Dr. Bhabesh Sen vs Utkal University And Another
2023 Latest Caselaw 7099 Ori

           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,
                                & S.K. Rout, Advocates
      _________________________________________________________
      CORAM:
           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

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

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

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. 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

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

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-

(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.

(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 instance of Government, either for the 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.

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 towards the maximum period admissible under these rules."

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

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.

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