Dr. Pramesh Ratnakar & Anr. vs Deen Dayal Upadhyaya College And ...
2017 Latest Caselaw 1270 Del

*            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)

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"

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

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.

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

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