Supreme Court of India
STATE OF MAHARASHTRA AND OTHERSversusNOWROSJEE WADIA COLLEGE AND OTHERS
- Citation
- 2013 INSC 63
- Decided
- 29 January 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The State Government is not obligated to reimburse the leave encashment paid by the colleges; the university statutes do not confer a right to claim reimbursement, and the State may validly direct amendment of those statutes.
Summary
Teachers in colleges affiliated to Pune University were paid leave encashment under university statutes 424(3) and 424(C) framed under the Poona University Act, 1974. After the Maharashtra Universities Act, 1994 repealed the 1974 Act, the State of Maharashtra directed universities to discontinue the benefit and amend the statutes, but the colleges sought reimbursement of amounts already paid. The Bombay High Court ordered the State to reimburse, a decision the State appealed. The Supreme Court held that while the statutes grant teachers the right to encash earned leave, neither the 1974 Act nor the 1994 Act obliges the State to reimburse the colleges; the 1981 Maharashtra Civil Services (Leave) Rules do not apply to university teachers, and the State is empowered to issue binding directives to amend university statutes. Consequently, the colleges have no right to claim reimbursement, and the State’s directives are valid. The appeals were allowed, setting aside the High Court orders and dismissing the colleges’ writ petition.
Issues considered
- Whether colleges are entitled to reimbursement from the State for leave encashment paid under university statutes.
- Whether the Maharashtra Civil Services (Leave) Rules, 1981 apply to university teachers and teachers of affiliated colleges.
- Whether the Poona University Act, 1974 or the Maharashtra Universities Act, 1994 impose a statutory duty on the State to reimburse such payments.
- Whether the State Government’s directives to amend university statutes are legally valid and binding.
Legislation cited
- Maharashtra Civil Services (Leave) Rules, 1981s. 50, s. 52, s. 54
- Maharashtra Universities Act, 1994s. 115(1), s. 115(2)(xii), s. 14(5), s. 3(1), s. 51(5), s. 51(8), s. 52(6), s. 5(60), s. 8
- Poona University Act, 1974
Subjects
leave encashmentuniversity statutesreimbursementstate directivesautonomy of universitiesMaharashtra Universities Act1981 Leave Rulesgovernment servantsaffiliated colleges
Judgment
[2013] 4 S.C.R. 303
STATE OF MAHARASHTRA AND OTHERS A
v.
NOWROSJEE WADIA COLLEGE AND OTHERS
(Civil Appeal Nos. 531-532 of 2013)
JANUARY 29, 2013.
B
[G.S. SINGHVI AND H.L. GOKHALE, JJ.]
Se1Vice Law:
Leave encashment benefit - To the teachers of Pune c
University employed with Government affiliated colleges -
Provided by the statutes 424(3) and 424(C) of University of
Pune framed under Poona University Act, 1974 - Enactment
of Maharashtra Universities Act, 1994 resulted in repeal of
1974 Act - Instruction by Government to Universities to D
discontinue benefit of leave encashment - State a/so directed
the University to amend the University statutes with
retrospective effect and till then to bear expenses incurred in
payment of leave encashment - Statutes 424(3) and 424(C)
not modified or superseded - Directions of the State E
challenged by institutes before High Court seeking
mandamus to reimburse the amount paid by them to the
teachers by way of leave encashment - High Court directed
the State to reimburse the amount - On appeal, held: Though
the 1974 Act entitle the teachers of affiliated colleges the
benefit of leave encashment, but neither the 1974 Act nor the F
1994 Act oblige the State to extend this benefit - Merely
because the University statute provides for the benefit, it does
not entitle the University/College to claim reimbursement from
the State as of right - The State was also justified in issuing
directives to the Universities to amend their statutes - G
Maharashtra Universities Act, 1994 - s. 115 - Poona
University Act, 1974 - Statutes of Pune University- Statutes
424(3) and 424(C).
303 H
304 SUPREME COURT REPORTS [2013] 4 S.C.R.
A The question for consideration in the present
appeals was whether the respondent-institution (College)
in question was entitled to reimbursement, from the State
Government, of the amount paid to the teachers by way
of leave encashment under the statutes framed by the
B Pune University.
The State Government contended that the State is not
obliged to reimburse the amount because neither the
Poona University Act, 1974 nor any other enactment
mandates the reimbursement; and that in terms of rr.52
C and 54 of Maharashtra Civil Services (Leave) Rules, 1981,
the teachers employed in the Government colleges are
not entitled to the benefit of leave encashment; and if
teachers employed in private colleges are held entitled to
the benefit of leave encashment, it would amount to
D discrimination.
Respondent Nos.1 and 2 contended that in vie_w of
s.115(2) of Maharashtra Universities Act, 1994, the
existing statutes and Ordinances made under the A<:t
E specified in sub-section (1) of s.115, would be deemed to
have been saved because the University had not framed
fresh statutes or repealed the existing statutes.
Allowing the appeals, the Court
F HELD: 1. An analysis of the provisions of the
Universities Act, 1994 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
G including those which have financial implications and
issue directives which are binding on the universities. 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 de~ision
H regarding affiliated colleges resulting in additional
STATE. OF MAHARASHTRA v. NOWROSJEE WADIA 305
COLLEGE
financial liability can be taken only after obtaining A
approval from the State Government. By virtue of Section
115(2)(xii) of 1994 Act, the statl.!tes 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. [Para 16] [327-G-H; 328- B
8-C, D-E]
2. The provisions contained in the Maharashtra Civil
Services (Leave) Rules, 1981 are not applicable to the
university teachers and the teachers of the affiliated
colleges because they are not Government servants, but C
this cannot lead to an inference that the affiliated
colleges are entitled to reimbursement-0f the ltmount paid
to the teachers in lieu of earned :leave.··Though the
statutes framed by the Pune University under the Poona
University Act, 1974 entitle. the teachers of the affiliated D
colleges to get the benefit of leave encashment, there is
no provision either in that Act or in the 1994 A~t 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 tlte mere fact that E
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. [Para 19] [329-F-
H; 330-A-B F
3. The State Government was perfectly justified in
issuing directives to the universities to amend their
statutes. No doubt, in some of the communfcations
reference has been made to Rules 50, 52 and 54 of the
1981 Rules but this does not detract from the fact ttiat the G
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. [Para
20] [330-C-E] . H
306 SUPREME COURT REPORTS (2013] 4 S.C.R.
A 4. In the Khandesh College case, this Court took
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
B 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. [Para
21] [330-E-G]
c Khandesh College Education Society, Ja/gaon v. Arjun
Hari Narkhede (2011) 7 SCC 172: 2011 (7) SCR 175- relied
on.
Case Law Reference:
D 2011(7) SCR 175 relied on Paras19, 20
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 531-
532 of 2013.
From the Judgment & Order dated 24.08.2009 in Writ
E Petition No. 6609 of 2009 and Order dated 09.10.2009 in Civil
Application No. 2320 of 2009 in Writ Petition No. 6609 of 2009
of the High Court of Judciature at Bombay.
Colin Gonsalves, Anant Bhushan Kandae, Chinmoy
F Khaladkar, Tariq Adeeb, Vijay Kumar for the appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. The question which arises for
consideration in these appeals is whether respondent Nos.1
G 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.
H Bedekar, who were employed as Professors in respondent
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 307
COLLEGE [G.S. SINGHVI, J.]
No.1 college retired from service in November, 2003. They filed A
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 B
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 C
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:
D
". 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 E
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 F
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- G
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 H
308 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B
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
c 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
D 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.
E 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
F
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,
G 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
H employed by respondent No.1, and held:
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 309
COLLEGE (G.S. SINGHVI, J.]
"From the very language of different provisions of Rule 54 A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
310 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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:
c
"424. (3). Leave.-
(a)-(b) * * *
(c) Earned leave.-
D
(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.
E
(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
F
this purpose the period of working days only shall
be considered."
* * *
G "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
H academic session beyond the date of his superannuation,
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 311
COLLEGE [G.S. SINGHVI, J.]
he shall be entitled to encash the balance of earned leave A
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 B
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 maxl?num 180 days.
Statute 424(C), quoted above, further provides that C
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 D
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 E
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 F
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."
G
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 H
312 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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
C 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
D 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
E 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.
F
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
G 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
H retrospective effect, since the Teachers of the University
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 313
COLLEGE [G.S. SINGHVI, J.]
and affiliated colleges avail of the vacation, they are not A
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 B
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-
Cha ncellor to ensure that directives of the State c
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
D
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. E
AND WHEREAS the Management Council of the
URiversity 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
F
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 G
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. H
314 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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-
B
ch-ancellor 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;
c The Teachers Statute 424 (C) is repealed w.e.f. 1st
February, 2009.
Ref: No.LAW/2009n3 Dr. Narendra Jadhav
Dated 1.2.2009 Vice-Chancellor.
D Present Statute Amendment Statute after
Proposed amendment
Statute 424 (C) encashment of Delete
Unutilized Earned Leave on statute 424
Superannuation (C)
E
The teacher shall be entitled to
encash earned leave in balance
to his credit on the date of his
superannuation subject to a
F 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
G entitled to encash the balance of
earned leave to his credit on the
date of his actual retirement from
service."
H (The order has been extracted from the SLP paper-book)
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 315
COLLEGE [G.S. SINGHVI, J.]
8. Feeling aggrieved by the directives issued by the State A
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 B
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 C
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 D
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/ E
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 F
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) G
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. H
316 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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,
B 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,
c 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
D
c.:>rrection 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,
E 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
F 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
G
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
H
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 317
COLLEGE [G.S. SINGHVI, J.]
words, the directions contained in the order dated 7.4.2008 A
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. B
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." c
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 0
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 E
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 F
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 G
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 H
318 SUPREME COURT REPORTS [2013) 4 S.C.R.
A 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 encashr.1ent. 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)
B 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),
C 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:
D
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
E
commencement of this Act, the corresponding university
with the name, specified against ii 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
F of this Act.
5. Powers and duties of university: - The university shall
have the following powers and duties, namely:-
G (1) to (8) )()()( )()()(
)()()(
(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
H approval of the State Government and to prescribe their
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 319
COLLEGE [G.S. SINGHVI, J.]
qualifications and make appointments thereto; A
(10) to (48) xxx xxx xxx
(49) to lay down for teachers and university teachers,
service conditions including code of conduct, workload,
8
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
c
(57) to evolve an operational scheme for ensuring
accountability of teachers, non-vacation academic and
non-teaching staff of the university, institutions and
colleges;
D
(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. E
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 F
employees;
(b) revise the pay, allowances, post-retirement benefits and
other benefits of its teachers, officers and other
employees; G
(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 H
320 SUPREME COURT REPORTS [2013] 4 S.C.R.
A employees;
(d) to (f) xxx xxx xxx
(g) take any decision regarding affiliated colleges resulting
in incre.ased financial liability, direct or indirect, for the
B
State Government.
(2) The university shall be competent to incur expenditure
from the funds received from, -
C (a) various funding agencies without any share or
contribution from the State Government;
(b) fees for academic programmes started on self-
supporting basis;
D
{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
E offered by the university;
(e) development fund, if any, established by the university;
for the purposes of -
F
(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
G
government contribution is received;
'
(iii) starting any academic programme on self-supporting
basis;
H
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 321
COLLEGE [GS. SINGHVI, J.]
(iv) incurring expenditure on any development work; A
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.
B
(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 C
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, D
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 E
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, F
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 G
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 H
322 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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
c (3) of section 9.
(5) xxx xxx xxx
14. Powers and duti.:s of Vice-Chancellor:-
D (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
E 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
F
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
G
(5) the principles governing the seniority and service
conditions of the employees of the university;
(6) to (7) xxx xxx xxx
H (8) qualifications, recruitment, workload, code of conduct,
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 323
COLLEGE [G.S. SINGHVI, J.]
(8) qualifications, recruitment, workload, code of conduct, A
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 B
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 c
52. Statutes how made:-
(1) to (5) xxx xxx xxx
(6) Notwithstanding anything contained in the foregoing. D
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 E
may, after considering the rei;isons, 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 F
commencement of this Act,-
(a) the Bombay University Act, 1974 (Mah.XXll of 1974);
(b) the Poona University Act, 1974 (Mah.XXlll of 1974);
G
(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); H
324 SUPREME COURT REPORTS (2013] 4 S.C.R.
A (f) the Shreemati Nathibai Damodar Thackersey Women's
University Act, 1974 (Mah.XXVll of 1974)
(g) the Amravati University Act, 1983 (Mah.XXXVll of
1983); and
B (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
c
(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
D 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;"
E 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
F 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
G 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,
H
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 325
COLLEGE [G.S. SINGHVI, J.]
subject to the exceptions and to the extent stated in A
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.
B
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.
c
(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: D
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 E
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 F
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 G
such vac~tion or portion of a vacation; provided that if he
has been prevented by such order from enjoying more than
fifteen days elf the vacation, he shall be considered to have
availed himself of no portion of the vacation.
H
326 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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)
c
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
D fulfilled:-
1. (a) Under the Directorate of Education, -(i) All Heads
of Government Educational Institutions belonging to Class
I, II and Ill.
E (ii) Professors, Readers, Associate Professors, Research
Assistants, Lecturers, Assistant Lecturers, Demonstrators,
Tutors in Class I, II and Ill, as the case may be, in
Government Arts, Science, Commerce and Law Colleges.
(iii) Professors, Lecturers, Co-ordinators, Assistant
F Lecturers etc. in Class I, II and Ill as the case may be, in
Government Training Colleges.
(iv) Physical Instructors in Government Colleges and
Secondary Schools.
(v) Laboratory Assistants, Laboratory Attendants in
G
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.
H
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 327
COLLEGE [G.S. SINGHVI, J.]
(vii) All other staff in Government Institutions excepting those A
mentioned as belonging to Non-Vacation Department."
Statutes
"424. (3). Leave.-
B
(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 C
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 0
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 E
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 F
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 G
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
H
328 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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
C 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
D 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.
E
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
F 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
G 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 Ill and Professors, Readers, Associate Professors
H and other teachers in Class I, II and Ill employed in Government
STATE OF MAHARASHTRA v. NOWROSJEE WADIA 329
COLLEGE [G.S. SINGHVI, J.]
Arts, Science, Commerce and Law Colleges, Government A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
330 SUPREME COURT REPORTS [2013) 4 S.C.R.
A 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.
B 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
C 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
D 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.
E 21. In paragraph 18 of the Khandesh College Education
Society, Jalgaon v. Arjun Harl 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
F 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.
G 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.
H K.K.T. Appeals allowed.
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