RATHORE, J. - (1.) BRIEF facts of the case are that the petitioner was initially appointed in the District Gazetteers Department of the State Government as UDC Stenographer Clerk on 1. 11. 60 and thereafter posted as Stenorgrapher Grade-III w. e. f. 1. 4. 61. The petitioner was thereafter promoted from time to time and when he was working as Stenographer Grade-I, his services were placed on deputation with the Rajasthan Cooperative Diary Federation (for short `rcdf') and he joined on 1. 6. 81. The petitioner seeks voluntary retirement after completion of 25 years of service under Rule 244 (1) of the R. S. R. while working on deputation in RCDF and the same was accepted vide order dated 29. 1. 86.
(2.) THE controversy in this writ petition is that the petitioner was given the benefit of leave encashment but as per the petitioner, the respondent has not paid the leave encashment for remaining 98 days, as claimed by the petitioner. Learned counsel for the petitioner further submits that since the petitioner has spent 15 years in service with RCDF, therefore, he is entitled to get the benefit of leave encashment of 223 days. In support of his submissions, the learned counsel for the petitioner referred Rule 91-B of R. S. R. , which is reproduced hereunder:- 91-B R. S. R. : Cash payment in lieu of unutilized privilege leave on the date of retirement: (1) A Government servant on retirement from service on superannuation, invalid, compensation or retirement pension under rule 144 (1), shall be paid cash equivalent to leave salary in respect of the period of unutilized privilege leave not exceeding (240 days) at his credit at the time of retirement. (2) The cash payment of leave salary admissible under sub- rule (1) above shall be paid on retirement in one lump sum as one time settlement. (3) The cash payment under this rule shall be equal to leave salary as admissible for privilege leave and dearness allowance admissible on that leave salary at the rates in force on the date of retirement. No City Compensatory Allowance or House Rent Allowance shall be payable on cash payment of leave salary. (4) The cash payment for unutilized privilege leave shall be calculated as follows:- Cash Payment = Pay admissible on the date of retirement plus dearness allowance admissible on that date Number of unutilized privilege leave at credit on the date of retirement subject to a maximum of (240 days) 30 x (5) The head of office or head of Department, as the case may be shall be competent to grant leave and permit cash equivalent of privilege leave not exceeding (240 days) at the credit of a Government servant on the date of retirement. (6) The benefit of cash payment under this rule shall also be admissible to Government servants who are granted extension in service after attaining the age of superannuation. In such cases the benefit shall be granted on the date of final retirement on the expiry of extension. " Learned counsel for the petitioner also referred Rule 145- Decision No. 3 of R. S. R. , which is as under:- 145 (Decision No. 3) RSR : With a view to simplify the existing system and procedure for calculation of the leave salary and pension contribution, the matter has been examined and the Governor has been pleased to order that recovery of leave salary contribution in respect of Government Servants sent on deputation to public undertakings, Universities, autonomous bodies, corporations, Municipalities, Government Companies and other bodies etc. wholly and substantially owned or controlled by Government shall henceforth be not made. Consequently the payment of leave salary including leave encashment benefits in respect of leave taken by a Government servant while on deputation/foreign employer in discharge of their liability to pay the costs of leave salary to the Government. The reversion of a Government servant on deputation takes effect from the date on which he takes charge of the post under Govt. Thus in case of a Government servant, who takes leave on the conclusion of his foreign service before rejoining his post under Government, the liability for payment of leave salary in such cases shall be borne by the borrowing authority. If a Government servant attains the age of superannuation, while on deputation and is consequently relieved of his duties on retirement the cash payment in respect of unutilized principle leave at the credit of the Government servant on the date of retirement shall also be made by the borrowing authority or the foreign employer. " After referring the aforesaid rules, the petitioner give much emphasis on Regulation 12, which deals with Privilege Leave and the same is reproduced hereunder:- " Regulation 12 : Privilege Leave : (i) Privilege leave shall be admissible to temporary employee at the rate of one twenty second of the period spent on duty. However, on completion of 240 days of continuous service or confirmation whichever is earlier the privilege leave admissible to such employee shall be at the rate one eleventh of the period spent on duty. `duty' for this purpose shall mean the period spend in the service of the Federation excluding the periods of leave of any kind except casual leave. The maximum period of Privilege leave which can be accumulated privilege leave that may be granted at a time to an employee shall be 120 days. " After referring the aforesaid provisions of RSR, the learned counsel for the petitioner submits that the RSR and leave encashment therein were not applicable to the regulations of 1980 at that time and it came into force for the first time after Notification dated 27. 4. 1987. As per regulation 10 (x) of the Regulations of 1980, the respondents were obliged to grant the petitioner all leave benefits which were admissible to him in the State Government Rules since he was working there on deputation.
(3.) LEARNED counsel for the petitioner also referred the order of voluntary retirement Annexure-2, dated 29. 1. 86. After referring Annexure-2, he submits that the petitioner is entitled for leave encashment, the services spent in RCDF and as per the petitioner, still the petitioner is entitled to get the benefit of leave encashment for the remaining 98 days. Per contra, learned counsel for the respondent referred Office Order dated 5. 2. 86 (Annexure 3) and also placed the original record for perusal of the Court as per the directions issued by this Court. He submits that Rule 145, Decision No. 3 of the RSR is applicable to public undertakings, Universities, autonomous bodies, corporations, Municipalities, Government Companies and other bodies etc. and which provides for payment of leave salary including leave encashment benefits in respect of leave taken by a Government servant while on deputation/foreign service shall be made by the borrowing authority/foreign employer in discharge of their liability to pay the cost of leave salary. The conditions relating to transfer on permanent absorption are contained in Appendix IX of the Rajasthan Civil Service Pension Rules, 1996, wherein-Pensionary Benefits. . . . in such cases the Govt. servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization. " ;