Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NOs.17039-17040 OF 2008    

Khandesh College Education Society, 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

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.

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“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.   

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