* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No.7587/2002
% 8th March, 2017
DR. PRAMESH RATNAKAR & ANR. ..... Petitioners
Through: Mr. Jatin Zaveri and Mr. Neel Kamal
Mishra, Advocates.
versus
DEEN DAYAL UPADHYAYA COLLEGE AND ANR.
..... Respondents
Through: Ms. Beenashaw N. Soni, Advocate
for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of India, the two petitioners seek the relief of quashing of the communications dated 16.10.2002 and 30.10.2002 issued by the respondent no.1. By these communications the respondent no.1/Deen Dayal Upadhyaya College/employer has sought to make recoveries from the petitioners for the increments received by the petitioners during the periods of their study leaves. The impugned communications dated 16.10.2002 read as under:-
Two Communications dated 16.10.2002 "DEEN DAYAL UPADHYAYA COLLEGE (UNIVERSITY OF DELHI) W.P.(C) No. 7587/2002 Page 1 of 6 Ref: DDUC/2002-2003/848 16-10-2002 Dr. Pramesh Ratnakar Sr. Lecturer in English This is to inform that the ELFA audit party had raised an objection vide para No.6 in the year 2000-2001 regarding grant increments during the period of study leave. A clarification was sought from the University of Delhi, which has been received recently. The following clause has been communicated:
"A teacher granted Study Leave, shall on his/her return and re-joining the service of the University be eligible for the benefit of annual increment(s) which he/she would have earned in the course of time if he/she had not proceeded on Study Leave. No teacher shall, however, be eligible to receive arrears of increments."
Accordingly a sum of Rs. 30,291/- (Rupees thirty thousand two hundred & ninety one only) which has been drawn by you in excess, needs to be recovered. Kindly intimate in writing latest by 21-10-2002 whether you would deposit the said sum in lump sum or in installments. This is being done with the approval of the Governing Body.
Sd/-
PRINCIPAL
XXXXX
"DEEN DAYAL UPADHYAYA COLLEGE
(UNIVERSITY OF DELHI)
Ref: DDUC/2002-2003/850 16-10-2002
Dr. Anubha Mukherji Sen
Sr. Lecturer in English
This is to inform you that the ELFA audit party had raised an objection vide para No.6 in the year 2000-2001 regarding grant increments during the period of study leave. A clarification was sought from the University of Delhi, which has been received recently. The following clause has been communicated:
"A teacher granted Study Leave, shall on his/her return and re-joining the service of the University be eligible for the benefit of annual increment(s) which he/she would have earned in the course of time if he/she had not proceeded on Study Leave. No teacher shall, however, be eligible to receive arrears of increments."
Accordingly a sum of Rs.74,495/-(Rupees seventy four thousand four hundred & ninety five only) which has been drawn by you in excess, needs to be recovered. Kindly intimate in writing latest by 21-10-2002 whether you would deposit the said sum in lump sum or in installments. This is being done with the approval of the Governing Body.
Sd/-
PRINCIPAL"W.P.(C) No. 7587/2002 Page 2 of 6
2. So far as the petitioner no.1/Dr. Pramesh Ratnakar is concerned, he availed the study leave from August 1995 to August 1997. Petitioner no.2/Dr. Anubha Mukherji Sen availed the study leave from September 1999 to August 2001.
3. At the time when the two petitioners during their study leave periods received their total emoluments including increments, the applicable Rule was as under:-
"(vi) The teachers granted study leave would be entitled to continue to draw their total emoluments for the duration of the Study Leave as are applicable to teachers granted fellowships under the Faculty Improvement Programme except the living expenses allowance of Rs. 250/- p.m. The necessary increment will also be sanctioned as and when due. However, the amount of emoluments payable to the teachers on Study Leave shall be reduced subject to the provisions of Sub-Clauses
(vii) and (viii) below."
4. The aforesaid Rule is part of Executive Council Resolution No. 305 dated 1.3.1981 of the respondent no.2/University of Delhi. A reading of the aforesaid Rule shows that whenever a teacher takes study leave, then such teacher is entitled to receive complete emoluments from the respondent no.1/employer/college including receiving of the ordinary annual increments as and when due. Ordinarily, a literal and common sense reading of this Rule is that during the entire period of study leave, the teachers are effectively treated to be working and accordingly all W.P.(C) No. 7587/2002 Page 3 of 6 emoluments including annual increments would be payable as and when they fall due.
5. The aforesaid Rule (vi) forming part of the EC Resolution No. 305 was amended by the competent authority and replaced by the following Rule in terms of the Governing Body Meeting dated 11.10.2002 and which Rule reads as under:-
"A teacher granted Study Leave, shall on his/her return and rejoining the service of the University be eligible for the benefit of annual increment(s) which he/she would have earned in the course of time if he/she had not proceeded on Study Leave. No teacher, shall however, be eligible to receive arrears of increments."
6. The aforesaid Rule as per the clarification given by the competent authority became applicable w.e.f 19.9.2002.
7. A reading of the aforesaid amended Rule shows that the teacher who has proceeded on study leave will have the benefit of annual increments, however, receiving benefit of annual increments will only be notional that when the teacher joins back from study leave the pay payable to such teacher will be at the enhanced rate by giving benefit of annual increments, however, the arrears of increments received during the study leave period will not be payable to such teachers, and which monetary amounts were to be payable as the annual increments during the study leave period.
W.P.(C) No. 7587/2002 Page 4 of 6
8. In law once a rule is amended, the amended rule will have application when the same becomes enforceable, and such a rule will not have retrospective application unless the rule specifically mentions retrospectivity for its application. The amended rule with respect to payment of monetary emoluments to teachers on study leave which became applicable from 19.9.2002 does not talk of recoveries being made from teachers who were on study leaves and who were paid during the periods of their study leaves their emoluments including annual increments which were payable. Therefore, the amended rule which became applicable w.e.f 19.9.2002, in the opinion of this Court does not permit recovery from teachers who were on study leave and who had already received their monetary emoluments being the salaries with annual increments each year during the study leave periods. Of course, with respect to those teachers who proceeded on study leave after the new rule became applicable w.e.f 19.9.2002, the authorities will be entitled to not pay the actual increments which had become payable during the periods of study leave, and the teachers who are on study leave will get only notional benefits of annual increments for calculating their pay to be payable to such teachers when they rejoin after the period of study leaves, however, the principle of notionality incorporated in the new rule w.e.f 19.9.2002 cannot be stretched so as to give retrospective application to the amended rule by giving only W.P.(C) No. 7587/2002 Page 5 of 6 notional benefits of annual increments for calculating the salary of the teachers payable at the time of joining of such teachers after the period of study leave and for recoveries to be made from teachers for the amounts of annual increments received by such teachers during their study leave periods.
9. In view of the above discussion, this writ petition is allowed and the impugned communications of the respondent no.1 dated 16.10.2002 and 30.10.2002 are quashed. Since one installment of Rs.2500/- has been deducted by the respondent no.1, counsel for the petitioners states in all graciousness the petitioners will not pray for this amount of Rs.2500/- which has been deducted from the salaries of the petitioners.
10. The writ petition is allowed and disposed of in terms of the aforesaid observations.
MARCH 08, 2017/ib VALMIKI J. MEHTA, J
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