Allowed

Dr.Banamali Mohanty v. State and Ors.

Orissa HC9 May 2024WP(C)/3276/2014

Case brief

AI extract

What is this about?

The High Court allowed the writ petition of a retired professor, directing the university authorities to grant him earned leave encashment for roster duty performed during vacation. The Court held that UGC Leave Rules entitled him to such leave and that denying it while granting it to others violated Article 14. Audit objections were waived.

What did the court decide?

Direction issued to the University Authorities to allow encashment of leave salary and other dues admissible under Rule 5(I)(b) of the UGC Leave Rules within six weeks.

Dr.Banamali Mohanty Vs State and Ors. — Pension and Retirement Benefits | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). No. 3276 of 2014

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(An application under Article 226 & 227 of the Constitution of India)

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Dr . Banamali Mohanty ...… Petitioner

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-Versus-

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State of Odisha and others .... Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Mr.P.K.Das, Advocate. For Opp. Parties : Mr. S.N.Pattnaik, Additional Government Advocate, Mr. T.P.Acharya, Advocate (For O.P. Nos. 2 to 4)

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CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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9^th May, 2024

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SASHIKANTA MISHRA, J.

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. The petitioner has approached this Court

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with the following prayer;

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“ It is therefore humbly prayed that this Hon’ble Court may kindly be pleased and be gracious enough to issue “Rule Nisi” calling upon the opposite parties to show cause or show insufficient cause then make the rule absolute;

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And be pleased to issue a writ of certiorari and quash the letter dt. 19.02.2013 under Annexure-2 series and letter No.18298 dt. 06.07.2013 under Annexure-5 series and issue a writ of mandamus directing the opposite parties to consider his last representations dt. 16.11.2013 under Annexure-7 and dt. 20.12.2013 under Annexure-8 and allow encashment of leave salary and other dues for 152 days unutilised earned leave outstanding towards roster duty performed during vacation, while in service, within a stipulated period with interest and litigation cost. And be pleased to pass any other order/orders as deem fit and proper;

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And for which act to kindness, the petitioner as in duty bound shall ever pray.

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Heard Mr. P.K.Das, learned counsel for the

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petitioner, Mr. S.N.Pattnaik, learned Additional Government Advocate for the State and Mr. T.P. Acharya, learned counsel appearing for the University.

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Though this case has been pending for nearly 10 years, the point of law involved is rather short. The petitioner retired on attaining the age of superannuation as Professor Post Graduate Department of Psychology in Utkal University on 31.01.2008. By such date, he had rendered 34 years of service. He was paid his retirement benefits but Earned Leave Encashment was not allowed. Ultimately, he was allowed to encash 129 days of Unutilised Earned Leave in lieu of salary and permissible allowances vide order dated 14.11.2012 of

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the Registrar of the University. The petitioner’s grievance is that having performed roster duty during vacation for 457 days during his service career, he is entitled to Earned Leave on such count, calculated at the rate of the one third of such period. In other words, he is entitled to Earned Leave Encashment for performing roster duty during vacation for 152 days. He submitted several representations to the University Authorities but no action was taken.

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Counter Affidavit has been filed by the University Authorities (Opposite Party Nos. 2,3 & 4). In the Counter Affidavit so filed, the relevant facts have not been disputed. Significantly, under Paragraph 11 it is stated as follows:

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“ That as regards the averments made in Paragraph 15 of the writ petition it is submitted that statute 282 of OUFS 1990, that prescribe to follow the Orissa Leave Rules 1966 in case of University employee has so far not been amended to accommodate the UGC prescribed leave Rules.

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This fact is also evident from the UGC letter annexed as Annexure-9 to the writ petition. Hence the petitioner’s claim for calculation of E.L. in lieu of roster duty as per UGC leave rules is misconceived and is not available to be granted.

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The University has already disbursed his leave salary for 129 days as per audit recommendation. If the State Government passes an order in favour of the claim of the writ petitioner, the University will not delay for

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payment of balance amount if any of earned leave in lieu of roster duty .”

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Further, copy of letter dated 17.01.2008 of the Registrar, addressed to the Government, in the department of Higher Education is also annexed as Annexure-B/2 to the counter. In the said letter, reference has been made to the UGC Leave Rules for Teachers of University as per which Earned Leave to the extent of one third of the period spent on roster duty during vacation is admissible. It is further stated that the Government has been requested to submit necessary clarification whether teachers performing roster duty during the vacation prior to 1996 would be so eligible. This letter was followed by a reminder on 26.05.2008, copy of which is enclosed as Annexure-C/2. No action whatsoever appears to have been taken on such letters of the Registrar.

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It is submitted that the University Authorities, on application submitted by the petitioner informed that the prayer of the petitioner would be considered only after receipt of the decision of the Government. The petitioner then submitted a representation addressed to the Principal

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Secretary, Higher Education Department on 20.12.2013. Said representation is also pending.

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From the facts narrated in the writ application, which have not been controverted or denied in the counter, it appears that the claim of the petitioner of having performed roster duty for 457 days during vacation is also admitted. The Leave Rules prescribed by UGC under Paragraph 5 provides as follows:

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“ 5. Earned Leave

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(i) Earned leave admissible to a teacher shall be:

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(a) 1/30^th of actual service including vacation: plus

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(b) 1/3^rd of the period, if any, during which he/she is required to perform duty during vacation. NOTE:

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For purpose of computation of period of actual service, all periods of leave except casual, special casual and duty leave shall be excluded.

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(i) Earned leave at the credit of a teacher shall not accumulate beyond 300 days. The maximum earned leave that may be sanctioned at a time shall not exceed 60 days. Earned leave exceeding 60 days may, however, be sanctioned in the case of higher study, or training, eave with medical certificate, or when the entire leave, or a portion thereof, is spent outside India. Note-1.

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When a teacher combines vacation with earned leave, the period of vacation shall be reckoned as leave in calculating the maximum amount of eave on average pay which may be included in the particular period of leave.

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Note-2.

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In case where only a portion of the leave is spent outside India, the grant of leave in excess of 120 days shall be subject to the condition that the

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portion of the leave spent in India shall not in the aggregate exceed 120 days. Note-3. Encashment of earned leave shall be allowed to non-vacation members of the teaching staff as applicable t the employees of Central/State Governments.”

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Therefore, ordinarily there should be no legal impediment in granting the benefit of Earned Leave as provided by the Rules. In course of hearing, Mr. Dash, learned counsel for the petitioner submits that several similarly placed Professors have been granted the benefit after their retirement, the details of whom have been mentioned in Paragraph 12 of the writ application. Said fact has also been brought to the notice of the authorities by the petitioner in the representation submitted by him. This averment has not been specifically denied by the University Authorities. It is surprising that despite request made by the Registrar to the Government seeking necessary clarification as far back as in the year 2008 as also of the petitioner making a representation in the year 2013, no action whatsoever has been taken in this regard by the Government. This gross inaction is unconscionable in the eye of law particularly, when one

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considers that this is case of a long retired Teacher of the University who is seeking his legitimate financial benefits.

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Considering the undisputed position regarding performance of roster duty by the petitioner during vacation for 457 days, this Court holds him entitled to Earned Leave as provided under Paragraph 5 (i)(b)of the UGC Rules. Since at least six professors mentioned under Paragraph 12 of the writ application have undisputedly been given the benefit, depriving the petitioner of the same would amount to gross discrimination and thereby contravene the principles of equality enshrined under Article 14 of the Constitution of India.

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It is also submitted by leaned counsel appearing for the University that because of objections by the Audit also, the benefit could not be granted to the petitioner. This Court is unable to accept the contention as above for the reason that if such was the case then the Registrar could not have sought for clarification from the Government without mentioning anything about the Audit Report. Even otherwise, it is trite that the Audit objections are not the last word in the matter

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and this Court finds no evidence of any further action being taken pursuant to such objections therefore, such objections need to be waived.

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For the foregoing reasons therefore, the writ application is allowed by directing the University Authorities to allow encashment of leave salary and other dues of the petitioner as admissible under Rule 5 (I)(b) of the UGC Leave Rules mentioned above. Since the petitioner is a retired employee, and is said to be presently aged about 76 years, this order shall be carried out as early as possible, preferably within six weeks from the date of production of certified copy of this order.

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……..…………………..

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Sashikanta Mishra, Judge

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Orissa High Court, Cuttack, The 9^th May, 2024/ Deepak

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Signature Not Verified

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Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 13-May-2024 18:06:49

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Dr.Banamali Mohanty v. State and Ors.

Case brief

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Dr.Banamali Mohanty v. State and Ors.

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