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Judgment
Heard learned counsel for the petitioner and Patna University.
The petitioner has moved the Court for the following reliefs:
“That the present writ application is for issuance of an appropriate writ/writs directing the respondent authorities of the Patna University
to pay admissible dues of unutilized earned leave amount along with interest to the petitioner, due to be paid after grant of voluntary
retirement vide order dated 01/02/14, w.e.f. 14/08/13.â€
The petitioner joined as a Lecturer in Physics in B.N. College, Patna under notification dated 11.11.1975 and his service was confirmed on
23.02.2018. Though, initially confirmation was from the date of initial joining, the same was later on clarified that the service stood confirmed from
23.02.1981. He kept getting the benefit of his service in the form of promotion etc. The petitioner sought voluntary retirement on 14.08.2013, which
was granted with effect from the same day by order dated 29.04.2014. However, in the said notification, it was specifically mentioned that the order
was under Section 64(c)(i) and (ii) of the Patna University Act, 1976 (hereinafter referred to as the ‘Act’). Such incorporation of Section 64(c)
(ii) of the Act in the order dated 29.04.2014 is under challenge by the petitioner in C.W.J.C. No. 20464 of 2014, which is still pending. In the
meantime, the petitioner has also moved this Court seeking a direction for payment of unutilized earned leave.
Learned counsel for the petitioner submitted that the request for voluntary retirement having been granted to the petitioner, he is entitled to full post
retiral benefits including encashment of unutilized earned leave. It was submitted that the rest of the entitlements have been paid except for payment
under the present head. Learned counsel referred to a decision of a co- ordinate Bench of this Court dated 13.02.2015 in C.W.J.C. No. 2317 of 2014
in the case of M.M. Patnaik vs. Patna University and Ors., where the person had also taken voluntary retirement, when he was denied encashment of
his earned leave, purportedly under the provisions of Section 24(e) of the Statute relating to General Conditions of Service of Employees of the Patna,
Bihar, Ranchi, Bhagalpur, Magadh, L.N. Mithila and K.S.D. Sanskrit Universities, as approved by the Chancellor on 20.09.1980, has been held not to
disentitle a person, who has been granted voluntary retirement, from encashment of his unutilized earned leave. It was submitted that the University
has accepted the decision in the case and has also paid the amount to the person concerned and the matter, thus, has attained finality. Learned counsel
submitted that the University taking a different stand in the case of the present petitioner is clearly discriminating against him, which is impermissible.
He has also relied upon a decision of the Hon’ble Supreme Court in the case of Official Liquidator vs. Dayanand reported as (2008) 10 SCC 1,
for the proposition that if a Bench of co-ordinate jurisdiction disagrees with another Bench of co-ordinate jurisdiction, whether on the basis of different
arguments or otherwise, on the question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to
leave two conflicting judgments to operate, creating confusion as it is not proper to sacrifice certainty of law.
Learned counsel for the Patna University took the stand that in view of the provisions of Clause 24(e) of the aforesaid Statute, the petitioner not
having retired from service of the University on attaining the age of superannuation is not entitled for encashment of unutilized earned leave. He
further submitted that even after the judgment of the Court in the case of M.M. Patnaik (supra), a similarly situated person namely, Dr. Ajay Chandra
Sinha has been refused such payment under order dated 27.09.2012. He further pointed out that initially the request of the petitioner was accepted and
he was granted voluntary retirement with effect from 14.08.2013 under Section 64(c)(i) of the Act by order dated 31.01.2014, but subsequently
another notification was issued on 29.04.2014 in which it was mentioned that such voluntary retirement with effect from 14.08.2013 was being passed
under Section 64(c)(i) and (ii) of the Act. It was, thus, submitted that finally the voluntary retirement has been granted under both the aforesaid
Sections 64(c) (i) and (ii) of the Act.
Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court would recapitulate what it
had observed in the order dated 09.05.2018 relating to the decision in the case of M.M. Patnaik (supra), which is reproduced hereinbelow for ready
reference:
“4. Though, learned counsel for the petitioner has relied upon a decision of a co-ordinate Bench of this Court dated 13.02.215 in
C.W.J.C. No. 2317 of 2014 in the case of M.M. Patnaik vs. Patna University and Ors., perusal of the same discloses that the Court was
persuaded to read the word “superannuation†in Clause 24(e) (v) and interpreting that the same was wide enough to include any
person as also those who take voluntary retirement. The Court with due respect and all humility, is unable to accept the reasoning, for the
language of the Statute is absolutely clear and without any ambiguity. When the Statute provides that payment for the period of unavailed
earned leave shall apply to those employees who retired from service of the University on attaining the age of superannuation, it is clear
that only if a person who superannuates,having attained the age of superannuation, would be entitled, the Court would not expand the
scope or put words in the Statute which clearly do not exist.â€
For proper consideration of the issue, Section 64 of the Act and Clause 24 of the Statute is relevant and for the sake of convenience are reproduced
hereinbelow;
Section 64 of the Act “xxxxx
Retirement from service.-[(a) Notwithstanding anything to the contrary contained in any Act, Rules, Regulation, Statutes or Ordinance,
the date of retirement of a teaching employee of the University or of a College shall be the date on which he attains the age of sixty two
years. The date of retirement of a teaching employee will be the same which would be decided by the University Grant Commission in future.
The date of retirement of non-teaching employee (other than the inferior servants) shall be the date on which he attains the age of sixty two
years:
Provided that the University shall, in no case, extend the period of service of any of the teaching or non-teaching employee after he attains
the age of sixty two years, as the case may be:
Provided further also that re-appointment of teachers after retirement may be made in appropriate cases up to the age of sixty five years in
the manner laid down in the statutes made in this behalf in accordance with the guide lines of the University Grants Commissionâ€.
(b) The University may require any teaching or non-teaching employee, who, reckoned from the date of his first appointment, has completed
the qualifying service of 23 years or a total service of 27 years, to retire from the University service, if it considers that his conduct or
efficiency is such as does not justify his continuation in the service.
(c) (i) Notwithstanding anything contained in the preceding sub-sections any teaching or non-teaching employee may, after giving at least
three months prior notice in writing to concerned appointing authority, retire from such date on which such a teaching or non-teaching
employee has completed 32 years of qualifying service or has attained 52 years of age or from such date thereafter as may be specified in
the notice:
Provided that no employee of the University under orders of suspension shall retire except without a specific approval of the Syndicate.
(ii) The University may, in the public interest, require any teaching or non-teaching employee, after giving at least three months prior notice
in writing or after paying an amount equivalent to pay and allowances of three months in lieu of such notice, to retire from such date on
which he completes 32 years of qualifying service or attains 52 years of age, or from such date thereafter as may be specified in the notice.
xxxxxâ€
Clause 24 of the Statute “ xxxxx
LEAVE SALARY
(24) (a) A University servant on earned leave will be entitled to leave salary at a uniform rate equal to the average monthly pay earned
during twelve complete months preceding the month in which the leave commences.
(b) A University servant on half pay leave or leave not due will be entitled to leave salary equal to half the leave salary admissible on
earned leave.
(c) A University servant on commuted leave will be entitled to leave salary equal to twice the amount admissible under Clause (b) above.
(d) A University servant on extra ordinary leave is not entitled to any leave salary, except when he takes such leave for purpose of study, in
which case the Syndicate may grant leave salary equal to half the salary admissible on earned leave, provided the total period of leave does
not exceed three years.
(e) The University employees on superannuation or death in active service shall get the amount equal to leave salary of the period of
unavailed earned leave subject to the following conditions.-
(i) The amount of leave salary will be limited to the unavailed earned leave not exceeding 180 days.
(ii) The leave salary will be paid in one lump at the time of retirement.
(iii) The dearness allowance will be paid equal to the amount of D.A. payable for the period concerned at the time of retirement. The city
allowance and the house rent will, however, not be paid alongwith the leave salary.
(iv) The authority competent to sanction earned leave shall sanction such leave salary on superannuation.
(v) The above provisions shall apply to those employees who retire from the service of the University on attaining the age of superannuation
or on after 30-09-1977.â€
xxxxxâ€
Having regard to the aforesaid, the Court would observe that encashment of earned leave does not flow from any fundamental right guaranteed
under the Constitution, to any employee. Such benefit is by way of incentive and only under a policy of the employer towards its employee, which in
the present case is circumscribed by Clause 24 of the aforesaid Statute, which deals with leave salary. Thus, when the Statute restricts such
payment/encashment of earned leave to persons, who died in active service or retire from service of the University on attaining the age of
superannuation on or after 30.09.1977, the Court would not import its view or read something further into it or include any category which is not
present in the provision of such Statute. Had the word ‘superannuation’ not been qualified by the words ‘on attaining the age of’, the
matter would have been different and then, probably any type of ‘superannuation’, including ‘voluntary retirement’ would be open to
similar treatment regarding payment/encashment of unutilized earned leave.
In the present case, when the Statute is explicit and with the further settled principle of interpretation that every word is required to be given its due
and full meaning and when the words are clear and without any ambiguity and leave nothing to be interpreted or clarified, the import of the words
‘the above provisions shall apply to those employee who retire from the service of the University on attaining the age of superannuation on or after
30.09.1977’, the legislative intent is clear that such benefit is restricted to such category of persons who retired on attaining the age of
superannuation and not who superannuate or retire prior to attaining such age of superannuation. In the present case, it is an admitted position that the
petitioner was granted voluntary retirement much prior to the age on which he would have retired on attaining the age of superannuation. Thus, this
issue, in the considered opinion of the Court, does not require any elaborate discussion or consideration, for the language of the Statute itself is crystal
clear. This is the opinion of the Court on the aforesaid issue. However, as has rightly been pointed out by learned counsel for the petitioner that judicial
parity should be maintained as has also been held by the Hon’ble Supreme Court in the case of Official Liquidator (supra), the Court deems it
appropriate to refer the matter to the Division Bench for consideration of the issue.
Accordingly, the matter be placed before Hon’ble the Chief Justice for being heard by a Division Bench. Let a complete set of pleadings be
filed by learned counsel for the petitioner for use by the Division Bench, within one week from today.