Ravindra Dattatray Kusurkar And ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 2112 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                              BENCH AT AURANGABAD




                                                
                              WRIT PETITION NO.9610 OF 2015


              1]       Ravindra Dattatray Kusurkar




                                               
              2]       Vilas Tulsiram Thakur 
              3]       Shankar Gangaram Sudam 
              4]       Santosh Prabhakar Gutte 




                                          
              5]       Ravinda Niyanand Khule 
                             
              6]       Bhagwat Nivruti Raut 
              7]       Pradip Badrinath Gujrathi 
                            
              8]       Uddhav Sampatrao Chonde 
              9]       Bhagwat Narayan Muthal  
              10] Dr.Jagmohan Reddy 
      


              11] Sau.Sadhana Baburao Borude
   



              12] Gangadhar Madhavrao Togar 
              13] Gangadhar Janbaji More 





                       Age Major (all),  
                       Occu.Service as Lecturers 
                       in Shri Shivaji College Kandhar,  
                       Tal.Kandhar, Dist. Nanded,  
                       All R/o. Kandhar, Dist. Nanded





              14] Nivrutti Hanmantrao Kausalye,  
                  Age: Major, Occ:Service as 
                  Principal          College,  
                  At:Balapur Akhada,  
                  Tal & Dist. Hingoli          PETITIONERS

                                 VERSUS 

              1]       The State of Maharashtra,  




    ::: Uploaded on - 03/05/2016                ::: Downloaded on - 30/07/2016 00:40:08 :::
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                       Through the Secretary [Higher Education] 
                       Department, Mantralaya, Mumbai 




                                                      
              2]       The Accountant General-II,  
                       Maharashtra State, Nagpur 

              3]       The Joint Director, Higher Education,  




                                                     
                       Nanded Region, Nanded 

              4]       Shri Swami Ramanand Teerth Marathwada 
                       University, Vishnupuri, Nanded 




                                          
                       Notice to be served on its Registrar

              5]
                             
                   The Principal, Shri Shivaji College,  
                   Kandhar, Dist. Nanded 
                                               RESPONDENTS 
                            
                                    ...
              Mr.R.R.Mantri, Advocate for the petitioners 
              Mr.S.G.Karlekar,AGP for respondent Nos.1 to 3 
              Mr.Y.V.Kakde, Advocate for respondent No.4.  
                                    ...
      


                              CORAM:  S.S.SHINDE & 
   



                                      SANGITRAO S.PATIL,JJ. 

Reserved on : 12.04.2016 Pronounced on : 02.05.2016

JUDGMENT: [Per S.S.Shinde, J.]:

Heard.

2] Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

9610.2015WP.odt

3] This Petition is filed with the

following prayer:

B] Issue a writ of Mandamus and/or

any other appropriate writ, or order, or direction, and call for the record and proceedings of the

respondents in respect of the communication dt 12/6/2014 issued by

the respondent, the proforma-I and Form No.V suggesting the amount of

Rs.2,77,101 as inadmissible in the grants on account of excess casual leave and the communication dt

8/8/2015, issued by the respondent

Principal and on perusal of the same or otherwise, quash and set aside all these communications, decisions

and directives.

4] It is the case of the petitioners

that the petitioners are the Lecturers in

Shri Shivaji College at Kandhar, District

Nanded. The said institution is receiving

grant-in-aid from the State Government. The

services and service conditions, including

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grant of casual leave of the teaching staff /

Lecturers are governed by the provisions of

the Maharashtra Universities Act and various

Statutes. On 11th May, 2009, the Government

of Maharashtra issued a Circular that the

casual leave would be 8 days in a year.

However, it is the case of the petitioners

that the said Circular was not given wide

publicity and the same was not brought to the

notice of the petitioners.

5] On 8th May, 2010, Shri Swami Ramanand

Teerth Marathwada University [for short 'SRTM

University'] informed all the Principals of

Colleges affiliated to it that as per Statute

49-A, the teaching staff is entitled to get

15 days casual leave in a year from

2009-2010. On 9th November, 2012, the said

University reiterated the communication dated

8th May, 2010, and clarified that the said

communication still holds the field about

entitlement of University employees to enjoy

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15 days casual leave in a year. In view of

the said information received from the SRTM

University, the College Principal granted

leave in excess of 8 days to the petitioners

in the year 2012-2013. On 12th June, 2014,

the CAG, during audit, raised an objection

that the excess casual leave was granted to

the teaching staff and directed deduction of

the amount in respect of excess days of

casual leave. As a result of the said audit

report, the Joint Director [Higher Education]

directed deduction from the grants and the

Colleges issued notices of deduction to the

petitioners on 08.08.2015. The petitioners

replied the College that it was not their

fault to enjoy casual leave exceeding 8 days.

However, the College Authorities were bent

upon to recover the amounts from the

petitioner. Hence this Writ Petition.

6] The learned counsel appearing for

the petitioners submits that the petitioners

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have acted bona fide relying upon the

sanction of casual leave by respondent nos. 4

and 5. The respondent Principal, who is the

Competent Authority to grant casual leave,

was justified in view of the University

Directives dated 8th May, 2010 reiterated on

9th November, 2012 that the casual leave upto

15 days was admissible in a year. Thus,

because of the bona fide mistake of the

University and the Principal of the College,

the petitioners cannot be punished and

penalized by directing deduction from their

pay the amount equal to pay and allowances of

the days in excess of the casual leave

enjoyed in the year 2012. It has been always

the policy and settled principle of law that

a person committing bona fide mistake is not

liable to be punished or penalized. Thus,

the recovery order by the respondents from

the salary of the petitioners is arbitrary,

illegal, unconstitutional and untenable.

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Therefore, the communication dated 12th June,

2014 by the CAG, the communication issued by

the office of Joint Director, making amount

of Rs.2,77,201/- inadmissible and the

communication issued by the respondent

Principal directing recovery of the amount of

excess casual leave enjoyed by the respective

petitioners is, thus, being null and void is

required to be declared accordingly. The

representations made by the petitioners have

fallen on the deaf ears of the respondents.

7] It is further submitted that under

the provisions of the Maharashtra

Universities Act, the Statutes issued by the

University and the Directives given by it,

have over-riding effect. The exercise of the

powers under Section 8 [4] of the

Universities Act by the respondent State and

its Authorities is thus null and void. The

retrospective recovery orders by the

respondents cannot be sustained. Such drastic

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action may affect the other avenues and the

career of the concerned employees. No

contingency as provided for by Section 8 of

the Universities Act, and more particularly,

sub-section (4) of the same has arisen.

Apart from it, there does not appear to be

any adherence and compliance to the

provisions of sub-section (4) of Section 8 of

the Universities Act. At any rate, the above

provisions do not confer any power unto the

State Government to take action

retrospectively, that too, against the

teaching staff who acted bona fide and had no

reason to know that the casual leave

admissible has been reduced. In the facts

and circumstances of the present case, the

petitioners are entitled to the reliefs as

prayed.

8] On the other hand, the learned AGP

appearing for the respondent - State relying

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upon the affidavit-in-reply filed on behalf

of respondent nos. 1 to 3 submits that the

petitioners are the Assistant Professors in

the various Colleges and they availed of 15

days casual leave in a calendar year. So far

casual leave is concerned, the State has

framed a policy by issuing Government

Resolution No.Sankirn/2008/08-A/Vishi-Arth

dated 11th May, 2009, wherein it is mentioned

that there would be casual leave for 8 days

only in a year. The petitioners are liable

to pay for the casual leave period enjoyed by

them in excess of 8 days in 2012.

Therefore, the Petition may be rejected.

9] Respondent no. 4 has also filed

affidavit-in-reply. The learned counsel

appearing for respondent no. 4 relying upon

the averments in the said affidavit-in-reply

submits that as per the Government Circular

dated 11th May, 2009, issued by the Department

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of Higher Education, it has been stated that

as per the provisions of Section 8 (4) of the

Maharashtra Universities Act, 1994, maximum

casual leave available would be for 8 days

only in one year. The said Circular has been

circulated and forwarded to all the Colleges,

Departments and Directors of the Education

Institute. After the said communication, the

said subject was placed before the Senate on

letter dated 24th February, 2010. The Senate

forwarded the said proposal to the Management

Council. The Management Council by its

Resolution dated 4th May, 2010, resolved that,

as per the Statute, 15 days casual leave for

the teachers of the affiliated Institute can

be granted. The said Resolution has been

communicated to respondent no. 4 by letter

dated 7th May, 2010.

10] The learned counsel for respondent

no. 4 further submits that on 5th June, 2012,

the teachers relating to Universities and

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other Senior Colleges approached the Vice

Chancellor. The subject of casual leave was

put up before the Management Council. The

meeting of the Management Council was held on

25th July, 2012, and it has been decided by

the Management Council that by collecting

information from other Universities, and

opinion from the Director of Higher

Education, the further decision would be

taken. Respondent no. 4, by writing letters,

approached the various Universities in the

State thereby seeking information in respect

of casual leave. As per the information

received from the Pune, Amravati, Solapur,

Kolhapur, S.N.D.T. Mumbai, BAMU Universities,

it was communicated to the Colleges that, 15

days casual leave is admissible in the said

Universities. But, in Nagpur and Mumbai

Universities, only 8 days casual leave has

been granted to the employees in a year in

the past. Also the North Maharashtra

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University has communicated that, employees

are entitled for 12 days casual leave. The

opinion of the Director of Education is also

sought by respondent no.4 by writing letter

stating therein that the Joint Director,

Higher Education, Nanded has communicated

that only 8 days casual leave is sanctioned

but the employees are demanding 15 casual

leave, therefore, the Accountant General,

Nagpur objected for availing of 15 days

casual leave, and therefore, the confusion

has been created.

11] It is submitted by the learned

counsel for respondent no.4 that the issue in

respect of casual leave is subjudice before

the Statute Committee and in response to

the earlier communication dated 4th October,

2012, to Director of Higher Education, he has

not given any opinion.

12] We have given careful consideration

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to the submissions of the learned counsel

appearing for the parties. With their able

assistance, perused the pleadings and grounds

taken in the petition, annexures thereto,

replies filed by the respondents and

annexures thereto. It is true that, the

Government Resolution dated 11th May, 2009,

issued by the Department of Higher and

Technical Education, Government of

Maharashtra, provides for 8 days casual leave

for the Lecturers and Officers working in the

Universities and Colleges affiliated to the

said Universities. However, it appears that,

the issue about the entitlement of casual

leave of the Lecturers and other employees

working in the Universities and affiliated

Colleges came up for discussion before the

Senate of the University on 24th February,

2010 and in the said meeting, it was resolved

that, the Lecturers and the other employees

working in the University should be given 15

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days casual leave. The Senate forwarded the

said proposal for approval to the Management

Council. The Management Council, by its

Resolution dated 4th May, 2010, held that the

Lecturers working in the University and the

affiliated Institutes are entitled for 15

days casual leave and accordingly, the said

decision was communicated to all the

concerned. It appears from the copies of the

documents placed on record that the concerned

College wherein the petitioners are rendering

the services was communicated that the

petitioners are entitled for 15 days casual

leave. Therefore, the concerned Institution

relying upon the said communication extended

benefit of 15 casual leave to the

petitioners. It is true that there appears

to be conflict between the decision taken by

the University to grant 15 days casual leave

and the provision made in the aforesaid

Government Resolution prescribing maximum 8

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days casual leave in a year. In the peculiar

facts and circumstances of this case, we are

of the opinion that, the petitioners were not

at fault in availing of casual leave for 15

days in 2012. They were under a bona fide

impression that the University has

communicated them through the college that

they are entitled for 15 days casual leave

during the academic year 2012-2013, and

therefore, they availed of 15 days casual

leave.

13] In our opinion, bona fide mistake

has been committed by the University to

communicate the Colleges and the Lecturers

that they are entitled for 15 days casual

leave and on the basis of the said

information, the petitioners have availed of

casual leave. The University is the Apex

Body for the colleges wherein the petitioners

are working, and therefore, in the peculiar

facts and circumstances of this case, we are

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inclined to allow the Petition in terms of

prayer clause-B, referred to above in para 3.

14] Rule made absolute on the above

terms. The petition is allowed and disposed

of accordingly.

                       Sd/-   ig                  Sd/-
                [SANGITRAO S.PATIL]          [S.S.SHINDE]
                      JUDGE                     JUDGE  
                            
              DDC