KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON &ANR.versusARJUN HARI NARKHEDE & ORS.

                   [2011] 7 S.C.R. 175


KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON                   A
                  &ANR.
                            v.
           ARJUN HARi NARKHEDE & ORS.
          (SLP (C) Nos. 17039-17040 of 2008)
                                                              B
                      JULY 05, 2011
     [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

       Service law - Earned leave - Encashment of unutilized
earned leave on retirement - Lecturers/Demonstrators were C
working in Vacation Department of a private College
established by petitioners-College Education Society -
Entitlement for earned leave and for encashment of unutilized
earned leave on their retirement - Held: The lecturers/
demonstrators were entitled to earned leave and encashment D
of earned leave as per the provisions of Statutes 424(3) and
424(C) - Though State Government had issued directives
from time to time to the Universities to amend the Statutes
so as to ensure that lecturers or teachers working in Vacation
Department were disentitled to earned leave and encashment E
of earned leave, but Statutes 424(3) and 424(C) which entitled
the said teachers to earned leave and encashment of earned
leave, were not modified or superseded - Also no provisions
in the Act to the effect that Statutes of a University which are
inconsistent with the directives of the State Government would F
be invalid - Section 115(2) (xii) rather states that Statutes
which are not inconsistent with the provisions of the Act and
which have not been modified or superseded shall continue
to be in force - University of Pune Statutes - Statutes 424(3)
and 424(C) - Maharashtra Universities Act, 1994 - s. 115(2) G
(xii).

     Respondent nos.1 to 14 were working as Lecturers/
Demonstrators in a College established by petitioners-
College Education Society, which was receiving aid from
                            175                         .     H
    176       SUPREME COURT REPORTS          [2011] 7 S.C.R.


A the State. The respondents were not granted encashment
   of their unutilized leave on their retirement despite their
   demands. Respondent Nos. 1 to 14 made a
   representation to the Grievances Committee of the North
   Maharashtra University, to which the petitioner-College
B Society was affiliated, that under Statute 424(3) and
  Statute 424(C) of the University of Pune they were
  entitled for encashment of earned leave after retirement
  but the Committee did not take any action on their
  representation. The respondents filed a Writ Petition. The
c High Court directed the Grievances Committee of the
  University to dispose of the representation. Pursuant
  thereto, the Grievances Committee of the University
  decided that respondent Nos 1 to 14 were entitled to
  encashment of their earned leave to their credit under
  Statute 424(C) read with $tatute 424(3) of the University
0
  of Pune and communic,,,ated the same to the college.
  Thereafter, the petitioner-College Society filed a writ
  petition challenging the decision of the Grievances
  Committee of the University as well as the constitutional
E validity of Statutes 424(3) and 424(C) of the University of
  Pune while respondent Nos.1 to 14 filed a cross writ
  petition seeking a direction to the University to direct the
  petitioner-College Society as well as the Principal of the
  College to pay their unutilized earned leave with interest
  and cost. The High Court held that the constitutional
F validity of Statutes 424(3) and 424(C) of the University of
  Pune cannot be challenged; that respondents were
  entitled to leave in accordance with their service
  conditions; and that the College after discharging its
  liability.of payment of leave encashment WOllld be entitled
G to claim reimbursement by way of grant from the State
  of Maharashtra subject to the claim of the College being
  admissible under law. Therefore, the petitioners filed the
  instant Special Leave Petitions.

H         Disposing of the Special Leave Petitions, the Court
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 177
          v. ARJUN HA~I NARKHEDE
     HELD: 1.1 From the very language of different           A
provisions of Rule 54 of the Maharashtra Civil Services
(Leave) Rules, 1981 it is clear that it applies only to 'a
Government servant'. Respondent nos.1 to 14 are not
Government servants and, therefore, cannot be denied
earned leave on the basis of provisions made in Rule 54      B
of the 1981 Rules. [Para 6) [185-A-B]
     1.2 Section 115 of the Maharashtra Universities Act,
1994 while repealing the different Acts applicable to
different universities in the State of Maharashtra provides C
in sub-section (2)(xii) that all Statutes made under the
repealed Acts in respect of any existing university shall,
insofar as they are not inconsistent with the provisions
of the Act, continue in force and be deemed to have been
made under the Act in respect of the corresponding
university until they are superseded or modified by the D
Statutes made under the Act. Thus, Statutes 424(3) and
424 (C) of the University of Pune, which were applicable
to the university, continue to be in force and are deemed
to be made under the Act if they are not inconsistent with
any provision of the Act or are not superseded, modified E
by Statutes made under the Act. Sections 5(60), 8 and
14(5) of the Act confer power on the State Government
to exercise control over the University in some matters
and also empower the State Government to issue
directives to the University and cast a duty on the Vice F
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 G
accumulative earned leave at the time of retirement. In
other words, Statutes 424(3) and 424(C) of the University
of Pune are not in any way inconsistent with the
provisions of the Act. [Para 7) [185-B-C]
                                                             H
    178      SUPREME COURT REPORTS            [2011] 7 S.C.R.

A        1.3 A reading of Statute 424(3) would show that
    clause (a) applies to confirmed non-vacation teachers and
    clause (b) applies to teachers other than non-vacation
    teachers and clause (b) clearly states that teachers other
    than non-vacation teachers shall be entitled to earned
B   leave subject to their accumulation of maximum 180 days.
    Statute 424(C), further provides that 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
c   Government has issued directives from time to time to
    the universities to amend the Statutes so as to ensure
    that lecturers or teachers working in Vacation
    Department are not entitled to earned leave and
    encashment of earned lave, but the fact remains that
    Statutes 424(3) and 424(C) of the University of Pune have
0
    not been modified or superseded. There are also no
    provisions in the Act to the effect that Statues of a
    University which are inconsistent with the directives of
    the State Government will be invalid. Section 115(2) (xii)
    rather states that statutes which are not inconsistent with
E   the provisions of the Act and which have not been
    modified or superseded shall continue to be in force.
    Thus, respondent Nos.1 to 14 were entitled to earned
    leave and encashment of earned leave as per the
    provisions·of Statutes 424(3) and 424(C) of the University
F   of Pune. [Paras 8 and 9) [186-H; 187-A-E]

        V. S. Agarkar vs. The chairman, Grievance Cell
    Committee, Pune University W.P. No.4936 of 2006 decided
    by H.C. on 22.01.2007 - referred to.
G
        CIVIL APPELLATE JURISDICTION : SLP (Civil) Nos.
    17039-17040 of 2008 etc.
      From the Judgment & Order dated 9.6.2008 of the High
  Court of Judicature of Bomaby, Bench at Aurangabad in W.P.
H No. 2881 of 2007 and W.P. No. 1401 of 2008.
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 179
          v. ARJUN HARi NARKHEDE
                             WITH                                   A
SLP (C) No. 17960-17961 of 2008.

    Vinayak J. Dixit, Arvind V. Sawant, Uday, B. Dube,
Rajendra S. Kanade, Kuldip Singh, Sachin J. Patil, Pooja
Raghuvanshi, Chandan Ramamurthi, Deva Datt Kamat,                   B
Manisha T. Karia, Priyanka Telanvi, Nitin Lonkar, Sunil Kumar
Verma, Sanjay V. Kharde, Chinmoy Khaldkar, Aprajita Singh,
Asha Gopalan Nair, Ravindra Keshavrao Adsure for the
appearing parties.
                                                                    c
    The Order of the Court was delivered by

                          ORDER
     A.K. PATNAIK, J. 1. These Special Leave Petitions are
directed against the common orders dated 09.06.2008 and             D
20.06.2008 of the Bombay High Court, Aurangabad Bench, in
Writ Petition No.2881 of 2007 and Writ Petition No.1410 of
2008. The questions raised in these Special Leave Petitions
are whether the Lecturers/Demonstrators working in the Moolji
Jeitha College established by the Khandesh College Education        E
Society, Jalgaon, are entitled for earned leave and for
encashment of unutilized earned leave on their retirement.

     2. The relevant facts very briefly are that respondent nos.1
to 14 in both the Special Leave Petitions have worked as            F
Lecturers/Demonstrators in the Moolji Jeitha College (for short
'the College') which is a private College established by the
Khandesh College Education Society, Jalgaon, and has been
receiving aid from the State of Maharashtra. After their
retirement, respondent nos.1 to 14 were not granted
encashment of their unutilized leave despite demands being          G
made on the Principal of the College. Respondent nos.1 to 14
then made a representation to the Grievances Committee of
the North Maharashtra University, Jalgaon (for short 'the
University') to which the College is affiliated, contending that
                                                                    H
    180       SUPREME COURT REPORTS                 [2011) 7 S.C.R.


A   under Statutes 424(3) and 424 (C) of the University of Pune,
    they were entitled for encashment of earned leave after
    retirement, but have not been paid the same by the College.
    When the Grievances Committee· did not take any action on
    the representation, respondent nos.1 to 14 filed Writ Petition
s   No.2671 of 2006 in the Bombay High Court, Aurangabad
    Bench, and by order dated 12.04.2006 the High Court directed
    the Grievances Committee of the University to dispose of the
    representation for encashment of unutilized earned leave within
    three months. Pursuant to this direction of the High Court, the
c   Grievances Committee of the University decided on 10.10.2006
    that the Statutes of the University of Pune continued to be
    applicable to the University by virtue of the provisions of Section
    11 S(xii) of the Maharashtra Universities Act, 1994 (for short 'the
    Act') and therefore respondent nos.1 to 14 were entitled to
    encashment of their earned leave to their credit under Statute
0
    424(C) read with Statute 424(3) of the University of Pune. The
    decision of the Grievances Committee was communicated to
    the college by letter dated 18.10.2006 of the University.

        3. The Khandesh College Education Society thereafter
E filed Writ Petition No.2881 of 2007 challenging the decision of
  the Grievances Committee of the University as well as the
  constitutional validity of Statutes 424(3) and 424(C) of the
  University of Pune. Respondent nos.1 to 14 also filed Writ
  Petition No.1410 of 2008 seeking a direction to the University
F to direct the Khandesh College Education Society as well as
  the Principal of the College to pay their unutilized earned leave
  forthwith along with interest and cost. After hearing learne~
  counsel for the parties, the High Court held in the impugned
  common order dated 09.06.2008 that the constitutional validity
G of Statutes 424(3) and 424(C) of the University of Pune cannot
  be challenged merely on the ground that such provisions did
  not exist in the statutes of other Universities and that these
  provisions being beneficial provisions, cannot be held to be
  ultra vires the Constitution. The High Court further held that
H
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 181
    v. ARJUN HARi NARKHEDE [A.K. PATNAIK, J.]
respondent nos.1 to 14, admittedly, were employed in the              A
College in various capacities and were entitled to leave in
accordance with their service conditions and the Bombay High
Court has already held in the case of V.S. Agarkar vs. The
chairman, Grievance Cell Committee, Pune University (W.P.
No.4936 of 2006 decided on 22.01.2007) that a teacher                 B
employed in an Institution affiliated to the University of Pune on
retirement is entitled for encashment of unutilized leave on
superannuation under Statute 424(C) of the University of Pune.
The High Court, however, clarified that the College after
discharging its liability of payment of leave encashment would        c
be entitled to claim reimbursement by way of grant from the
State of Maharashtra. By the impugned common order dated
20.06.2008, the High Court corrected the earlier order dated
09.06.2008 by clarifying that the liability of the State Government
to reimburse the college would be subject to the claim of the         D
College being admissible under law.

      4. Mr. Vinayak J. Dixit, learned counsel for the p~titioners,
submitted that the respondent Nos.1 to .14 were working in the
Vacation Department inasmuch as they were not required to
work during the vacation period of the College and under Rule         E
54 of the Maharashtra Civil Services (Leave) Rules, 1981, a
Government servant serving in a Vacation Department was not
entitled to any earned leave in respect of duty performed in any
year in which he avails himself of vacation. He further submitted
that the State Government, by a Resolution dated 29.03.1997,          F
has taken a decision that only the approved Principals of aided
non-Government Colleges, if they are prohibited from enjoying
the long term vacations on administrative grounds, would get
the benefits of earned leave as per Rules 52, 54 and 68 of the
Maharashtra Civil Services (leave) Rules, 1981 subject to             G
maximum accumulation of earned leave of 240 days. He
submitted that since none of the respondent Nos.1 to 14 served
as Principals performing administrative functions, they were not
entitled to earned leave and consequently they are not entitled
to encashment of any accumulative earned leave. He further            H
    182       SUPREME COURT REPORTS                [2011] 7 S.C.R.


A submitted that under Section 8 of the Act the State Government
  has control over the universities and without prior approval of
  the State Government, the University cannot take a decision
  which results in increased financial liability, direct or indirect,
  for the State Government. He argued that under Section 5 (60)
B of the Act, the University is required to comply with and carry
  out any directives issued by the State Government from time
  to time, with reference to the powers, duties and responsibilities
  of the University and similarly under Section 14 (5) of the Act,
  the Vice Chancellor has the duty to ensure that the directives
c of the State Government, if any, are strictly observed. He
  submitted that although the State Government has issued
  directives to the University to correct the Statutes to ensure that
  teachers, who can avail long term vacation, are not entitled to
  earned leave and encashment of accumulative earned leave
D at the time of retirement, the University has not amended the
  Statutes. In this connection, he referred to the various
  correspondence made by the State Government annexed to the
  Counter Affidavit of the State Government as Annexure R-5
  (Colly). Mr. Sanjay V. Kharde, learned counsel for the State of
E Maharashtra, adopted these arguments of Mr. Dixit.

        5. Mr. Deva Datt Kamat, learned counsel appearing for
  respondent Nos.1 to 14, in reply, submitted that it is not disputed
  that the University of Pune Statutes were applicable to the
  University and under Statute 424(3) of the University of Pune
F Statutes a teacher other than the non-vacation teacher is also
  entitled to earned leave and under Statute 424(C) thereof he
  is entitled to encashment of earned leave in balance to his
  credit on the date of his superannuation subject to a maximum
  of 180 days. He submitted that Section 115 of the Act titled
G 'Repeal and Savings' provides in clause (xii) that all Statutes
  in respect of any existing university shall, insofar as they are
  not inconsistent with the provisions of the Act, continue in force
  and be deemed to have been made under the Act in respect
  of the corresponding university until they are superseded or
H modified by the Statutes made under the Act. He submitted that
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 183
    v. ARJUN HARi NARKHEDE [A.K. PATNAIK, J.]
since Statutes 424(3) and 424(C) of the University of Pune,           A
which were applicable to the University, have not been
superseded or modified by Statutes made under the Act,
respondent nos.1 to 14 were entitled to earned leave and
encashment of earned leave. He argued that Section 14(5) of
the Act casts a duty on the Vice Chancellor to ensure that the        B
provisions of the statutes are strictly followed and, therefore, he
is required to ensure that respondent nos.1 to 14 are paid their
leave encashment as per the provisions of Statute 424(C) of
the University of Puna.

    6. Rule 54 of the Maharashtra Civil Services (Leave)              C
Rules, 1981 on which learned counsel for the petitioners has
placed reliance is quoted hereinbelow:

     "54. Earned leave for persons serving in Vacation
     Departments.                                                     D

      (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.
                                                                      E
      (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.            F

            Provided that no such leave shall be admissible to
            a Government servant not in permanent employ in
            respect of the first year of his service.

            (b) If, in any year, the Government servant does not      G
            avail himself of any vacation, earned leave shall be
            admissible to him in respect of that year under rule
            50. '

            Explanation.-For the purposes of this rule, the           H
    184          SUPREME COURT REPORTS             (2011] 7 S.C.R.


A                 term "year" shall be construed as meaning not
                  calendar year but twelve months actual duty in a
                  Vacation Department.

           Note 1.- A Government servant entitled to vacation shall
                be considered to have availed himself of a vacation
B
                or a portion of a vacation unless he has been
                required by general or special order of a higher
                authority to forgo such vacation or portion of a
                vacation; provided that if he has been prevented by
                such order from enjoying more than fifteen days of
c               the vacation, he shall be considered to have availed
                himself of no portion of the vacation.

           Note 2.- When a Government servant serving in a
                Vacation Department proceeds on leave before
D               completing a full year of duty, the earned leave
                a~missible to him shall be calculated not with
                reference to the vacations which fall during the
                period of actual duty rendered before proceeding
                on leave but with reference to the vacations that fall
E               during the year commencing from the date on which
                he completed the previous year of duty.

           (3)    Vacation may be taken in combination with or in
                  continuation of any kind of leave under these rules

F
              Provided that the total duration of vacatipn and
        earned leave taken in conjunction, whet.her the earned
        leave is taken in combination with or/in continuation of
        other leave or not, shall not exceed·tfle amount of earned
G       leave due and admissible to the Government servant at a
      · time under rule 50:

                Provided that the total duration of vacation, earned
          leave and commuted leave taken in conjunction shall not
          exceed 240 days."
H
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 185
    v. ARJUN HARi NARKHEDE [A.K. PATNAIK, J.]                              t

From the very language of different provisions of Rule 54 of the       A
Maharashtra Civil Services (Leave) Rules, 1981 it is clear that
it applies only to 'a Government servant'. Respondent nos.1 to
14 are not Government servants and, therefore, cannot be
denied earned leave on the basis of provisions made in Rule
54 of the Maharashtra Civil Services (Leave) Rules, 1981.              B

      7. 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 any
existing university shall, insofar as they are not inconsistent with   C
the provisions of the Act, continue in force and be deemed to
have been made under the Act in respect of the corresponding
university until they are superseded or modified by the Statutes
made under the Act. Hence, Statutes 424(3) and 424 (C) of
the University of Pune, which were applicable to the university,       D
continue to be in force and are deemed to be made under the
Act if they are not inconsistent with any provision of the Act or
are not superseded, modified by Statutes made under the Act.
Sections 5(60), 8 and 14(5) of the Act confer power on the State
Government to exercise control over the University in some             E
matters and also empower the State Government to issue
directives to the University and cast a duty on the Vice
Chancellor to ensure compliance with such directives, but these
provisions in the Act do not prohibit grant of earned leave to a
teacher or lecturer of any affiliated college who can avail a          F
vacation from being entitled to earned leave or from being
entitled to encashment of accumulative earned leave at the time
of retirement. In other words, Statutes 424(3) and 424(C} of the
University of Pune are not in any way inconsistent with the
provisions of the Act. Learned counsel for the petitioners and         G
the State Government have also not brought to our notice any
statute of the university modifying or superseding Statute 424(3)
or 424(C} of the University of Pune which were applicable to
the University.
         '
                                                                       H
    186          SUPREME COURT REPORTS              [2011] 7 S.C.R.


A        8. Statutes 424(3) and 424(C) of the University of Pune
    are extracted hereinbelow:

          "Statute 424(3) - Leave

          a.
B
          b........... .

          c.     Earned Leave

           (a)    The confirmed non-vacation teacher shall be entitled
c                 to earned leave at the rate of one-eleventh of the
                  period spent on duty subject to his accumulating
                  maximum of 180 days of leave.

           (b)    The teacher other than the one included in (a)
D                 above shall be entitled to one twenty seventh of the
                  period spent on duty and the period of earned leave
                  as provided in the proviso to Section 423 subject
                  to his accumulation of maximum of 180 days. For
                  this purpose the period of working days only shall
E                 be considered.

          "Statute 424(C) - Encashment of Unutilized Earned Leave
          on Superannuation:

          The teacher shall be entitled to encash earned leave in
F         balance to his credit on the date of his superannuation
          subject to a maximum of 180 days.

          In case the teacher is required to serve till the end of
          academic session beyond the date of his superannuation,
          he shall be entitled to encash the balance of earned leave
G
          to his credit on the date of his actual retirement from
          service.

  A reading of Statute 424(3) extracted above would show that
  clause (a) applies to confirmed non-vacation teachers and
H clause (b) applies to teachers other than non-vacation teachers
KHANDESH COLLEGE EDUCATION SOCIETY, JALGAON 187
    v. ARJUN HARi NARKHEDE [A.K. PATNAIK, J.]
and clause (b) clearly states that teachers other than non-        A
vacation teachers shall be entitled to earned leave subject to
their accumulation of maximum 180 days. Statute 424(C},
quoted above, further provides teachers shall be entitled to
encash earned leave in balance to their credit on the date of
his superannuation subject to a maximum of 180 days.               B

      9. It, however, appears that the State Government has
issued directives from time to time to the universities to amend
the Statutes so as to ensure that lecturers or teachers working
in Vacation Department are not entitled to earned leave and
encashment of earned la•1e, but the fact remains that Statutes C
424(3) and 424(C) of the University of Pune have not been
modified or superseded. There are also no provisions in the
Act to the effect that Statues of a University which are
inconsistent with the directives of the State ·Government will be .
invalid. Section 115(2) (xii) rather states that statutes which are D
not inconsistent with the provisions of the Act and which have
not been modified or superseded shall continue to be in force.
Hence, respondent nos.1 to 14 were entitled to earned leave
and encashment of earned leave as per the provisions of
Statutes 424(3) and 424(0) of the University of Pune.               E

     10. In the result, we are not inclined to grant leave in these
matters but considering financial difficulties of the Petitioners
expressed before this Court, we grant three months' time to the
Petitioners to comply with the impugned orders of the High · F
Court. The Special Leave Petitions are accordingly disposed
of. No costs.

N.J~                    Special Leave Petitions disposed of.