Holding

The respondent is not entitled to increments during his extraordinary leave as the leave regulations do not cover his case and the retrospective amendment of those regulations is ultra vires.

Summary

Jahan Singh, a former Reader at Maharishi Dayanand University, Rohtak, was terminated during probation and later re‑appointed to take up a teaching post at the University of Zambia. He took two years of extraordinary leave without pay and, after returning, claimed annual increments for that period. The University’s Executive Council attempted to amend the leave regulations retrospectively to allow such increments, but the State Government objected. The Supreme Court examined whether the respondent fell within the ambit of Regulation 26(ii)(c) of the university leave regulations and whether the retrospective amendment was within the powers conferred by the Maharishi Dayanand University Act, 1975. The Court held that the amendment was ultra vires, the regulation did not cover the respondent’s self‑initiated foreign appointment, and consequently he was not entitled to increments. The Court set aside the Division Bench judgment and restored the Single Judge’s order, allowing the appeal.

Issues considered

Whether the respondent is entitled to annual increments during the period of extraordinary leave under the university leave regulations.
Whether the Executive Council’s amendment of the leave regulations with retrospective effect is valid under the Maharishi Dayanand University Act, 1975.
Whether the respondent’s re‑appointment after termination constitutes a fresh appointment, affecting his eligibility for increments.
Whether Article 14 of the Constitution can be invoked to compel the grant of increments in this context.

Subjects

incrementsextraordinary leaveretrospective amendmentdelegated legislationuniversity regulationsArticle 14employment lawtermination of servicere‑appointment

Judgment

A VICE CHANCELLOR, M.D. UNIVERSITY, ROHTAK
t
v.
JAHAN SINGH

MARCH 8, 2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Service Law: '
•

Increments during extra-ordinary leave-Respondent-Reader in
C Appellant University-Terminated from service during probation-He applied
for teaching assignment in Foreign University-Received offer and accepted
same-Appellant University re-appointed Respondent-Respondent availed
extra-ordinary leave without pay for two years in view of the foreign
assignment-Re-joined after two years-Claim for increments during period
D of extra-ordinary1 /eave-Entitlement to-Held: Not entitled, as under the
University Leave Regulations. increment available only if extra-ordinary•
leave granted on "invitation "-No such invitation made to Respondent who
applied for the foreign assignment himself-Respondent was not even in the
service of Appellant University while maki~g the application-Maharishi
Dayanand University Act, 1975-Leave Regulations framed under-Regulation
E 26(ii)(c).
Administrative Law:

Delegated legislation-Leave Regulations framed under the Maharishi
Dayanand University Act, I975-Amendments in, by Executive Council of the
F University-With retrospective effect-Validity-Held, not valid, since the
University Act did not confer any power on the Executive Council to make . '
regulation with retrospective effect. ·

Constitution of India, I 950-Article 14-Cannot be invoked for
G perpetuating illegality.
Respondent-Reader in Appellant University was terminated from service
during probation. He applied for teaching assignment in a Foreign University
(University of Zambia). In response Respondent received offer which he
accepted. Appellant University re-appointed Respondent who after joining duty
H 676
VICE CHANCELLOR, M.D. UNIVERSITY, ROHTAK 1·. JAHAN SINGH 677

availed extra-ordinary leave without pay fot:tW~y~~rs in view of the said foreign A
assignment. After two years, Respondent re-joined Appellant University and
claimed grant of increments during period of extra-ordinary leave. Executive
Council of the Appellant University resolved to amend the University Leave
Regulations with retrospective effect thereby proposing to grant the benefit
of increments during the period of extra-ordinary leave. However the said B
..
resolution of the Executive Council was not acted upon and Appellant
University ultimately declined the request for increments during the period
of extra-ordinary leave in view of the objections raised by the State
Government. "
The question which arose for consideration in the present appeal is
whether in terms of the extant leave Regulations framed under the Maharishi
c
Dayanand University Act, 1975, Respondent was entitled to annual increments
during the period of extra-ordina~y leave.

Allowing the appeal, the Court
D
HELD: l. The case of the Respondent is not even covered by the leave
regulations framed under the Maharishi Dayanand University Act, 1975.
~ [Para 30] 1685-f]

2. The appointment of the Respondent would be treated to be a fresh
appointment and not a continuing one. His services having been terminated E
during the period of probation, even no re-appointment was permissible in
law. (Para 16) (682-A-B)

3. The University is a creature of statute. It was created under the
Maharishi Dayanand University Act, 1975. The said Act provides for the
regulations making power. The Act does not confer any power on the Executive F
\
Council of the University to make a regulation with retrospective effect. The
purported regulations, thus, could not have been given retrospective effect or
retro-active operation as it is now well-settled that in absence of any provision
contained in the legislative Act, a delegatee cannot make a delegated
legislation with retrospective effect. The retrospective operation purported to
G
have been given by the Executive Council is ultra vi res the Act. In any event,
~
t- the said purported resolution appears to be vague, inasmuch as it does not lay
down as to from which date, the said amended regulation would come into effect.
No retrospective operation could also be given having regard to the fact that
thereby the rights of other employees of the University could not have been
taken away. Furthermore, the State has declined to grant such benefits to the H
678 SUPREME COURT REPORTS [20071 3 S.C.R.

A respondent. It was on that premise the purported offer made by the University
was recalled. The same, therefore, cannot be said to be arbitrary in nature.
(Paras 16, 19, 22, 23, 24 and 27( (682-8; 683-H; 684-E, F, G(

Mahabir Vegetable Oils (P) Ltd. and Anr. v. State of Haryana and Ors.,
(2006( 3 SCC 620 and MRF ltd Kottayam v. Asst/. Commissioner (Assessment)
B Sales Tax and Ors., (2006( II sec
702, relied on.

4. The University framed leave regulation. Regulation 26(ii)(c) deals with
extra-ordinary leave. In terms of the original Regulation 26(ii)(c), leave was )
to be granted on an invitation to a teaching post. No such invitation was made
C to the respondent. He applied for his appointment with the Zambia University
himself. Even assuming that the amendments made in the regulation is valid,
the extended meaning of'invitation' would also have no application in the fact
of the present case. By reason of the said amendment, invitation may include
both the direct offer or any offer received in response to an application, but
indisputably such an application or bio-data must be sent by the employee
D through the University to an institution in India or abroad. As the respondent
was not in the service of the University before he had made such an application,
a' fortiori the question of the respondent's application being sent by the
employee through the University did not and could not arise.
(Paras 16 and 25( (682-B-C; 684-G-H; 685-A-BI

E State of UP. and Anr. v. Jogendra Singh and Anr., (1998( l SCC 449,
referred to.

5. The submission of Respondent that in a similar matter involving one
Satpal Taneja, the University had granted such increments, cannot be accepted.
The case of Satpal Taneja stands on a different footing. Even assuming the
F respondent and the said Shri Taneja were similarly situated, Article 14 of
the Constitution of India carries with it a positive concept. Article 14 of the
Constitution cannot be invoked for perpetuating illegality.
fParas 28 and 29] (685-D-FJ

Ku/deep Singh v. Govt. of NCT of Delhi, (2006( 5 SCC 702, relied on
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 853 of2006.

From the Order dated 29.11.2004 of the High Court of Punjab and
Haryana at Chandigarh in LP.A. No. 2/2002.

H Nidesh Gupta, Vinod Shukla and S. Janani for the Appellant.
VICF CHANCELLOR. M.D UNIVERSITY, ROHTAK "· JAHAN SINGH [S.B. SINHA.JI 679

Jahan Singh Respondent-In-Person. A
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Respondent herein was appointed as a Reader in
Physics in Maharishi Dayanand University, Rohtak (hereinafter referred to as
'the University'). His services were terminated during the period of probation B
by an order dated 20.06.1979. He questioned the legality of said order of
termination in a Civil Writ Petition before the High Court of Punjab and
i Haryana, but the same was dismissed.

2. It, however, appears that the respondent filed an application for his
appointment as a Reader in the University of Zambia. The Zambia University c
accepted the said offer on the conditions mentioned therein, stating :.

,, "If you are willing to accept the appointment on the above terms,
I shall be grateful if you will sign and date all the enclosed copies of
this letter, signing also and dating one copy of the terms and conditions
of service sent herewith, and returning to me all the enclosed copies D
of this letter and one copy of the Terms and Conditions of Service
within thirty days of the date of this letter."

3. R~spondent accepted the said offer of appointment on 04. 10. 1983,
stating :
E
"I accept appointment on the terms set out in this letter and in
the document headed "Terms and Conditions of Service for Academic
Staff'. I agree to carry out such duties as are assigned to me from. time
to time by the Vice Chancellor and the Dean of the School of Natural
Sciences."
F
~
I.
4. Although, the respondent was not in employment of the University
he purported to have filed an application for his reappointment in the post
ofa reader of the University on 05.10.1983, which was accepted on the same
day.
G
5·. The very fact that the respondent was appointed on the sartle day,

-- >- as on the date of filing of application, evidently no selection process was
undergone therefor.

6. He joined the services of the University on 05. 10. 1983. He applied for

... grant of extra-ordinary leave without pay for a period of two years, in view H
680 SUPREME COURT REPORTS [2007] 3 S.C.R.
A of his assignment with the Zambia University and the E~1&utive Council of
the University by a resolution dated 21.11.1983 acceded to the said request.
On expiry of the said period of two years, he joined the University again in
August 1985. He thereafter prayed for grant of increments in the pay scale
during the period he was on extra-ordinary leave. The University referred the
B matter to the University Grants Commission, which in terms of its letter dated
10.12.1987 opined that the matter was within the domain of the State Government,
stating :

"I am directed to refer to your letter No.ET-2/87/13370 dated
21.9.87 on the above subject and to say that being an administration
matter of the University. I am to request you to approach the State
c Government/Department of Education in this regard."

7. The Executive Council, however, amended the resolution on 28.11.1990.

8. The State Government, however, when approached refused to grant
D its approval in terms of its letter dated 04.02.1992, stating :
"Reference your letter No.ET-2/91/28102 dated 24.10.1991 on the
above cited subject.

The Govt. have observed the decision taken by the Executive
Council of M.D. University, Rohtak under its Reso. No.13 dated
E 28.11.1990, thereby proposing to grant the benefit of Extra Ordinary
Leave (maximum three years) towards annual increments. The Govt.
have found that this provision is contrary to the Govt. rules. There
is no provision either in Govt. rules or in other Universities in the
State for granting this benefit to the Govt/University employees. This
F proposal shall create anomaly amongst the Govt. employees and other
University employees vis-a-vis M.D. University employees. In view of
these facts, the University is requested to take immediate action in
canceling these facts, the University is requested to take immediate
action in canceling the decision taken by the Executive Council under
Resolution No.13 dated 28.11.1990."
G
9. Yet again the respondent prayed for condonation of break in his
service with all resultant benefits, but yet again the State Government conveyed
its objection thereto. -
JO. However, despite the same, it appears, the Registrar of the University
H by a letter dated 06.02.1995 conveyed to the respondent that the Vice-Chancellor
VICE CHANCELLOR. M.D UNIVERSITY, ROHTAK v. JAHAN SINGH [SB. SINHA. J] 68 J

had been pleased to count his extra-ordinary leave period when he had A
worked with the University of Zambia from 30.11.1983 to 14.08.1985 towards
annual increment. It is, however, stated that the said resolution of the Executive
Council and/or the said letter was not acted upon, inter alia, on the premise
that being not in tune with the extant regulations. The matter was referred to
the State Government and by reason of a letter dated 26.05.1997 it conveyed
its objections thereto.
B

11. Respondent was apprised of the decision of the University that his
-!
request for increments during the period of extra-ordinary leave had not been
acceded to by the University by a letter dated 15.04.1998. A writ petition came
to be filed by the respondent, which was dismissed by a learned Single Judge
of the High Court by an order dated 09.10.2001. However, on an intra-court
c
appeal filed by the respondent, a Division Bench of the said High Court
allowed the same by a judgment and order dated 29.11.2004.

12. Appellant is, thus, before us.
D
13. Mr. Nidesh Gupta, the learned counsel appearing on behalf of the
appellant, would submit that in term of the extant rules, the respondent was
..._...(
not entitled to annual increments during the period of leave.

14. Respondent who appeared in person, on the other hand, would
submit that the Executive Council having amended the relevant regulations E
with retrospective effect, he would be deemed to have been continuing in
service since 1977 and in that view of the matter, no illegality has been
committed by the High Court in directing grant of increments in his favour
during the period he was serving the Zambia University.

15. It was furthermore submitted that in a similar matter involving one F
. ;.
~
Satpal Taneja, the University had granted such increments. Respondent would
contend that merely a sum of Rs. 388/- was paid to him by the University and
the rest of the amount is yet to be paid, whereas in the case of the said Satpal
Taneja, the entire amount had been paid.

16. The fact that the services of the respondent were terminated during G
,.-~ } his period of probation is not in dispute. He, therefore, on or about 27.09.1983
was not in the services of the University. He furthermore, as noticed
hereinbefore, neither applied for his appointment with the University of Zambia
himself or not through the University, nor was it legally permissible as he was
not in service at the relevant point of time. It is also not in dispute that before H
....
682 SUPREME COURT REPORTS [2007] 3 S.C.R.

A the respondent was reappointed by the University on humanitarian ground
or any other ground as a Reader therein, a contract of service subject to
fulfillment of certain terms and conditions between the respondent and the
University of Zambia came into being only thereafter. The appointment of the
respondent would be treated to be a fresh appointment and not a continuing
B one. His services having been terminated during the period of probation, even
no re-appointment was permissible in law. In the aforementioned factual
backdrop, the legal questions raised before us are required to be considered.
The University is a creature of statute. It was created under the Maharishi
Dayanand University Act, 1975 (for short, 'the Act'). The said Act provides
for the regulations making power. The University framed leave regulation.
C Regulation 26(ii)(c) deals with extra-ordinary leave, which reads as under :

"(i) An employee (whether permanent or temporary) may be granted
extra ordinary leave by the competent authority.
(a) when no other leave is admissible; or

D (b) when other leave is admissible, the employee applies in writing
for the extra ordinary leave for any special reason.
(ii) Extra ordinary leave shall be without pay and allowances. However,
House Rent Allowance will be admissible for a period not
exceeding first four months at the rate at which an employee was
E drawing before proceeding on such leave provided he has not
been in employment elsewhere during that period. The leave shall
not ordinarily exceed one year at a time.
Extraordinary leave shall not count for increment, except in the
following cases :-
F (a) The sanctioning authority is satisfied that such leave was taken
by an employee on account of illness or for any other cause
..
beyond his control provided that employee has no other kind of
leave to his credit;
(b) Leave is granted for the purpose of higher studies and research;
G and
(c) Leave is granted to accept an invitation to a teaching post or
fellowship or research-cum-teaching post or academic work of
importance. Provided that the maximum total period for which
such leave is granted shall not ordinarily exceed three years and
H in exceptional cases such leave may be extended so that the total
VICE CHANCELLOR, MD, UNIVERSITY, ROHTAK '" JAHAN SINGH [S,B. SINHA, J,] 683

period of leave, during the whole tenure of service of an employee A
does not exceed five years."

17. Clauses (a) and (b) of Regulation 26 (ii)(c) are not attracted herein.
Clause (c), according to the respondent, is attracted in the instant case.

18. However, before proceeding to consider the matter further, we may B
notice that the said regulation was purported to have been amended with
retrospective effect on the following terms :

"Considered the following amendment in Clause 26( c) of 'Leave
,t Regulations' appearing at pages 159-60 of M.D. University Calendar
Volume-III:- C
PRPOSED Leave is granted to accept an invitation to a teaching
post or fellowship or research-cum-teaching post or an assignment
for administrative or technical or academic work of importance.
Provided that the maximum total period for which such leave is
granted shall not ordinarily exceed three years and in exceptionai D
cases such leave may be extended so that the total period of
leave, during the whole tenure of service of an employee does
not exceed five years. Provided further that the benefit of increment
for a period upto three years of extra-ordinary leave may be
allowed for accepting such assignments and for the purpose of E
higher studies and research anywhere in India or abroad.
The word 'Invitation' of the above rule may include both a direct
offer sent by the host institution and any offer received in response
to an application, bio-data sent by the employee through the
University to any institution in India or abroad."
F
RESOLVED that the above amendment be approved.

FURTHER RESOLVED that the amended provision would take
retrospective effect and would be applicable to both teaching and
non-teaching employees who undertake administrative/ teaching
assignment anywhere in India or abroad." G
19. The Act does not confer any power on the Executive Council to
make a regulation with retrospective effect. The purported regulations, thus,
could not have been given retrospective effect or retro-active operation as it
is now well-settled that in absence of any provision contained in the legislative
Act, a delegatee cannot make a delegated legislation with retrospective effect. H
684 SUPREME COURT REPORTS [2007) 3 S.C.R.

A 20. In Mahabir Vegetable Oils (P) Ltd and Anr. v. State of Haryana
and Ors., [2006] 3 SCC 620 this Court stated; ~·

"41. We may at this stage consider the effect of omission of the said
note. It is beyond any cavil that a subordinate legislation can be
given a retrospective effect and retroactive operation, if any power in
B this behalf is contained in the main Act. The rule-making power is a
species of delegated legislation. A delegatee therefore can make rules
only within the four comers thereof.

42. It is a fundamental rule of law that no statute shall be construed t
to have a retrospective operation unless such a construction appears
c very clearly in the terms of the Act, or arises by necessary and
distinct implication. (See West v. Gll'.Ynne)

43. A retrospective effect to an amendment by way of a delegated
legislation could be given, thus, only after coming into force of sub-
section (2-A) of Section 64 of the Act and not prior thereto."
D
21. See also MRF Ltd, Kottayam v. Asst/. Commissioner (Assessment)
Sales Tax and Ors., [2006] 8 SCC 702

22. In any event, the said purported resolution appears to be vague,
inasmuch as it does not lay down as to from which date, the said amended
E regulation would come into effect.

23. No retrospective operation could also be given having regard to the
fact that thereby the rights of other employees of the University could not
have been taken away. It is not in dispute that other teachers of the University
have been given promotion. Respondent would be entitled to be promoted
F only in the event his break in his service is condoned and the increments as
prayed for by him for the period during which he was working with the _.
Zambia University may be granted and not otherwise.

24. Furthermore, the State has declined to grant such benefits to the
G respondent. It was on that premise the purported offer made by the University
was recalled. The same, therefore, cannot be said to be arbitrary in nature.

25. Jn terms of the original Regulation 26(ii)(c), leave was to be granted
<in an invitation to a teaching post. No such invitation was made to the
respondent. He applied for his appointment with the Zambia University himself.
H Even assuming that the amendments made in the regulation is valid, the
VICE CHANCELLOR, M.D. UNIVERSITY, ROHTAK 1·. JAHAN SINGH [S.B. SINHA,).] 685

extended meaning of 'invitation' would also have no application in the fact of A
-f the present case. By reason of the said amendment, invitation may include
both the direct offer or any offer received in response to an application, but
indisputably such an application or bio-data must be sent by the employee
through the University to an institution in India or abroad. As the respondent
was not in the service of the University before he had made such an application, B
a' fortiori the question of the respondent's application being sent by the
employee through the University did not and could not arise.

26. Our attention has been drawn to a decision of this Court in State
j
ofU.P. and Anr. v. Jogendra Singh and Anr., [1998] 1 SCC 449, which deals
with payment of retiral benefits. The said decision has, however, been relied C
upon for the proposition that all laws are prospective unless made retrospective
either expressly or by necessary implication.

27. We have noticed hereinbefore that the retrospective operation
purported to have been given by the Executive Council is ultra vires the Act.
D
28. So far as the case of Satpal Taneja is concerned, the same stands
on a different footing. W do not intend to dilate on the said question in
details as the learned Single Judge in his judgment pointed out the case of
the respondent viz.-e-viz. Mr. Taneja at some length. We agree therewith.

29. Even assuming the respondent and the said Shri Taneja were similarly E
situated, we may observe that Article 14 of the Constitution of India carries
with it a positive concept. Article 14 of the Constitution cannot be invoked,
for perpetuating illegality. {See Ku/deep Singh v. Govt. of NCT of Delhi,
[2006] 5 sec 102}

30. We, therefore, are of the opinion that the Division Bench of the High F

. ....
'
Court was not correct in interfering with the judgment of the learned Single
Judge as the case of the respondent is not even covered by the said regulations.

31. For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly and that of the learned Single Judge
is restored. The appeal is allowed. G
32. However, if any amount has been paid to the respondent by the
University, the same may not be recovered from him.

B.B.B. Appeal allowed. H