REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 531-532 OF 2013
(Arising out of SLP(C) Nos. 27286-27287 of 2009)
State of Maharashtra and others …Appellants
versus
Nowrosjee Wadia College and others
…Respondents
J U D G M E N T
G. S. Singhvi, J.
1. The question which arises for consideration in these appeals is
whether respondent Nos.1 and 2 are entitled to reimbursement of the amount paid to the teachers by way of leave encashment under the statutes framed by the Pune University.
2. Dr. Anagha Anant Nadkarni and Dr. Moreshwar J. Bedekar, who were
employed as Professors in respondent No.1 college retired from service in
November, 2003.
They filed applications before Pune University Grievance
Committee (for short, ‘the Committee’) for encashment of earned leave.
The
Committee passed order dated 3.5.2007 and recommended payment of the amount
in lieu of earned leave. However, respondent No.1 did not act upon the
recommendations of the Committee.
Therefore, Dr. Anagha Anant Nadkarni and
Dr. Moreshwar J. Bedekar filed Writ Petition Nos.8763 and 8775 of 2007 for
issue of a mandamus to respondent No.1 to pay the amount of leave
encashment.
The same were disposed of by the Division Bench of the Bombay
High Court vide order dated 7.4.2008 along with 11 other writ petitions.
The Division Bench relied upon order dated 22.1.2007 passed in Writ
Petition No.4936/2006 – V. S. Agarkar v. The Chairman, Grievance Cell
Committee, Pune University and others and held:
“. Therefore, there could not be any controversy over the issue of
entitlement of the petitioners for encashment of unutilised earned
leave on superannuation which in the case of V.S. Agarkar (supra) has
been discussed at length and, therefore, we dispose of these petitions
with a direction to the respondent-institution and the Principal that
the Principal of the Institution where the petitioners were employed
to pay to the petitioners leave encashment for maximum 180 days or
lesser to the extent that the petitioners are entitled to and that
they shall complete the exercise within a period of eight weeks from
today. We further make it clear that the Institution after discharging
their liability of payment of leave encashment as per the entitlement
of the petitioners, are entitled to claim reimbursement by way of
grant from the Respondent-State.”
3. By another order dated 9.6.2008 passed in Writ Petition No.2881/2007
– Khandesh College Education Society v. Arjun Hari Narkhede and others, the
Division Bench of the High Court directed payment of leave encashment to
the teachers in terms of the order passed in V. S. Agarkar’s case.
Simultaneously, liberty was given to the institutions to seek reimbursement
from the State. That order was modified on 20.6.2008 in the following
terms:
“We have disposed of these petitions by common order dated 9.6.2008.
It has been pointed out by the petitioner in W.P. No.6540/2007 that
this court has observed that Grievance Committee has rejected the
claim of the petitioner on the ground that it is barred by delay and
latches as the petitioner had approached the Grievance Committee after
lapse of three years. It is submitted that this statement was made
without proper instructions. In fact, the Grievance Committee had
given a report in favour of the petitioner which was dealt by the
Grievance Committee after petition came to be filed. We, therefore,
record this to be read at the end of Paragraph No. 4 that later on
Counsel has submitted as aforesaid. This does not in any manner affect
the substantive relief granted by the court in favour of the
petitioner.
2. Learned A.G.P. submitted that this court has observed in concluding
Paragraph that respondent - institution will be entitled to claim
reimbursement by way of grant from the respondent - State.
Only
correction requires to be done is that the liability of the State
would be subject to claim of the respondent being admissible under
law. Therefore, we add a sentence at the conclusion of Paragraph No. 9
if admissible under law. Our order be read accordingly.”
4. Khandesh College Education Society challenged the orders of the High
Court in SLP (C) Nos.17039-17040/2008, which were disposed of by this Court
vide order dated 5.7.2011 along with a batch of similar special leave
petitions.
The two Judge Bench first considered the question
whether the
provisions of Maharashtra Civil Services (Leave) Rules, 1981 (for short,‘the 1981 Rules’) are applicable to the teachers employed by respondent No.1, and held:
“From the very language of different provisions of Rule 54 of the
Maharashtra Civil Services (Leave) Rules, 1981 it is clear that it
applies only to “a government servant”. Respondents 1 to 14 are not
government servants and, therefore, cannot be denied earned leave on
the basis of provisions made in Rule 54 of the Maharashtra Civil
Services (Leave) Rules, 1981.”
The Bench then referred to the relevant provisions of the Maharashtra
Universities Act, 1994 (for short, ‘the 1994 Act’), Statutes 424(3) and
424(C) of the University of Pune and observed:
“On the other hand, Section 115 of the Act while repealing the
different Acts applicable to different universities in the State of
Maharashtra provides in sub-section (2)(xii) that all Statutes made
under the repealed Acts in respect of any existing university shall,
insofar as they are not inconsistent with the provisions of the Act,
continue in force and be deemed to have been made under the Act in
respect of the corresponding university until they are superseded or
modified by the Statutes made under the Act. Hence, Statutes 424(3)
and 424(C) of University of Pune, which were applicable to the
University, continue to be in force and are deemed to be made under
the Act if they are not inconsistent with any provision of the Act or
are not superseded, modified by Statutes made under the Act.
Sections 5(60), 8 and 14(5) of the Act confer power on the State
Government to exercise control over the University in some matters and
also empower the State Government to issue directives to the
University and cast a duty on the Vice-Chancellor to ensure compliance
with such directives, but these provisions in the Act do not prohibit
grant of earned leave to a teacher or Lecturer of any affiliated
college who can avail a vacation from being entitled to earned leave
or from being entitled to encashment of accumulative earned leave at
the time of retirement. In other words, Statutes 424(3) and 424(C) of
University of Pune are not in any way inconsistent with the provisions
of the Act. The learned counsel for the petitioners and the State
Government have also not brought to our notice any statute of the
University modifying or superseding Statute 424(3) or Statute 424(C)
of University of Pune which were applicable to the University.
Statutes 424(3) and 424(C) of University of Pune are extracted
hereinbelow:
“424. (3). Leave.—
(a)-(b) * * *
(c) Earned leave.—
(a) The confirmed non-vacation teacher shall be entitled to
earned leave at the rate of one-eleventh of the period
spent on duty subject to his accumulating maximum of 180
days of leave.
(b) The teacher other than the one included in (a) above
shall be entitled to one twenty-seventh of the period spent
on duty and the period of earned leave as provided in the
proviso to Section 423 subject to his accumulation of
maximum of 180 days. For this purpose the period of working
days only shall be considered.”
* * *
“424(C). Encashment of unutilised earned leave on
superannuation.—The teacher shall be entitled to encash earned
leave in balance to his credit on the date of his superannuation
subject to a maximum of 180 days.
In case the teacher is required to serve till the end of
academic session beyond the date of his superannuation, he shall
be entitled to encash the balance of earned leave to his credit
on the date of his actual retirement from service.”
A reading of Statute 424(3) extracted above would show that clause (a)
applies to confirmed non-vacation teachers and clause (b) applies to
teachers other than non-vacation teachers and clause (b) clearly
states that teachers other than non-vacation teachers shall be
entitled to earned leave subject to their accumulation of maximum 180
days. Statute 424(C), quoted above, further provides that teachers
shall be entitled to encash earned leave in balance to their credit on
the date of his superannuation subject to a maximum of 180 days.
It, however, appears that the State Government has issued directives
from time to time to the universities to amend the Statutes so as to
ensure that Lecturers or teachers working in Vacation Departments are
not entitled to earned leave and encashment of earned leave, but the
fact remains that Statutes 424(3) and 424(C) of University of Pune
have not been modified or superseded. There are also no provisions in
the Act to the effect that the Statutes of a university which are
inconsistent with the directives of the State Government will be
invalid. Section 115(2)(xii) rather states that statutes which are not
inconsistent with the provisions of the Act and which have not been
modified or superseded shall continue to be in force. Hence,
Respondents 1 to 14 were entitled to earned leave and encashment of
earned leave as per the provisions of Statutes 424(3) and 424(C) of
University of Pune.”
5. After recording the aforesaid observations, the Bench declined to
grant leave but gave three months time to the SLP petitioners to comply
with the directions given by the High Court.
6. After 3 years of enactment of the 1994 Act, which resulted in repeal
of various existing statutes including the Poona University Act, 1974,
under which Statutes 424(3) and 424(C) had been framed, the State
Government issued instructions to the Universities to discontinue payment
of leave encashment to the teachers by pointing out that they fall in the
categories of employees working in the ‘Vacation Department’.
The State
Government also took cognizance of the orders passed by the High Court in
Writ Petition No. 2671/2006 and Contempt Petition No. 191/2006 and directed
that the University Statutes should be amended with retrospective effect
and till then, the concerned University should bear expenses incurred in
payment of leave encashment. This was reiterated vide letter dated
20.10.2008 sent by the Director of Education (Higher Education),
Maharashtra to all the universities.
7. In furtherance of the directives given by the State Government, the
Vice-Chancellor of Pune University passed order dated 1.2.2009, which reads
as under:
“WHEREAS the Maharashtra State Legislature has enacted the Maharashtra
Universities Act, 1994 (Maharashtra Act No. XXXV of 1994), which has
come into force with effect from 22nd July, 1994.
AND WHEREAS as per Section 51(8) of the Maharashtra Universities Act
1994, the University has power to prescribe the terms and conditions
of the services of the teachers by framing Statutes.
AND WHEREAS the University, in exercise of the power vested in it, as
per Section 51(8) of the Maharashtra Universities Act, has framed the
Statutes regarding the entitlement, surrender and encashment of the
earned leave to the teachers.
State Government, vide its letter dated 9th August, 2007, University
to repeal the provisions of earned leave effect, since the teachers of
the University of the vacation, they are not entitled for earned leave
in the Statutes with retrospective effect, since the Teachers of the
University and affiliated colleges avail of the vacation, they are not
entitled for earned leave.
AND WHEREAS the State Government, vide its further letter dated 20th
October, 2008 directed all Universities to repeal the provisions of
earned leave in the Statues with retrospective effect, within a period
of one month from the date of the letter.
AND WHEREAS as per Section 14(5) of the Maharashtra University Act,
1994, it is, inter alia, duty of the Vice-Chancellor to ensure that
directives of the State Government are strictly observed.
AND WHEREAS as per Section 5(60) of the Maharashtra Universities Act,
1994, the University has to comply with and carry out any directives
issued by the State Govt from time to time.
AND WHEREAS a proposal as regards repealing the Statute 424(C) in
respect of encashment of earned leave with retrospective effect, was
placed before Management Council in its meeting held on 22nd August,
2008.
AND WHEREAS the Management Council of the University in its above said
meeting resolved that an administrative decision as regards repealing
the Statute 424 (C), be taken and the directives be issued in this
regard in view of the provisions of Section 5(60) and Section 14(5) of
the Maharashtra & Universities Act, 1994.
AND WHEREAS the Management Council of the University, in its meeting
held on 1st October, 2008 confirmed its earlier decision as regards
repealing the Statute 424 (G), be taken and the directives be issued
in this regard in view of the provisions of Section 5(60) and Section
14(5) of the Maharashtra Universities Act 1994 arid resolved that the
said decision be implemented with effect from 1st February, 2009.
AND WHEREAS it will take some time to repeal the said Statute and
place the same before the Statutory Authorities in the University as
laid down in Section 52 of the Maharashtra Universities Act, 1994.
Therefore, I Dr. Narendra Damodar Jadhav, Vice- chancellor of the
University of Pune, by and under the powers vested in the under sub
section 8 of Section 14 of the Maharashtra Universities Act, 1994,
hereby issue the following directives;
The Teachers Statute 424 (C) is repealed w.e.f. 1st February, 2009.
Ref: No.LAW/2009/73 Dr. Narendra Jadhav
Dated 1.2.2009 Vice-Chancellor.
Present Statute Amendment Statute after
Proposed
amendment
Statute 424 (C) encashment of Delete
Unutilized Earned Leave on statute 424
Superannuation (C)
The teacher shall be entitled to encash earned leave in balance to
his credit on the date of his superannuation subject to a maximum
of 180 days.
In case the teacher is required to serve till the end of academic
session beyond the date of his superannuation, he shall be entitled
to encash the balance of earned leave to his credit on the date of his
actual retirement from service.”
(The order has been extracted from the SLP paper-book)
8. Feeling aggrieved by the directives issued by the State Government,
respondent Nos. 1 and 2 filed Writ Petition No.6609/2009 for issue of a
mandamus to the State Government to reimburse the total amount of
Rs.4,46,815/- paid to Dr. Anagha Anant Nadkarni and Dr. Moreshwar J.
Bedekar and for grant of a declaration that State Government is liable to
reimburse the amount paid to other teachers by way of leave encashment.
9. The State Government contested the writ petition by relying upon the
provisions of the 1981 Rules and the instructions issued for repeal of the
Statutes with retrospective effect and pleaded that the writ petitioners
are not entitled to reimbursement of the leave encashment paid to the
teachers employed in the ‘Vacation Department’.
10. The Division Bench of the High Court referred to order dated 7.4.2008
passed in Writ Petition No. 8763/2007 and connected matters and disposed of
the writ petition vide order dated 24.8.2009 by taking cognizance of the
statement made by the Assistant Government Pleader that the amount paid to
the teachers will be reimbursed by way of grant. The Director of Higher
Education and others filed Civil Application No.2320/2009 for modification
of order dated 24.8.2009. The same was disposed of by the High Court on
9.10.2009 by relieving the Assistant Government Pleader of the concession
made by him. However, the direction given for reimbursement of the amount
paid by the institutions to the teachers in lieu of earned leave was
maintained on the premise that order dated 7.4.2008 passed in Writ Petition
No.8763/2007 and batch has become final.
11. On 3.11.2009, this Court ordered notice in SLP (C) Nos.27286-
27287/2009 but dismissed a batch of special leave petitions by recording
the following observations:
“These SLPs arise from the common order dated 7.4.2008 in a batch of
writ petitions. There is a delay of 480 days.
It is submitted that the order dated 7.4.2008 has been followed in
another batch of cases - Khandesh College Education Society
vs. Arjun Hari Narkhede & Ors. and connected cases
W.P.No.2881/2007 dated 9.6.2008. Later, having found that there was
an obvious omission, the High Court made an amendment to
the order dated 9.6.2008, by order dated 20.6.2008 by adding the
words “if admissible under law" after the words "are entitled to
claim reimbursement by way of grant from the Respondent-
State". It is submitted that the High Court, having made the said
amendment in the order dated 9.6.2008 in W.P.(C) No.2881/2007,
ought to have made the said correction in the impugned order dated
7.4.2008 also as that order also contained a similar omission by
oversight. Therefore, it will be appropriate if the petitioner-
State approaches the High Court and point out that the correction
having been found necessary in the order dated 9.6.2008, it ought to
have been made in the order 7.4.2008 also when correcting the
order dated 9.6.2008.”
12. In furtherance of the observations made by this Court, the appellants
filed applications for clarification of order dated 7.4.2008 passed by the
High Court. Respondent Nos. 1 and 2 resisted the prayer made in the
applications by asserting that the clarifications sought by the State would
completely change the nature of relief granted by the High Court. After
considering the objections, the High Court passed order dated 3.5.2011,
paragraphs 5, 6 and 7 of which read as under:
“5. In our opinion, the clarification sought by the applicant-State of
Maharashtra is a benign clarification. Inasmuch as, the respondents
(original writ petitioners) or the management of the school in which
the teachers were employed and have been paid leave encashment amount,
cannot be heard to contend that the management would be entitled for
reimbursement of the amount so paid by them even if the same is
inadmissible in law. In other words, the directions contained in the
order dated 7.4.2008 will have to be understood to mean that the
management would be entitled to claim reimbursement by way of grant
from the respondent-State to the extent of the amount paid by it to
the teachers as leave encashment, if permissible in law.
6. In this view of the matter, we allow all these Civil Applications
by adding at the end of paragraph 4, the following words:-
“if permissible in law.”
7. We, however, record the submission of the management as well as the
teachers (original writ petitioners) with approval that the fact that
such clarification has been issued does not necessarily mean that the
management is not entitled for reimbursement in law. That is a matter
which will have to be examined in appropriate proceedings as and when
occasion arises.”
13. Shri Chinmoy Khaladkar, learned counsel for the appellants referred
to the provisions of the 1994 Act, the 1981 Rules and argued that the
appellants are not obliged to reimburse the amount paid by respondent No.1
to the teachers by way of leave encashment in terms of the Statutes framed
by the Pune University because neither the Poona University Act, 1974 nor
any other enactment mandates reimbursement of the amount paid in lieu of
the earned leave. Learned counsel pointed out that in terms of Rules 52 and
54 of the 1981 Rules, the teachers employed in the Government colleges are
not entitled to the benefit of leave encashment and argued that it would
amount to invidious discrimination if the teachers employed in the private
colleges affiliated to the University are held entitled to the benefit of
leave encashment.
14. Shri Colin Gonsalves, learned senior counsel for respondent Nos. 1
and 2 argued that despite the order passed by the High Court on 3.5.2011,
the appellants are duty bound to reimburse the colleges the amount paid to
the teachers by way of leave encashment. Learned senior counsel submitted
that in view of Section 115(2), the existing Statutes and Ordinances made
under the Acts specified in sub-section (1) of Section 115 will be deemed
to have been saved because the University had not framed fresh Statutes or
repealed the existing Statutes.
15. We have considered the respective arguments. Sections 3(1), 5(9),
5(49), 5(57), 5(60), 8(1)(a) to 8(c), 8(1)(g), 8(2), 8(3), 8(4), 14(5),
51(5), 51(8), 52(6), 115(1) and 115(2)(xii) of the 1994 Act, Rules
50(1)(a), 50(1)(b), 52, 54(1), 54(2), the relevant extract of Appendix II
of the 1981 Rules and Statutes 424(3) and 424(C), which have bearing on
these appeals, read as under:
The 1994 Act.
“3. Incorporation of universities:- (1) In relation to each of the
existing universities specified in column (1) of Part I of the
Schedule, with effect from the date of commencement of this Act, the
corresponding university with the name, specified against it in column
(2) of the said Part, is hereby constituted under this Act, for the
same area specified in column (3) of the said Part for which it was
constituted immediately before the date of commencement of this Act.
5. Powers and duties of university: - The university shall have the
following powers and duties, namely:-
(1) to (8) xxx xxx xxx
(9) to create posts of directors, principals, professors, readers,
lecturers and other teaching or non-vacation academic posts required
by the university with the prior approval of the State Government and
to prescribe their qualifications and make appointments thereto;
(10) to (48) xxx xxx xxx
(49) to lay down for teachers and university teachers, service
conditions including code of conduct, workload, norms of performance
appraisal, and such other instructions or directions as, in the
opinion of the university, may be necessary in academic matters;
(50) to (56) xxx xxx xxx
(57) to evolve an operational scheme for ensuring accountability of
teachers, non-vacation academic and non-teaching staff of the
university, institutions and colleges;
(58) to (59) xxx xxx xxx
(60) to comply with and carry out any directives issued by the State
Government from time to time, with reference to above powers, duties
and responsibilities of the university.
8. Control of State Govt. and universities: - (1) Without prior
approval of the State Government, the university shall not, -
(a) create new posts of teachers, officers or other employees;
(b) revise the pay, allowances, post-retirement benefits and other
benefits of its teachers, officers and other employees;
(c) grant any special pay, allowance or other extra remuneration of
any description whatsoever, including ex gratia, payment or other
benefits having financial implications, to any of its teachers,
officers or other employees;
(d) to (f) xxx xxx xxx
(g) take any decision regarding affiliated colleges resulting in
increased financial liability, direct or indirect, for the State
Government.
(2) The university shall be competent to incur expenditure from the
funds received from, -
(a) various funding agencies without any share or contribution from
the State Government;
(b) fees for academic programmes started on self-supporting basis;
(c) contributions received from the individuals, industries,
institutions, organisations or any person whosoever, to further the
objectives of the university;
(d) contributions or fees for academic or other services offered by
the university;
(e) development fund, if any, established by the university;
for the purposes of -
(i) creation of post in various categories for specific period;
(ii) granting pay, allowances and other benefits to the posts created
through its own funds provided those posts are not held by such
persons, who are holding the posts for which government contribution
is received;
(iii) starting any academic programme on self-supporting basis;
(iv) incurring expenditure on any development work;
without referring the matter for approval of the State Government,
provided there is no financial liability, direct or indirect,
immediate or in future on the State Government.
(3) The State Government may in accordance with the provisions
contained in this Act, for the purpose of securing and maintaining
uniform standards, by notification in the Official Gazette, prescribe
a Standard Code providing for the classification, manner and mode of
selection and appointment, absorption of teachers and employees
rendered surplus, reservation of post in favour of member of the
Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis)
and Nomadic Tribes and Other Backward Classes, duties workload, pay,
allowances, postretirement benefits, other benefits, conduct and
disciplinary matters and other conditions of service of the officers,
teachers and other employees of the universities and the teachers and
other employees in the affiliated colleges and recognised institutions
(other than those managed and maintained by the State Government,
Central Government and the local authorities). When such Code is
prescribed, the provisions made in the Code shall prevail, and the
provisions made in the Statutes, Ordinances, Regulations and Rules
made under this Act, for matter included in the Code shall, to the
extent to which they are inconsistent with the provisions of the Code,
be invalid.
(4) In case of failure of the university to exercise powers or perform
duties specified in section 5 or where the university has not
exercised such powers or performed such duties adequately, or where
there has been a failure to comply with any order issued by the State
Government, the State Government may, on making such inquiry as it may
deem fit, issue a directive to the university for proper exercise of
such powers or performance of such duties or comply with the order;
and it shall be the duty of the university to comply with such
direction.
Provided that, in case the university fails to comply with the
directives, the State Government shall call upon the university to
give reasons in writing why the directives were not complied with. If
the State Government is not satisfied with the explanation, it may
refer the matter to the Chancellor for taking necessary action under
sub-section (3) of section 9.
(5) xxx xxx xxx
[
14. Powers and duties of Vice-Chancellor:-
(1) to (4) xxx xxx xxx
(5) It shall be the duty of the Vice-Chancellor to ensure that the
directives of the State Government if any and the provisions of the
Act, Statutes, Ordinances and Regulations are strictly observed and
that the decisions of the authorities, bodies and committees which are
not inconsistent with the Act, Statutes, Ordinances or Regulations are
properly implemented.
(6) to (14) xxx xxx xxx
51. Statutes:- Subject to the provisions of this Act, the Statutes may
provide for all or any of the following matters, namely :-
(1) to (4) xxx xxx xxx
(5) the principles governing the seniority and service conditions of
the employees of the university;
(6) to (7) xxx xxx xxx
(8) qualifications, recruitment, workload, code of conduct, terms of
office, duties and conditions of service, including periodic
assessment of teachers, officers and other employees of the university
and the affiliated colleges (except those colleges or institutions
maintained by the State or Central Government or a local authority),
the provision of pension, gratuity and provident fund, the manner of
termination of their services, as approved by the State Government;
(9) to (17) xxx xxx xxx
52. Statutes how made:-
(1) to (5) xxx xxx xxx
(6) Notwithstanding anything contained in the foregoing sub-sections,
the Chancellor, either suo motu or on the advice of the State
Government, may, direct the university to make provisions in the
Statutes in respect of any matter specified by him and if the Senate
fails to implement such a direction within sixty days of its receipt,
the Chancellor may, after considering the reasons, if any,
communicated by the Senate for its inability to comply with such
direction, make or amend the Statutes suitably.
115. Repeal and savings:-
(1) On and from the date of commencement of
this Act,-
(a) the Bombay University Act, 1974 (Mah.XXII of 1974);
(b) the Poona University Act, 1974 (Mah.XXIII of 1974);
(c) the Shivaji University Act, 1974 (Mah.XXIV of 1974);
(d) the Dr. Babasaheb Ambedkar Marathwada University Act, 1974
(Mah.XXV of 1974);
(e) the Act, 1974 (Mah.XXVI of 1974);
(f) the Shreemati Nathibai Damodar Thackersey Women’s University Act,
1974 (Mah.XXVII of 1974)
(g) the Amravati University Act, 1983 (Mah.XXXVII of 1983); and
(h) the North Maharashtra Universities Act, 1989, shall stand repealed
(Mah.XXIX of 1989).
(2) Notwithstanding the repeal of the said Acts, -
(i) to (xi) xxx xxx xxx
(xii) all Statutes and Ordinances made under the said Acts in respect
of any existing university shall, in so far as they are not
inconsistent with the provisions of this Act, continue in force and be
deemed to have been made under this Act in respect of the
corresponding university by the Senate or the Management Council, as
the case may be of that university, until they are superseded or
modified by the Statutes made under this Act;”
The 1981 Rules.
“50. Earned leave for Government Servant serving in Departments other
than Vacation Department— (1)(a) The leave account of every Government
servant who is serving in a Department other than a vacation
Department, shall be credited with earned leave, in advance, in two
instalments of 15 days each on the first day of January and July of
every calendar year.
(b) The leave at the credit of a Government servant at the close of
the previous half year shall be carried forward to the next half year,
subject to the condition that the leave so carried forward plus the
credit for the half year do not exceed the limit of 240 days.
52. Vacation Department—A Vacation Department is, subject to the
exceptions and to the extent stated in Appendix II, a department or
part of a department to which regular vacations are allowed, during
which a Government servant serving in the department is permitted to
be absent from duty.
54. Earned leave for persons serving in Vacation Departments—(1) A
Government servant serving in a Vacation Department shall not be
entitled to any earned leave in respect of duty performed in any year
in which he avails himself of the full vacation.
(2)(a) In respect of any year in which a Government servant avails
himself of a portion of the vacation, he shall be entitled to earned
leave in such proportion of 30 days, as the number of days of vacation
not taken bears to the full vacation:
Provided that no such leave shall be admissible to a Government
servant not in permanent employment in respect of the first year of
his service.
(b) If, in any year, the Government servant does not avail himself of
any vacation earned leave shall be admissible to him in respect of
that year under rule 50.
Explanation – For the purposes of this rule, the term “year” shall be
construed as meaning not calendar year but twelve months actual duty
in a Vacation Department.
Note 1.- A Government Servant entitled to vacation shall be considered
to have availed himself of a vacation or a portion of a vacation
unless he had been required by general or special order of a higher
authority to forego such vacation or portion of a vacation; provided
that if he has been prevented by such order from enjoying more than
fifteen days of the vacation, he shall be considered to have availed
himself of no portion of the vacation.
Note 2.- When a Government servant serving in a Vacation Department
proceeds on leave before completing a full year of duty, the earned
leave admissible to him shall be calculated not with reference to the
vacations which fall during the period of actual duty rendered before
proceeding on leave but with reference to the vacations that fall
during the year commencing from the date on which he completed the
previous year of duty.
APPENDIX II
(See rule 52)
List of Government servants serving in Vacation/Non-vacation
Department
The following classes of Government servants serve in Vacation
Departments when the conditions of rule 52 are fulfilled:—
1. (a) Under the Directorate of Education, —(i) All Heads of
Government Educational Institutions belonging to Class I, II and III.
(ii) Professors, Readers, Associate Professors, Research Assistants,
Lecturers, Assistant Lecturers, Demonstrators, Tutors in Class I, II
and III, as the case may be, in Government Arts, Science, Commerce and
Law Colleges.
(iii) Professors, Lecturers, Co-ordinators, Assistant Lecturers etc.
in Class I, II and III as the case may be, in Government Training
Colleges.
(iv) Physical Instructors in Government Colleges and Secondary
Schools.
(v) Laboratory Assistants, Laboratory Attendants in Government
Colleges and Secondary Schools.
(vi) Lecturers or other teachers in Government Primary, Middle and
Secondary Schools and in Primary Training Institutions and other
special Institutions.
(vii) All other staff in Government Institutions excepting those
mentioned as belonging to Non-Vacation Department.”
Statutes
“424. (3). Leave.—
(a)-(b) * * *
(c) Earned leave.—
(a) The confirmed non-vacation teacher shall be entitled to earned
leave at the rate of one-eleventh of the period spent on duty subject
to his accumulating maximum of 180 days of leave.
(b) The teacher other than the one included in (a) above shall be
entitled to one twenty-seventh of the period spent on duty and the
period of earned leave as provided in the proviso to Section 423
subject to his accumulation of maximum of 180 days. For this purpose
the period of working days only shall be considered.
424(C). Encashment of unutilised earned leave on superannuation.—The
teacher shall be entitled to encash earned leave in balance to his
credit on the date of his superannuation subject to a maximum of 180
days.
In case the teacher is required to serve till the end of academic
session beyond the date of his superannuation, he shall be entitled to
encash the balance of earned leave to his credit on the date of his
actual retirement from service.”
16. An analysis of the provisions of the 1994 Act shows that universities
constituted under Section 3(1) are autonomous and they are, by and large,
independent in their functioning. However, the State Government can
exercise control in some matters including those which have financial
implications and issue directives which are binding on the universities.
The creation of posts and conditions of service of the teaching and non-
teaching staff which impacts finances of the universities are some such
matters. Section 8 makes it obligatory for the universities to seek
approval of the State Government for creation of new posts of teachers,
officers or other employees and revision of their pay, allowances, post-
retirement benefits, etc. No university can grant special pay or allowance
or extra remuneration to the employees except with the prior approval of
the State Government. Likewise, any decision regarding affiliated colleges
resulting in additional financial liability can be taken only after
obtaining approval from the State Government. The Statutes framed under
Section 51(8) in matters like qualifications, recruitment, workload, code
of conduct, terms of office, duties and conditions of service of teachers,
officers and other employees of the university and the affiliated colleges,
except those maintained by the State or Central Government or a local
authority, require approval of the State Government. By virtue of Section
115(2)(xii), the Statutes framed by various universities prior to the
enforcement of the 1994 Act were continued till their supersession or
modification by the Statutes made under the new Act.
17. We may now advert to the 1981 Rules. Rule 50(1) lays down that leave
account of every Government servant other than the one serving in a
Vacation Department shall be credited with earned leave, in advance, in two
instalments of 15 days each in January and July of every year and the leave
at the credit of a Government servant at the close of the previous half
year is to be carried forward to the next half year subject to the maximum
limit of 240 days. Rule 52 defines the Vacation Department as a department
or part thereof to which regular vacations are allowed and during which an
employee serving in that department is permitted to be absent from duty.
As per Appendix II, which finds reference in Rule 52, all Heads of
Government Education Institutions belonging to Class I, Class II and Class
III and Professors, Readers, Associate Professors and other teachers in
Class I, II and III employed in Government Arts, Science, Commerce and Law
Colleges, Government Training Colleges, Physical Instructors in Government
Colleges and Secondary Schools, Laboratory Assistants, Laboratory
Attendants in Government Colleges and Secondary Schools, Lecturers and
other teachers in Government Primary, Middle and Secondary Schools and in
Primary Training Institutions and other special Institutions as also other
staff in Government Institutions, except those mentioned as belonging to
Non-Vacation Department, are treated as serving in the Vacation
Departments.
18. Although, Rule 54 has the caption “Earned leave for persons serving
in Vacation Departments”, sub-rule (1) thereof declares that a Government
servant serving in a Vacation Department shall not be entitled to any
earned leave in respect of duty performed in any year in which he avails
the full vacation. Sub-rule (2) of Rule 54 deals with a situation in which
a Government servant avails himself of a portion of the vacation, in that
event he is entitled to earned leave in such proportion of 30 days as the
number of days of vacation not taken bears to the full vacation. Clause (b)
of Rule 54(2) lays down that if a Government servant does not avail himself
of any vacation in any year, earned leave shall be admissible to him in
respect of that year in terms of Rule 50.
19. We are in complete agreement with the view expressed by the
coordinate Bench in Khandesh College Education Society, Jalgaon v. Arjun
Hari Narkhede (2011) 7 SCC 172, that the provisions contained in the 1981
Rules are not applicable to the university teachers and the teachers of the
affiliated colleges because they are not Government servants but this
cannot lead to an inference that the affiliated colleges are entitled to
reimbursement of the amount paid to the teachers in lieu of earned leave.
Though the Statutes framed by the Pune University under the 1974 Act
entitle the teachers of the affiliated colleges to get the benefit of leave
encashment, there is no provision either in that Act or in the 1994 Act
which obligates the State Government to extend the benefit of leave
encashment to the university teachers or to the teachers of the affiliated
colleges and the mere fact that the Statutes of the particular university
provide for grant of leave encashment to the teachers, does not entitle the
concerned university or college to claim reimbursement from the State
Government as of right.
20. The criticism of the directives issued by the State Government to the
universities to amend the Statutes under which the teachers are given the
benefit of leave encashment is wholly misplaced.
It is neither the pleaded
case of respondent Nos. 1 and 2 nor it has been argued by Shri Gonsalves
that the teachers employed in the Government colleges are entitled to the
benefit of leave encashment.
Therefore, the State Government was perfectly
justified in issuing directives to the universities to amend their
Statutes.
No doubt, in some of the communications reference has been made
to Rules 50, 52 and 54 of the 1981 Rules but this does not detract from the
fact that the State Government is empowered to issue such directives.
It is
a different thing that for almost two years the Pune University failed to
take action in accordance with the binding directives issued by the State
Government.
21. In paragraph 18 of the Khandesh College Education Society, Jalgaon v.
Arjun Hari Narkhede (supra),
this Court has taken cognizance of the
directives issued by the State Government from time to time to the
universities to amend the Statutes and
observed that
till the Statutes,
which are not inconsistent with the provisions of the 1994 Act, are
modified or superseded the same shall continue to remain in force.
However,
these observations cannot be interpreted in a manner which would entitle
the university or the affiliated colleges to claim reimbursement.
22. In the result, the appeals are allowed, the impugned orders are set
aside and the writ petition filed by respondent Nos. 1 and 2 is dismissed.
The parties are left to bear their own costs.
..….………………….…J.
[G.S. SINGHVI]
..….………………….…J.
[H.L. GOKHALE]
New Delhi,
January 29, 2013.
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