IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5424 of 2010 MAYANK ANAND S/O LATE BHUPENDRA NARAYAN MISHRA R/O MUHALLA- DARIAPUR, P.S. KADAM KUAN, DISTT.- PATNA. VERSUS 1. PATNA UNIVERSITY, PATNA, THROUGH ITS REGISTRAR 2. VICE CHANCELLOR, PATNA UNIVERSITY, PATNA 3. REGISTRAR, PATNA UNIVERSITY, PATNA 4. PRINCIPAL, PATNA TRAINING COLLEGE, PATNA ----------- 03 27.09.2010 It is regretted that in spite of earlier order the Principal of the Patna Training College, Patna has not filed a counter affidavit. A counter affidavit from the Patna University has been filed. Perused the same. Heard the parties. In my view, in view of the averments as made in the counter affidavit of Patna University, there is no further need of waiting for counter affidavit from the Principal, as facts virtually stand admitted and on basis thereof, the writ petition can be disposed of at this stage itself. The petitioner is a first class Graduate and a Post Graduate as well. As a matter of economic necessity and compulsion, he is working in the Patna Training College, a constituent unit of the Patna University, as a Routine Clerk. As a matter of career advancement, he got admission into M. Phil. in Delhi University in Geology. In terms of Rules-6(12)(a), which deals with extraordinary leave in relation to University servant, he made an application to the Principal of the College, for grant of two years extraordinary leave without pay to pursue M. Phil. course at Delhi University. This was, admittedly, granted by the Principal of the Patna Training College vide his office order dated 16.09.2006 on which he was relieved also. It is - 2 - not in dispute that said communication was also immediately marked to the Registrar of the Patna University as is apparent from the counter affidavit of the University itself. Petitioner, thus, proceeded to Delhi and after submission of his M. Phil. Thesis, he returned and sought to join Patna University. Initially his joining was not being accepted. However, on 14th November, 2008 petitioner gave his joining. In stead of permitting him to join, the Principal started questioning as to why he is joining late. Ultimately, the petitioner being desirous of continuing and to avoid complications started marking his attendance and doing his work which was then objected by the Principal. But, however, on intervention of the Registrar of the University, as evident from Annexure-14, petitioner was allowed to join. Thereafter, petitioner sought two weeks leave to conclude his viva-voce fixed at Delhi University which he was granted. He has since succeeded in getting M. Phil. degree from Delhi University in Geology. Now, the University informs the petitioner that petitioner had proceeded on earned leave without pay and without permission or sanction of the University as also of two weeks leave for viva-voce without University’s permission or sanction, as such, it was treated as unauthorized leave. From the facts aforesaid, two things are clear. Firstly, petitioner duly sought permission on both occasions from the Principal of the College. On both occasions, permission was duly granted. The second part is that University had neither on the two occasions on being informed also of petitioner’s application did not immediately refuse permission much less communicated the same to the petitioner. It is - 3 - long after those periods were over and the petitioner returned. After that University wakes up and questions the propriety of proceeding on leave. Petitioner, thus, submits that he was required to make an application for extraordinary leave without pay through the Principal of the College. It is not disputed that he did make it and it is not disputed that the Principal granted the same. It is also not disputed that the Principal immediately informed the University. This fact is apparent from Annexures, as appended to the counter affidavit itself. Unfortunately, University sat over the matter not for a day or two but for almost three years after petitioner returned and rejoined. The University is questioning the propriety of grant of leave to the petitioner. In my view, it is too late for the University to do so. The moment University had received the order of the Principal, it could have immediately told the petitioner that no leave could be granted. It could have cancelled the order of the Principal. Petitioner would have immediately come back and join but having let the petitioner complete the full term, now to penalize the petitioner, it could not be just and equitable to do so. Petitioner was trying only for career advancement. Petitioner has rightly relied on the decision of Chief Justice Chagla in the case of All India Groundnut Syndicate Limited - Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232, the relevant part whereof is quoted hereunder:-: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the - 4 - Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” The University slept over the matter for long three years and now it wants to say that because they slept over the matter, the petitioner is defence less and loses his right. From the conduct aforesaid, it cannot be seen or it cannot be found that petitioner was guilty of any breach of discipline, much less, he was on extraordinary leave without pay. In that view of the matter, I do not think it proper that the University should proceed any further in this matter as against the petitioner much less treating him to be on unauthorized leave. On all occasions, petitioner’s leave had been authorized by the Principal of the College. Accordingly, University is restrained from taking any decision in this regard treating the aforesaid period of absence as unauthorized absence. No proceedings would lie in that regards as against the petitioner. Petitioner would be entitled to his salary for the period for which he has worked in between. The writ petition, thus, stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)