IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.6.2011 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.3771 of 2011 Dr.S.Bhuvaneswari .. Petitioner -vs- 1. The Chairman, Pondicherry Institute of Post Matric Technical Education Pondicherry-1 2. The Member-Secretary, Pondicherry Institute of Post Matric Technical Education, Pondicherry-1 3. The Registrar, Pondicherry University, R.V.Nagar, Kalapet, Pondicherry-14 4. The Principal, Karaikal Polytechnic College, Varichikudy, Karaikal (R4-impleaded as per order dated 14.03.2011 in M.P.No.2 of 2011) .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the impugned order dated 05.03.2011 bearing Ref.No.KPTC/Estt/A1/ 2011/1953 passed by the fourth respondent herein and quash the same and consequently direct the respondents to relieve the petitioner from the post of Senior Lecturer (Physics) at the Karaikal Polytechnic College, Karaikal, in accordance with the rule 63 of CCS (Leave ) Rules, 1972. (Prayer amended as per order dated 14.03.2011 made in M.P.No.3 of 2011) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.G.K.Ilanthirayan For M/S.Sai Bharath & Ilan For Respondents : Mrs.A.V.Bharathi for R3 Mr.T.P.Manoharan for R1 & R2 O R D E R The petitioner has filed the present writ petition seeking for a direction to the first and second respondents to relieve her from the post of Senior Lecturer (Physics) at the Karaikkal Polytechnic College, Karaikkal in accordance with Rule 63(3) of CCS (Leave) Rules, 1972. 2. When the writ petition came up on 17.2.2011, this Court directed Mrs.A.V.Bharathi, standing counsel for the third respondent University to take notice and in respect of respondents 1 and 2, private notice was ordered. On such notice, Mr.T.P.Manoharan, learned counsel took notice for respondents 1 and 2. On 08.3.2011, In view of the urgency of the situation, this Court passed the following order:- ''Though initially the writ petition was filed for relieving the petitioner from the post of Lecturer (Physics) at Karaikal Polytechnic College, Karaikal, subsequent to the filing of the writ petition, the respondents have passed the order dated 5.3.2011 refusing to relieve her on condition that she should pay Rs.31,84,919/- which according to them is the payment of salary as well as the condition of bond. 2. Learned counsel for the petitioner states that the last date for joining is coming to an end and she will lose further opportunity to serve the University. 3. Mr.A.V.Bharathi, learned counsel appearing for the Pondicherry University would submit that without N.O.C. and without the relieving order from the college, the petitioner cannot be admitted. It is under the circumstances, the counsel for the petitioner seeks further time to file amendment application. 4. In view of the fact that the last date for the petitioner to join the University is coming to close, an interim direction will be issued to the third respondent to Pondicherry University to admit the petitioner, pending further orders. 5.The petitioner is directed to file appropriate amendment application on or before 14.3.2011. https://hcservices.ecourts.gov.in/hcservices/ 3. This order was challenged by way of appeal and the Division Bench, by order dated 10.3.2011, disposed of the writ appeal in W.A.No.444 of 2011, by passing the following order:- ''We have heard the learned counsel appearing for the parties and perused the interlocutory order passed by the learned Single Judge in a petition bearing M.P.No.1 of 2011 in W.P.No.3771 of 2011, dated 08.3.2011. 2. The learned counsel appearing for the first respondent submitted that pursuant to the interim order, dated 08.3.2011, the first respondent joined duty as Reader in the second respondent University on 09.3.2011. 3. In the aforesaid premises, as agreed to by the learned counsel for the first respondent/writ petitioner to deposit a sum of Rs.5,86,167/-, being the pay and allowances paid during study leave from 01.10.2006 to 30.9.2008, we direct the first respondent/writ petitioner to deposit the said amount within a period of ten days from today. It is also made clear that in the event the first respondent/writ petitioner fails to succeed in the writ petition, she will undertake to repay the pay and allowances amounting to Rs.25,98,752/-. On the deposit being made by the first respondent/ writ petitioner as aforesaid and the undertaking given by her, the appellants shall issue a formal relieving order. 4. The writ appeal is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. There will be no order as to costs." 4. Thereafter, the petitioner filed M.P.Nos.2 of 2011 and 3 of 2011 seeking to implead the Principal of the Karaikkal Polytechnic College and to amend the prayer in the writ petition respectively. Both the applications were ordered by this Court on 14.3.2011. By the amended prayer, the petitioner sought to quash the order dated 05.3.2011 passed by the fourth respondent Polytechnic and to further direct the respondents to relieve the petitioner from the post of Senior Lecturer (Physics) at the Karaikkal Polytechnic College in accordance with Rule 63 (3) of the CCS (Leave) Rules, 1972. 5. On behalf of respondents 1 and 2, a counter affidavit dated 2.3.2011 was filed. The fourth respondent has filed an independent counter affidavit dated 28.3.2011. 6. Heard the arguments of Mr.G.K.Ilanthirayan for M/s.Sai, Bharath and Ilan and Mr.T.P.Manoharan for Respondents 1, 2 and 4 and Mrs.A.V.Bharathi for the third respondent university. https://hcservices.ecourts.gov.in/hcservices/ 7. The facts leading to the filing of the case are as follows:- The first and second respondents, viz., the Pondicherry Institute of Post Matric Technical Education, Puducherry (for short ‘PIPMATE’) is a registered society started for the purpose of imparting Post Matric Technical Education in the Union Territory. In the said society, there are four Polytechnic Colleges situated in four different regions of the Union Territory. The teachers and other employees working in the polytechnics were governed by the Service Rules framed by the Government of Puducherry and the petitioner joined as a Lecturer in Physics on 24.11.1994. She was working as a Lecturer (Senior Scale) in the Indira Gandhi Polytechnic College, Mahe. On 28.6.2006, she requested the first respondent to forward her application to Join Smt.Indira Gandhi College at Tiruchirapalli to pursue her Ph.D.Programme in Computer Networks and she wanted to avail study leave for 24 months from 01.10.2006 to 30.9.2008. 8. As per the norms of the AICTE, possession of a Masters Degree or Ph.D. in teaching faculty is a pre-requisite for getting selection lecturer scale. Under the Career Advancement Scheme, the PIPMATE also provides 15% of the sanctioned faculty to go for study leave to acquire higher qualification. On 03.7.2002, the governing body of the PIPMATE took certain decision and issued guidelines for allowing candidates to pursue higher education. By that decision, it was stated by them that the teachers who are availing study leave must execute a bond for 5 years instead of 3 years and if any teacher who wants to resign the job before completion of the bond period can do so only after collecting the amounts from the teacher, which includes the salary paid for the entire period of study leave and also the pay and allowances for the unexpired portion of the bond period. The petitioner executed a bond and was granted permission to avail the Ph.D. programme. She was given leave from 01.10.2006 to 30.9.2008. She also executed a bond agreeing to refund the entire expenditure incurred by the Indira Gandhi Polytechnic at Mahe. The bond prescribed in Form No.9 required under Section 53(4) of the CCS (Leave) Rules, 1972 was also executed. She also undertook that she will add value to the academic upliftment of PIPMATE. 9. The petitioner after accepting the terms, underwent the course. Even during her leave period, she was promoted to the post of Senior Lecturer on regular basis and was posted to work in the fourth respondent college at Karaikkal. The petitioner after completion of Ph.D. course rejoined duty as Lecturer on 01.10.2008 and was working in the promoted post with effect from 09.10.2008. As per the bond executed by her, she was to work from 01.10.2008 till 01.10.2013. 10. The petitioner on coming to know an advertisement published by the third respondent university seeking for application to the posts of Professor and Associate Professor, requested her two https://hcservices.ecourts.gov.in/hcservices/ applications to be forwarded to the University. She also enclosed two undertakings that she will abide by the Rules of PIPMATE Society Associate Professors and Professors in Pondicherry University and that she would refund the entire expenditure incurred on her behalf. The petitioner’s application was forwarded to the third respondent. The petitioner got a call letter on 15.11.2010 for interview to the post of Reader. She also requested for NOC to attend interview on 27.11.2010. The PIPMATE also gave NOC on 23.11.2010. The petitioner was selected for the post of Reader (Associate Professor) in Computer Science and she was asked to join duty within 30 days along with the relieving order. The petitioner sent a resignation letter. But, however, the first respondent informed the fourth respondent college that they should collect the amounts from the petitioner before accepting her resignation and, therefore, she was directed to refund the following amounts:- ''......(i) Refund a sum of Rs.3,26,626/- (approximately) towards the leave salary received by her during study leave period from 1.10.2006 to 30.09.2008 and (ii) pay Rs.24,28,080/- (approximately) towards the pay and allowances for the unexpired portion of Bond Period i.e. from 01.02.2011 to 01.09.2013 i.e. in total Rs.27,54,706/- to the PIPMATE. Further, I have also stated that she is entitled to a sum of Rs.7,22,738/- towards the VI Pay Commission Salary arrears from 08.10.2008 to 31.08.2010. The PIPMATE has to pay the same to her as and when the said arrears are paid to others." She was also informed about the dues payable by the College towards arrears of VI Pay Commission re-fixation of salary. 11. The petitioner sent a letter to PIPMATE stating that they should waive the condition of bond as was done in the case of one Lakshmi and the same was not forthcoming. The writ petition came to be filed and the orders noted above came to be passed. The petitioner after fulfilling the condition imposed by the Division Bench had also joined the third respondent university. 12. The only question that has to be decided in the present case is whether the petitioner has to fulfill the obligations found in the bond by refunding the amounts noted above. 13. It is no doubt true that the petitioner had been sent for higher studies by grant of study leave and the petitioner had acquired Ph.D. Degree. She had also executed the bond. The source of power for the bond is now being stated as part of the Central Civil Services Study Leave Rules. Rule 63 of the CCS Leave Rules reads as follows:- 63. Resignation or retirement after study leave or non- completion of the course of study https://hcservices.ecourts.gov.in/hcservices/ (1) If a Government servant resigns or retires from service or otherwise quits service without returning to duty after a period of study leave or within a period of three years after such return to duty or fails to complete the course of study and is thus unable to furnish the certificates as required under sub-rule (5) of Rule 53 he shall be required to refund- (i) the actual amount of leave salary, Study Allowance, cost of fees, travelling and other expenses, if any, incurred by the Government of India; and (ii) the actual amount, if any, of the cost incurred by other agencies such as foreign Governments, Foundations and Trusts in connection with the course of study, together with interest thereon at rates for the time being in force on Government loans, from the date of demand, before his resignation is accepted or permission to retire is granted or his quitting service otherwise: Provided that except in the case of employees who fail to complete the course of study nothing in this rule shall apply- (a) to a Government servant who, after return to duty from study leave, is permitted to retire from service on medical grounds; or (b) to a Government servant who, after return to duty from study leave, is deputed to serve in any Statutory or Autonomous Body or Institution under the control of the Government and is subsequently permitted to resign from service under the Government with a view to his permanent absorption in the said statutory and Autonomous body or Institution in the public interest. (2)(a) The study leave availed of by such Government servant shall be converted into regular leave standing at his credit on the date on which the study leave commenced, any regular leave taken in continuation of study leave being suitably adjusted for the purpose and the balance of the period of study leave, if any, which cannot be so converted, treated as extraordinary leave. (b) In addition to the amount to be refunded by the Government servant under sub-rule (1), he shall be required to refund any excess of leave salary actually drawn over the leave salary admissible on conversion of the study leave. (3) Notwithstanding anything contained in this rule, the President may, if it is necessary or expedient to do so, either in public interest or having regard to the peculiar circumstances of the case or class of cases, by order, waive or reduce the amount required to be refunded under sub-rule (1) by the Government servant concerned or class of Government Servants" https://hcservices.ecourts.gov.in/hcservices/ 14. Admittedly, the rosters were framed by the Central Government under Article 309 of the Constitution. A perusal of the Rule clearly shows that the resignation of a Government servant without returning to duty after the period of study leave or within a period of three years after such return will result in the government servant returning actual amount of leave salary, study allowance, cost of travelling and other expenses with interest. In this rule, nothing is mentioned about the refund of the amount of the salary paid for which the person actually worked after the availing of study leave. On the other hand, Rule 63(1) (b) enables the authorities to send a candidate on deputation to any institution or autonomous body under the control of the Government. In such cases, resignation may be permitted and the rule relating to the refund of the amount does not arise. In the present case, the petitioner is only serving from the polytechnic under the control of the first respondent to another university established by the Central Government. There cannot be any illegality on such matters. The respondents are only relying upon the bond executed by the petitioner. It is now claimed that the bond is for a period of five years whereas a reference is made to Rule 63, which is a statutory rule, in which only 3 year bond period is prescribed. The power to increase the bond period to 5 years is nowhere stated by the respondents. Even after availing the study leave after returning to the employment, the petitioner had served from 01.10.2008 to 31.1.2011, which roughly works out to 2 years and 3 months. 15. In the present case, if Rule 63 is taken into account, the petitioner has to serve only 3 years and she had already served two years and three months, which is a substantial portion of the bond period. Since the first respondent is an autonomous society, it adopted the Service Rules of the Puducherry Government, which in turn adopted the CCS Rules of the Central Government. In the absence of any power to extend the bond period, it is not open to them to extend the bond period contrary to the statutory service rules. 16. The Mehrotra Committee appointed by the University Grants Commission to recommend revision of pay scales of teachers in Universities and Colleges, in its report had recommended mobility of teachers from one institution to other institution and also count the periods of service rendered in one institution for the purpose of fixing higher scales under the Career Advancement Scheme. The following passage found in paragraph 5.3 relating to Mobility may be usefully extracted below: 5.3 Mobility The Committee considered in some detail the question of mobility of teachers across the educational system. It noted in this context that the National Commission on Teachers II had recommended that at least 25 percent of https://hcservices.ecourts.gov.in/hcservices/ appointments of teachers should be from among people outside the State and also that the appointment of Readers and Professors should be by open selection. Both these recommendations can be implemented only if there is a fair amount of mobility. One of the main hindrances to mobility is that at present, except in the case of a few institutions, a teacher who leaves one university or college to join another, has to sacrifice his right to gratuity and/or pension, though he may be able to adjust his Contributory Provident Fund. The Committee is in agreement with the National Commission on Teachers-II in recommending that a scheme be worked out so that the period of service of a teacher in several institutions be added together for the purpose of superannuation benefits. In this regard, the method adopted by the Central Universities may be studied & conditions of lien and deputation should be similarly worked out." 17. The petitioner had actually availed the study leave and completed the course and also returned to serve the institution which granted leave and she served the substantial portion of the bond period. Therefore, it is not open to the respondents to seek either refund of the wages for the study leave or refund of the amount of salary paid. The respondents’ contention is highly arbitrary and amounting to usurping the value of the services rendered by the petitioner. If this contention of the respondents is accepted and refund is ordered, it would amount to forced labour, which is prohibited by Article 23 of the Constitution. It will also amount to breaching the recommendation made by the UGC Committee and accepted by the Central Government, where mobility of the teaching faculty is assured with promise to count the service rendered in one institution for the purpose of Career Advancement Scheme. That was why the exception found in Rule 63 enables the employee to be sent to another institution of the same Government or autonomous body, in which circumstances, the question of enforcing the bond may not arise. The respondents cannot re-write the terms of the agreement to suit their convenience. 18. In this context, it is necessary to refer to Section 74 of the Contract Act, which reads as follows:- "74. Compensation for breach of contract where penalty stipulated for.- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive https://hcservices.ecourts.gov.in/hcservices/ from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for." 19. The Supreme Court in respect of Government Servants entering into the contract at the time of joining service dealt with the scope of such contract vide judgment in Moti Ram Deka v. G.M., North East Frontier Rly. reported in AIR 1964 SC 600. The Supreme Court doubted the application of the principles lying behind commercial contract and also referred to Section 23 of the Contract Act. It is relevant to extract paragraph 31, which reads as follows:- : 31.It has, however, been urged that the railway servants who entered service with the full knowledge of these Rules cannot be allowed to complain that Rules contravene Article 311 and are, therefore, invalid. It appears that under Rule 144 (which was originally Rule 143), it was obligatory on railway servants to execute a contract in terms of the relevant Railway Rules. That is how the agrument based on the contract and its binding character arises. If a person while entering service executes a contract containing the relevant Rule in that behalf with open eyes, how can he be heard to challenge the validity of the said Rule, or the said contract? In our opinion, this approach may be relevant in dealing with purely commercial cases governed by rules of contract; but it is wholly inappropriate in dealing with a case where the contract or the Rule is alleged to violate a Constitutional guarantee afforded by Article 311(2); and even as to commercial transactions, it is well-known that if the contract is void, as for instance, under Section 23 of the Indian Contract Act, the plea that it was executed by the party would be of no avail. In any case, we do not think that the argument of contract and its binding character can have validity in dealing with the question about the constitutionality of the impugned Rules.” 20. The Supreme Court vide judgment in LIC of India v. Consumer Education & Research Centre, reported in (1995) 5 SCC 482 in paragraph 47 dealt with unequal scope of bargaining of the power between the parties. It is useful to refer to the passage may be usefully extracted below:- 47. It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted https://hcservices.ecourts.gov.in/hcservices/ line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract." 21. The supreme Court once again in Secy.-cum-Chief Engineer v. Hari Om Sharma reported in (1998) 5 SCC 87 in paragraph 8 observed as follows:- 8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop- gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma- holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872." 22. In the present case, it must be held that Rule 63 of the Leave Rules did not apply as the petitioner after completing the study leave actually joined the institution and had served almost three-fourth of the bond period and she also joined another University established by the Central Government with a view to improve her career and the knowledge gained during the study leave is