# State of U.P. & Ors. Appllant v. Vidyottma Dwivedi & Anr

- **Citation:** (2022) 9 ILRA 302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Special Appeal (D) No. 43 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-appllant-v-vidyottma-dwivedi-anr-49012
- **Pages:** 9

## Headnote

A. Civil Law - Service Law - Leave
encashment - Leave encashment to an
employee of an Associated College of
Lucknow University - Uttar Pradesh State
Universities Act, 1973, S. 21 (4)
-
Fundamental Rules 58 to 104 of the
Financial Handbook - Section 21 (4) of
1973 Act provides that the pay and other
allowances of the employees of the
University & of associated college shall be
such as may be approved by the State
Government - Furthermore, Statute 37.01
of First Statutes of Lucknow University,
provides that the leave rules applicable to
the Government servants shall mutatis
mutandis apply to the employees of an
Associated College of Lucknow University
of like status - Leave in respect of the
State Government employees is governed
by Fundamental Rules 58 to 104 of the
Financial Handbook - Fundamental Rules
81-B (1)(xii) of the Financial Handbook
(Volume II, Part II to IV) provides that a
Government servant may be permitted to
surrender a portion of earned leave at his
credit and allowed cash payment in lieu
thereof - all the leave rules applicable to
the State Government employees as are
contained in the Fundamental Rules will
have application in case of an employees
of an Associated College of Lucknow
University & such employee are legally
entitled for grant of benefit of leave
encashment as per Fundamental Rule 81-
B(1)(xii) of the Financial Handbook (Para
27, 32)

B. Civil Law - Service Law - The Uttar
Pradesh State Universities Act, 1973-
Section 21 (3) - Leave Encashment - no
approval
of
the
State
Government
required for meeting the expenditure in
making payment of leave encashment
either under the 1973 Act or in the first
Statutes or in the Ordinances of Lucknow
University - Merely because the State
Government
has
not
issued
any
Government Order prescribing the manner
and quantum and point of time etc. for
leave encashment, will not, disentitle an
employee of an Associated College of
Lucknow University to seek the benefit of
leave encashment (Para 27, 32)
9 All. State of U.P. & Ors. Vs. Vidyottma Dwivedi & Anr.
303
Dismissed. (E-5)

## Text

302 INDIAN LAW REPORTS ALLAHABAD SERIES
the case compel us to observe that the
officers of the Lucknow Development
Authority and the administration thereof
have been extremely lackadaisical in
performing their duties. It is high time
that these officers self-introspect and take
extraordinary
measures
which
will
improve
its
working
so
that
the
development
authority
is
able
to
discharge its statutory functions entrusted
under the Uttar Pradesh Urban Planning
and Development Act, 1973. We hope and
expect that the top administration of
Lucknow Development Authority take
notice of the observation of this Court
and take appropriate steps not only to put
its house in order, but also improve its
functioning and administration in the
future, keeping in view the solemn
discharge of its duty of planning,
developing
and
providing
housing
solutions effecting the public at large.

26. There shall be no order as to the
costs.
----------
(2022) 9 ILRA 302
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 43 of 2022

State of U.P. & Ors. ...Appllant
Versus
Vidyottma Dwivedi & Anr. ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Abhishek Dwivedi, Anurag Kumar Singh
A. Civil Law - Service Law - Leave
encashment - Leave encashment to an
employee of an Associated College of
Lucknow University - Uttar Pradesh State
Universities Act, 1973, S. 21 (4)
-
Fundamental Rules 58 to 104 of the
Financial Handbook - Section 21 (4) of
1973 Act provides that the pay and other
allowances of the employees of the
University & of associated college shall be
such as may be approved by the State
Government - Furthermore, Statute 37.01
of First Statutes of Lucknow University,
provides that the leave rules applicable to
the Government servants shall mutatis
mutandis apply to the employees of an
Associated College of Lucknow University
of like status - Leave in respect of the
State Government employees is governed
by Fundamental Rules 58 to 104 of the
Financial Handbook - Fundamental Rules
81-B (1)(xii) of the Financial Handbook
(Volume II, Part II to IV) provides that a
Government servant may be permitted to
surrender a portion of earned leave at his
credit and allowed cash payment in lieu
thereof - all the leave rules applicable to
the State Government employees as are
contained in the Fundamental Rules will
have application in case of an employees
of an Associated College of Lucknow
University & such employee are legally
entitled for grant of benefit of leave
encashment as per Fundamental Rule 81-
B(1)(xii) of the Financial Handbook (Para
27, 32)

B. Civil Law - Service Law - The Uttar
Pradesh State Universities Act, 1973-
Section 21 (3) - Leave Encashment - no
approval
of
the
State
Government
required for meeting the expenditure in
making payment of leave encashment
either under the 1973 Act or in the first
Statutes or in the Ordinances of Lucknow
University - Merely because the State
Government
has
not
issued
any
Government Order prescribing the manner
and quantum and point of time etc. for
leave encashment, will not, disentitle an
employee of an Associated College of
Lucknow University to seek the benefit of
leave encashment (Para 27, 32)
9 All. State of U.P. & Ors. Vs. Vidyottma Dwivedi & Anr.
303
Dismissed. (E-5)

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Saurabh
Srivastava, J.)

 Order on C.M. Application No. 02 of
2022 (Application for Condonation of
Delay)

1. Heard learned State counsel
representing
the
appellant-
State
authorities, Sri Pradeep Chandola and Sri
Abhishek
Dwivedi,
learned
counsel
representing the respondent no.1- petitioner
and Sri Anurag Kumar Singh, learned
counsel representing the Vice-Chancellor,
Lucknow University, Lucknow.

2. Having heard the learned counsel
for the parties and perused the averments
made
in
the
application
seeking
condonation of delay, we are satisfied that
the delay has sufficiently been explained.

3. Accordingly the application is
allowed and the delay in preferring the
special appeal is hereby condoned.

Order on Special Appeal

1.
Heard
the
learned
counsel
representing the respective parties and
perused the record available before us on
this special appeal.

2. By means of this intra-court appeal
instituted under the provisions of Chapter
VIII Rule V of the Rules of the Court, the
State authorities have laid a challenge to
the judgement and order dated 14.12.2020
passed by the learned Single Judge in Writ
Petition No. 24316 (SS) of 2020, whereby
the writ petition filed by the respondent
no.1- petitioner was allowed with a
direction to the appellant - State authorities
to provide her benefit of leave encashment.
Learned Single Judge while allowing the
said writ petition and ordering to extend the
benefit of leave encashment to the
respondent no.1-petitioner has relied upon
a judgement passed by another learned
Single Judge, dated 27.05.2019 rendered in
the case of Ram Kumar and others versus
State of UP and others; Writ-A No.62389
of 2014.

3. Impeaching the judgement and
order passed by learned Single Judge,
learned State counsel has vehmentaly
argued that the judgement and order under
appeal herein is erroneous and as a matter
of fact the judgement rendered by the Court
in the case of Ram Kumar (supra) requires
a re-look for the reason that the relevant
provisions contained in the Financial
Handbook which govern leave rules and
matter related thereto, including leave
encashment, have not been taken into
consideration by learned Single Judge
while deciding the case of Ram Kumar
(supra). It has been argued by learned State
counsel that in terms of provisions
contained in Fundamental Rules 81-B
(1)(xii) of the Financial Handbook (Volume
II, Part II to IV), in absence of any
Government Orders having been issued by
the State Government allowing leave
encashment
to
an
employee
of
an
Associated College of Lucknow University,
the respondent no.1- petitioner is not
entitled to the said benefit. It has, thus,
been argued that this aspect of the matter
does not appear to have been considered by
the learned Single Judge in the case of Ram
Kumar (supra) and accordingly it is not
only that the judgement in the case of Ram
Kumar (supra) is erroneous but also that
reliance placed by learned Single Judge
while passing the judgement and order
304 INDIAN LAW REPORTS ALLAHABAD SERIES
under appeal herein also suffers from the
said error.

4. On the other hand learned counsel
for the respondent No.1-petitioner has
submitted that the judgement in the case of
Ram Kumar (supra) is based on elaborate
discussion of the provisions contained in
the U.P. State Universities Act 1973
(hereinafter referred to as "the 1973 Act),
the
first
Statutes
of
the
University
concerned
and
the
provision
of
Fundamental Rules 58 to 104 including
sub-Rule 1 and 2 of Rule 81-B, and hence
neither the said judgement in the case of
Ram Kumar need any re-look, nor the
judgement and order under appeal herein
warrants any interference by this Court in
this Special Appeal.

5.

Sri
Anurag
Kumar
Singh
representing the University has stated that
there is no irregularity in the judgement and
order under appeal in this case and the
special appeal is thus liable to be
dismissed.

6. We have given our anxious
consideration to the rival submissions made
by
learned
counsel
representing
the
respective parties.

7. Respondent No.1- petitioner was
employed with Nari Siksha Niketan Post
Graduate College, Lucknow against a Class
III post, who after serving the said
institution
retired
on
31.03.2018
on
attaining the age of superannuation. Nari
Siksha Niketan Post Graduate College is an
Associated College listed at serial number
14 of the list of Colleges mentioned in the
Statute 13.01 of the First Statutes of
Lucknow University. ''Associated College'
under the 1973 Act has been defined to
mean, in section 2 (4), any institution
recognised by the University as such.
Similarly ''Affiliated College' has been
defined in Section 2 (2) of the 1973 Act to
mean any institution affiliated to the
University
in
accordance
with
the
provisions of the Act and the Statutes of
that University. Section 37 which falls
under Chapter VII of the 1973 Act provides
for affiliation and recognition of the
affiliated colleges and as per Section 37 (1),
the said provision does not apply so far as
the University of Lucknow is concerned. In
other words, in Lucknow University there
are no affiliated colleges rather Associated
Colleges and other category of educational
institutions such as Constituent Colleges
and Institute etc. The provision relating to
Associated Colleges is found in Section 38
of the 1973 Act which clearly provides that
the said provision shall apply to the
University of Lucknow.

8. Thus as per the scheme of 1973
Act, there is no concept of affiliated
colleges so far as Lucknow University is
concerned and similarly there is no concept
as Associated Colleges so far as other State
universities are concerned. This distinction
became necessary for us to discuss for the
reason that the judgement under appeal is
based on the judgement in the case of Ram
Kumar (supra), who was an employee of an
affiliated college of Chaudhary Charan
Singh Meerut University, Meerut and the
relevant Statute available in the first
Statutes
of
the
Meerut
University
applicable in the case of employees
working in an affiliated college has been
quoted and relied upon in Ram Kumar's
case. The said distinction also became
necessary for us to discuss for the reason
that the learned Single Judge in the
judgement and order under appeal in this
case has relied upon in the case of Ram
Kumar (supra), which is based on the first
9 All. State of U.P. & Ors. Vs. Vidyottma Dwivedi & Anr.
305
Statutes applicable to the employees of
affiliated colleges of Meerut University,
whereas the claim in the instant case of the
respondent No.1- petitioner is based on the
relevant Statute of the First Statutes of the
Lucknow University applicable to the nonteaching staff of Associated Colleges.

9. However, the relevant Statute
governing the conditions of service of the
non-teaching staff of Meerut University is
couched in identical language as the
relevant
Statute
which
governs
the
condition of service of a class III employee
working in the Associated Colleges of
Lucknow University.

10. Statute 36.01 of the First Statutes
of Meerut University is quoted here under:-

"36.01: The leave rules applicable to
the Government servants from time to
time shall mutatis mutandis apply to the
employees of like satute."

11. The Statute which is relevant for
resolving the issue involved in this matter
is Statute 37.01 of First Statutes of
Lucknow
University,
which
is
also
extracted herein below:-

"37.01
Leave-
The
leave
rules
applicable to the Government servants
from time to time shall mutatis mutandis
apply to the employees of like status."

12. Thus there is no doubt that Statute
37.01 of the First Statutes of the Lucknow
University and the Statute 36.01 of the First
Statutes of Meerut University are akin to
each other and accordingly any decision in
this matter will necessarily require the
discussion in relation to and consideration
of judgement in the case of Ram Kumar
(supra) rendered by learned Single Judge.

13. We may, at this juncture, notice
that
Statute
37.01 of
the
Lucknow
University falls in Chapter XXIII of the
First Statutes which is in relation to,
"Qualification and Conditions of Service of
non-Teaching Staff of the Associated
Colleges".
Statute
37.01
clearly
and
categorically
states
that
leave
rules
applicable to the government servants from
time to time shall apply to the employees of
the Associated Colleges of like status
mutatis mutandis. Employees of like status
mentioned in Statute 37.01 refers to the
non-teaching
staff
of
the Associated
Colleges. Admittedly, the respondent No.1 -
petitioner was employed against a class III
post in an Associated College of Lucknow
University, as such she will be governed in
the matters of leave by Statute 37.01 of the
First Statutes of the Lucknow University.
There is no ambiguity in our mind
regarding applicability of leave rules which
govern the State Government employees, to
the employees of an Associated College of
Lucknow University.

14. We, thus, now need to examine as
to what are the leave rules applicable to the
State Government employees. There is no
dispute at the bar that leave rules applicable
to the State Government employees can be
found under Chapter X, Section I of the
Financial Handbook (Volume II, Part II to
IV). The leave in respect of the State
Government employees is thus governed by
Fundamental Rules 58 to 104 of the
Financial Handbook.

15. Fundamental Rules 81-B (1) of
the Financial Handbook provides for
certain leave rules applicable to the State
Government employees. Rule 81-B (1)
states that the procedure given therein shall
be deemed to have come into force with
effect from 01.01.1978 in regard to the
306 INDIAN LAW REPORTS ALLAHABAD SERIES
calculation of earned leave in respect of the
State Government employees. Clause 1 of
Rule 81-B of the Fundamental Rules
contains various other sub-clause from (i)
to (xii). Sub-Clause xii of Clause 1 of Rule
81-B runs as under:-

"(xii) A Government servant may be
permitted to surrender a portion of earned
leave at his credit and allowed cash
payment in lieu thereof in accordance
with the orders issued by Government, in
this regard, from time to time."

16. There cannot be any dispute that
in terms of the provisions contained in
Statute 37.01 as quoted above sub-clause
(xii) of Clause 1 of Rule 81-B will have its
application to the employees working in the
Associated
Colleges
of
Lucknow
University by virtue of express provision
that leave rules as applicable to the State
Government employees shall apply to the
employees of Associated Colleges as well.
We do not have any doubt that provisions
contained in sub-clause (xii) of Clause I of
Rule 81-B will have application in case of
respondent No.1 - petitioner as well.

17. We are also of the considered
opinion that the kind of language in which
sub-clause (xii) of Clause I of Fundamental
Rules 81-B is framed gives a substantive
right to an employee to surrender a portion
of earned leave available in his credit and
to ask for cash payment in lieu thereof. In
other words, the said provision confers a
substantive right upon a Government
servant to surrender a portion of earned
leave and seek encashment instead of the
leave.

18. By virtue of Statute 37.01, the
petitioner as well, is thus conferred with the
substantive right of surrendering a portion
of her earned leave which might be
available in her credit and to seek cash
payment in lieu of such surrender of the
earned leave.

19. The only issue/ question which
has been raised by learned counsel for the
State-Appellant is that so far as the State
Government employees are concerned, the
State Government has issued orders from
time to time and payment of leave
encashment in terms of the provisions
contained
in
Rule
81-B(1)(xii)
is
permissible only in accordance with the
Government Orders, however in case of
employees of Associated Colleges, till date
no Government Order has been issued. In
this view, the submission is that in absence
of any Government Order having been
issued as per the requirement of sub-clause
(xii) of Clause I of Fundamental Rule 81-B,
the respondent No.1 - petitioner is not
entitled to leave encashment.

20. Learned State Counsel has drawn our
attention to a Government Order dated
26.04.1978 which provides that benefit of
leave encashment will be available to the
State Government employees equivalent to
maximum of 180 days leave. The said
Government Order also provides that
benefit of leave encashment will be
available after the Government employee
attains the age of superannuation and
retires and accordingly in terms of the
formula for payment given in the said
Government
Order,
a
government
employee shall be paid the amount of leave
encashment at the time of his retirement.

21. Learned State Counsel while
arguing further has also drawn our attention
to yet another Government Order dated
01.07.1999, according to which the benefit
of leave encashment was enhanced from
9 All. State of U.P. & Ors. Vs. Vidyottma Dwivedi & Anr.
307
180 days to 300 days' earned leave. His
submission, thus, is that so far as the State
Government employees are concerned, the
Government Order from time to time have
been issued and accordingly they are
entitled to the benefit of leave encashment,
however in the case of employees working
in the Associated College of Lucknow
University, since the State Government has
not issued any Government Order as such
they are not entitled for payment of leave
encashment.

22. Emphasis of the learned State
Counsel is on the occurrence of the words,
"in accordance with the orders issued by
the Government in this regard, from time to
time" as can be found in Clause 81-B
(1)(xii) of the Fundamental Rules. When
we examine and consider the aforesaid
arguments advanced by the learned State
counsel, we do not find ourselves in
agreement with the same for the reasons
which follows.

23. If we scrutinize the two
Government Orders as pointed out by
learned State Counsel, namely, Government
Order dated 26.04.1978 and 01.07.1999,
what we find is that the said Government
Orders do not in any manner accord or vest
any substantive right of leave encashment.
The Government Orders only provide the
point of time at which an employee shall be
entitled to encash his/ her earned leave and
the extent of the amount to be paid in lieu
of the earned leave. As already pointed out,
the
first
Government
Order
dated
26.04.1978 provides that the Government
Employee shall be entitled to benefit of
leave encashment at the time when he
retires on his attaining the age of
superannuation. This Government Order
further
provides
that
a
Government
employee shall be entitled to leave
encashment up to 180 days of earned leave.
Similarly the Government Order dated
01.07.1999 provides that leave encashment
will be permitted upto 300 days earned
leave. Thus, the Government Orders
determine two things, firstly, the point of
time when the employee shall be entitled to
encash her earned leave and secondly, the
extent or quantum of leave encashment
admissible. Thus, Government Orders do
not, clearly, create or vest any right in the
employees so far as payment of leave
encashment is concerned. The substantive
right available to the employees is referable
to the provisions Rule 81-B (1) (XII) of the
Fundamental Rules.

24. In our considered opinion, the
substantive right of leave encashment to an
employee flows from the provisions
contained in Fundamental Rule 81-B
(1)(xii) of the Financial Handbook. The
said provision of the Fundamental Rules
confers right rather, substantive right upon
an employee to surrender a portion of
his/her earned leave and claim encashment
in lieu thereof. The occurrence of the
phrase "in accordance with the orders
issued by the State Government, in this
regard from time to time", in our
considered opinion only permits the State
Government to prescribe the manner in
which leave encashment is to be made
avaialble. Thus the Government Orders
issued from time to time do not confer the
substantive
right
of
claiming
leave
encashment which rather flows from the
earlier part of provision contained in
Fundamental Rule 81-B (1)(xii) of the
Financial Handbook.

25. In other words, sub-clause (xii) of
Fundamental Rule 81-B (1) after conferring
the right in a State Government to encash a
portion of his earned leave only permits the
308 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government to issue Government
Orders for the purposes of prescribing the
procedure etc. "In accordance with the
orders" clearly refers to the nature of
Government Orders which may be issued
by the State Government which may be
referable to the provision contained in Rule
81-B(1)(xii).

26. In view of the aforesaid
discussion, insistence of the learned State
Counsel that for entitling any Government
servant to leave encashment, it is necessary
that Government Order should be issued
and unless and until the Government Order
is issued, a Government employee will not
be entitled to leave encashment, in our
considered opinion, is fallacious and such
an argument is clearly based upon a
complete misreading of the provisions of
Fundamental Rule 81-B (1)(xii) of the
Financial Handbook.

27. So far as the respondent no.1- pettioner
is concerned, as already observed above,
she retired from a Class III post working in
an
Associated
College
of
Lucknow
University and Statute 37.01 of the First
Statute of the Lucknow University clearly
provides that leave rules applicable to the
employees of Associated Colleges will be
the same as are applicable to the
Government servant. Accordingly, we are
of the considered opinion that Fundamental
Rule 81-B (1)(xii) of the Financial
Handbook will be applicable to the
respondent no.1- petitioner as well and
further that the said provision confers a
right upon the respondent no.1- petitioner
to surrender a portion of her earned leave
and encash the same. Merely because the
State Government has not issued any
Government Order prescribing the manner
and quantum and point of time etc. for
leave encashment, will not, in our opinion,
dis-entitle the respondent no.1-petitioner to
seek the benefit of leave encashment. We
may also emphasise that while framing
Statute 37.01, the Statute making authority
was conscious and accordingly it has used
latin phrase "mutatis mutandis" in the said
provision. The purpose of using such a
phrase in the First Statute is not difficult to
gather. In our opinion the intention of the
Statute making authority/ body was clear
and infact it intended to provide all the
leave
benefits
to
the
employees
of
Associated College, which are applicable
on
and
available
to
a
Government
employee.

28. There is yet another aspect of the
matter which cannot be lost sight of. The
respondent no.1- petitioner has been
legitimately
expecting
throughout
her
service career that she shall be entitled to
the leave encashment in terms of the
provisions contained in Statute 37.01 and
accordingly instead of availing the leaves,
which she could have, she rather allowed
certain number of leaves to be credited in
her leave account. In such a view of the
matter, the stand being now taken by the
State Government is not only contrary to
the statutory prescription available in the
Statute 37.01 read with Fundamental Rules
81-B (1)(xii) of the Financial Handbook
but is also against the principle of
legitimate expectation.

29. So far as the reliance placed by
learned Single Judge in the judgment under
Appeal before us on the judgement by
another learned Single Judge in the case of
Ram Kumar (supra) is concerned, the
only difference in the facts of these two
cases is that the employee in the case of
Ram Kumar (supra) was employed with
an Affiliated College of Meerut University,
whereas in the present case the respondent
9 All. State of U.P. & Ors. Vs. Vidyottma Dwivedi & Anr.
309
no.1-petitioner was employed with the
Associated College of Lucknow University.
The Statute 36.01 of the First Statute of
Meerut University, as already noticed
above, is identically worded as Statute
37.01 of the First Satutes of Lucknow
University. Learned Single Judge in the
case
of
Ram
Kumar
(supra)
has
elaborately discussed the provisions of
relevant Statute and those of the Financial
Handbook
including
the
Fundamental
Rules 81-B (1)(xii) of the Financial
Handbook and has concluded that in view
of the said provisions, the benefit of leave
encashment is available to an employee of
a Affiliated College of Meerut University.

30. It has also been argued by
learned counsel for the appellant- State
authorities that in view of the provisions
contained
in
Section
21(3),
no
expenditure where approval of State
Government is required by the 1973 Act
or the Statute or the Ordinances, shall be
incurred except with such approval
previously
obtained
from
the
State
Government and since there is no
approval
accorded
by
the
State
Government
for
payment
of
leave
encashment, which will of course be an
expenditure,
the
respondent
no.1-
petitioner is not entitled to the benefit of
the leave encashment.

31. On behalf of the appellant it has
further been urged that in terms of the
provisions contained in sub-section (4) of
Section 21 of the 1973 Act, pay and other
allowances to various categories of
employees of the University or any
Institute or a Constituent or Affiliated or
Associated College shall be such as may
be approved by the State Government.
The submission is that leave encashment
forms part of pay and unless and until
this is approved by the State Government
the respondent no.1- petitioner will not be
entitled to leave encashment.

32. When we examine sub-clause
(3) of Section 21, what we find is that
approval of the State Government is
required only in a situation where
expenditure can be incurred by the
University for which approval of the
State Government is required either under
the 1973 Act or under the first Statute or
Ordinance. Learned counsel representing
the appellant has utterly failed to show
that there is any requirement of approval
for
expenditure
for
meeting
the
expenditure in making payment of leave
encashment either under the 1973 Act or
in the first Statutes or in the Ordinances
of Lucknow University. On the contrary,
so far as the leave related matters are
concerned,
Statute
37.01
is
clear,
according to which the said matters shall
be governed by the Rules applicable to
the State Government employees. There
being specific provision in Statute 37.01
regarding applicability of leave rules
applicable to the government employees,
we are of the opinion that all the leave
rules applicable to the State Government
employees as are contained in the
Fundamental Rules will have application
in case of the respondent no.1- petitioner
as well and thus she is legally entitled for
grant of benefit of leave encashment as
per the conferment of rights in terms of
Fundamental Rule 81-B(1)(xii) of the
Financial Handbook.

33. So far as the arguments based on
sub-Section (4) of Section 21 of the 1973
Act is concerned, we find that the said issue
has been considered by the learned Single
Judge in the case of Ram Kumar (supra),
wherein it has been observed that such
310 INDIAN LAW REPORTS ALLAHABAD SERIES
argument would have been justified in case
a provision such as Statute 36.01 (in case of
Meerut University which is akin to Statute
37.01
applicable
to
the
Lucknow
University) was not in existence in the first
Statutes and no approval was granted by
the Sate Government in that regard. The
reasoning given by learned Single Judge in
the case of the Ram Kumar (supra)
appears to be correct. The argument based
on Section 21(4) could be said to be
available to the learned State Counsel only
in absence of the provisions which are
contained in Statute 37.01 of the First
Statutes.

34. For the reasons aforesaid, we are
unable to find ourselves in agreement with
the submission made by the learned
counsel for the appellant- State authorities.
The judgment and order passed by learned
Single Judge which is under Appeal herein
does not warrant any interference by us in
this Special Appeal.

35. The Special Appeal is thus
dismissed.

36. However, there will be no order as
to Costs.
----------
(2022) 9 ILRA 310
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 20596 of 2022

C/M
Maulana
Abdul
Kalaam
Azad
Education Society, Aadelih, Dist Mau &
Anr. ...Petitioners
Versus
Assistant Registrar Firms Societies and
Chits, Azamgarh Region Azamgarh & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Adarsh Singh, Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C., Sri Anshu Chaudhary, Sri G.K. Singh

A. Constitution of India - Article 226 -
Writ - Maintainability - Committee of
management
dispute
-
Bye-Laws
authorized
the
Manager
to
initiate
proceeding in a Court of Law, however,
the proceeding was initiated by the
President - Proceeding by the President in
individual capacity - Permissibility - Word
'pairvi' in the Bye-Laws of the society -
Scope defined - Held, word "pairvi" in
common
parlance
implies
that
all
proceedings including institution of legal
proceedings in a Court of Law is to be
done by the Manager and as such, there
appears
to
be
some
force
in
the
preliminary objection - However, the
Court finds that even if the writ petition is
held to be not maintainable by the
Committee of Management through its
President, it is certainly maintainable by
the
President
in
his/her
individual
capacity. (Para 10)
B. Societies Registration Act, 1860 -
Sections 4(1) & 25(1) - Election - Dispute
or doubt - Duty of Assistant Registrar to
refer the dispute, when can be discharged
- Assistant Registrar found the rival claim
not bonafide - Validity challenged - Held,
only genuine rival claim / disputes or
doubts about the office bearers of the
Society are required to be referred for
adjudication
by
Prescribed
Authority
under Section 25 (1) of the Societies
Registration Act, 1860 and the Assistant
Registrar, Firms, Societies and Chits while
referring the dispute is not to function as
a post office/rubber stamp - High Court
found no error in the order of the
Assistant Registrar to proceed u/s 4(1) .
(Para 12, 13 and 14)