Manoj Kumar vs The Bihar Agriculture University
2022 Latest Caselaw 837 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.743 of 2021
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Manoj Kumar, aged about 44 years, male, Son of Sri Mundrika Chaudhary, resident of Department of Plant Breeding and Genetics, Bihar Agriculture College, Sabour, Sabour, Bhagalpur, Bihar at present residing in Flat No. 1 C, Blcok No. 2, Shiv Ganga apartment, Babupur More, Police Station - Sabour, District - Bhagalpur.

... ... Petitioner/s Versus

1. The Bihar Agriculture University, through the Registrar, Sabour, Police Station - Sabour, District - Bhagalpur.

2. The Director Administration, Bihar Agriculture University, Sabour, Police Station- Sabour, District - Bhagalpur.

3. The Dean Agriculture, Bihar Agriculture University, Sabour, Police Station -

Sabour, District - Bhagalpur.

4. The Principal-cum-Associate Dean, Bhola Paswan Shastri Agriculture College, Purnea.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Rupak Kumar, Adv. For the Respondent/University : Mr. Sriram Krishna, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 01-02-2022

Heard the counsel for the parties.

Patna High Court CWJC No.743 of 2021 dt.01-02-2022

2. The petitioner is aggrieved by the

recovery of leave salary by way of 25% each month for

his not having completed his Ph.D. course and breaching

the promise contained in the Bond executed by him for

said purpose.

3. The petitioner, in his capacity as

Assistant Professor-Cum-Junior Scientist, was allowed

study-leave for a period of three years with full-pay with

effect from 20.01.2015 till 19.01.2018. He got himself

enrolled with the Ph.D. Programme at the Punjab

Agriculture University, Ludhiana on 06.01.2015. He had

been pursuing his Ph.D. course but for some reason or

the other, it could not be completed within the period of

three years. On the request of the petitioner, the leave

period was further extended for one year.

4. However, according to the counsel for

the petitioner, because of the non-cooperation of the

Punjab Agriculture University and the Co-Investigator

nominated by the respondent/The Bihar Agriculture

University, Sabour, Bhagalpur (in short the University), Patna High Court CWJC No.743 of 2021 dt.01-02-2022

the petitioner could not submit his thesis nor could he

appear in the viva-voce test for which a date had been

fixed and his non-appearance was because of the

inability of the Co-Investigator to accompany him to

Punjab.

5. Be that as it may, the Ph.D. course of

the petitioner has not yet been completed,

notwithstanding the passage of four and half years since

he was on leave.

6. The petitioner has now joined the

service of the respondent/University again.

7. It has been submitted on behalf of the

petitioner that he had executed an agreement Bond on

06.12.2014, undertaking to serve the University on

return from the study-leave for a period of five years.

The Bond further indicated that in case of the failure of

the petitioner to honour any one of the conditions in the

Bond or of the Regulations regarding study-leave or of

not being successful in the course or leaving the training

course incomplete or in case of any unsatisfactory record Patna High Court CWJC No.743 of 2021 dt.01-02-2022

of performance or conduct or misbehavior, if reported by

the Institution, he would refund the whole or the part of

the training or leave salary or any other expenditure

borne by the University along with an amount of pre-

fixed damage of Rs. 10,000/-.

8. The counsel for the petitioner,

therefore, has submitted that though a bond was

executed by him for completing the Ph.D. Programme,

but the contents of the bond primarily contains the

promise of serving the University after return from the

study-leave for five years, so that the expenses incurred

by the respondent/University on his training/completion

of educational course is taken advantage of by the

University. Any other stipulation in the Bond is only a

further reiteration of promise to conclude/complete the

training course and not return to the University without

any degree.

9. In the present case, it is the contention

of the petitioner that he has now joined the service and

has not even the remotest of intentions of leaving the Patna High Court CWJC No.743 of 2021 dt.01-02-2022

University for joining at any other place for his livelihood.

Thus, the major part of the Bond has not been breached.

10. With respect to the non-completion of

the course, it has been submitted that it is not solely

attributable to him. There was non-cooperation by the

Punjab University where he had enrolled himself for the

course and lot of time was otherwise consumed because

of the Co-Investigator not having accompanied him for

the purposes of viva-voce. It that event, it cannot be

said that the petitioner has breached any one of the

terms of the Bond.

11. Under such circumstances, it has been

urged that the recovery of 25% of the salary of the

petitioner per month, which he had received from the

University during the period of his study-leave, is

unwarranted and uncalled for.

12. As opposed to the aforesaid

contention, Mr. Sriram Krishna, the counsel for the

respondent/University has pointed out that the

petitioner, as a Faculty-Member, had applied for Patna High Court CWJC No.743 of 2021 dt.01-02-2022

admission in the Ph.D. Degree course under the Faculty

Development Programme. He was mandatorily required

to secure his admission in a reputed University and was

to get a study-leave for a period of three years in the

beginning with full-pay. Only in case of an emergent

requirement of extension of study-leave beyond three

years, he could be sanctioned extended leave for one

year but the total period of leave, would not exceed four

years. The extension of one year, as noted above, would

also be contingent on the candidate having sanctioned

earned-leave in his account. If there is no earned-leave

in the account of the candidate, he could apply for leave

without pay.

13. It has further been submitted that

when the petitioner did not complete his Ph.D. within the

first three years and applied for extension, it was

promptly given to him. Even then, he could not

complete his Ph.D., for whatever reasons, and,

therefore, the petitioner could not have remained on full-

pay.

Patna High Court CWJC No.743 of 2021 dt.01-02-2022

14. In the case of the petitioner, the

respondent/University has chosen to retain his services

but in accordance with the Bond, the salary paid to him

for all this while (study-leave) is being recovered by

slashing down his monthly salary by 25%.

15. Mr. Krishna submits that this cannot

be said to be uncalled for or vindictive and is only in

tune with the Faculty Development Programme (F.D.P.)

schedule and the promise of the petitioner in the Bond

executed by him.

16. The action of the

respondent/University is sought to be defended by

submitting that all these aspects were gone into by the

University authorities and only then, the order has been

passed.

17. After having heard the counsel for the

parties, it appears that the petitioner had enrolled

himself for the Ph.D. Programme and has almost

completed the same but for the submission of the

dissertation and in the viva-voce test. The petitioner Patna High Court CWJC No.743 of 2021 dt.01-02-2022

has offered reasons for the delay in conclusion of the

Ph.D. course. It does not appear, prima facie, that there

was deliberate intention on the part of the petitioner to

delay the process of completion of Ph.D. or to remain on

study-leave.

18. Under such circumstances, the Bond

executed by the petitioner ought not to be read as if it

mere a forfeiture Bond.

19. The Guidelines issued by the Academic

Council of the respondent/University with respect to

grant of study-leave is also very clear. After three years

of study-leave with full pay, an extension could be given

for one year but only on the basis of earned-leave which

an applicant has in his account. If there is no earned-

leave, such an applicant will hae to go on leave without

pay. No leave could be sanctioned beyond a period of

four years.

20. Apart from this, what has caught the

attention of this Court is the regulation of the Faculty

Development Programme, which indicates that a Faculty- Patna High Court CWJC No.743 of 2021 dt.01-02-2022

Member, proceeding on study-leave for pursuing Ph.D.

Degree/Programme will be compulsorily required to

execute a Bond of five years to serve the University after

completion of the Ph.D. Degree on notorized non-judicial

stamp. In case of breach of Bond, he shall be liable to

refund all the amount of salary paid to him during the

study-leave. This makes it very clear that the Bond is

only to be executed with a promise of serving the

University for a period of five years after return from the

study-leave. No Bond was required to be executed for

completing the Ph.D. course within the time schedule.

Thus, the promise made by the petitioner by way of the

Bond was beyond the terms of the advisory in that

regard by the Academic Council of the

respondent/University.

21. The argument by the counsel for the

petitioner is correct that those stipulations in the Bond

are not to be treated as forfeiture Bond, but as a

promise to come back to the University and serve with

the acquired knowledge of the higher Degree of Ph.D. Patna High Court CWJC No.743 of 2021 dt.01-02-2022

22. Be that as it may, in accordance with

the Rules of the University, for the three years that the

petitioner remained on study-leave with full-pay, this

Court is of the view that no deductions are required to be

made, notwithstanding the fact that the Ph.D. course

could not be completed. For the fourth year of the leave

of the petitioner, which was sanctioned to him, it has to

be counted as earned-leave and in case the petitioner

does not have sufficient earned-leave in his account then

for those months, he shall remain on leave without pay.

Beyond the period of four years, he shall be without pay.

23. Thus, this Court is of the view that a

fresh calculation be made on this principle and in case

any amount is due against the petitioner, the

respondent/University may consider either

relaxing/condoning the same or recovering it from the

petitioner by yet softer installment, say perhaps a

reeducation of 5% of the salary till the amount is

realized.

24. For the reasons noted above, the Patna High Court CWJC No.743 of 2021 dt.01-02-2022

orders contained in Annexures - 1, 2 and 3 are set-

aside.

25. The petitioner is directed to place a

copy of this order before the Vice-Chancellor of the

respondent/University, who, within a period of sixty days

of the receipt of this order, shall consider the case of the

petitioner and in case it is permissible under the Rules,

condone the recovery of any amount from the petitioner

or if that is not permissible, direct for recovery to be

made in terms of what has been stipulated above.

26. On the request of the petitioner before

the Vice-Chancellor of the University, it would only be

appropriate for the Vice-Chancellor to communicate with

the Punjab Agriculture University, Ludhiana for affording

cooperation to the petitioner for any early submission of

his dissertation and viva-voce, so that his training is

completed.

27. Needless to state that for that the

petitioner will not be on study-leave and shall keep on

serving the respondent/University.

Patna High Court CWJC No.743 of 2021 dt.01-02-2022

28. With the aforesaid observation/

direction, the writ petition stands disposed off.

(Ashutosh Kumar, J)

Praveen-II/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          04.02.2022
Transmission Date       N/A