. Director of Higher Education,
Haryana, which had issued it. The impugned order dated 21.07.2023
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CWP-22766-2023 & two connected matters
proceeds on the basis that the earlier decision was an inadvertent mistake
and that the instructions dated 13.05.2002 and 19.09.2002 continued to hold
the field.
19.1 However, the impugned order does not consider the subsequent
Government decision dated 14.08.2018 (Annexure P-10), which had
specifically generalized the benefit of leave encashment to employees of
Government-aided private colleges at par with employees of Government
Colleges. It also does not deal with the basis on which the competent
authority, after consideration of the representations of the petitioners, had
consciously issued the order dated 30.08.2022 (Annexure P-6).
20.
The administrative authority i.e. Director of Higher Education,
Haryana, while withdrawing a benefit which had already been consciously
extended to a defined class of retired employees, was required to furnish
cogent and legally sustainable reasons for such withdrawal. The mere
characterization of the earlier decision as an "inadvertent mistake" cannot,
by itself, constitute a sufficient basis for depriving the petitioners of a
benefit which is otherwise founded upon the principle of parity recognized
by this Court and accepted by the State Government.
21. The principle laid down by the Privy Council in R.T.
Rangachari v. Secretary of State, AIR 1937 Privy Council 27 , also assumes
relevance in this context. The principle is that where competent authorities
have, after due consideration, arrived at a decision and such decision has
been acted upon and brought into operation, the matter cannot ordinarily be
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CWP-22766-2023 & two connected matters
reopened by a successor authority so as to arrive at an entirely different
conclusion, unless there exists a lawful basis for such reconsideration. The
said principle has also been noticed and applied in service jurisprudence. In
the present case, no material has been placed before this Court to establish
that the decision dated 30.08.2022 was vitiated by fraud, misrepresentation,
lack of jurisdiction or any other legally recognized ground warranting its
abrupt withdrawal.
22. The claim of the petitioners is further fortified by the fact that
similarly placed employees of Government Colleges and Universities have
already been extended the benefit for the identical period of 36 days of
strike. The petitioners had participated in the same general strike and the
respondents have failed to disclose any intelligible differentia having a
rational nexus with the object sought to be achieved for denying the same
benefit to the retirees of Government-aided colleges. The distinction sought
to be created between the two classes is particularly difficult to sustain when
the State Government itself had already recognized parity in the matter of
leave encashment.
23. It is also relevant that the impugned order dated 21.07.2023
(Annexure P-9) directs recovery of the amount in cases where the benefit of
leave encashment had already been released. Such direction has been issued
without disclosing any individual circumstances attributable to the
concerned retirees and without examining the effect of the subsequent policy
decisions and judicial pronouncements governing the field. The direction of
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CWP-22766-2023 & two connected matters
recovery, therefore, cannot independently survive once the very basis for
withdrawal of the benefit is found unsustainable.
CONCLUSION
24. This Court is, therefore, of the considered view that the
impugned order dated 21.07.2023 (Annexure P-9), insofar as it withdraws
the benefit of leave encashment for the 36-day strike period from the
petitioners and directs recovery thereof, is unsustainable in law.
25. In view of the discussion hereinabove, all the writ petitions are
allowed. The impugned order dated 21.07.2023 (Annexure P-9) is hereby
quashed. The respondents are directed to treat the period from 04.08.1987 to
08.09.1987, i.e. 36 days, as duty period for the purpose of leave encashment
and to release to the petitioners the consequential benefit of leave
encashment for 36 days, in terms of the communication dated 30.08.2022
(Annexure P-6).
26. In cases where the amount of leave encashment for the
aforesaid 36 days has already been recovered pursuant to the impugned
order, the same shall be restored to the concerned petitioner(s).
27. The consequential monetary benefits shall be calculated and
released to the petitioners within a period of four months from the date of
receipt of a certified copy of this judgment. The petitioners shall also be
entitled to interest @ 6% per annum from the date of filing of the respective
writ petition(s) till the date of actual payment.
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CWP-22766-2023 & two connected matters
28 . Pending miscellaneous application(s), if any, shall also stands
disposed of.
29. Photocopy of this order be placed on the files of connected
case(s).
02.09.2026 (HARPREET SINGH BRAR)
P.C.
JUDGE
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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