Punjab-Haryana High Court
Panjab University vs Inder Mohan Joshi on 28 September, 2022
LPA No. 1104 of 2017 (O&M) and connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Reserved on:30.8.2022
Pronounced on:28.9.2022
(1) LPA No. 1104 of 2017 (O&M)
Punjab University, Chandigarh
---Appellant
versus
Dr. Inder Mohan Joshi
---Respondent
(2) LPA No. 1430 of 2017 (O&M)
Punjab University, Chandigarh and another
---Appellants
versus
A.L.Davessar and others
---Respondents
(3) LPA No. 1176 of 2017 (O&M)
Punjab University, Chandigarh
---Appellant
versus
Dr. Basant Kumar Sharma
---Respondent
(4) LPA No. 1132 of 2017 (O&M)
Punjab University, Chandigarh
---Appellant
versus
Dr. Nasib Singh Mann and others
---Respondents
(5) LPA No. 921 of 2017 (O&M)
Dr. P.K.Mittal and others
---Appellants
versus
Punjab University, Chandigarh and others
---Respondents
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LPA No. 1104 of 2017 (O&M) and connected cases -2-
(6) LPA No. 872 of 2017 (O&M)
Dr. Inder Mohan Joshi
---Appellant
versus
Punjab University, Chandigarh
---Respondent
(7) LPA No. 873 of 2017 (O&M)
Dr. Basant Kumar Sharma
---Appellant
versus
Punjab University, Chandigarh
---Respondent
(8) LPA No. 922 of 2017 (O&M)
Dr. Nasib Singh Mann and others
---Appellants
versus
Punjab University, Chandigarh and another
---Respondents
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Subhash Ahuja, Advocate for the appellant(s)
in LPA Nos. 1104, 1132, 1176 and 1430 of 2017 and
for respondent(s) in LPA Nos. 872, 873, 921 and 922 of 2017
Mr. R.D.Anand, Advocate for the appellant(s)
in LPA Nos. 872, 873, 921 and 922 of 2017 and
for the respondent(s) in LPA Nos. 1104, 1132, 1176 and 1430
of 2017
***
JAGMOHAN BANSAL, J.
1. By this common order, appeal Nos. 1104, 1132, 1176, 1430,
872, 873, 921 and 922 of 2017 filed under Clause X of Letters Patent,
involving identical issue, are hereby adjudicated. One set of Letters Patent
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Appeals (LPA Nos. 1104, 1132, 1176 and 1430 of 2017) has been filed by
the Panjab University, Chandigarh (for short "appellant-University) and
another set of Letters Patent Appeals (LPA Nos. 872, 873, 921 and 922 of
2017) has been filed by respondents (for short "writ-petitioners"). The
appellant-University is claiming that learned Single Judge vide impugned
order dated 15.3.2017 has wrongly extended benefit of leave encashment for
the period of service beyond 60 years and writ-petitioners are claiming that
learned Single Judge has wrongly denied benefit of increments, gratuity and
other retiral benefits for the said period of service beyond 60 years.
2. The appellant is a University which has been constituted under
Panjab University Act, 1947 read with Punjab Re-organization Act, 1966. It
is apt to notice that appellant-University is not a Central University. The
Central Government provides funds to the appellant-University to the extent
of 60% through Union Territory whereas 40% of the grant is met by State of
Punjab. The University was originally created under Panjab University Act,
1947 and after coming into force Punjab Re-organization Act, 1966, the
appellant acquired character of inter-state body corporate, as has been held
by the Co-ordinate Bench in A.C.Julka and others vs. Panjab University
and others, 2008 SCC Online 1374.
Facts
3. As common issues are involved in all the appeals, thus, for the
sake of connivence, facts are borrowed from LPA No. 1104 of 2017 titled as
"Panjab University vs. Dr. Inder Mohan Joshi".
Dr. Inder Mohan Joshi, the writ-petitioner, on 3.2.1971 joined
as Teaching Assistant in Department of Chemistry, Panjab University,
Chandigarh. In 1974, he was appointed as Lecturer and thereafter in 1998,
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he was promoted as Professor of Chemistry.
As per Regulation 17.3 of Chapter V (A) of the conditions of
service of University, the petitioner being member of teaching staff was
bound to retire on attaining the age of 60 years and no extension in service
could be granted. For ready reference, Regulation 17.3 is reproduced as
below:-
" 17.3 All Whole-time members of the teaching
staff, as defined in Regulation 1.1 of the Chapter V (A),
shall retire on attaining the age of 60 years and no
extension in service shall be granted."
4. The service conditions of teachers of Universities are
regulated/modified from time to time by incorporating notifications issued
by University Grants Commission (for short "UGC") as well Government of
India. The UGC while adopting 5th Pay Commission with effect from
1.1.1996 issued letter dated 24.12.1998 having title 'Revision of Pay Scales,
Minimum Qualifications for Appointment of Teachers in Universities &
Colleges and other measures for the Maintenance of Standards, 1998'.
Letter dated 1.1.1996 issued by UGC inter alia provided that
State Governments shall implement entire scheme of revision of pay scales.
Para 16 of scheme envisaged by UGC enjoined that teachers will retire at
the age of 62. However, it was open to a University to re-employee a
superannuated teacher according to existing guidelines upto the age of 65
years. Para 16 of the Scheme forming part of letter dated 24.12.1998 is
reproduced as below:-
"16.0.0 SUPERANNUATION AND RE-EMPLOYMENT
OF TEACHERS
16.1.0 Teachers will retire at the age of 62. However, it is
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open to a University or a college to re-employ a superannuated
teacher according to the existing guidelines framed by the
UGC up to the age of 65 years.
16.2.0 Age of retirement of Registrars, Librarians,
Physical Education personnel, Controllers of Examinations,
Finance Officers and such other University employees who are
being treated at par with the teachers and whose age of
superannuation was 60 years, would be 62 years. No re-
employment facility is recommended for the Registrars,
Librarians and Directors of Physical Education."
5. The appellant did not implement afore-stated instructions of
UGC and various members of teaching faculty of appellant-University
through CWP(s) approached this Hon'ble Court seeking enhancement of
their superannuation age from 60 years to 62 years.
5.1 This Court vide interim orders allowed the petitioners to
continue beyond the age of superannuation i.e. 60 years and directed
appellant-University to release salary for the period petitioners rendered
services beyond the age of superannuation. The interim orders dated
19.12.2003 and 12.7.2005 are reproduced as below:-
Order dated 19.12.2003
"Despite best efforts on the part of the counsel for the
concerned parties to conclude the arguments, the matter
is likely to take some more time before the counsel can
conclude their submissions finally. In the interest of
justice, we consider it necessary that this matter should
be listed after the short vacation at the earliest.
Let this matter be listed for arguments on
10.01.2004.
Counsel appearing for union of India as
well as for State of Punjab are specifically directed to
seek clear instructions in relation to the matter in
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controversy. In the meanwhile we direct that the
petitioners in all the cases shall be paid their salaries till
31.12.2003.
Learned counsel appearing for the
petitioners submits that in the interest of justice general
direction may be issued even for release of salaries of
the teachers, who are similarly situated. We do not
consider it appropriate to issue a direction, however
leave it to the university to decide the matter at their own
level.
Order dated 17.7.2005
By order dated 19.12.2003, this Court had
directed the respondents to pay the salaries of the
petitioners in all the cases till 31.12.2003. A request had
also been made on behalf of the non-petitioners i.e. the
teachers similarly situated, who have filed the writ
petitions, that they be accorded the same treatment. This
Court, however, left the matter to be decided by the
University at its own level. Thereafter, it appears that
the matter has not been heard substantially. In fact, a
perusal of the record shows that from 29.1.2004 till
21.5.2004 the petition was ordered to be adjourned by
order. Thereafter the matter appeared on a number of
occasions before the Division Bench of this court but it
was not taken up for hearing. An application was also
filed before the Bench for preponement which came up
for hearing on 23.5.2005, which was also declined.
Hence, the matter came up before this Bench today.
Mr. P.S.Patwalia submits that all the
petitioners are beyond the age of 60 years and the
salaries had not been paid to them since 31.12.2003.
They have exhausted whatever little savings they had
accumulated during their life time. Although these
petitioners are continuing to work, even though under
the orders of this Court, they are not being paid any
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salaries.
Mr. Anupam Gupta, learned counsel
appearing for respondents No. 1 and 2 submits that the
petitioners only continue in service in view of the order
of this Court. They have no legal right to continue in
service. Their salaries have been paid upto 31.12.2003
only because of the order of this Court dated 19.12.2003.
The accounts of the University are subject to pre-audit.
In case there is no legal sanction for the payment of any
amount, the same would not be reimbursed to the
University from the grants, which are received either
from Union of India or Union Territory.
Having considered the entire matter, we are
of the opinion that it would be wholly inequitable to
permit the University to continue to take work from the
petitioners without payment of the salaries. It has to be
acknowledged, without: demur that the petitioners are
performing vital functions in the society, as they are
engaged in the profession of teaching. They deserve to
be treated with dignity.
In view of above, we direct the University to
release the salaries of the petitioners since 1.1.2004. We
further direct that the writ petition being of an urgent
nature deserves to be decided out of turn.
Adjourned to 12.8.2005.
To obviate any further application being
moved by the petitioners in case the petition is not heard
in the near future, the respondents are directed to
release the salaries to the petitioners each month by the
stipulated date for payment of salaries to the other
employees, till further orders.
Copy of this order be given dasti duly
authenticated by the Special Secretary of this Court, to
the counsel for the University."
5.2 During the pendency of above writ petition, the appellant-
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university vide communication dated 28.10.2003 through Chairman of
Department of Chemistry informed the petitioner that he is to retire w.e.f.
31.12.2003 on attaining age of 62 years. It was further communicated that
he would be entitled to benefit of accrued furlough, leave encashment as
mentioned in the aforesaid letter. It was further made clear that retiral
benefits for the service beyond 60 years would be extended after decision of
Punjab and Haryana High court in CWP No. 11465 of 2002. For the sake
on convenience, extracts of letter dated 28.10.2003 are reproduced as
below:-
" I am desired to inform you that Professor I.M.Joshi is to
retire from the Panjab University service w.e.f. 31.12.2003
after attaining the age of 62 years and has been continuing in
service beyond 60 years at his/her own risk and responsibility,
subject to the decision of the Punjab & Haryana High Court in
CWP No. 11465/2002 against the University regarding
enhancement in the age of retirement from 60 to 62 years.
The Vice-Chancellor has sanctioned the following
retirement benefits to him/her as admissible to him/her upto
the age of 60 years i.e. 31.12.2001 in terms of Senate decision
27.05.2001 (Para 3):-
(i) Gratuity as admissible under Regulation 15.1 and
15.2 at Pages 131-132 of P.U. Cal. Vol.1, 2000;
(ii) Furlough for six month (maximum) as admissible
under Regulation 12.1(B) at page 121 of P.U. Cal.
Volume-1, 2000 read with Syndicate decision dated
30.08.1986 (Para 17) with permission to do business or
service elsewhere during the period of furlough; and
(iii) Encashment of Earned Leave as may be due but
not exceeding 300 days as admissible under Rule 17.3
at page 95 of the P.U. Cal. Volume-III, 2003.
The retiral benefits for the period beyond 60 years
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would be paid only after the decision of the Punjab &
Haryana High Court. In case the Punjab & Haryana
High Court decides against the teachers, he/she would
not be entitled to retiral benefits for the service rendered
beyond the age of 60 years."
[Emphasis supplied]
6. Finally, a Co-ordinate Division Bench of this Court vide order
dated 31.10.2008 disposed of bunch of 72 writ petitions. The Division
Bench in A.C.Julka (supra) held that in the absence of any regulation
framed by University, the petitioners are not entitled to continue beyond the
age of 60 years. The relevant extracts from judgment in A.C.Julka (supra)
are reproduced hereinbelow:-
"20.........................In respect of Panjab University, there
is a particular regulation which prescribes the age of
superannuation of the teaching staff as 60 years.
Regulation 17.3 of Chapter VI (A) of the Conditions of
Service of University Employees reads thus:
"17.3. All whole-time members of the teaching
staff, as defined in Regulation 1.1 of Chapter V
(A), shall retire on attaining the age of 60 years
and no extension in service shall be granted."
21. The above regulation has been framed in exercise of
power under Section 31 (2) (e) of the Panjab University
Act, 1947. It is evident that unless Regulation 17.3 is
amended and age of superannuation therein is
prescribed as 62 years, the UGC recommendations
would have no effect and the teaching staff will continue
to retire at the age of 60 years. It appears that at various
stages, the matter was considered by the Syndicate and
the Senate of the University. Certain resolutions were
also passed for enhancing the age of retirement from 60
to 62 years and for amending Regulation 17.3
accordingly. The said resolutions have been reproduced
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in the foregoing paras while noticing the submissions of
counsel for the petitioners. However, it is obvious that
these resolutions passed by the Senate and Syndicate of
the University, did not get the approval of the
Government of India and thus never came into effect.
There is no doubt in our mind that for a resolution to
take effect and to become a part of the regulation, it is
necessary that sanction of the Government is obtained.
In this respect Section 31 (1) of the Panjab University
Act is relevant which reads thus:
"31. Regulations:
(1) The Senate, with the sanction of the
Government may, from time to time, make
regulations consistent with this Act to provide for
all matters relating to the University."
22. This Section makes it clear that sanction of the
Government is required to make regulations in respect of
matters pertaining to the University. The Government as
defined in Section 2 (b) of the Act means the Central
Government. However, in the instant case, the Central
Government refused to accept the resolutions passed by
the Senate of the University as is evident from a reading
of the impugned letter dated 23rd July, 2002, Annexure P-
13. Therefore, the question of any amendment being
carried out in Regulation 17.3 did not arise. The
regulation as it stands on date on the statute-book of the
University provides the age to be 60 years and the same
would continue to be so unless the regulation is
amended."
7. A bunch of Civil Appeals arising from orders of different High
Courts came up for consideration before a three Judge Bench of Hon'ble
Supreme Court in Jagdish Prasad Sharma and others vs. State of Bihar
and others (2013) 8 SCC 633. The primary issue before the Hon'ble
Supreme Court was that whether Regulations made by UGC are having
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primacy over State Legislation. The Hon'ble Court vide judgment dated
17.7.2013 concluded that Regulations made by UGC are in terms of Entry
66 of Union List and State Legislators have made Legislation in exercise of
power conferred by Entry 25 of concurrent list. There is no Union
Legislation which is contrary to State Legislation, thus, question of
repugnancy does not arise. A subordinate Legislation even though made by
Central Government cannot have primacy over State Legislation which is
plenary Legislation. The Supreme Court considered applicability of scheme
formulated by UGC which was not implemented by State in toto and
accordingly, Central Government refused to compensate additional burden
arising on account of implementation of scheme formulated by UGC. The
Supreme Court while disposing of all the Civil Appeals concluded that all
persons who have continued to work on the basis of interim orders passed
by this Court or any other Court shall not be denied the benefit of service
during the said period. Para 80 of the judgment of Hon'ble Supreme Court
in Jagdish Prasad Sharma (supra) is reproduced as under:-
"80.We, therefore, see no reason to interfere with the
impugned judgment and order of the Division Bench of
the High Court in all these matters in the light of the
various submissions made on behalf of the respective
parties. The several Appeals, Writ Petitions and the
Transferred Case, which involve the same questions as
considered in this batch of cases, are all dismissed.
However, the Appeals filed by the State of Uttarakhand
and Civil Appeals arising out of SLPs(C) Nos. 6724,
13747 and 14676 of 2012 are allowed. As far as the
Transfer Petition Nos. 1062-1068 of 2012 are
concerned, the same are allowed and the Transferred
Cases are dismissed. The Contempt Petitions are
disposed of by virtue of this judgment. However, persons
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who have continued to work on the basis of the interim
orders passed by this Court or any other Court, shall not
be denied the benefit of service during the said period.
The Appeals and Petitions having been dismissed, both
the State Authorities and the Central Authorities will be
at liberty to work out their remedies in accordance with
law."
8. As noticed, the Co-ordinate Division Bench of this Court as
afore-stated, vide order dated 31.10.2008 had dismissed bunch of 72 writ
petitions holding that petitioners are not entitled to continue beyond the age
of 60 years. Shri D.N.Jauhar and B.K.Sharma had filed Civil Appeals No.
8113 -8117 of 2011 before Hon'ble Supreme Court, which vide order dated
20.1.2014 (Annexure P-4) disposed of appeals in terms of order in Jagdish
Prasad Sharma's case (supra). The operative portion of order dated
20.1.2014 passed by Hon'ble Supreme Court is reproduced as below:-
" We do not doubt the correctness or otherwise of the
statement made by the learned counsel for the applicant-
appellant. Accordingly, these appeals are disposed of in
the same terms, conditions, observations and directions
contained in the case of Jagdish Prasad Sharma (supra)
i.e. CA Nos. 5527-5543 of 2013 etc."
9. These facts confirm that writ petitioners except D.N.Jauhar and
B.K.Sharma did not challenge order dated 31.10.2008 passed by Division
Bench of this Court, however, on coming to know outcome of appeals filed
by D.N.Jauhar and B.K.Sharma, the writ petitioners preferred writ petition
before this Court which came up for consideration before a Single Judge of
this Court. The writ petitioners sought direction to appellant-University to
grant all service benefits including annual increment, leave encashment,
gratuity and counting of service towards pension beyond the age of 60
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years. The petition was founded upon judgment of Hon'ble Supreme Court
in Jagdish Prasad Sharma (supra) and order dated 20.1.2014 passed in
the case of D.N.Jauhar (CA No. 8117 of 2011). Learned Single Judge
noticed the chequered history of the case and vide impugned judgment
dated 15.3.2017 held that writ petitioners are not entitled to benefit of
gratuity, increment, pension on the basis of last pay drawn by counting
their period of service during which they served on the basis of stay granted
by this Court. Learned Single Judge though declined prayer of the writ
petitioners qua gratuity, increment, counting the period of service for
pension, however, relying upon his earlier judgment in Paramjit Singh
Bansal vs. Panjab University, Chandigarh and others, CWP No. 2873 of
2005 decided on 6.2.2017, held that if petitioners have some earned leave
to their credit for the period they worked beyond the age of 60 years, they
shall be entitled to encash the same subject to limitation prescribed under
the Panjab University Regulation.
10. The appellant-University has come up in appeal before this
Court seeking quashing of order of learned Single Judge whereby writ
petitioners are extended benefit of leave encashment and writ petitioners are
seeking other retiral benefits which have been denied by learned Single
Judge.
Contention of appellant-University
11. Learned counsel for the appellant-University inter alia
contended that writ petitioners were permitted to continue beyond 60 years
in terms of interim orders of this Court. The writ petitions were finally
dismissed which amounts to nullifying interim orders. It is settled
proposition of law that if a petition is finally dismissed, the interim orders
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go alongwith the dismissal except to the extent it has already been
implemented. The writ petitioners worked beyond the age of 60 years, thus,
they were entitled to benefit of salary which appellant-University
undisputedly paid. The writ petitions were dismissed on 31.10.2008 and
writ petitioners opted not to assail aforesaid judgment of this Court. There
was reason for not assailing the judgment was because the writ petitioners
had already worked for two years and they had already got salary for the
period they worked. The Hon'ble Supreme Court in Jagdish Prasad
Sharma (supra) vide judgment dated 17.7.2013 held that persons who had
worked on the basis of interim orders shall not be denied benefit of service.
The two writ petitioners had filed Civil Appeals before Hon'ble Supreme
Court and their appeals were disposed of in terms of judgment passed in
Jagdish Prasad Sharma (supra). The writ petitioners opted to remain
silent from 2008 to 2016 and as soon as they came to know about order
dated 20.1.2014 of the Supreme Court in Basant Kumar Sharma vs.
Punjab University and others in CA Nos. 8113-8116 of 2011, they filed
writ petitions which have been partially allowed, ignoring the fact that in
the earlier round of litigation, their writ petitions were dismissed and they
have accepted the same.
The matter had already been concluded between the parties,
thus, they had no right to file a fresh writ petition especially after the expiry
of 8 years from the date of dismissal of their earlier writ petition. Learned
counsel further contended that Learned Single Judge has mis-interpreted
findings of Hon'ble Supreme Court in Jagdish Prasad Sharma (supra).
Hon'ble Supreme Court had directed to make payment of benefit of service
and had not directed to make payment towards leave enchashment. The writ
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petitioners, in case of doubt, could have approached Hon'ble Supreme Court
and learned Single Judge had no authority to interpret the judgment passed
by Hon'ble Supreme Court. He further contended that writ petitioners were
entitled to salary which stands paid, thus, there is no question of making
payment towards leave encashment. In support of his contention, learned
counsel cited judgment of a three Judge Bench of Hon'ble Supreme Court in
The State of Uttar Pradesh vs. Nawab Hussain (1977) 2 SCC 806 a two
Judge Bench judgment of Hon'ble Supreme Court in Ghulam Rasool Lone
vs. State of J & K and another (2009) 15 SCC 321, a Division Bench
judgment of Allahabad High Court in Dr. Shiv Singh and others vs. State
of U.P. and others, (2013) SCC Online All. 9532, a single Judge Bench
judgment of this Court Om Parkash vs. State of Haryana and others 1995
(4) SCT 331, a Division Bench judgment of this Court in Umesh Kumar
vs. State of Punjab and others, 1995 SCC Online P&H 1886 and a two
judge Bench judgment of this Court Naresh Kumar vs. State of Haryana
and others, 2004(4) RSJ 652.
Contention of writ petitioners-Teachers
12. Per contra, learned counsel for the writ petitioners contended
that learned Single Judge of this Court in Paramjit Singh Bansal (supra)
has categorically held that leave encashment is part of salary. The judgment
in Paramjit Singh Bansal (supra) is based upon different judgments of
Hon'ble Supreme Court where it has been held that employer makes
payment if an employee works inspite of entitlement of leaves and in case
he does not avail leave, there is accumulation of leaves which are
ultimately encashed. Thus, encashment of earned leave is part of salary.
On the question of delay and laches, learned counsel
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pleaded that writ petitioners did not file appeal before Hon'ble Supreme
Court because it was a pan India issue and Hon'ble Supreme Court was
seized of the matter qua different States. Two petitioners preferred appeals
before Hon'ble Supreme Court, thus, it was not necessary for each and every
employee to approach the Hon'ble Supreme Court. In Jagdish Prasad
Sharma (supra) and A.C.Julka (supra) the Supreme Court opined that
every person who has worked beyond the age of superannuation shall be
entitled to benefit of service, and thus, a right accrued to the writ petitioners
as soon as order was passed by Hon'ble Supreme Court. Thus, delay was
justified and the plea was taken that the learned Single Judge has rightly
entertained the writ petitions.
13. We, with the able assistance of learned counsel for both the
parties, have perused the record and heard arguments at length.
Discussion and findings
14. The conceded position emerging from record is that as per
Regulations framed by Panjab University, maximum age of superannuation
of a teacher is 60 years, no extension can be granted beyond 60 years.
Initially, interim orders were granted which permitted writ petitioners to
continue for two years beyond the age of superannuation, however, the writ
petitions were finally dismissed. Except A.C.Julka and Basant Kumar, no
writ petitioner approached Supreme Court assailing judgment of this Court.
The Panjab University is not a Central University, thus, any regulation
framed by UGC which is contrary to State Legislation is having no primacy.
Supreme Court in Jagdish Prasad Sharma (supra) and A.C.Julka (supra)
had directed Universities to make payment of benefit of service and has not
specifically directed to make payment towards gratuity, enhanced pension,
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interest, additional increment or leave encashment.
15. From the facts obtained from record and arguments of both
sides, we are of the considered opinion that following questions arise for
our determination:-
(i)Whether principle of constructive res judicata is applicable
in the present case?
(ii)Whether the writ petition was liable to be dismissed on the
ground of delay and laches?
(iii)Whether in the peculiar facts and circumstances of the case,
leave encashment can be considered as part of salary?
(iv)Whether writ petitioners are entitled to retiral benefits by
calculating the extended period of their service?
16. Before adverting with the issues involved, it would be
appropriate to look at the enunciation of law, on the issues involved, by the
Hon'ble Supreme Court as well as different Courts.
Hon'ble Supreme Court passed judgment in Jagdish Prasad
Sharma (supra) on 17.7.2013 and a Division Bench of Allahabad High
Court in Dr. Shiv Singh (supra) after considering directions of Hon'ble
Supreme Court in Jagdish Prasad Sharma (supra) concluded that
petitioners are entitled for the salary but their post-retiral benefits shall be
calculated on the basis of salary drawn when the petitioners attained the age
of superannuation. Para 6 of the order passed in Dr. Shiv Singh (supra) is
reproduced as below:-
"6. In view of the above, the writ petition is disposed
of with the direction that the petitioners are entitled for
the salary for the period, during which they have worked
in view of the interim order granted any Court or by the
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Apex Court even after attaining the age of 62 years but
their post retiral benefits shall be calculated on the basis
of salary drawn when the petitioners attained the age of
superannuation, i.e. 62 years. Respondents nos. 2, 3 and
6 are directed to make the payment to the petitioners after
necessary verification, within a period of two months as
directed above from the date of presentation of the
certified copy of this order in accordance to law."
A Division Bench of this Court in Ram Kumar Shastri vs.
State of Haryana and others, 2012 SCC Online P&H 3335 has held that
if a person is allowed to continue beyond the age of superannuation, the
additional period of service is re-employment and not retention and
accordingly, employee shall be entitled to superannuation benefits from the
date he attains age of superannuation. Paras 4 and 5 of the order are
reproduced as below:-
4. As per the aforesaid Rule, an employee is entitled
to superannuation pension from the date he attains
the age of 58 years. Note clarifies that the calculation
of pensionary benefits is to be counted upto the age
of 58 years irrespective of the extension in service
beyond the age of superannuation.
5. Learned counsel for the appellant has argued that
this note was inserted by amendment in these Rules
vide notification dated 15.12.2005 and, therefore, it
would not be applicable in the case of the appellant
who had retired earlier thereto. This was the
contention raised before the learned Single Judge as
well and rightly turned down stating that the note
was only clarificatory in nature and it is not a
provision introduced for the first time in the year
2005. This becomes abundantly clear from the
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language of sub rule 1 of Rule 8, which was always
there from the beginning and which clearly states
that the employee will be entitled to superannuation
pension from the date he attains the age of 58 years.
When the Rule is specific i.e. The pension is to be
calculated upto the age of 58 years, which is the
normal date of supernnuation, whether an employee
gets extension or is re-employed after 58 years would
be no consequence."
A Division Bench of this Court in Naresh Kumar (supra) has
held that writ in the nature of mandamus after 11 years of termination of
services is not maintainable. This Court after noticing different judgments
of Hon'ble Supreme Court held the petitioner guilty of laches and
accordingly dismissed the petition.
A two Judge Bench of Hon'ble Supreme Court in Ghulam
Rasool Lone (supra) held that petitioner cannot invoke jurisdiction after
waiting for 13 years on the ground of parity. The relevant extracts of the
judgment are reproduced below:-
12. There cannot furthermore be any doubt that Article
14 is a positive concept. The Constitution does not
envisage enforcement of the equality clause where a
person has got an undue benefit by reason of an illegal
act. In Panchi Devi v. State of Rajasthan [(2009) 2 SCC
589], this Court held:
"...Article 14 of the Constitution of India has
a positive concept. Equality, it is trite, cannot
be claimed in illegality. Even otherwise the
writ petition as also the review petition have
rightly not been entertained on the ground of
delay and laches on the part of the
appellant."
13. The Court in a given case may be inclined to pass
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similar order as has been done in the earlier case on the
basis of equality or otherwise.
14. The discretionary jurisdiction under Article 226 of
the Constitution may, however, be denied on the ground
of delay and latches. It is now well settled that who
claims equity must enforce his claim within a reasonable
time.
...................The said principle was reiterated in S.S. Balu
v. State of Kerala [(2009) 2 SCC 479] in the following
terms:-
"17. It is also well-settled principle of law that
"delay defeats equity". The Government Order
was issued on 15-1-2002. The appellants did not
file any writ application questioning the legality
and validity thereof. Only after the writ petitions
filed by others were allowed and the State of
Kerala preferred an appeal there against, they
impleaded themselves as party-respondents. It is
now a trite law that where the writ petitioner
approaches the High Court after a long delay,
reliefs prayed for may be denied to them on the
ground of delay and laches irrespective of the fact
that they are similarly situated to the other
candidates who obtain the benefit of the judgment.
It is, thus, not possible for us to issue any
direction to the State of Kerala or the Commission
to appoint the appellants at this stage."
17. Question No. 1-Whether principle of constructive res judicata is
applicable in the present case?
17.1 The writ petitioners preferred different writ petitions seeking
direction to appellant-University to implement recommendations of UGC
qua enhancement of age from 60 to 62 years. A Co-ordinate Bench of this
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Court vide judgment dated 31.10.2018 concluded that appellant-University
is not a Central University and writ-petitioners are not entitled to increase of
age from 60 to 62 years as recommended by UGC. Indubitably, two writ-
petitioners preferred Special Leave Petitions before Hon'ble Supreme Court
which came to be disposed of in the light of earlier judgment of Hon'ble
Supreme Court in Jagdish Prasad Sharma's case (supra).
17.2 A Co-ordinate Bench of this Court while adjudicating
aforesaid writ petitions though adjudicated question of entitlement of
petitioners qua increase of age from 60 to 62 years, however, Court did not
advert with question of entitlement of salary and other benefits. The reason
was as simple as could be that Court came to conclusion that petitioners are
not entitled to enhancement of age, thus, there was no reason to advert with
question of entitlement of salary and other benefits. Various petitions from
different States including two appeals from judgment of this Court came up
for consideration before Hon'ble Supreme Court which concluded that
teaching staff of Non-Central Universities cannot claim implementation of
recommendations of UGC, thus, they cannot claim enhancement of age
from 60 to 62 years. The Hon'ble Court while disposing of SLPs held that
teachers would be entitled to salary. It is apt to mention here that Division
Bench of this Court while disposing of the case in A.C.Julka (supra) did
not advert with salary, however, by interim orders dated 16.12.2003 and
12.7.2005, the appellant-university was directed to make payment of salary
of petitioners of each month by a stipulated date. Under these
circumstances, the writ petitioners got salary till the date of attaining age of
62 years or till dismissal of writ petition whichever was earlier. The writ
petitioners before Co-ordinate Bench of this Court under interim orders
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continued to work as well as got their salary. It is basic principal of law that
all interim orders merge with final order. It ought to be remembered that all
interim orders lose its sanctity as soon as final order is passed, however, all
those interim orders which have already been acted upon as well as stand
implemented, are not necessarily to be recalled or nullified. The dismissal of
writ petition seeking enhancement of age could culminate into depriving the
teachers from their salary or it could result into recovery of salary which had
already been paid. In the present case, the writ petitioners had worked
under the directions of this Court and they got salary under the directions of
this Court, thus, it was not possible in law as well equity to nullify interim
orders or hold that interim orders would cease to exist as soon as writ
petitions were dismissed. Recalling of interim orders or holding that they
cease to exist in toto would have resulted into chaos in terms of initiation of
recovery proceedings against teachers who had already worked in terms of
orders of this Court. The dismissal of writ petitions resulted into cessation
of interim order to the extent that all teachers who had completed 60 years
but not 62 years stood retired and automatically became dis-entitled to
salary which they were getting in view of interim orders of this Court. The
Hon'ble Supreme Court while disposing of appeals in Jagdish Prasad
Sharma's case (supra) virtually did not create right of salary whereas it
was just confirmation of interim orders of different High Courts including
interim orders passed by Division Bench of this Court.
The question of applicability of principle of constructive res
judicata cannot be applied mechanically and it is inevitable as well
indispensable to examine facts of each case and findings recorded by the
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Court. In the case in hand, Division Bench of this Court adjudicated the
question of entitlement of enhancement of age and Court did not adjudicate
question of entitlement of employees towards salary and other benefits, for
the period during which they worked, under interim orders of this Court.
The question of entitlement of salary cropped up as soon as Hon'ble
Supreme Court while disposing of appeals in Jagdish Prasad Sharma
(supra) confirmed right of teachers to salary. Thus, there was new cause of
action even though in the case of writ petitioners they had already got
salary, therefore, the writ petitioners were entitled to file fresh writ petitions
seeking payment of salary which they might have or have not received.
18. Question No. 2-Whether the writ petition was liable to be
dismissed on the ground of delay and laches?
The writ petitions of teachers seeking enhancement of age was
dismissed on 31.10.2008 and Hon'ble Supreme Court dismissed appeal in
Jagdish Prasad Sharma (supra) on 17.7.2013. The writ petitioners
preferred writ petition seeking salary in 2014. Few writ petitions were filed
in 2016. Two teachers assailed judgment dated 31.10.2008 passed by this
Court before Hon'ble Supreme Court. The civil appeals of two teachers
who were writ petitioners before this Court in bunch of writ petitions was
disposed of 20.1.2014. In this backdrop, the writ petitioners preferred writ
petitions before learned Single Judge of this Court during 2014 -2016.
In view of peculiar facts and circumstances especially in view
of our opinion that writ petitions were not hit by principle of constructive
res judicata, we are of the considered opinion that it would be unfair to
conclude that learned Single Judge should have dismissed writ petitions on
the ground of delay and laches. Learned Single Judge has entertained writ
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petitions and passed a speaking order, therefor, we find ourselves unable to
agree with contention of appellant-University that there was delay on the
part of writ petitioners and learned Single Judge must have dismissed all the
petitions on the ground of delay and laches.
19. Question No. (iii): Whether in the peculiar facts and
circumstances of the case, leave encashment can be considered as part
of salary?
19.1 Learned Single Judge has held that if writ petitioners had
earned leave to their credit for the period they worked beyond the age of 60
years, they will be entitled to encash the same subject to limitation
prescribed under the Panjab University Regulations.
As per learned Single Judge, the writ petitioners are entitled to
encashment of leave which the writ petitioners had earned during the
extended period of service. Learned single Judge has further held that writ
petitioners would be entitled to encashment of leave subject to limitation
prescribed under Panjab University Regulations. Communication dated
28.10.2010, which is addressed to Chairman/Head of Department of
Chemistry discloses that appellant-University has not released retiral
benefits on account of pendency of CWP No. 11465 of 2002 before this
Court whereas appellant-University has permitted encashment of earned
leave as may be due but not exceeding 300 days as admissible under Rule
17.3 at page 94 of Panjab University Calendar V-III, 2003. Rule 16, 17.1,
17.2 & 17.3 of Panjab University Calendar V-III, 2003 are reproduced as
below:-
"16. An employee, who is re-employed in the interest of
university service beyond the date of his compulsory
retirement, may be granted leave in accordance with the
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terms and conditions of his reemployment.
17.1 Earned leave at the credit of an employee, beyond
180/300 days, shall lapse on the date of retirement.
17.2 An employee may be granted leave preparatory to
retirement up to four months.
17.3 An employee on retirement (or on retirement
voluntarily) shall be paid cash equivalent to such
number of days of earned leave as may be decided by the
Punjab Govt. for its own employees, from time to time.
The case equivalent to leave salary (excluding City
Compensatory Allowance and House Rent Allowance)
thus admissible will be paid in lumpsum as a one time
settlement for which the authority competent to sanction
leave shall issue suo moto an order granting cash
equivalent to leave salary on a pay drawn on the date of
retirement. Provided that if an employee proceeds on
leave preparatory to retirement under Rule 17.2, the
benefit of payment of cash equivalent to leave salary
under Rule 17.3 shall be admissible after deducting the
period spent on leave preparatory to retirement.
Provided further that an employee, who
have voluntarily retired or has retired on invalidism,
shall be entitled to the aforesaid benefit of cash payment
for the unutilised leave due, notwithstanding that as a
result of it the period between date of his retirement as
aforesaid and the date on which he would have retired in
the normal course on superannuation exceeds the date of
retirement on superannuation."
From the reading of above quoted Rules, it is quite evident that
an employee is entitled to encashment of earned leave which cannot be
beyond 300 days. The writ petitioners indubitably worked up to age of 60
years and during this period they earned leave which they were entitled to
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encash. There is nothing on record disclosing that writ petitioners either
earned leave of 300 days during their original permissible period of work
i.e. up to age of superannuation (60 years) or not. There may be different
set of cases. There may be a case where a teacher has not earned leave of
300 days and there may be another case whether a teacher has already
earned leave of 300 days in hand. Learned Single Judge has held that
encashment of leave would be subject to regulations of the University. As
per Regulations of the appellant-University, the maximum permissible
period for encashment of leave is 300 days. There is no Regulation which
permits leave beyond the age of superannuation and further encashment of
the leave. In the absence of specific rule permitting leave encashment
beyond the age of 60 years and even as per impugned judgment of learned
Single Judge, the writ petitioners-teachers could not be held entitled to
encashment of earned leave. Learned Single Judge has not held that writ
petitioners were entitled to leave during their extended period of service and
they are entitled to encashent of earned leave. Thus, we find that the
appellant-University and learned Single Judge are on the same page. There
is no difference in the contention of the appellant-University as well
findings of learned Single Judge. The writ petitioners during the course of
arguments as well as in their pleadings have not brought into knowledge of
this Court any rule/regulation/notification which made them entitled to
leave during their extended period of service and further permitted
encashment of those leaves. In the absence of any particular rule/regulation,
we hold that writ petitioners are not entitled to encashment of leave beyond
their entitlement admissible under Rule 17.3 of Panjab University Calendar
V-III, 2003.
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19.2 There is another facet of the impugned judgment. Learned
Single Judge while passing impugned order has relied upon its earlier
judgment in Paramjit Singh Bansal (supra) CWP No. 2873 of 2005
decided on 6.2.2017. We have perused judgment of learned Single Judge in
Paramjit Singh Bansal (supra). We find that learned Single Judge has
held that leave encashment would form part of salary and findings of
learned Single Judge are based upon judgment of Hon'ble Supreme Court in
State of Rajasthan and another vs. Senior High Secondary School,
Lachhmangarh and others (2005) 10 SCC 346 vide which Hon'ble
Supreme Court has held that leave encashment is a part of the salary and
covered in the wider expression 'scale of pay and allowances'. The Apex
Court as noted by learned Single Judge, has held:
"14. There is additional reason for rejecting the
contention advanced on behalf of the aided private
institutions and the State that encashment of leave salary
is neither "pay" nor "allowances" within the meaning
of Section 29 of the Act. Section 29 directs maintenance
of parity in respect of "scales of pay and allowances"
between same categories of employees of private aided
institutions and government institutions. A closer
scrutiny of the relevant provisions, quoted above, would
show that the expressions "pay and allowances" in the
title to the section and "scales of pay and allowances" in
the body of Section 29 have been used to give it a wider
meaning so as to encompass within them "aggregate of
emoluments" and "other allowances and reliefs", as per
the definition of the word "salary" in Section 2(r) of the
Act. Clause (r) in Section defines "salary" to mean the
aggregate of the emoluments of an employee including
"dearness allowance or any other allowance or relief".
The wider definition of the word "salary" has to be read
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into Section 29 which directs maintenance of parity in
pay and allowances of the employees of aided
institutions and government institutions."
19.3 The findings of Hon'ble Apex Court are based upon Sections 2
and 29 of Rajasthan Non-Government Educational Institutions Act, 1989
and Rules framed thereunder. The Hon'ble Court has concluded that leave
encashment would form part of salary after distinguishing the judgment in
State of Punjab vs. Om Parkash Kaushal, (1996) 5 SCC 325 to hold
that the Punjab Privately Managed Recognised Schools Employees
(Security of Service) Act, 1979 had a restrictive meaning in comparison to
the Rajasthan Act wherein the rule itself provided that except compensatory
allowance salary would include aggregate of all emoluments including
dearness allowance and other allowances. The Hon'ble Court interpreted
different Sections of 1989 Act as well Rules made thereunder. Sections 2
and 29 of 1989 Act and Rule 51 made thereunder making it clear that salary
would include leave encashment, and thus, Hon'ble Court held that leave
encashment would form part of salary.
19.3 A two Judge Bench of Hon'ble Supreme Court in Manipal
Academy of Higher Education vs. Provident Fund commissioner (2008)
5 SCC 428 held that expression 'basic wages' does not include leave
encashment for the determination of employee's contribution to provident
fund. The relevant extracts of judgment are reproduced as below:-
"8. It is to be noted that in the case before the Bombay
High Court the factual scenario was somewhat peculiar.
There the employer was including the amount of leave
encashment as emoluments for the purpose of
calculating provident fund dues from the employer as
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well as employee's contribution. When the Employees'
Union took up the issue to the Commissioner it was
informed that the provision does not provide for
deduction of provident fund on leave encashment.
9. On the strength of the letter dated 3.7.1991 of the
Commissioner, Hindustan Lever Ltd. decided to make
provision for deduction. It was this direction of the
department which was challenged by the Union. In this
context the High Court has held that the Commissioner's
letter/circular was illegal and leave encashment dues
should be included for provident fund contribution. In
fact it was the understanding of the parties over the
period that leave encashment will be included in the
wages.
10. The basic principles as laid down in Bridge Roof's
case (supra) on a combined reading of Sections 2(b) and
6 are as follows:
(a) Where the wage is universally, necessarily and
ordinarily paid to all across the board such
emoluments are basic wages.
(b) Where the payment is available to be specially
paid to those who avail of the opportunity is not
basic wages. By way of example it was held that
overtime allowance, though it is generally in force
in all concerns is not earned by all employees of a
concern. It is also earned in accordance with the
terms of the contract of employment but because it
may not be earned by all employees of a concern,
it is excluded from basic wages.
(c) Conversely, any payment by way of a special
incentive or work is not basic wages.
11. In TI Cycles of India, Ambattur v. M.K. Gurumani
and Ors. (2001 (7) SCC 204) it was held that incentive
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wages paid in respect of extra work done is to be
excluded from the basic wage as they have a direct nexus
and linkage with the amount of extra output It is to be
noted that any amount of contribution cannot be based
on different contingencies and uncertainties. The test is
one of universality. In the case of encashment of leave
the option may be available to all the employees but
some may avail and some may not avail. That does not
satisfy the test of universality. As observed in Daily
Partap v. Regional Provident Fund Commissioner (1998
(8) SCC 90) the test is uniform treatment or nexus under-
dependent on individual work.
12. The term 'basic wage' which includes all emoluments
which are earned by an employee while on duty or on
leave or on holidays with wages in accordance with the
terms of the contract of employment can only mean
weekly holidays, national holidays and festival holidays
etc. In many cases the employees do not take leave and
encash it at the time of retirement or same is encashed
after his death which can be said to be uncertainties and
contingencies. Though provisions have been made for
the employer for such contingencies unless the
contingency of encashing the leave is there, the question
of actual payment to the workman does not take place. In
view of the decision of this Court in Bridge Roof's case
(supra) and TI Cycles's case (supra) the inevitable
conclusion is that basic wage was never intended to
include amounts received for leave encashment."
In Kichha Sugar Company Limited through General
Manager vs. Tarai Chini Mill Majdoor Union, Uttarakhand (2014) 4
SCC 37, a two Judge Bench of Hon'ble Supreme Court held that overtime
wages and leave encashment would not form part of expression 'wages'.
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The Hon'ble Court while interpreting Section 2(b) of Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 has held that overtime
wages and leave encashment would not be included for the calculation of
Hill development allowance. The relevant paragraphs of the judgment are
reproduced as below:-
"8. In view of the rival submissions, the question which falls
for our determination is as to the meaning of the expression
'basic wage'. The expression 'basic wage' has not been
explained by the Government in the order granting Hill
Development Allowance. It has been defined only under
Section 2(b) of the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952. Therefore, we have to see
what meaning is to be given to this expression in the present
context. Section 2(b) of the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952 defines 'basic wages' as
follows:
"2. Definitions. - In this Act, unless the context
otherwise requires, -
(a) xxx xxx xxx
(b) "basic wages" means all emoluments which are
earned by an employee while on duty or on leave or
on holidays with wages in either case in accordance
with the terms of the contract of employment and
which are paid or payable in cash to him, but does
not include-
i) the cash value of any food concession;
ii) any dearness allowance that is to say, all
cash payments by whatever name called paid to an
employee on account of a rise in the cost of living,
house-rent allowance, overtime allowance, bonus
commission or any other similar allowance payable
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to the employee in respect of his employment or of
work done in such employment;
iii) any presents made by the employer;"
9. According to http://www.merriam-
webster.com (Merriam Webster Dictionary) the
word 'basic wage' means as follows:
"(1) A wage or salary based on the cost of living
and used as a standard for calculating rates of pay
(2) A rate of pay for a standard work period
exclusive of such additional payments as bonuses
and overtime."
10. When an expression is not defined, one can
take into account the definition given to such
expression in a statute as also the dictionary
meaning. In our opinion, those wages which are
universally, necessarily and ordinarily paid to all
the employees across the board are basic wage.
Where the payment is available to those who avail
the opportunity more than others, the amount paid
for that cannot be included in the basic wage. As
for example, the overtime allowance, though it is
generally enforced across the board but not earned
by all employees equally. Overtime wages or for
that matter, leave encashment may be available to
each workman but it may vary from one workman to
other. The extra bonus depends upon the extra hour
of work done by the workman whereas leave
encashment shall depend upon the number of days
of leave available to workman. Both are variable.
In view of what we have observed above, we are of
the opinion that the amount received as leave
encashment and overtime wages is not fit to be
included for calculating 15% of the Hill
Development Allowance. The view which we have
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taken finds support from the judgment of this Court
in Muir Mills Co. Ltd. (supra), relied on by the
appellant, in which it has been specifically held that
the basic wage shall not include bonus."
19.4 From the reading of above-cited judgments, it can be
conveniently gleaned that there is no cut and dry, universal or straight
jacket formula to conclude that leave encashment forms part of
salary/wages. Whether leave encashment form part of wages/salary depends
upon relevant statute/rules/regulations made thereunder. If the statute or
regulations made thereunder specifically provide that leave encashment
would not form part of salary, Court cannot hold that it would form part of
salary whereas a statute or regulation made thereunder may provide that for
particular period, leave encashment would form part of salary. Therefore,
we are of the considered opinion that learned Single Judge has wrongly
relied upon its earlier judgment in Paramjit Singh Bansal (supra) while
directing appellant-University to make payment towards leave encashment.
20. Question No. 4: Whether writ petitioners are entitled to retiral
benefits for the extended period of their service?
20.1 In view of our findings qua encashment of earned leave, there
seems no necessity to advert with question of other retiral benefits, however,
we deem it appropriate to dilate on question of other retiral benefits because
writ petitioners have filed LPA claiming other retiral benefits and
foundation of their contentions is judgment of Hon'ble Supreme Court in
Jagdish Prasad Sharma (supra).
20.2 Indubitably, writ petitioners worked on the sole basis of interim
order passed by this Court. They got salary as Co-ordinate Bench of this
Court vide different interim orders directed the appellant-University to
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release salary of writ petitioners. The appellant-University was not inclined
to release salary, however, this Court directed appellant-University to
release salary to writ petitioners. The writ petitions came to be dismissed
and in normal circumstances, it was right of appellant-University to recover
payment already made to the writ petitioners, however, the appellant-
University opted to restrain from initiating recovery or seek recovery rights
from this Court.
20.3 Undisputedly, the writ petitioners were not party before
Hon'ble Supreme Court in Jagdish Prasad Sharma (supra), thus, they
cannot blindly claim benefit extended to appellants before Hon'ble Supreme
Court. We have upheld question of maintainability of writ before learned
Single Judge inspite of non-challenge of orders passed by a Division Bench
of this Court in the case of writ petitioners. Nevertheless, the writ
petitioners by their act and conduct accepted the orders passed by a
Division Bench of this Court where no right of retiral benefits was either
claimed or adjudicated by this Court. The writ petitioners are precluded
from claiming leave encashment by calculating the period beyond service of
60 years because they worked under the interim orders of this Court and
their writ petitions stand dismissed. In view of equity and interim orders of
this Court, neither appellant-University opted to initiate recovery to salary
paid post date of superannuation nor this court while disposing of writ
petitions made any observation. The writ petitioners are thus trying to take
undue advantage.
20.4 The right course for the writ petitioners in case of any
grievance or doubt about their rights qua retiral benefits, was to seek
clarification from Hon'ble Supreme Court as this Court has no right to
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clarify orders of Hon'ble Supreme Court. However, in view of peculiar
situation and orders passed by learned Single Judge which are under
challenge before us, we deem it appropriate to dwell into the issue involved
and adjudicate appeals of writ petitioners.
We are of the considered opinion that expression 'salalry'
cannot be deemed to include retiral benefits i.e. gratuity, increment and
determination of pension after considering extended period of service. The
appellant-University was supposed to make retiral benefits as per their
regulations. The appellant vide communication dated 28.10.2003
(Annexure P-2)categorically informed the writ petitioners that they would
be paid leave encashment as per regulations of the University, however,
retiral benefits for the extended period of service would be paid in the light
of final order passed by Punjab and Haryana High Court in CWP No. 11465
of 2002 which was decided alongwith A.C.Julka (supra). The writ
petitioners never challenged the aforesaid communication and happily
accepted salary for the extended period as well retiral benefits which were
determined considering age of superannuation 60 years.
The writ petitioners at this belated stage cannot take a
somersault and claim benefits contrary to communication dated 28.10.2003
of appellant-University as well final order passed by this Court in CWP No.
11465 of 2002 which was decided alongwith A.C.Julka (supra). It would
be travesty of justice and undue advantage to writ petitioners, if they are
extended retiral benefits considering their age of retirement 62 years. It
would amount to indirect overruling of judgment of Co-ordinate Division
Bench of this Court in A.C.Julka (supra). We have no authority to act as
an appellate authority qua judgment passed by Co-ordinate Division Bench
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of this Court in A.C.Julka (supra). The writ petitioners are trying to take
undue advantage of findings of Hon'ble Supreme Court in Jagdish Prasad
Sharma (supra). From the perusal of judgment of Hon'ble Supreme Court
in Jagdish Prasad Sharma (supra) especially in the backdrop of the fact
that across the country teachers were permitted to continue beyond 60 years
and basis of their continuation was interim orders passed by Hon'ble
Supreme Court and different High Courts, it appears that Hon'ble Supreme
Court extended benefit of salary otherwise Universities could initiate
recovery proceedings as extension of service beyond 60 years was declared
unjustified and without authority of law.
20.5 A two Judge Bench of Hon'ble Supreme Court in State of U.P.
and another vs. Shiv Narain Upadhyaya (2005)6 SCC 49, while dealing
with question of dispute of date of birth recorded in service book has held
that employee would be entitled to salary for the services rendered beyond
the actual date of superannuation, however, the period beyond the actual
date of superannuation shall not be reckoned towards his retiral benefits.
The relevant paragraph read as follow:-
"Above being the position the High Court was clearly in
error in holding that the date of birth of the respondent-
employee was 1.9.1939, contrary to what has been
recorded in the service book. We find that the
respondent-employee had rendered service till the order
dated 31.1.1991 was passed. It would not be equitable to
direct refund of salary received by him upto 31.1.1991
beyond the actual date of superannuation i.e. 30.9.1990.
However, the period beyond the actual date of
superannuation i.e. from 30.9.1990 to 31.1.1991 shall
not be reckoned towards his retiral benefits."
The ratio of law laid down by the Supreme Court is directly
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LPA No. 1104 of 2017 (O&M) and connected cases -37-
applicable to the facts of the present case, thus, writ petitioners are not
entitled to retiral benefits for the period beyond the date of their
superannuation i.e. 60 years.
20.6 We are further in agreement with opinion expressed by a
Division Bench of Allahabad High Court in Dr. Shiv Singh (supra) where
the Court has held that petitioners are entitled for the salary for the period,
during which they have worked in view of the interim order granted by any
Court or by the Apex Court even after attaining the age of 62 years but their
post retiral benefits shall be calculated on the basis of salary drawn when
the petitioners attained the age of superannuation, i.e. 62 years.
21. In view of our above findings, we hereby hold:
(i)Appellant University is not liable to pay on account of leave
encashment as per Panjab University Act, 1947 and
Regulations made thereunder for the extended period of
service.
(ii)Writ petitioners are not entitled to claim any retiral benefit
on account of the services rendered beyond their age of
superannuation i.e. 60 years.
Accordingly, appeals of appellant-University are allowed and
appeals of writ petitioners are hereby dismissed.
(G.S.SANDHAWALIA) (JAGMOHAN BANSAL)
JUDGE JUDGE
28.9.2022
PARAMJIT
Whether speaking/reasoned : Yes
Whether reportable : Yes
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