# Rajendra Singh Negi v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-10
- **Case number:** Special Appeal Defective No. 1017 of 2010
- **Bench:** Ferdino I. Rebello, C.J. Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-negi-v-state-of-u-p-and-others-41741
- **Pages:** 3

## Headnote

Rules,
2003-Rule-5(1)-
Employment
Leave-appellant
without
sanction of leave-proceeded on leave-the
languages used "may" and not "shall"-
meaning
thereby
the
authority
can
sanction on refuse-the appellant without
prior sanction can not go on leave as a
matter of rights-considering the offer
given by employer for joining -direction
for favorable consideration given.

Held: Para 10

The second question for consideration is
whether there is a provision for Ex postfacto sanction. The rules themselves do
not so provide as noted earlier. On a
reading o the rules including Rule 5, it
would be clear that the employment
leave must be sanctioned before an
employee can go on a leave. This being
the position no ex post facto leave can
be granted.

## Text

1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
adjournment of the case on the date fixed
for hearing becomes unavoidable, the Court
may fix another date, and may also extend
the earlier order granting interim bail, if it
deems fit.

8. In case the petitioners fail to appear
before the court concerned on the dates
fixed it will be open to the Public
Prosecutor to move an application for
canceling the order of interim/final bail and
the
Court
concerned
may
pass
an
appropriate order on merits.

9. With the aforesaid observations,
this petition is disposed of.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Special Appeal Defective No. 1017 of 2010

Rajendra Singh Negi

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vinay Kumar Rai
Sri Anil Kumar Aditya

Counsel for the Respondents:
C.S.C.

U.P. Governments Servants (Employment
Leave)
Rules,
2003-Rule-5(1)-
Employment
Leave-appellant
without
sanction of leave-proceeded on leave-the
languages used "may" and not "shall"-
meaning
thereby
the
authority
can
sanction on refuse-the appellant without
prior sanction can not go on leave as a
matter of rights-considering the offer
given by employer for joining -direction
for favorable consideration given.

Held: Para 10

The second question for consideration is
whether there is a provision for Ex postfacto sanction. The rules themselves do
not so provide as noted earlier. On a
reading o the rules including Rule 5, it
would be clear that the employment
leave must be sanctioned before an
employee can go on a leave. This being
the position no ex post facto leave can
be granted.

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. This appeal has been preferred
against the judgment of a learned single
Judge dated 19.7.2010

2. The State of U.P. Framed a rule
known as the Uttar Pradesh Government
Servants (Employment Leave ) Rules, 2003
(hereinafter referred to as the rules) were to
remain in force only upto 31st March, 2008.

3. The appellant herein applied for
employment leave under the aforesaid rues.
The leave was not sanctioned, inspite of that
the appellant proceeded on leave. The
appellant sent various remainders but no
action was taken on his application.
Thereafter he filed a petition being Writ
Petition No. 5578 of 2010 which was
disposed of this Court on 3.2.2010.

4. The grievance of the appellant
before this court was that he is entitled for
sanction for employment leave which he
availed of in the expectation that the same
would be sanctioned in accordance with the
rules. The learned single Judge after
considering the contentions was pleased to
observe that the appellant herein may
approach the Director Panchayat Raj U.P.
3 All] Rajendra Singh Negi V. State of U.P. and others
1177
along with the copy of the order who shall
proceed to process the request of the
petitioner and pass an appropriate order
within a period of six weeks

5. The grievance of the appellant is
that considering the object for which the
rules had been framed the employee had a
right to apply for leave and the same will
have to be considered and be sanctioned.
The appellant herein so applied for leave
and then his leave ought to be sanctioned. In
these circumstances he has proceeded on
leave. The leave application was not
decided for no fault of the appellant and in
these
circumstances
considering
the
judgment of the learned single Judge the
respondents were bound to pass appropriate
orders on his application.

6. By the time application came up for
consideration, the rules were no longer in
force. The appellant applied for a period of
three years leave before the enforcement of
the rules. Subsequently after the aforesaid
period rules had come to an end but that by
itself would not disentitle the appellant for
leave for the period for which he was
entitled to proceed to leave.

7. We have heard learned counsel for
the
appellant.
Under
the
rules
of
employment leave has been defined under
Rule 3(b) which rule is as under:

Rule 3(b): "Employment Leave"
means such leave which is sanctioned by
the competent authority to a Government
servant for undertaking any kind of private
trade or business or employment etc. in an
organisation other than the Government
Departments,
Semi-Government
Departments, a Corporation, a Board, a
Public Undertaking or a Body owned or
controlled by the State Government of
Uttar Pradesh.

Similarly what is relevant is Rule 5(1)
and 5(2)

5. Condition of Employment Leave.-
(1)
Government
servants
may
be
sanctioned Employment Leave for a
minimum period of three years and a
maximum period of five years. Such
Government servants shall, in no case, be
allowed to return to duty in the
Government service fro, the Employment
Leave before the completion o three
years.

(2) State Government in case of
Government
servants
belonging
to
Group 'A' and Group 'B' posts and the
Head of the Departments in case of
Government
servants
belonging
to
Group 'C' and Group 'D' posts will be
empowered
to
sanction/disallow
the
Employment Leave.

8. From a reading of Rule 5(1), it
would be clear that the language used is
"may" and not shall. The expression may
also considering the definition clause of
Rule 3(b) cannot be read as shall. In other
words it was for the appropriate authority
either to sanction leave or not to sanction
leave. From this it has to be inferred that it
was the discretion of the sanctioning
authority to grant leave or not to grant leave.

9. The employee could not have
proceeded on leave as the expression used
in Rule 5(3) is during employment of leave.
Therefore the employee could proceed to go
on leave only after sanction. In the absence
of a sanction there was no question of the
employee proceeding on employment leave.

10.

The
second
question
for
1178 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
consideration is whether there is a provision
for Ex post-facto sanction. The rules
themselves do not so provide as noted
earlier. On a reading o the rules including
Rule 5, it would be clear that the
employment leave must be sanctioned
before an employee can go on a leave. This
being the position no ex post facto leave can
be granted.

11. We are therefore clearly of the
opinion that the very object of the provision
was to shed excess employees. At the same
time, the decision making process was of
the sanctioning authority, who had the
discretion either to sanction or not to
sanction the leave. No employee could
therefore proceed on leave without an
appropriate order from the sanctioning
authority.

12. In the instant case the appellant
proceeded to go on employement leave
without it being sanctioned. We therefore
find no fault in the action taken by the
respondents, consequently there is no merit
in the appeal and the same is accordingly
dismissed to that extent.

13. Learned counsel for the appellant
draws the attention of the Court to the letter
dated 11th June, 2010 whereby he was given
time to resume his duties. It is submitted
that on account of pending proceedings, he
had not joined and in these circumstances
he has to be given an opportunity to resume
his duties.

14. Considering the submission
advanced and considering the fact that the
respondents themselves by the notice dated
11th June, 2010 had given an option to the
appellants
o
resume
duties,
on
an
application being moved by the appellant
herein, before the concerned authorities,
they are to consider the same favorably and
pass appropriate orders as early as possible
but not later than fifteen days from the date
of receipt of application.

The appeal is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 3066 of 2007

Km. Sonam Sharma

 ...Petitioner
Versus
Bank of Baroda and others...Respondents

Counsel for the Petitioner:
Sri M.D.Singh 'Shekar'
Sri R.D.Tiwari

Counsel for the Respondent:
Sri Kartikeya Saran
Sri Vipin Sinha
Sri A.K. Singh
A.S.G.I.

Constitution
of
India
Art
226Compassionate appointment petitioner's
father died in harness on 29.6.04-claim
by vidow rejected due to overage on
6.4.05-application by petitioner being
son put claim on 31.5.05 rejected in garb
o G.O. Dated 30.06.2006 and 12.10.06
instead of that Rs. 6 lacs as ex-gratia
payment-held-both Government Order
have
not
retrospective
applicationentitled for Compassionate appointmentnecessary direction issued.

Held: Para 6

The ratio of the aforesaid decision is that
the circular, which was in existence at the
time of the moving of the application has
to be taken into consideration. On facts, it