Khandesh College Education & Anr vs Arjun Hari Narkhede & Ors

Jalgaon & Anr. ...... Petitioners

Versus

Arjun Hari Narkhede & Ors. ...... Respondents

WITH

SPECIAL LEAVE PETITION (C) NOs.17960-17961 OF 2008

The Secretary, Khandesh College

Education Society, Jalgaon & Anr. ...... Petitioners

Versus

State of Maharashtra & Ors. ...... Respondents

O R D E R

A. K. PATNAIK, J.

These Special Leave Petitions are directed against the

common orders dated 09.06.2008 and 20.06.2008 of the

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Bombay High Court, Aurangabad Bench, in Writ Petition

No.2881 of 2007 and Writ Petition No.1410 of 2008. The

questions raised in these Special Leave Petitions are

whether the Lecturers/Demonstrators working in the Moolji

Jeitha College established by the Khandesh College

Education Society, Jalgaon, are entitled for earned leave

and for encashment of unutilized earned leave on their

retirement.

2. The relevant facts very briefly are that respondent

nos.1 to 14 in both the Special Leave Petitions have

worked as Lecturers/Demonstrators in the Moolji

Jeitha College (for short `the College') which is a private

College established by the Khandesh College

Education Society, Jalgaon, and has been receiving aid

from the State of Maharashtra. After their retirement,

respondent nos.1 to 14 were not granted encashment

of their unutilized leave despite demands being made

on the Principal of the College. Respondent nos.1 to

14 then made a representation to the Grievances

Committee of the North Maharashtra University,

Jalgaon (for short `the University') to which the College

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is affiliated, contending that under Statutes 424(3) and

424 (C) of the University of Pune, they were entitled for

encashment of earned leave after retirement, but have

not been paid the same by the College. When the

Grievances Committee did not take any action on the

representation, respondent nos.1 to 14 filed Writ

Petition No.2671 of 2006 in the Bombay High Court,

Aurangabad Bench, and by order dated 12.04.2006

the High Court directed the Grievances Committee of

the University to dispose of the representation for

encashment of unutilized earned leave within three

months. Pursuant to this direction of the High Court,

the Grievances Committee of the University decided on

10.10.2006 that the Statutes of the University of Pune

continued to be applicable to the University by virtue

of the provisions of Section 115(xii) of the Maharashtra

Universities Act, 1994 (for short `the Act') and therefore

respondent nos.1 to 14 were entitled to encashment of

their earned leave to their credit under Statute 424(C)

read with Statute 424(3) of the University of Pune. The

decision of the Grievances Committee was

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communicated to the college by letter dated

18.10.2006 of the University.

3. The Khandesh College Education Society thereafter

filed Writ Petition No.2881 of 2007 challenging the

decision of the Grievances Committee of the University

as well as the constitutional validity of Statutes 424(3)

and 424(C) of the University of Pune. Respondent

nos.1 to 14 also filed Writ Petition No.1410 of 2008

seeking a direction to the University to direct the

Khandesh College Education Society as well as the

Principal of the College to pay their unutilized earned

leave forthwith along with interest and cost. After

hearing learned counsel for the parties, the High Court

held in the impugned common order dated 09.06.2008

that the constitutional validity of Statutes 424(3) and

424(C) of the University of Pune cannot be challenged

merely on the ground that such provisions did not

exist in the statutes of other Universities and that

these provisions being beneficial provisions, cannot be

held to be ultra vires the Constitution. The High Court

further held that respondent nos.1 to 14, admittedly,

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were employed in the College in various capacities and

were entitled to leave in accordance with their service

conditions and the Bombay High Court has already

held in the case of V.S. Agarkar vs. The chairman,

Grievance Cell Committee, Pune University (W.P.

No.4936 of 2006 decided on 22.01.2007) that a teacher

employed in an Institution affiliated to the University

of Pune on retirement is entitled for encashment of

unutilized leave on superannuation under Statute

424(C) of the University of Pune. The High Court,

however, clarified that the College after discharging its

liability of payment of leave encashment would be

entitled to claim reimbursement by way of grant from

the State of Maharashtra. By the impugned common

order dated 20.06.2008, the High Court corrected the

earlier order dated 09.06.2008 by clarifying that the

liability of the State Government to reimburse the

college would be subject to the claim of the College

being admissible under law.

4. Mr. Vinayak J. Dixit, learned counsel for the

petitioners, submitted that the respondent Nos.1 to 14

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were working in the Vacation Department inasmuch as

they were not required to work during the vacation

period of the College and under Rule 54 of the

Maharashtra Civil Services (Leave) Rules, 1981, a

Government servant serving in a Vacation Department

was not entitled to any earned leave in respect of duty

performed in any year in which he avails himself of

vacation. He further submitted that the State

Government, by a Resolution dated 29.03.1997, has

taken a decision that only the approved Principals of

aided non-Government Colleges, if they are prohibited

from enjoying the long term vacations on

administrative grounds, would get the benefits of

earned leave as per Rules 52, 54 and 68 of the

Maharashtra Civil Services (Leave) Rules, 1981 subject

to maximum accumulation of earned leave of 240

days. He submitted that since none of the respondent

Nos.1 to 14 served as Principals performing

administrative functions, they were not entitled to

earned leave and consequently they are not entitled to

encashment of any accumulative earned leave. He

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further submitted that under Section 8 of the Act the

State Government has control over the universities and

without prior approval of the State Government, the

University cannot take a decision which results in

increased financial liability, direct or indirect, for the

State Government. He argued that under Section 5

(60) of the Act, the University is required to comply

with and carry out any directives issued by the State

Government from time to time, with reference to the

powers, duties and responsibilities of the University

and similarly under Section 14 (5) of the Act, the Vice

Chancellor has the duty to ensure that the directives of

the State Government, if any, are strictly observed. He

submitted that although the State Government has

issued directives to the University to correct the

Statutes to ensure that teachers, who can avail long

term vacation, are not entitled to earned leave and

encashment of accumulative earned leave at the time

of retirement, the University has not amended the

Statutes. In this connection, he referred to the

various correspondence made by the State

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Government annexed to the Counter Affidavit of the

State Government as Annexure R-5 (Colly). Mr. Sanjay

V. Kharde, learned counsel for the State of

Maharashtra, adopted these arguments of Mr. Dixit.

5. Mr. Deva Datt Kamat, learned counsel appearing for

respondent Nos.1 to 14, in reply, submitted that it is

not disputed that the University of Pune Statutes were

applicable to the University and under Statute 424(3)

of the University of Pune Statutes a teacher other than

the non-vacation teacher is also entitled to earned

leave and under Statute 424(C) thereof he is entitled to

encashment of earned leave in balance to his credit on

the date of his superannuation subject to a maximum

of 180 days. He submitted that Section 115 of the Act

titled `Repeal and Savings' provides in clause (xii) that

all Statutes 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. He

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submitted that since Statutes 424(3) and 424(C) of the

University of Pune, which were applicable to the

University, have not been superseded or modified by

Statutes made under the Act, respondent nos.1 to 14

were entitled to earned leave and encashment of

earned leave. He argued that Section 14(5) of the Act

casts a duty on the Vice Chancellor to ensure that the

provisions of the statutes are strictly followed and,

therefore, he is required to ensure that respondent

nos.1 to 14 are paid their leave encashment as per the

provisions of Statute 424(C) of the University of Pune.

6. Rule 54 of the Maharashtra Civil Services (Leave)

Rules, 1981 on which learned counsel for the

petitioners has placed reliance is quoted hereinbelow:

"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

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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 employ 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 has been required by general

or special order of a higher

authority to forgo 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

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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.

(3) Vacation may be taken in combination with

or in continuation of any kind of leave

under these rules :

Provided that the total duration of vacation

and earned leave taken in conjunction,

whether the earned leave is taken in

combination with or in continuation of other

leave or not, shall not exceed the amount of

earned leave due and admissible to the

Government servant at a time under rule 50:

Provided that the total duration of

vacation, earned leave and commuted leave

taken in conjunction shall not exceed 240

days."

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'.

Respondent nos.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.

7. On the other hand, Section 115 of the Act while

repealing the different Acts applicable to different

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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 the 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

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leave at the time of retirement. In other words, Statutes

424(3) and 424(C) of the University of Pune are not in any

way inconsistent with the provisions of the Act. 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 424(C) of the

University of Pune which were applicable to the University.

8. Statutes 424(3) and 424(C) of the University of Pune are

extracted hereinbelow:

"Statute 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.

14 "Statute 424(C) - Encashment of Unutilized

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 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.

9. 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 Department are not entitled to

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earned leave and encashment of earned lave, but the fact

remains that Statutes 424(3) and 424(C) of the University of

Pune have not been modified or superseded. There are also

no provisions in the Act to the effect that Statues 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,

respondent nos.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 the University of Pune.

10. In the result, we are not inclined to grant leave in

these matters but considering financial difficulties of the

Petitioners expressed before this Court, we grant three

months' time to the Petitioners to comply with the impugned

orders of the High Court. The Special Leave Petitions are

accordingly disposed of. No costs.

.............................J.

(R. V. Raveendran)

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.............................J.

(A. K. Patnaik)

New Delhi,

July 5, 2011.