PUNITA VERMA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner, who was a Lecturer in the 3rd respondent College seeks for a direction for release of her salary for the period from 1st August, 2002 to 31st May, 2003 when she had gone on study Leave to Germany and also seeks for the release of increment withheld by the respondents that fell due to the petitioner on 1st July. 2003. The basis of the claim for the petitioner is that under the Maharishi Dayanand University Calendar Volume 3 under Rule 29 and 30 a teacher on study leave was fully entitled to full pay last drawn including allowance for two years and his/her rejoining the service, would be eligible to the benefit of annual increments.

(2.) The response on behalf of the respondents No. 1 to 5 to this contention is that the University Rules are applicable only to teaching staff and non-teaching staff of persons working at the University and a Lecturer in a college affiliated to the University is governed by distinct Act and Rules. The Act is Haryana Affiliated Colleges (Security of Service) Act, 1979 and the Rules are The Haryana Affiliated Colleges (Security of Service) Rules. 1993 and 2006 (hereinafter called the 1993 Rules and 2006 Rules) and Haryana Affiliated Colleges Leave Rules. 2002. The Rules of the year 2006 were notified only on 13th June, 2006 and since we are considering the issue of the entitlement of the pay during the study leave and the increments that she ought to have drawn on return on duty for a period prior to the date of notification of the Rules 2006, we shall discard these Rules and referred to the Leave Rules of the year 2002 and the 1993 Rules. It is further contention on behalf of the respondents that the petitioner had specifically given an undertaking that she would not claim pay during the study leave and the study leave was accorded by the Managing Committee only after apprising her that the leave would be sanctioned only if she was prepared to forego leave salary. It is seen from the records placed by the petitioner hereself that when she applied for grant of one year study leave for doing research at Germany to the Principal, it had been forwarded to the governing body of the college which had allowed to her the study leave for the period from 1st August. 2002 to 31st July, 2003 subject to the condition that if any substitute was appointed against her workload, she would have to pay the salary to the substitute and no LWP (Leave with Pay) will be extended. The certificate, which had been granted on 30th September, 2005 also reports that the study leave was granted only without pay. In her own letter written from Germany on 19th September, 2002, when she was seeking for permission to apply to UGC for research fellowship for study in Germany, she has stated that if her request for grant of study leave is not approved with pay, then she would be content with study leave without pay. The Chairman has made an endorsement on the letter of the petitioner to the Principal that the college would not pay salary or allowances and would not treat the petitioner as on duty leave as desired by her. The petitioner has also given an undertaking on 26th September, 2002 (P-10) that she shall not claim any salary from the college for the period 2003 and 2004 and would agree to avail study leave without pay. She has stated in the undertaking that she would first apply to the University for grant of study leave with pay and if it was not approved by the University then she would be content with study leave without pay. The University responded to her letter dated 6th July, 2002 (Annexure P-5) that any plea for study leave shall be applied only to the governing body of the college. The Principal herself appears to have forwarded the application for study leave with pay to the Deputy Director. Office of the Higher Education Commissioner. Haryana but the Higher Education Commissioner has responded to the Principal stating that the petitioner would be allowed only leave to kind due and if no leave was due she could be sanctioned leave without pay from 1st June, 2003 to 30th September, 2004.

(3.) The petitioner has engaged the Commissioner. Directorate of Higher Education in communication on 14th February, 2005 requesting for grant of leave with pay and explaining the nature of course that she had undertaken on her return from Germany. A response had been given by the Higher Education Commissioner that there was no provision for providing to her leave with pay towards the higher research studies as per the Rules. There are subsequent communications also but I do not propose to dwell at length since ultimately the claim for the leave with pay obtains only through writ petition filed in the year 2008. The learned counsel appearing for the State adverts to the fact that 1993 Rules, which were applicable to the petitioner only provides through Rule 11 that employees shall be governed by the Leave Rules as laid down by the Government from time to time. This, according to the learned counsel. Shri Sharma would mean the applicability of Civil Service Rules as per the instructions issued by the Government of Haryana by its letter No. 11/99-ADU. 1(1) dated 8th January, 2000 in which the provisions regarding leave have been made in para 21. If the 1993 Rules merely provides for the application of the Rules as laid down by the Government, the learned counsel appearing for the petitioner would submit that the Government has not specifically set down any Rules till the year 2006 and therefore, it shall be wrong to assume that the Civil Service Rules would apply. I find that the language employed in Rule 11 is not happily worded but in the context in which it is used, it shall mean Leave Rules relating to service of Government servants. Between the year 1993 and 2006, there had been a hiatus and if 2006 Rules alone provided specifically the applicability of Leave Rules for private colleges it should only be assumed that the Government Service Rules would apply. Juxtaposing the Haryana Government Employees and Civil Service Rules with Rule 11 the learned counsel appearing for the State would refer to Rule 8.126 as governing the situation. Reference to study leave is as follows :