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CASE NO.: Appeal (civil)  853 of 2006

PETITIONER: Vice Chancellor, M.D. University, Rohtak

RESPONDENT: Jahan Singh

DATE OF JUDGMENT: 08/03/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       Respondent herein was appointed as a Reader in Physics in Maharishi  Dayanand University, Rohtak (hereinafter referred to as ’the University’).   His services were terminated during the period of probation by an order  dated 20.06.1979.  He questioned the legality of said order of termination in  a Civil Writ Petition before the High Court of Punjab and Haryana, but the  same was dismissed.   

It, however, appears that the respondent filed an application for his  appointment as a Reader in the University of Zambia.  The Zambia  University accepted the said offer on the conditions mentioned therein,  stating :         "If you are willing to accept the appointment  on the above terms, I shall be grateful if you will  sign and date all the enclosed copies of this letter,  signing also and dating one copy of the terms and  conditions of service sent herewith, and returning  to me all the enclosed copies of this letter and one  copy of the Terms and Conditions of Service  within thirty days of the date of this letter."

       Respondent accepted the said offer of appointment on 04.10.1983,  stating :         "I accept appointment on the terms set out in  this letter and in the document headed "Terms and  Conditions of Service for Academic Staff". I agree  to carry out such duties as are assigned to me from  time to time by the Vice Chancellor and the Dean  of the School of Natural Sciences."

       Although, the respondent was not in employment of the University he  purported to have filed an application for his reappointment in the post of a  reader of the University on 05.10.1983,  which was accepted on the same  day.                             

       The very fact that the respondent was appointed on the same day, as  on the date of filing of application, evidently no selection process was  undergone therefor.   He joined the services of the University on 05.10.1983.  He applied  for grant of extra-ordinary leave without pay for a period of two years, in  view of his assignment with the Zambia University and the Executive  Council of the University by a resolution dated 21.11.1983 acceded to the  said request.  On expiry of the said period of two years, he joined the  University again in August 1985.  He thereafter prayed for grant of  increments in the pay scale during the period he was on extra-ordinary leave.  

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The University referred the matter to the University Grants Commission,  which in terms of its letter dated 10.12.1987 opined that the matter was  within the domain  of  the  State Government, stating :

       "I am directed to refer to your letter No.ET- 2/87/13370 dated 21.9.87 on the above subject and  to say that being an administration matter of the  University. I am to request you to approach the  State Government/Department of Education in this  regard."                                                      The Executive Council, however, amended the resolution on   28.11.1990.                  The State Government, however, when approached refused to grant its  approval in terms of its letter dated 04.02.1992, stating :

       "Reference your letter No.ET-2/91/28102  dated 24.10.1991 on the above cited subject.

       The Govt. have observed the decision taken  by the Executive Council of M.D. University,  Rohtak under its Reso. No.13 dated 28.11.1990,  thereby proposing to grant the benefit of Extra  Ordinary Leave (maximum three years) towards  annual increments.  The Govt. have found that this  provision is contrary to the Govt. rules.  There is  no provision either in Govt. rules or in other  Universities in the State for granting this benefit to  the Govt./University employees. This proposal  shall create anomaly amongst the Govt. employees  and other University employees vis-‘-vis M.D.  University employees.  In view of these facts, the  University is requested to take immediate action in  canceling these facts, the University is requested to  take immediate action in canceling the decision  taken by the Executive Council under Resolution  No.13 dated 28.11.1990."                                   Yet again the respondent prayed for condonation of break in his  service with all resultant benefits, but yet again the State Government  conveyed its objection thereto.   

       However, despite the same, it appears, the Registrar of the University  by a letter dated 06.02.1995 conveyed to the respondent that the Vice- Chancellor had been pleased to count his extra-ordinary leave period when  he had worked with the University of Zambia from 30.11.1983 to  14.08.1985 towards annual increment.  It is, however, stated that the said  resolution of the Executive Council and/or the said letter was not acted upon,  inter alia, on the premise that being not in tune with the extant regulations.   The matter was referred to the State Government and by reason of a letter  dated 26.05.1997 it conveyed its objections thereto.   

       Respondent was apprised of the decision of the University that his  request for increments during the period of extra-ordinary leave had not been  acceded to by the University by a letter dated 15.04.1998.  A writ petition  came to be filed by the respondent, which was dismissed by a learned Single  Judge of the High Court by an order dated 09.10.2001.  However, on an  intra-court appeal filed by the respondent, a Division Bench of the said High  Court allowed the same by a judgment and order dated 29.11.2004.

       Appellant is, thus, before us.

       Mr. Nidesh Gupta, the learned counsel appearing on behalf of the  appellant, would submit that in term of the extant rules, the respondent was

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not entitled to annual increments during the period of leave.

       Respondent who appeared in person, on the other hand, would submit  that the Executive Council having amended the relevant regulations with  retrospective effect, he would be deemed to have been continuing in service  since 1977 and in that view of the matter, no illegality has been committed  by the High Court in directing grant of increments in his favour during the  period he was serving the Zambia University.     

       It was furthermore submitted that in a similar matter involving one  Satpal Taneja, the University had granted such increments.  Respondent  would contend that merely a sum of Rs. 388/- was paid to him by the  University and the rest of the amount is yet to be paid, whereas in the case of  the said Satpal Taneja, the entire amount had been paid.

       The fact that the services of the respondent were terminated during his  period of probation is not in dispute.  He, therefore, on or about 27.09.1983  was not in the services of the University.  He furthermore, as noticed  hereinbefore, neither applied for his appointment with the University of  Zambia himself or not through the University, nor was it legally permissible  as he was not in service at the relevant point of time.  It is also not in dispute  that before the respondent was reappointed by the University on  humanitarian ground or any other ground as a Reader therein, a contract of  service subject to fulfillment of certain terms and conditions between the  respondent and the University of Zambia came into being only thereafter.  The appointment of the respondent would be treated to be a fresh  appointment and not a continuing one.   His services having been terminated  during the period of probation, even no re-appointment was permissible in  law. In the aforementioned factual backdrop, the legal questions raised  before us are required to be considered.  The University is a creature of  statute.  It was created under the Maharishi Dayanand University Act, 1975  (for short, ’the Act’).    The said Act provides for the regulations making  power.  The University framed leave regulation.  Regulation 26(i)(c) deals  with extra-ordinary leave, which reads as under :

"(i)    An employee (whether permanent or  temporary) may be granted extra ordinary  leave by the competent authority.                  a)      when no other leave is admissible; or

b)      when other leave is admissible, the  employee applies in writing for the  extra ordinary leave for any special  reason.

ii)     Extra ordinary leave shall be without pay  and allowances. However, House Rent  Allowance will be admissible for a period  not exceeding first four months at the rate at  which an employee was drawing before  proceeding on such leave provided he has  not been in employment elsewhere during  that period.  The leave shall not ordinarily  exceed one year at a time.

       Extraordinary leave shall not count for  increment, except in the following cases :-

a)      The sanctioning authority is satisfied  that such leave was taken by an  employee on account of illness or for  any other cause beyond his control  provided that employee has no other  kind of leave to his credit;

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b)      Leave is granted for the purpose of  higher studies and research; and

c)      Leave is granted to accept an  invitation to a teaching post or  fellowship or research-cum-teaching  post or academic work of importance.   Provided that the maximum total  period for which such leave is granted  shall not ordinarily exceed three years  and in exceptional cases such leave  may be extended so that the total  period of leave, during the whole  tenure of service of an employee does  not exceed five years."                                  Clauses (a) and (b) of Regulation 26 (ii)(c) are not attracted herein.   Clause (c), according to the respondent, is attracted in the instant case.

       However, before proceeding to consider the matter further, we may  notice that the said regulation was purported to have been amended with  retrospective effect on the following terms :

       "Considered the following amendment in  Clause 26) of ’Leave Regulations’ appearing at  pages 159-60 of M.D. University Calendar  Volume-III :-

PRPOSED Leave is granted to accept an  invitation to a teaching post or  fellowship or research-cum-teaching  post or an assignment for  administrative or technical or  academic work of importance.   Provided that the maximum total  period for which such leave is granted  shall not ordinarily exceed three years  and in exceptional cases such leave  may be extended so that the total  period of leave, during the whole  tenure of service of an employee does  not exceed five years.  Provided  further that the benefit of increment  for a period upto three years of extra- ordinary leave may be allowed for  accepting such assignments and for  the purpose of higher studies and  research anywhere in India or abroad.                          The word ’Invitation’ of the  above rule may include both a direct  offer sent by the host institution and  any offer received in response to an  application, bio-data sent by the  employee through the University to  any institution in India or abroad."

RESOLVED that the above amendment be  approved.

FURTHER RESOLVED that the amended  provision would take retrospective effect and  would be applicable to both teaching and non- teaching employees who undertake administrative/

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teaching assignment anywhere in India or abroad."  

       The Act does not confer any power on the Executive Council to make  a regulation with retrospective effect.  The purported regulations, thus, could  not have been given retrospective effect or retro-active operation as it is now  well-settled that in absence of any provision contained in the legislative Act,  a delegatee cannot make a delegated legislation with retrospective effect.         In Mahabir Vegetable Oils (P) Ltd. and Another v. State of Haryana  and Others [(2006) 3 SCC 620] this Court stated; "41. We may at this stage consider the effect of omission  of the said note. It is beyond any cavil that a subordinate  legislation can be given a retrospective effect and  retroactive operation, if any power in this behalf is  contained in the main Act. The rule-making power is a  species of delegated legislation. A delegatee therefore  can make rules only within the four corners thereof. 42. It is a fundamental rule of law that no statute shall be  construed to have a retrospective operation unless such a  construction appears very clearly in the terms of the Act,  or arises by necessary and distinct implication. (See West  v. Gwynne) 43. A retrospective effect to an amendment by way of a  delegated legislation could be given, thus, only after  coming into force of sub-section (2-A) of Section 64 of  the Act and not prior thereto."

       See also MRF Ltd., Kottayam v. Asstt. Commissioner (Assessment)  Sales Tax and Others [(2006) 8 SCC 702]

       In any event, the said purported resolution appears to be vague,  inasmuch as it does not lay down as to from which date, the said amended  regulation would come into effect.

No retrospective operation could also be given having regard to the  fact that thereby the rights of other employees of the University could not  have been taken away.  It is not in dispute that other teachers of the  University have been given promotion.  Respondent would be entitled to be  promoted only in the event his break in his service is condoned and the  increments as prayed for by him for the period during which he was working  with the Zambia University may be granted and not otherwise.

       Furthermore, the State has declined to grant such benefits to the  respondent.  It was on that premise the purported offer made by the  University was recalled.   The same, therefore, cannot be said to be arbitrary  in nature.

       In terms of the original Regulation 26(ii)(c), leave was to be granted  on an invitation to a teaching post.  No such invitation was made to the  respondent.  He applied for his appointment with the Zambia University  himself.  Even assuming that the amendments made in the regulation is  valid, the extended meaning of ’invitation’ would also have no application in  the fact of the present case.  By reason of the said amendment, invitation  may include both the direct offer or any offer received in response to an  application, but indisputably such an application or bio-data must be sent by  the employee through the University to an institution in India or abroad.  As  the respondent was not in the service of the University before he had made  such an application, a’ fortiori the question of the respondent’s application  being sent by the employee through the University did not and could not  arise.   

       Our attention has been drawn to a decision of this Court in State of  U.P. and Another v. Jogendra Singh and Another [(1998) 1 SCC 449], which  deals with payment of retiral benefits.  The said decision has, however, been

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relied upon for the proposition that all laws are prospective unless made  retrospective either expressly or by necessary implication.

       We have noticed hereinbefore that the retrospective operation  purported to have been given by the Executive Council is ultra vires the Act.           So far as the case of Satpal Taneja is concerned, the same stands on a  different footing.  W do not intend to dilate on the said question in details as  the learned Single Judge in his judgment pointed out the case of the  respondent viz.-e-viz. Mr. Taneja at some length.   We agree therewith.         Even assuming the respondent and the said Shri Taneja were similarly  situated, we may observe that Article 14 of the Constitution of India carries  with it a positive concept.  Article 14 of the Constitution cannot be invoked,  for perpetuating illegality.   {See Kuldeep Singh v. Govt. of NCT of Delhi  [(2006) 5 SCC 702 ]}

       We, therefore, are of the opinion that the Division Bench of the High  Court was not correct in interfering with the judgment of the learned Single  Judge as the case of the respondent is not even covered by the said  regulations.

       For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly and that of the learned  Single  Judge is restored.  The appeal is allowed.    

However, if any amount has been paid to the respondent by the  University, the same may not be recovered from him.