State of Maharashtra Versus Nowrosjee Wadia College

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REPORTABLE a
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 531-532 OF 2013

(Arising out of SLP(C) Nos. 27286-27287 of 2009) b
State of Maharashtra and others …Appellants
versus
Nowrosjee Wadia College and others …Respondents c
JUDGMENT
G. S. Singhvi, J. d
1. The question which arises for consideration in these appeals is
whether respondent Nos.1 and 2 are entitled to reimbursement of the

e
amount paid to the teachers by way of leave encashment under the statutes
framed by the Pune University.
f
2. Dr. Anagha Anant Nadkarni and Dr. Moreshwar J. Bedekar, who
were employed as Professors in respondent No.1 college retired from
service in November, 2003. They filed applications before Pune University

g
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,

h
respondent No.1 did not act upon the recommendations of the Committee.
Therefore, Dr. Anagha Anant Nadkarni and Dr. Moreshwar J. Bedekar
1
Page 1
filed Writ Petition Nos.8763 and 8775 of 2007 for issue of a mandamus to a
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
dated 7.4.2008 along with 11 other writ petitions. The Division Bench b
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: c
“. Therefore, there could not be any controversy over the is-

sue of entitlement of the petitioners for encashment of unutil-
ised earned leave on superannuation which in the case of
V.S. Agarkar (supra) has been discussed at length and, there-
fore, we dispose of these petitions with a direction to the re- d
spondent-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 exercise within a period of eight weeks e
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 re-
imbursement by way of grant from the Respondent-State.”
3. By another order dated 9.6.2008 passed in Writ Petition f
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 of the order passed g
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: h
“We have disposed of these petitions by common order dated
2
Page 2
9.6.2008. It has been pointed out by the petitioner in W.P. a

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 Committee after lapse of three
years. It is submitted that this statement was made without
proper instructions. In fact, the Grievance Committee had b
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 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. c
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 d
respondent being admissible under law. Therefore, we 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

e
High Court in SLP (C) Nos.17039-17040/2008, 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 f
whether the provisions of Maharashtra Civil Services (Leave) Rules, 1981
(for short, ‘the 1981 Rules’) are applicable to the teachers employed by
respondent No.1, and held: g
“From the very language of different provisions of Rule 54 of

the Maharashtra Civil Services (Leave) Rules, 1981 it is clear
that it applies only to “a government servant”. Respondents 1
to 14 are not government servants and, therefore, cannot be h
denied earned leave on the basis of provisions made in Rule
54 of the Maharashtra Civil Services (Leave) Rules, 1981.”
3
Page 3
a
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 observed:

b
“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 exist-
ing university shall, insofar as they are not inconsistent with
the provisions of the Act, continue in force and be deemed to c
have been made under the Act in respect of the correspond-
ing university until they are superseded or modified by the
Statutes made under the 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
d
made under the Act if they are not inconsistent with any pro-
vision 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 e
some matters and also empower the State Government to is-
sue directives to the University and cast a duty on the Vice-
Chancellor to ensure compliance with such directives, but
these provisions in the Act do not prohibit grant of earned
leave to a teacher or Lecturer of any affiliated college who
can avail a vacation from being entitled to earned leave or f
from being entitled to encashment of 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 coun-
sel for the petitioners and the State Government have also not
g
brought to our notice any 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 extrac-

ted hereinbelow: h
“424. (3). Leave.—

(a)-(b) * * *
4
Page 4
(c) Earned leave.— a

(a) The confirmed non-vacation teacher shall be
entitled to earned leave at the rate of one-elev-
enth of the period spent on duty subject to his
accumulating maximum of 180 days of leave.
b
(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 Sec-
tion 423 subject to his accumulation of max-
imum of 180 days. For this purpose the period c
of working days only shall be considered.”
* * *
“424(C). Encashment of unutilised earned leave on su-
perannuation.—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. d
In case the teacher is required to serve till the end of

academic session beyond the date of his superannu-
ation, he shall be entitled to encash the balance of
earned leave to his credit on the date of his actual re-
tirement from service.” e
A reading of Statute 424(3) extracted above would show that

clause (a) applies to confirmed non-vacation teachers and
clause (b) applies to teachers other than non-vacation teach-
ers and clause (b) clearly states that teachers other than non- f
vacation teachers shall be entitled to earned leave subject to
their accumulation of maximum 180 days. Statute 424(C),
quoted above, 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.
g
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 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 modi- h
fied or superseded. There are also no provisions in the Act to
the effect that the Statutes of a university which are inconsist-
5
Page 5
ent with the directives of the State Government will be in- a

valid. Section 115(2)(xii) rather states that statutes which are
not inconsistent with the provisions of the Act and which
have not been modified or superseded shall continue to be in
force. Hence, 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.” b
5. After recording the aforesaid observations, the Bench declined to
grant leave but gave three months time to the SLP petitioners to comply
c
with the directions given by the High Court.
6. After 3 years of enactment of the 1994 Act, which resulted in repeal
of various existing statutes including the Poona University Act, 1974, un- d
der which Statutes 424(3) and 424(C) had been framed, the State Govern-
ment issued instructions to the Universities to discontinue payment of
leave encashment to the teachers by pointing out that they fall in the cate- e
gories 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 f
directed that the University Statutes should be amended with retrospective
effect and till then, the concerned University should bear expenses in-
g
curred 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.

h
6
Page 6
7. In furtherance of the directives given by the State Government, the a
Vice-Chancellor of Pune University passed order dated 1.2.2009, which
reads as under:
b
“WHEREAS the Maharashtra State Legislature has
enacted the Maharashtra Universities Act, 1994 (Ma-
harashtra Act No. XXXV of 1994), which has come into
force with effect from 22nd July, 1994.
AND WHEREAS as per Section 51(8) of the Maharashtra c

Universities Act 1994, the University has power to prescribe
the terms and conditions of the services of the teachers by
framing Statutes.
AND WHEREAS the University, in exercise of the power

vested in it, as per Section 51(8) of the Maharashtra Univer- d
sities Act, has framed the Statutes regarding the entitlement,
surrender and encashment of the earned 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 va- e
cation, they are not entitled for earned leave in the
Statutes with retrospective effect, since the Teach-
ers of the University and affiliated colleges avail of
the vacation, they are not entitled for earned leave.
AND WHEREAS the State Government, vide its further let- f

ter dated 20th October, 2008 directed all Universities to re-
peal the provisions of earned leave in the Statues with retro-
spective effect, within a period of one month from the date of
the letter.
g
AND WHEREAS as per Section 14(5) of the Maharashtra
University Act, 1994, it is, inter alia, duty of the Vice-
Chancellor to ensure that directives of the State
Government are strictly observed.
AND WHEREAS as per Section 5(60) of the Maharashtra h

Universities Act, 1994, the University has to comply
with and carry out any directives issued by the State
Govt from time to time.
7
Page 7
a
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.
b
AND WHEREAS the Management Council of the University
in its above said meeting resolved that an administra-
tive decision as regards repealing the Statute 424
(C), be taken and the directives be issued in this re-
gard in view of the provisions of Section 5(60) and
Section 14(5) of the Maharashtra & Universities Act, c
1994.
AND WHEREAS the Management Council of the Univer-

sity, in its meeting held on 1st October, 2008 confirmed its
earlier decision as regards repealing the Statute 424
(G), be taken and the directives be issued in this re- d
gard 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 imple-
mented with effect from 1st February, 2009.
e
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- f

chancellor of the University of Pune, by and under
the powers vested in the under sub section 8 of Sec-
tion 14 of the Maharashtra Universities Act, 1994,
hereby issue the following directives;
The Teachers Statute 424 (C) is repealed w.e.f. 1 st Febru- g

ary, 2009.
Ref: No.LAW/2009/73 Dr. Narendra Jadhav

Dated 1.2.2009 Vice-Chancellor.
Present Statute Amendment Statute after h

Proposed amendment
Statute 424 (C) encashment of Delete
8
Page 8
Unutilized Earned Leave on statute 424 a

Superannuation (C)
The teacher shall be entitled to

encash earned leave in balance to
his credit on the date of his
superannuation subject to a b
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 c
entitled to encash the balance of
earned leave to his credit on the
date of his actual retirement from
service.”
(The order has been extracted from the SLP paper-book) d

8. Feeling aggrieved by the directives issued by the State 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

e
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 to
reimburse the amount paid to other teachers by way of leave encashment. f
9. The State Government contested the writ petition by relying upon
the provisions of the 1981 Rules and the instructions issued for repeal of
g
the Statutes with retrospective 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’.

h
9
Page 9
10. The Division Bench of the High Court referred to order dated a
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 cog-
nizance of the statement made by the Assistant Government Pleader that b
the amount paid to the teachers will be reimbursed by way of grant. The
Director of Higher Education and others filed Civil Application
No.2320/2009 for modification of order dated 24.8.2009. The same was c
disposed of by the High Court on 9.10.2009 by relieving the Assistant
Government Pleader of the concession made by him. However, the direc-
tion given for reimbursement of the amount paid by the institutions to the d
teachers in lieu of earned leave was maintained on the premise that order
dated 7.4.2008 passed in Writ Petition No.8763/2007 and batch has be-
e
come final.
11. On 3.11.2009, this Court ordered notice in SLP (C) Nos.27286-
27287/2009 but dismissed a batch of special leave petitions by recording

f
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. g
It is submitted that the order dated 7.4.2008 has been fol-

lowed in another batch of cases - Khandesh College
Education Society vs. Arjun Hari Narkhede & Ors.
and connected cases W.P.No.2881/2007 dated
h
9.6.2008. Later, having found that there was an ob-
vious omission, the High Court made an
amendment to the order dated 9.6.2008, by or-
10
Page 10
der dated 20.6.2008 by adding the words “if admis- a

sible 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, 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 im- b
pugned order dated 7.4.2008 also as that order also
contained a similar omission by oversight. There-
fore, it will be appropriate if the petitioner-State
approaches the High Court and point out that the
correction having been found necessary in the order
dated 9.6.2008, it ought to have been made in the c
order 7.4.2008 also when correcting the order
dated 9.6.2008.”
12. In furtherance of the observations made by this Court, the

d
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

e
State would completely change the nature of relief granted by the High
Court. After considering the objections, the High Court passed order dated
3.5.2011, paragraphs 5, 6 and 7 of which read as under:

f
“5. In our opinion, the clarification sought by the applic-
ant-State of Maharashtra is a benign clarification. Inasmuch
as, the respondents (original writ petitioners) or the manage-
ment of the school in which the teachers were employed and
have been paid leave encashment amount, cannot be heard to
g
contend that the management would be entitled for reim-
bursement of the amount so paid by them even if the same is
inadmissible in law. In other words, the directions contained
in the order dated 7.4.2008 will have to be understood to
mean that the management would be entitled to claim reim-
bursement by way of grant from the respondent-State to the h
extent of the amount paid by it to the teachers as leave en-
cashment, if permissible in law.
11
Page 11
6. In this view of the matter, we allow all these Civil Applica- a

tions by adding at the end of paragraph 4, the following
words:-
“if permissible in law.”
7. We, however, record the submission of the management as b

well as the teachers (original writ petitioners) with approval
that the fact that such clarification has been issued does not
necessarily mean that the management is not entitled for re-
imbursement in law. That is a matter which will have to be
examined in appropriate proceedings as and when occasion
arises.” c
13. Shri Chinmoy Khaladkar, learned counsel for the appellants referred
to the provisions of the 1994 Act, the 1981 Rules and argued that the
d
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,
e
1974 nor any other enactment mandates reimbursement of the 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 f
Government colleges are not entitled to the benefit of leave encashment
and argued that it would amount to invidious discrimination if the teachers
employed in the private colleges affiliated to the University are held g
entitled to the benefit of leave encashment.
14. Shri Colin Gonsalves, learned senior counsel for respondent Nos. 1
h
and 2 argued that despite the order passed by the High Court on 3.5.2011,
the appellants are duty bound to reimburse the colleges the amount paid to
12
Page 12
the teachers by way of leave encashment. Learned senior counsel a
submitted that in view of Section 115(2), the existing Statutes and
Ordinances made under the Acts specified in sub-section (1) of Section
115 will be deemed to have been saved because the University had not b
framed fresh Statutes or repealed the existing Statutes.
15. We have considered the respective arguments. Sections 3(1), 5(9),

c
5(49), 5(57), 5(60), 8(1)(a) to 8(c), 8(1)(g), 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
d
and Statutes 424(3) and 424(C), which have bearing on these appeals,
read as under:
The 1994 Act. e
“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 commencement of
this Act, the corresponding university with the name, spe-
cified against it in column (2) of the said Part, is hereby con- f
stituted 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 of this Act.
5. Powers and duties of university: - The university shall g

have the following powers and duties, namely:-
(1) to (8) xxx xxx xxx
(9) to create posts of directors, principals, professors, read-
ers, lecturers and other teaching or non-vacation academic
posts required by the university with the prior approval of the h
State Government and to prescribe their qualifications and
make appointments thereto;
13
Page 13
(10) to (48) xxx xxx xxx a

(49) to lay down for teachers and university teachers, service
conditions including code of conduct, workload, norms of
performance appraisal, and such other instructions or direc-
tions as, in the opinion of the university, may be necessary in
academic matters; b
(57) to evolve an operational scheme for ensuring accountab-
ility of teachers, non-vacation academic and non-teaching
staff of the university, institutions and colleges;
c
(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.
d
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 employees;
e
(b) revise the pay, allowances, post-retirement benefits and
other benefits of its teachers, officers and other employees;
(c) grant any special pay, allowance or other extra remunera-
tion of any description whatsoever, including ex gratia, pay-
ment or other benefits having financial implications, to any of f
its teachers, officers or other employees;
(d) to (f) xxx xxx xxx
(g) take any decision regarding affiliated colleges resulting in
increased financial liability, direct or indirect, for the State
g
Government.
(2) The university shall be competent to incur expenditure

from the funds received from, -
(a) various funding agencies without any share or contribu-
h
tion from the State Government;
14
Page 14
(b) fees for academic programmes started on self-supporting a

basis;
(c) contributions received from the individuals, industries, in-
stitutions, organisations or any person whosoever, to further
the objectives of the university;
b
(d) contributions or fees for academic or other services
offered by the university;
(e) development fund, if any, established by the university;
for the purposes of -
c
(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
government contribution is received; d
(iii) starting any academic programme on self-supporting

basis;
(iv) incurring expenditure on any development work;
e
without referring the matter for approval of the State Govern-
ment, provided there is no financial liability, direct or indir-
ect, immediate or in future on the State Government.
(3) The State Government may in accordance with the provi-

sions contained in this Act, for the purpose of securing and f
maintaining uniform standards, by notification in the Official
Gazette, prescribe a Standard Code providing for the classi-
fication, manner and mode of selection and appointment, ab-
sorption of teachers and employees rendered surplus, reser-
vation of post in favour of member of the Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta Jatis) and No- g
madic Tribes and Other Backward Classes, duties workload,
pay, allowances, postretirement benefits, other benefits, con-
duct and disciplinary matters and other conditions of service
of the officers, teachers and other employees of the universit-
ies and the teachers and other employees in the affiliated col-
h
leges and recognised institutions (other than those managed
and maintained by the State Government, Central Govern-
ment and the local authorities). When such Code is pre-
15
Page 15
scribed, the provisions made in the Code shall prevail, and a

the provisions made in the Statutes, Ordinances, Regulations
and Rules made under this Act, 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 b

perform duties specified in section 5 or where the university
has not exercised such powers or performed such duties ad-
equately, or where there has been a failure to comply with
any order issued by the State Government, the State Govern-
ment may, on making such inquiry as it may deem fit, issue a
directive to the university for proper exercise of such powers c
or performance of such duties or comply with the order; and
it shall be the duty of the university to comply with such dir-
ection.
Provided that, in case the university fails to comply with the

directives, the State Government shall call upon the univer- d
sity 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 (3) of section 9.
e
(5)
[
xxx xxx xxx
14. Powers and duties of Vice-Chancellor:-

f
(5) It shall be the duty of the Vice-Chancellor to ensure that
the directives of the State Government if any and the provi-
sions of the Act, Statutes, Ordinances and Regulations are
strictly observed and that the decisions of the authorities,
bodies and committees which are not inconsistent with the
Act, Statutes, Ordinances or Regulations are properly imple- g
mented.
51. Statutes:- Subject to the provisions of this Act, the Stat-

utes may provide for all or any of the following matters, h
namely :-
16
Page 16
a
(5) the principles governing the seniority and service condi-
tions of the employees of the university;
(8) qualifications, recruitment, workload, code of conduct, b

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 col-
leges or institutions maintained by the State or Central Gov-
ernment or a local authority), the provision of pension, gratu-
ity and provident fund, the manner of termination of their ser- c
vices, as approved by the State Government;
52. Statutes how made:-

d
(6) Notwithstanding anything contained in the foregoing sub-

sections, the Chancellor, either suo motu or on the advice of
the State Government, may, direct the university to make pro-
visions in the Statutes in respect of any matter specified by e
him and if the Senate fails to implement such a direction
within sixty days of its receipt, the Chancellor may, after con-
sidering the reasons, if any, communicated by the Senate for
its inability to comply with such direction, make or amend
the Statutes suitably.
f
115. Repeal and savings:- (1) On and from the date of com-
mencement of this Act,-
(a) the Bombay University Act, 1974 (Mah.XXII of 1974);
(b) the Poona University Act, 1974 (Mah.XXIII of 1974);
(c) the Shivaji University Act, 1974 (Mah.XXIV of 1974); g
(d) the Dr. Babasaheb Ambedkar Marathwada University
Act, 1974 (Mah.XXV of 1974);
(e) the Act, 1974 (Mah.XXVI of 1974);
(f) the Shreemati Nathibai Damodar Thackersey Women’s
University Act, 1974 (Mah.XXVII of 1974)
(g) the Amravati University Act, 1983 (Mah.XXXVII of h
1983); and
17
Page 17
(h) the North Maharashtra Universities Act, 1989, shall stand a

repealed (Mah.XXIX of 1989).
(2) Notwithstanding the repeal of the said Acts, -
(i) to (xi) xxx xxx xxx
(xii) all Statutes and Ordinances made under the said Acts in b
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 in re-
spect of the corresponding university by the Senate or the
Management Council, as the case may be of that university,
c
until they are superseded or modified by the Statutes made
under this Act;”
The 1981 Rules.
“50. Earned leave for Government Servant serving in d

Departments other than Vacation Department— (1)(a)
The leave account of every Government servant who is
serving in a Department other than a vacation 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. e
(b) The leave at the credit of a Government servant at the

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. f
52. Vacation Department—A Vacation Department is,

subject to the exceptions and to the extent stated in 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. g
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 h
himself of the full vacation.
(2)(a) In respect of any year in which a Government servant
18
Page 18
avails himself of a portion of the vacation, he shall be entitled a

to earned leave in such proportion of 30 days, as the number
of days of vacation not taken bears to the full vacation:
Provided that no such leave shall be admissible to a
Government servant not in permanent employment in respect
of the first year of his service. b
(b) If, in any year, the Government servant does not avail
himself of any vacation earned leave shall be admissible to
him in respect of that year under rule 50.
Explanation – For the purposes of this rule, the term “year”
c
shall be construed as meaning not calendar year but twelve
months actual duty in a Vacation Department.
Note 1.- A Government Servant entitled to vacation shall be
considered to have availed himself of a vacation or a portion
of a vacation unless he had been required by general or
d
special order of a higher authority to forego such vacation or
portion of a vacation; provided that if he has been prevented
by such order from enjoying more than fifteen days of the
vacation, he shall be considered to have availed himself of no
portion of the vacation.
e
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 proceeding
on leave but with reference to the vacations that fall during f
the year commencing from the date on which he completed
the previous year of duty.
APPENDIX II
(See rule 52)
g
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
fulfilled:— h
1. (a) Under the Directorate of Education, —(i) All Heads of
Government Educational Institutions belonging to Class I, II
19
Page 19
and III. a
(ii) Professors, Readers, Associate Professors, Research
Assistants, Lecturers, Assistant Lecturers, Demonstrators,
Tutors in Class I, II and III, as the case may be, in
Government Arts, Science, Commerce and Law Colleges.
b
(iii) Professors, Lecturers, Co-ordinators, Assistant Lecturers
etc. in Class I, II and III as the case may be, in Government
Training Colleges.
(iv) Physical Instructors in Government Colleges and
Secondary Schools.
c
(v) Laboratory Assistants, Laboratory Attendants in
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. d
(vii) All other staff in Government Institutions excepting

those mentioned as belonging to Non-Vacation Department.”
Statutes
e
“424. (3). Leave.—
(a)-(b) * * *
(c) Earned leave.—

f
(a) The confirmed non-vacation teacher shall be entitled to
earned leave at the rate of one-eleventh of the period spent on
duty subject to his accumulating maximum of 180 days of
leave.
(b) The teacher other than the one included in (a) above shall g
be entitled to one twenty-seventh of the period spent on duty
and the period of earned leave as provided in the proviso to
Section 423 subject to his accumulation of maximum of 180
days. For this purpose the period of working days only shall
be considered.
h
424(C). Encashment of unutilised earned leave on super-
annuation.—The teacher shall be entitled to encash earned
20
Page 20
leave in balance to his credit on the date of his superannu- a

ation subject to a maximum of 180 days.
In case the teacher is required to serve till the end of aca-

demic 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.” b
16. An analysis of the provisions of the 1994 Act shows that
universities constituted under Section 3(1) are autonomous and they are,
by and large, independent in their functioning. However, the State c
Government can exercise control in some matters including those which
have financial implications and issue directives which are binding on the
universities. The creation of posts and conditions of service of the d
teaching and non-teaching staff which impacts finances of the universities
are some such matters. Section 8 makes it obligatory for the universities
e
to seek approval of the State Government for creation of new posts of
teachers, officers or other employees and revision of their pay,
allowances, post-retirement benefits, etc. No university can grant special

f
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 be taken

g
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

h
service of teachers, officers and other employees of the university and the
21
Page 21
affiliated colleges, except those maintained by the State or Central a
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 b
continued till their supersession or modification by the Statutes made
under the new Act.
c
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

d
two instalments of 15 days 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
e
maximum limit of 240 days. Rule 52 defines the Vacation Department as
a department or part thereof to which regular vacations are allowed and
during which an employee serving in that department is permitted to be f
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 III and Professors, Readers, Associate Professors and g
other teachers in Class I, II and III employed in Government Arts,
Science, Commerce and Law Colleges, Government Training Colleges,
Physical Instructors in Government Colleges and Secondary Schools, h
Laboratory Assistants, Laboratory Attendants in Government Colleges and
22
Page 22
Secondary Schools, Lecturers and other teachers in Government Primary, a
Middle and Secondary Schools and in Primary Training Institutions and
other special Institutions as also other staff in Government Institutions,
except those mentioned as belonging to Non-Vacation Department, are b
treated as serving in the Vacation Departments.
18. Although, Rule 54 has the caption “Earned leave for persons
c
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

d
avails the full vacation. Sub-rule (2) of Rule 54 deals with a situation in
which a 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

e
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 any year, earned leave shall be admissible to f
him in respect of that year in terms of Rule 50.
19. We are in complete agreement with the view expressed by the

g
coordinate Bench in Khandesh College 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
h
teachers of the affiliated colleges because they are not Government
servants but this cannot lead to an inference that the affiliated colleges are
23
Page 23
entitled to reimbursement of the amount paid to the teachers in lieu of a
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 b
Act 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 the mere fact that the Statutes of the particular university c
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. d
20. The criticism of the directives issued by the State Government to
the universities to amend the Statutes under which the teachers are given
e
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 the teachers employed in the Government colleges are f
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 g
reference has been made to Rules 50, 52 and 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 h
Pune University failed to take action in accordance with the binding
24
Page 24
directives issued by the State Government. a
21. In paragraph 18 of the Khandesh College Education Society,
Jalgaon v. Arjun Hari Narkhede (supra), this Court has taken cognizance
b
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 modified or
c
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. d
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.
e
The parties are left to bear their own costs.
..….………………….…J.
[G.S. SINGHVI]
f
..….………………….…J.
[H.L. GOKHALE]
New Delhi,
January 29, 2013.
g
25
Page 25
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MANU/SC/0074/2013 : Downloaded from www.manupatra.com

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NOS. 531-532 OF 2013

State of Maharashtra and others …Appellants

Nowrosjee Wadia College and others …Respondents c

1. The question which arises for consideration in these appeals is

whether respondent Nos.1 and 2 are entitled to reimbursement of the

framed by the Pune University.

were employed as Professors in respondent No.1 college retired from

service in November, 2003. They filed applications before Pune University

earned leave. The Committee passed order dated 3.5.2007 and

recommended payment of the amount in lieu of earned leave. However,

Therefore, Dr. Anagha Anant Nadkarni and Dr. Moreshwar J. Bedekar

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: c

“. Therefore, there could not be any controversy over the is-

3. By another order dated 9.6.2008 passed in Writ Petition f

No.2881/2007 – Khandesh College Education Society v. Arjun Hari

payment of leave encashment to the teachers in terms of the order passed g

in V. S. Agarkar’s case. Simultaneously, liberty was given to the

on 20.6.2008 in the following terms: h

“We have disposed of these petitions by common order dated

9.6.2008. It has been pointed out by the petitioner in W.P. a

2. Learned A.G.P. submitted that this court has observed in

4. Khandesh College Education Society challenged the orders of the

whether the provisions of Maharashtra Civil Services (Leave) Rules, 1981

respondent No.1, and held: g

“From the very language of different provisions of Rule 54 of

424(C) of the University of Pune and observed:

Sections 5(60), 8 and 14(5) of the Act confer power on the

Statutes 424(3) and 424(C) of University of Pune are extrac-

“424. (3). Leave.—

(c) Earned leave.— a

In case the teacher is required to serve till the end of

A reading of Statute 424(3) extracted above would show that

ent with the directives of the State Government will be in- a

5. After recording the aforesaid observations, the Bench declined to

6. After 3 years of enactment of the 1994 Act, which resulted in repeal

ment issued instructions to the Universities to discontinue payment of

gories of employees working in the ‘Vacation Department’. The State

directed that the University Statutes should be amended with retrospective

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 Government, the a

Vice-Chancellor of Pune University passed order dated 1.2.2009, which

AND WHEREAS as per Section 51(8) of the Maharashtra c

AND WHEREAS the University, in exercise of the power

State Government, vide its letter dated 9th August, 2007,

AND WHEREAS the State Government, vide its further let- f

AND WHEREAS as per Section 5(60) of the Maharashtra h

AND WHEREAS the Management Council of the Univer-

Therefore, I Dr. Narendra Damodar Jadhav, Vice- f

The Teachers Statute 424 (C) is repealed w.e.f. 1 st Febru- g

Ref: No.LAW/2009/73 Dr. Narendra Jadhav

Present Statute Amendment Statute after h

Statute 424 (C) encashment of Delete

Unutilized Earned Leave on statute 424 a