LPA No.398 of 2003 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Letters Patent Appeal No.398 of 2003 (O&M) Date of decision : December 17, 2010 Professor Bhim S. Dahiya ...Appellant Versus Kurukshetra University & others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. P.S. Dhaliwal, Advocate with Mr. Tribhuwan Dahiya, Advocate for the appellant. Mr. S.C. Sibal, Senior Advocate with Mr. Shivpriya Singh, Advocate for the respondents. Rajan Gupta, J. The petitioner has preferred the instant writ petition seeking a writ in the nature of mandamus to direct the respondents to count following period as qualifying service for purpose of computing pensionary benefits: a) From 2.11.1965 to 30.11.1965 b) From September 1972 to October, 1974 c) From 8.8.1996 to 31.3.1998 Brief factual background of the case is that the petitioner joined as Lecturer in the Department of English in Kurukshetra University on 2nd November, 1965 and was later confirmed from the same date. The petitioner was selected as Reader thereafter and became LPA No.398 of 2003 2 a professor in the year 1985. He went on to become Pro-Vice Chancellor and Vice Chancellor of the University later. From 30.6.1993 to 30.6.1996 he remained Vice Chancellor of the University and worked on a monthly salary of Rs.7600/- besides allowances. On 1st July, 1997 he joined back as Professor in the Department of English and on 6th August, 1996 he was awarded a fellowship in the Indian Institute of Advance Studies at Shimla to work on a research project on the University Autonomy in India. In order to pursue the fellowship he applied for leave without pay on 7th August, 1996. The petitioner also requested that said period be treated as period spent on deputation. According to petitioner, the university agreed to this request provided the borrowing institute would pay his provident fund and other contribution due from the employer. The petitioner has averred that the Institute sent a draft of Rs.8068/- as matching contribution to the university. However, university returned the same saying that same was not acceptable. On 26th November, 1997 the petitioner again requested the university to treat the period of service with the Institute as deputation period but same was not accepted. The petitioner's main grievance is that the period spent by him in pursuing the fellowship from 8.8.1996 to 31.3.1998 should be considered as qualifying service and his pension be calculated accordingly. The claim set up by the petitioner was, however, refuted by the university stating that petitioner proceeded to pursue the fellowship at the Institute at Shimla of his own and thus, the said period was treated LPA No.398 of 2003 3 as extra-ordinary leave without pay and same could not be considered as qualifying service for the purpose of computing pension. Learned Single Judge also declined relief in this respect while partly allowing the petition directing the respondents to count the period from 2.11.1965 to 30.11.1965 and September, 1972 to October, 1974 as qualifying service for the purpose of calculating pension. Aggrieved, the petitioner has preferred the instant appeal before this court. Learned counsel for the appellant has placed reliance on Rules 1 & 2 contained in Kurukshetra University Calendar Vol. III, 1993 Edition, to contend that if application of confirmed employee is forwarded by the university for outside job, he would be granted such leave as may admissible to him under the rules and he would be permitted to retain his lien for the period of such leave. According to him, the Rules demand that the said period be treated as “Foreign Service”. He has also referred to Rule 4 of Kurukshetra University Employees Pension Rules where qualifying service is defined. According to him, the period spent on deputation under the said Rules is to be counted as qualifying service for the purpose of pension, if pension contribution period for the said period is deposited in the corpus fund at the rate prescribed. Attention of the court has also been drawn to Rules 16-A, 3 (a) and 18-B of the Kurukshetra University Employees Foreign Service Rules (hereinafter to be referred as “Foreign Service Rules”). While Rule 16 (a) has been referred because it contains provision for payment of contributions towards Contributory Provident LPA No.398 of 2003 4 Fund, Gratuity and Leave salary of an employee by the foreign employer, Rule 3 (a) has been referred to because it contains definition of 'foreign service'. Rule 18-B has been relied upon to submit that where the university employee is allowed by the Executive Council to serve under any other university, educational institution, department etc., such period would be treated as period spent on deputation. Learned counsel has also referred to Rule 12 of the Rules to refer to the competent authority to grant extra ordinary leave and total period, for which same may be granted. According to counsel, Rule 12-B envisages that leave granted to enable a teacher to accept a foreign assignment of visiting professor would count for increments in view of proviso of Rule 12. Learned counsel appearing for the respondents submits that the petitioner was never sent on deputation to Indian Institute of Advance Studies at Shimla. He proceeded to join the said Institute on his own request and the said period was treated as leave without pay. He has also drawn attention of the court to the communication received from the Institute at Shimla, Annexure R1/2 to contend that fellowship was not awarded to the petitioner on terms and conditions of deputation and thus, no leave salary/gratuity contribution could be paid by the Institute. The Institute could only pay pension/provident fund contribution as per instructions of Government of India dated February 28, 1991. It was decided by the university that the petitioner would not be entitled to any retirement benefits for the period he remained on extra LPA No.398 of 2003 5 ordinary leave. According to him, the petitioner had availed of 09 years and 90 days of extra ordinary leave upto 18th June, 1987. He has relied upon Rule 2 (a) to contend that service as defined in the Leave Regulations, 1963 (hereinafter to be referred as “Leave Regulations”), means whole period of continuous service spent on leave other than extra ordinary leave. We have heard learned counsel for the parties. Rules 1 & 2 of the Kurukshetra University Calendar Volume-III are extracted hereunder for ready reference:- “1. (i) confirmed employee will be permitted to apply for an outside job or for a scholarship, fellowship, etc., but not more than three applications for outside jobs and three applications for scholarship, fellowships, etc., will be forwarded during a Calendar year. However, with the permission of the Vice Chancellor any number of application for an outside job can be forwarded. (ii) There will be no restriction on persons who are working only on Ad hoc/Leave arrangements, provided they are not holding any permanent lower post in the University. All applications to be forwarded by the University must reach the establishment Branch, complete in all respects including copies of certificate, testimonials, at least ten days before the closing date. There will be no objection to an application being sent as an Advance Copy, provided this fact is mentioned in the application through proper channel, which must be submitted to the University simultaneously with the submission of the Advance Copy. 2. If a confirmed employee whose application for an outside job has been forwarded by the University is selected for it, he will be granted such leave as may be admissible to him under the rules and also permitted to retain his lien for the period of such leave or he will be asked to resign as per rules. The Vice-Chancellor will decide each LPA No.398 of 2003 6 case on its merit.” Rule 16-A which defines foreign service reads thus: “While an employee is in foreign service, contributions towards his Contributory Provident Fund, Gratuity and Leave salary, shall be paid to the University by the Foreign employer failing which the same shall be paid by the employee himself.” Another Rule which is relevant for the purpose of decision of this case is Rule 12 of the Leave Regulations which reads as follows:- “12. The competent authority, for any special reason, may grant an employee extra-ordinary leave of absence but such leave shall be without pay and shall not ordinarilyexceed one year at a time. *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. This period may be extended by the Executive Council beyond 5 years on production of Medical Certificate from the competent Medical Authority. **Provided further that in the case of a teacher who has accepted a job elsewhere the extra-ordinary leave (without pay) shall not be extended beyond two years, except when the Executive Council decides otherwise. Provided further that the period spent on extra-ordinary leave (without pay) shall not count for increments, except when- (a) the sanctioning authority is satisfied that such leave was taken by a University teacher on account of illness or for any other cause beyond the control of the teacher.” LPA No.398 of 2003 7 (b) the leave is granted to enable a teacher to accept a foreign assignment of Visiting Professorship and the like. The grant of increment to non-teaching employees will be governed by the rules governing their conditions of service, etc. It is evident that Rule 1 as contained in Kurukshetra University Calendar Vol. III, enables a confirmed employee to apply for outside job, fellowship etc., Rule 2 thereof envisages that such confirmed employees whose application has been forwarded by the university, would be granted such leave as may be admissible to him under the Rules and he would also be permitted to retain his lien for such period. Rule 3 (a) of the Foreign Service Rules defines foreign service which means service on deputation with Central or State Government Department other university and autonomous organization within India and abroad. Rule 16-A of the said Rules provides that when an employee is in foreign service, contributory provident fund, gratuity and leave salary would be paid to the university by the foreign employer failing which same would be paid by the employee himself. Rule 2 (a) of Leave Regulations defines a service to mean whole period of continuous service including the period spent on leave other than extra-ordinary leave. From the facts of the case it is evident that after the petitioner was awarded a fellowship by the Indian Institute of Advance Studies at Shimla, he proceeded to join the same on his own request. LPA No.398 of 2003 8 On 7th August, 1996 he had applied to the university for leave without pay but without any loss of service benefits. The university, however, treated the said period as leave without pay but without super-annuatory benefits. There can be no manner of doubt that the service as defined in the leave regulations (Rule 2 (a)) does not envisage extra-ordinary leave without pay to be counted for the purpose of continuous service. The reference by learned counsel to Rule 3 (a) of the Foreign Service Rules is misplaced. Since the petitioner was not on deputation for the period 8th August, 1998 to 31st March, 1998, it cannot be said that petitioner was deputed on foreign service and thus entitled to benefit of Rule 16 (a). This apart, a perusal of Rule 12-A of the Leave Regulations shows that maximum period of extra-ordinary leave envisaged by the said Rule during whole tenure of service ought not to exceed five years unless same is extended by the Executive Council for medical illness. However, in case of the petitioner he had been granted extra-ordinary leave (without pay) for 09 years and 22 days, out of which for certain period (1982 to 1987), he remained member of State Legislative Assembly (MLA). In the facts and circumstances of the case, we are of the considered view that the learned Single Judge has rightly denied the petitioner the claim for counting period from 8th August, 1996 to 31st March, 1998 as qualifying service for the purpose of computing pension. A combined reading of the rules, reproduced above, makes it clear that the petitioner is not entitled to this benefit. The other rules LPA No.398 of 2003 9 referred to by counsel for the petitioner are not relevant and thus have not been reproduced herein above. This court having come to a conclusion that the petitioner could not be said to be on deputation for the period 8th August, 1996 to 31.3.1998 when he joined fellowship at the institute at Shimla, the prayer is for counting the same as qualifying service for the purpose of pension is without any merit and is rejected. The appeal is, thus, dismissed. (RANJAN GOGOI) (RAJAN GUPTA) JUDGE JUDGE December 17, 2010 'rajpal'