Applications under Articles 226 & 227 of Constitution of India. Dr. Bhabesh Sen … v. Utkal University and another
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 15772 of 2017 Applications under Articles 226 & 227 of Constitution of India. Dr. Bhabesh Sen …… Petitioner --------------- - Versus - Utkal University and another ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : Mr. K. Nayak & K.A. Guru, Advocates. For Opp. Parties : M/s. A.K. Nath, H.P. Mohanty, _________________________________________________________ CORAM: & S.K. Rout, Advocates JUSTICE SASHIKANTA MISHRA JUDGMENT 22nd June, 2023 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief: “Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased quash the calculation sheets under annexure-1 and also the communication of the University in office order dtd. 08.02.2017 under Annexure-3 and direct the opposite parties to recalculate the leave of the petitioner and grant the benefits of the unutilized leave salary to the petitioner for 211 days instead of 10 days plus proportionate EL for roster duty performed Page 1 of 10 with accrued interest @ 8% per annum within a stipulated period as deem fit and proper; And/or pass any other appropriate writ/writs, order/orders, direction/directions in the fitness of the case. 2. The petitioner was appointed as Lecturer in Economics on 01.09.1977 in Utkal University. In course of his service career, he attained promotions and ultimately retired as a Professor of the University on 30.06.2013 upon attaining the age of superannuation. In a statement prepared on 29.07.2016, the University authorities granted him unutilized earned leave excluding roster for 10 days only covering the entire service period of the petitioner. According to the petitioner, he had taken E.L. for 5 days, extraordinary leave on health ground for 17 days, study leave in two spells for 730 days and 1302 days. All the leave as above were allowed by the University authorities at the relevant time and therefore, are to be counted towards accrual of E.L. However, the aforementioned periods have not been taken into account by relying upon a Government Circular dated 22.04.1976, which is not applicable to the employees of the University. Thus, according to the petitioner, 2054 days leave for the Page 2 of 10 purpose of accrual of E.L. have not been taken into account. According to the petitioner, the total period of E.L. accrued in his favour comes to 211 days but the University calculated it as 138 days only. The balance 73 days has not been included as the authorities did not take into account 2054 days towards his total period of service. He submitted a representation on 23.05.2017 to the Vice- Chancellor for necessary correction but no action was taken, for which he has filed the present writ application. 3. In the counter affidavit filed by the University it is stated that study leave was allowed to the petitioner even though he had not completed five years of service at the relevant time. Further, he availed extraordinary leave/half pay leave for 1417 days. As per the Rules, 1/11th of such leave is credited towards E.L. Therefore, the petitioner is entitled to 10 days E.L. for encashment. 4. The petitioner filed a rejoinder refuting the averments made in the counter affidavit. It is reiterated that the University having granted study leave for higher study to the petitioner, the same should be treated as period on duty as per the Rules. Moreover, the petitioner Page 3 of 10 undertook roster duty during the summer vacations but the authorities, by wrongly interpreting the circular dated 22.04.1976 did not consider the same. 5.
Legal Reasoning
Heard Mr. K.A. Guru, learned counsel for the petitioner and Mr. A.K. Nath, learned counsel appearing for the Utkal University. 6. Mr. Guru submits that as per the Rules, study leave is to be counted towards E.L. but the authorities wrongly deleted the said period from total service period of the petitioner, which is incorrect. Secondly, the authorities have wrongly relied upon the Finance Department Circular dated 22.04.1976, which is applicable to Departments other than Vacation Departments and therefore, not to the employees of the University. Mr. Guru further argues that the petitioner had rendered 472 days towards roster duty in his entire career, 1/3rd of which is to be counted as E.L. As such, the petitioner is entitled to 157 days E.L. from roster duty. 7. Mr. A.K. Nath on the other hand has argued that in so far as vacation duty is concerned, credit of E.L. to leave account shall be made in case of urgent necessity Page 4 of 10 and not for regular routine duty as per the Higher Education Department Resolution dated 31.12.1999. Roster shall be admissible only when at least 180 actual teaching days is maintained by the University. Since the petitioner had availed extraordinary leave and half pay leave, in all amounting to 1417 days, he is entitled only to 10 days E.L. towards encashment. 8. In order to appreciate the rival contentions it would be necessary to refer to the relevant rules governing leave of the Government employees. It is common ground that as per the Odisha University First Statutes, 1990, all Rules and procedure in the Odisha Service Code including leave, extraordinary leave etc. shall apply mutatis mutandis to the University employees as per the Statute 282(1). The University has also been following the leave rules of the State Government for its employees. Reference to Odisha Leave Rules, 1966 reveals that earned leave is defined in Rule 3(iv) to mean, leave earned in respect of periods spent on duty. Rule-7(1) of the said Rules provides that the earned leave admissible to a permanent Government servant is one-eleventh of the period spent on Page 5 of 10 duty. Rule-8 deals with the E.L. admissible to a permanent Government servant in a Vacation Department, which reads as follows: “8. The earned leave admissible to a permanent Government servant in a Vacation Department is subject to the following conditions, namely: (a) for each year of duty in which a Government servant has availed himself of the vacation his earned leave shall be reduced as follows : (i) for Subordinate Judges and Munsifs by fifteen days; (ii) for all other Government servants by thirty days. (b) lf a part of the vacation has been taken in any year, the period by which the earned leave shall be reduced shall be fraction of fifteen days, or thirty days, as the case may be, to the proportion which the part of the vacation taken bears to the full period of vacation. (c) ln cases of urgent necessity the earned leave as reduced in Clauses (a) and (b) of this rule may, except in case of Subordinate Judges and Munsifs be increased by one twenty second of the period of duty in a Vacation Department. (d) Vacation may be taken in combination with or in continuation of any kind of leave under these rules, provided that the total duration of vacation and earned leave taken in conjunction shall not exceed 180 days: Provided further that the total duration of vacation, earned leave and commuted leave taken in conjunction shall not exceed 240 days. Explanation : For the purpose of this rule, vacation counts as duty” 9. Coming to the Odisha Service Code, the relevant provisions, i.e., Rules 163, 179, 181 and 191, are quoted hereinbelow: “163. The following provisions apply to vacation department only- Page 6 of 10 (a) except as otherwise expressly provided in these rules, vacation counts as duty. But, for each year of duty in which a Government servant has availed himself of the vacation, the periods of total leave in Rules 150, 155 and 156 shall be reduced as follows; (i) for subordinate Judges and Munsifs, by fifteen days; (ii) for all Government servants, by one month (b) If a part only of the vacation has been taken in any year the period to be deducted will be a fraction of fifteen days or of a month, as the case may be, equal to the proportion which the part of the vacation taken bears to the full period of vacation. (c) In cases of urgent necessity the periods of total leave in Rules 150 and 155, as reduced by Clauses (a) and (b) of this rule, may, except in the case of subordinate Judge and Munsif, be increased by one month for every two years of duty in a vacation department. 179. (a) Subject to the conditions hereinafter specified; the State Government may grant special study leave to a Government servant to enable him to study scientific, technical or similar problems or to undergo a special course of instruction. Such leave is not debited against the leave account. for either of Government, (b) These rules relate to study leave only. They are not intended to meet the case of Government servants deputed to other countries at the the instance performance of special duties imposed on them or for the investigation of specific problems: connected with their technical duties. Such cases will be dealt with on other merits under the provisions of Rule 59. Such leave may be granted to a Government servant in the Public Health, Medical, Civil Veterinary, Agriculture, Education, Public Works or Forest Department or to an other Government servant to whom the State Government is of opinion that such leave should in the public interests, be granted. Page 7 of 10 181. The grant of study leave will be made with due regard to the exigencies of the public service. In no case will the grant of this leave, in combination with leave other than extraordinary leave or leave on medical certificate involve an absence of over 28 months from a Government servant’s regular duties, or exceed two years in the period of a Government servant’s service; nor will be granted with such frequency as to remove him from contract with his regular work or to cause cadre difficulties owing to his absence on leave. A period of 12 months at one time will ordinarily be regarded as a suitable maximum and will not be exceed save for exceptional reasons. 191. Study leave will count as service for promotion and pension, but not for leave. It will not effect any leave which may already be due to a Government servant, it will count as extra leave on half average pay and will not be taken into account in reckoning the aggregate amount of leave on half average pay taken by the Government servant the maximum period admissible under these rules.” towards 10. A perusal of above provisions, particularly, Rule 8 of Odisha Leave Rules, 1966 and Rule 163 of Odisha Service Code make it clear that there exist provision as to how earned leave of an employee serving in Vacation Department is to be calculated. Rule 48-A of Odisha Service Code defines Vacation Department to mean a department or part of a department to which regular vacations are allowed during which the Government servants serving in the department are permitted to be absent from duty. It is common knowledge that the Page 8 of 10 universities in Odisha allow regular vacations. This being the position, calculation sheet at Annexure-1 cannot be sustained in law as the calculation therein is based upon finance Department Circular under Annexure-2, which has no application to calculating entitlement of E.L. of petitioner, who undisputedly worked/ was employed in an institution which can safely held to be coming under the category of vacation establishment. The very reference to circular under Annexure-2 in the impugned calculation sheet shows non-application of mind and arbitrary exercise of power thereby inviting the mischief of Article 14 of the Constitution of India. Further, even the calculation in the calculation sheet has not been made in the “FORM OF LEAVE ACCOUNT” as provided under Odisha Leave Rules, 1966. All these make Annexure-1 legally vulnerable and therefore, the same is liable to be quashed. Since the impugned communication under Annexure-3 has been made on the basis of Annexure-1, the same is also liable to be set aside. Page 9 of 10 11. In the result, the writ petition is disposed of with direction to opposite party no.2 to undertake the exercise afresh and determine the duty period of petitioner in tune with Rule-13 of Odisha Service Code and recalculate E.L. of the petitioner in accordance with law keeping in mind the relevant provisions of Odisha Leave Rules, 1966 and Odisha Service Code and allow him the benefit of such recalculation, if found entitled. The entire exercise shall be completed within three months from the date of receipt of a copy of the judgment. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 22nd June, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-Jun-2023 17:25:47 Page 10 of 10