Bombay High Court
ANURADHA DESHMUKHversusYASHWANTRAO CHAVAN MAHARASHTRA OPEN UNIVERSITY THROUGH REGISTRAR AND ORS
- Decided
- Disposal
- Allowed
- Bench
- M S KARNIKS M MODAK
Holding
The petitioner is entitled to encashment of earned leave and the recovery of Rs 4,05,222 is set aside as unjustified and time‑barred.
Summary
Anuradha Deshmukh, who served as a lecturer and later professor at Yashwantrao Chavan Maharashtra Open University from 1990 until her retirement on 31 July 2014, filed a writ petition seeking (i) encashment of her unutilised earned leave and (ii) refund of Rs 4,05,222 that the University had recovered from her at the time of superannuation. The University had refused leave encashment on the ground that faculty in the vacation department are not entitled to earned leave and claimed the recovered amount was a voluntary payment. The Court examined the applicability of the University Act, the Maharashtra Civil Service Rules adopted by the University, and relevant circulars, and held that the petitioner was indeed entitled to earned‑leave encashment because she had worked during vacation periods. It also found the recovery of Rs 4,05,222 to be unjustified and time‑barred under Supreme Court guidelines, ordering its refund. Consequently, the petition was allowed, the encashment amount was awarded with 6% interest, and the University was directed to refund the excess amount within twelve weeks.
Issues considered
- The petitioner’s right to encash unutilised earned leave at retirement
- The University’s right to recover Rs 4,05,222 as excess payment
- Whether the University’s statutes and the Maharashtra Civil Service Rules provide for earned‑leave entitlement and encashment for faculty in the vacation department
- Whether the recovery of the amount is barred by time‑limitation principles
Subjects
- earned leave
- leave encashment
- retirement benefits
- excess salary recovery
- time-barred recovery
- university statutes
- civil writ petition
- senior pay scale
- No Due Certificate
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 8133 OF 2016
Anuradha Deshmukh ...Petitioner
Vs.
1. Yashwantrao Chavan Maharashtra
Open University Through its
Registrar
2. State of Maharashtra
3. Joint Director, Higher Education,
Pune Region, Pune
4. Director of Higher Education,
State of Maharashtra, Pune ...Respondents
*****
Mr.Atharva Dandekar a/w Ms.Ashmita Goradia and Ms.Kursheeda
Shaikh i/b. Ms.Yogita R. Singh, Advocates for Petitioner.
Mr.Mihir Govilkar a/w Ms.Sanika Kurlekar, Advocates for Respondent
No.1–University.
Ms.Kavita N. Solunke, Addl.G.P. a/w Smt.R.A.Salunkhe, AGP, for
Respondents–State.
*****
CORAM : M. S. KARNIK AND
S. M. MODAK, JJ.
DATE : 06th AUGUST 2026
JUDGMENT (PER S. M. MODAK, J.) :-
1. The two issues involved in this petition. They are :-
Digitally
signed by
SEEMA
SEEMA KSHITIJ
KSHITIJ YELKAR
YELKAR Date:
2026.08.11
14:48:53
+0530
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a) The right of the Petitioner to claim encashment of
unutilized earned leave at the time of her retirement;
b) A right of University to seek recovery of an amount of Rs.
4,05,222/- towards excess payment.
This amount is recovered from the Petitioner at the time of her
superannuation and the Petitioner contends that she was forced to pay
this amount to the University, because University was not ready to
issue a No Due Certificate (NDC, for short). It is her case that if NDC
is not issued, her retirement benefits could not have been released.
There is dispute by Mr. Govilkar, learned counsel for the Respondent
No. 1-University that in fact the Petitioner deposited an amount of Rs.
4,05,222/- voluntarily and in that sense, it cannot be treated as
recovery. We are not impressed by these arguments. We will deal with
this in later part of the judgment.
2. On this background, the petition is filed by the Petitioner
seeking the relief of quashing and setting aside the Resolution dated
10.10.2015 passed by the Board of Management of Respondent No. 1
refusing to grant encashment of earned leave, and to direct Respondent
No. 1-University to pay an amount of Rs. 9,33,560/- alongwith
interest of 12% p.a. being her entitlement to encashment of unutilized
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earned leave. The Petitioner also prays for directing the Respondent
No. 1-University to refund an amount of Rs. 4,05,222/- recovered
from her.
3. The petition is strongly opposed by the University by filing an
affidavit-in-reply. There is also rejoinder filed on behalf of the
Petitioner.
4. On this background, we have heard learned advocate Shri
Dandekar for the Petitioner, learned Advocate Shri Govilkar for
Respondent No. 1-University and Ms. Solunke, learned Addl. GP for
Respondent-State.
5. The relevant facts need to be stated. They are as follows:-
a) Petitioner resumed as a lecturer in Respondent No. 1-
University in the year 1990.
b) Respondent No. 1 is a non-agricultural open University
and it does not receive any grants from the Government.
It is self financed University.
c) Petitioner worked on different posts right from Lecturer
and retired as Professor. The Petitioner also received
Senior pay scale, and this is disputed by the University at
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the time of Superannuation by contending that the
Petitioner is not entitled to receive Senior pay scale
because she has not completed eight years of service on
the post of Lecturer.
d) From the post of Lecturer, the Petitioner was promoted
to the post of Reader and thereafter, she was promoted to
the post of Professor. She retired on 31.07.2014.
e) When the proposal of the Petitioner for getting the
benefit of Sixth pay commission was sent, the Joint
Director Higher Education, Pune as per his letter dated
19.11.2012 has raised certain objections about improper
granting of Senior pay scale because the Petitioner has
not worked for eight years from 02.05.1990, secondly
though the Petitioner was granted leave without salary
from 01.01.1996 till 31.12.1997, how this period was
considered while granting her annual increment. Thirdly,
the Petitioner is working in a vacation department and as
per Rules such employees are not entitled to earned
leave, whereas in her service book, there is a remark that
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she is granted earned leave in the proportion of 2:1,
which is against the Rules.
f) On all these grounds, the Joint Director directed the
Registrar of University to verify the proposal. All this
happened at the time of granting 6 th Pay Commission
benefit.
g) On this background, the Board of Management of
Respondent No. 1-Society in their Resolution dated
10.10.2015 has refused the request of the Petitioner for
encashment of unutilized earned leave. And under
protest the petitioner deposited Rs. 4,05,222/- on
11/11/2014.
6. On this background, the Petitioner has filed Writ Petition as
narrated above. Learned Advocate Shri Govilkar has objected for grant
of those reliefs on various grounds.
Encashment of earned leave
7. Learned Advocate Mr. Dandekar has invited our attention to two
letters written by his client. One is dated 04.07.2014 and the second is
dated 19.03.2015 which is addressed to the Hon’ble Vice Chancellor.
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8. According to Mr. Govilkar, the Circulars issued by the
Government are binding on the University and its employees. He
invited our attention to :-
(a) the letter issued by the Directorate of Education to Registrar
of all non-agricultural Universities in the Month of October
2008. Registrars were directed to amend the provisions in
the Statute for deletion of grant of earned leave within a
period of one month from the receipt of the letter, and if the
amendment is not carried out and if amount is required to be
paid, then that amount would be deducted from the grant
given to the University.
(b) Similar is the order issued by the Section Officer of the
Department of Higher and Technical Education dated
07.10.2008. The said order was issued on the basis of the
directions issued by Aurangabad bench in case of Ramdas
Bhilla Patil and Others Vs. The State of Maharashtra in Writ
Petition No. 2671 of 2006. The provisions of North
Maharashtra University Statute No. 424(C). The letter
records that the Lecturers working in the University are
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working in the vacation department and as such they are not
entitled for earned leave. The direction was given to amend
it from the retrospective effect.
Learned Advocate Shri Govilkar has invited our attention to the
provisions of the Section 29 and Section 30 of the Yashwantrao
Chawan Maharashtra Open University Act, 1989. Section 29 deals
with financial control of State Government. Whereas Section 30 deals
with the procedure for appointment of a employee and it shall be by
way of written contract. Mr. Govilkar also invited our attention to the
provisions of Section 31 which talks about referring the dispute to the
Tribunal of Arbitration.
9. Now the issue is whether this contract of service provides for
earned leave and its encashment. Our attention is not invited to any
contract executed in between the Petitioner and University. So the
issue is whether the Petitioner is entitled to Earned Leave, under what
provisions and whether she is entitled for encashment.
10. It is true Respondent No. 1 is constituted as per the provisions of
Yashwantrao Chavan Maharashtra University Act, 1989. It is true this
University is different from other Universities established under
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different Acts. It has introduced distance education system. It is true if
University has to create new post of any staff, they need approval of the
Government. Even they require approval of the Government for
revising pay allowances. There is limited control of Government over
activities of the University.
11. It is very well true Section 21 of University Act lays down certain
subjects over which the Board of Management can frame statute.
Relevant clause (d) is as follows :-
(d) the manner of appointment of teachers and other
employees of the University, their emoluments,
qualifications, code of conduct and other conditions
of service including the manner of termination of
service and other disciplinary action.
Whereas Section 22(1) prescribes first statutes as per second schedule
are applicable and as per sub-Section (2), Board of Management may
make new statutes. When we have read the statutes laid down in
second schedule except manner of appointment of teachers and
conditions of service, there are no provisions for entitlement for leave.
Even Section 30 of the said Act provides manner of appointment of
teachers. It is by way of written contract. It is true prior to filing of
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petition, the Petitioner has made a lot of correspondence with the
University regarding wrongful refusal of encashment of earned leave
and wrongful recovery of excess amount, but University has not paid
heed to those demands. We do not think that Section 31 of the said Act
will come in the way of the Petitioner thereby challenging the action
on the part of University.
12. Admittedly, the University has not framed any statute about
grant of earned leave and its encashment. This is not disputed. Our
attention is invited by Mr. Dandekar to the circular dated 10.02.1996
by which the University has adopted Maharashtra Civil Service Rules.
According to him, as per latest resolution dated 15.01.2001 issued by
the Government of Maharashtra, Finance Department, the earned
leave which can be encashed is 300. This Circular is modified by the
University by issuing a fresh Circular dated 19.09.1997. Learned
Advocate Mr. Govilkar is right.
13. Mr. Dandekar has made alternate submission on the basis of the
said Circular dated 19.09.1997. Clause No. 2 is relevant. It provides:-
a) During the vacation period the concerned Head has got
authority to recall the employee based on exigency of
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work.
b) An employee who is recalled for work during his vacation
will be allowed to avail Earned leave as per his convenience
in the proportion of 2:1 of the number of days worked.
c) With the introduction of Vacation Leave for academic staff
from their entitlement for Earned leave stands cancelled.
14. According to learned Advocate Mr. Dandekar, in fact till 2013
the Petitioner was only regular faculty member in her department and
she was incapacitated from availing any vacation till 2013. According
to him, the earned leave standing to her credit at the time of
superannuation comes to 219 days. He invited our attention to the
copy of the service book of the Petitioner.
15. Though learned Advocate Mr. Govilkar has also relied upon
same Circular to the effect, the teaching faculty who gets vacation leave
is not entitled to get earned leave, but in respect of the averment in
para no. 7 of the petition, he fairly admits that there is no denial to
those averments.
16. It is true the Government has instructed all the Universities to
amend the Rules about earned leave to the teachers working in
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vacation department. As they are entitled for vacation, they cannot be
granted earned leave. It is true the University has issued the Circular
dated 19.09.1997 but at the same time, it is true earned leave is made
admissible to the teachers who are called during vacation. If the record
relied upon by the Petitioner is perused, one fact is clear that she has
worked during vacation and this fact is not controverted by the
university. If it is so her claim for encashment of earned leave ought
not to have been rejected.
17. We have gone through the observations in case of State of
Maharashtra and Others Vs. Nowrosjee Wadia College and Others 1.
We have perused this judgment. No doubt it is true we observed that
1981 Rules relating to earned leave are not applicable to University
teachers and teachers of affiliated college, because they are not
Government servants (para no. 23). This observation is not applicable
to the facts of this case, because facts are different. In case of State of
Maharashtra and Others Vs. Nowrosjee Wadia College and Others
(supra) the issue was reimbursement of the amount to the college
(which is paid to the teacher towards encashment of earned leave) from
1 (2013) 11 Supreme Court Cases 762
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the State Government. It is observed the College can reimburse the
amount from the Government provided the teacher must be entitled to
encashment of unutilized earned leave. In the said judgment, the
provisions of statutes framed by University of Pune were in question
and relevant statutes are 424 and 424-C. In case before us admittedly
there are no statutes and Maharashtra Civil Service Rules are adopted
by the University as per Circular dated 10.02.1996. No doubt this is
modified on 19.09.1997 still the Petitioner is entitled for encashment
as she has worked during vacation and it is undisputed. So the ratio is
not applicable to the facts before us.
18. From the above discussion, what is gathered is the teaching
faculty is working in vacation department and as such they are not
entitled for earned leave. At the same time, this Petitioner has not
availed of vacation till 2013 and it is undisputed. If that is so then
Board of Management was not justified in refusing the prayer for
encashment of the earned leave.
19. The communication of the said decision vide letter dated
04.12.2015 is not on the basis of the decision taken by considering the
existing circulars.
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20. The amount claimed is Rs. 9,33,560/- with 12% interest. We can
only say that the Petitioner is entitled for encashment of the earned
leave for the period as per the Rules. We are not granting interest of
12%, but we are granting it 6% from the date of retirement till its
payment.
Refund of excess amount
21. Mr. Govilkar, learned advocate in order to support unjustified
payment, invited our attention to the following documents :-
a) note dated 17.07.2014 given by Finance Officer of the
University thereby forwarding modified statement of
difference in salary.
b) Certificate dated 11.11.2014 issued by Finance Officer
acknowledging payments of Rs. 4,05,222/- paid by Petitioner
towards excess payment of salary received by her.
c) Communication dated 21.12.2015 sent by Registrar to the
Petitioner informing her that decision on 103 cases of
employees will be communicated to her.
d) Letter dated 19.11.2012 addressed by Joint Director, Higher
Education addressed to Registrar of Respondent No.1-
University asking him to reverify file of the Petitioner before
granting 6th pay benefit.
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22. Mr. Govilkar, learned advocate emphasized that Petitioner has
not served continuously for 8 years on the post of Lecturer prior to
getting benefit of higher scale. In fact record suggests, placement
committee of the University has recommended her name on
24.05.1193 and Board of Management has approved it. He has invited
our attention to the various averments from his affidavit. We have
perused it. They only deal with appointment of Petitioner on various
posts, non entitlement to earned leave and the University not receiving
any grant from the Government.
23. Mr. Dandekar, learned Advocate has invited our attention to the
following documents:-
a) Representation dated 30.06.2015 made by the Petitioner to
the Hon’ble Vice Chancellor praying for reimbursement of
recover and eacashment of Earned leave.
b) Representation dated 27.10.2014 addressed by the
Petitioner to the Registrar of Respondent No. 1- University
protesting for recovery of Rs. 4,05,222/-.
c) Letter dated 09.02.2016 sent by the Petitioner addressed to
the Registrar of Respondent No. 1-University requesting to
again consider her request or else she will resort to legal
remedies.
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24. Mr. Dandekar, learned Advocate justified all the benefits granted
to his client during service and he submitted higher scale was granted
after completing formalities of checking service record and interview.
His contention is University after gap of almost 20 years
recommendation on 24.05.1993 and recovery in the year 2014 is not
justified in recovering the amount. His contention is the Petitioner
cannot be blamed for granting Senior scale and it is the concerned
authorities of University who are responsible for granting higher scale.
According to him, they ought to have verified the service record of his
client from the perspective of ‘performing continuous service of 8 years
on the same post of Lecturer’. According to him, if they have not
performed their duties properly they cannot take the shelter of
objection raised by Joint Registrar, Higher Education. To buttress his
submission, he relied upon the observations in case of State of Punjab
and Others etc. Vs. Rafiq Masih (White Washer) etc. in Civil Appeal
No. 11527 of 2014, dated 15.12.2014. He contend that the case of the
Petitioner is governed as per category (ii) and (iii) of para no. 12 of the
said judgment.
25. According to learned Advocate Mr. Govilkar, the ratio in said
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judgment is not applicable because in this case, amount deposited by
the Petitioner is not by way of recovery, but it is deposited voluntarily.
Mr. Dandekar, invited our attention to the averments in rejoinder. She
has averred the circumstances which compelled her to deposit the
amount of Rs. 4,05,222/-.
26. We have gone through the pleadings, documents and gone
through the ratio. We feel that recovery of the Rs. 4,05,222/- cannot
be justified. We do not accept the submissions of learned advocate Mr.
Govilkar that “the deposit by the Petitioner cannot be considered as
recovery”.
27. In ordinary parlance what is meant by the word ‘recovery’. It
means “one person owes some amount to another and it is paid by the
person who owes it”. It may be recovered by adopting certain measures.
In this case, Joint Director Higher Education as per his letter dated
19.11.2012 has brought it to the notice of Registrar of Respondent No.
1-University to verify higher pay scale granted to the Petitioner and
other aspects. It was processed by the authorities of University and
statement of excess payment of salary was also prepared. The Petitioner
retired on 31.07.2014. The Petitioner is entitled to get other retirement
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dues. She has explained the circumstances which compelled her to
deposit Rs. 4,05,222/- and she did deposit the amount on 11.11.2014.
These circumstances are sufficient to indicate that she has deposited
this amount unwillingly. So certainly it falls within purview of recovery.
We understand this objection was taken by learned Advocate Mr.
Govilkar because he wants to protect the University from financial
responsibility which will be saddled on his client due to any adverse
order passed against them. But we do not find any merit in the
submission.
28. The Hon’ble Supreme Court decided bunch of petition in State
of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc. (supra),
held balanced employers right to recover unjustified payment to an
employee on one hand and hardship caused to an employee in paying
the amount on another hand. The Hon’ble Supreme Court also
considered the factor ‘who is weaker party amongst the two without
causing serious detriment to other.”. The Hon’ble Supreme Court also
considered the doctrine of equality as found in the Constitution.
Earlier judgments wherein recovery initiated after long period of time
was set aside. After considering all the factors, five guidelines were laid
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down wherein recoveries are unjustified. Amongst them guideline No.
(ii) and (iii) is relevant. It is reproduced below:-
(i) …...
(ii) Recovery from retired employees, or employees who are
due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has
been made for a period in excess of five years, before the
order of recovery is issued.
29. The case of the Petitioner fulfills both the criteria. Admittedly
the amount of Rs. 4,05,222/- is recovered within one year earlier to
retirement. So also more than five years have elapsed from the date of
grant of higher scale. As such recovery initiated cannot be justified and
need to be set aside. The Petitioner is entitled to refund of this amount.
We have decided the issue of recovery only on the touchstone of time-
barred recovery as laid down in State of Punjab and Others etc. Vs.
Rafiq Masih (White Washer) etc. (supra) judgment and there is no
occasion to go into the issue of entitlement of higher scale to the
Petitioner and other objections. But this objection, we are considering
while not accepting claim for interest on this amount. We have also
considered the fact that Respondent No. 1-University is not getting the
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grant from the Government atleast at the relevant time. Hence, we pass
the following order:-
ORDER
i) Writ Petition is allowed.
ii) Petitioner is entitled for encashment of the pending
earned leave as per the Rules at the rate of 6% from the
date of retirement till its payment within a period of
twelve weeks from the date of communication of this
order.
iii) The recovery of Rs. 4,05,222/- done by Respondent No.
1-University from the Petitioner is set aside.
iv) The Respondent No. 1-University is directed to refund
the amount of Rs. 4,05,222/- to the Petitioner within the
period of twelve weeks from the date of communication
of this order.
v) The Petitioner to communicate this order to Respondent
No. 1-University.
30. With the above observations, the present Writ Petition is
disposed of. Rule is made partly absolute.
(S. M. MODAK, J.) (M. S. KARNIK, J.)
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