Gujarat HC quashes 2018 govt order for recovery of half salary of 5 assistant professors on study leave

The HC, in its order on March 12, quashed and set aside the 2018 recovery orders issued to the five individual petitioners and directed the state to pay the petitioners their full salaries for the period of their study leave by May 31. The court also warned of imposing an interest of 6% per annum from June 1, until the payment is made.

The judgement of the court, delivered March 12, noted that the petitioning professors were holding “basic degree” of engineering in their respective branches and had cleared the Graduate Aptitude Test in Engineering (GATE) exam. The judgment notes that as per the service conditions and the AICTE norms, the petitioners had availed study leave for higher studies they were “required to acquire master degree, otherwise, they would not get increment.”

The study leaves, availed in 2017 and 2018, had been approved by the state authorities in 2017 but while five petitioners were paid full salaries, other two petitioners were paid only half salaries during the leave period, as per the petition.

While the petitioners were still on the study leave, the state, thereafter, decided to “effect recovery of the half of the salary from the petitioners, who had received full salary” during the said study leave, as per submissions made by Advocate Ekrama Qureshi, on behalf of the petitioners.

The judgment noted the submissions that “no opportunity of hearing has been granted to the petitioners” by the state, which passed the order of recovery, thus, violating the “principles of natural justice”.

The court also noted that while initiating the recovery order, the state had relied upon a Government Resolution (GR) dated February 3, 2016, which had not explicitly stated that the assistant professors pursuing masters degrees other than the Quality Improvement Program (QIP) on deputation, would be entitled to only half pay.

The court also noted that the 2016 GR was already quashed and set aside by another Coordinate Bench of the High Court in September 2022 in a separate set of petitions, holding that it “runs contrary to the provisions of the AICTE Act, 1987”.
The said quashing of the GR had also been confirmed by the Division Bench in September 2024. Citing the September 2022 judgement of the HC, the present HC judgment states, “It is settled law that provisions of AICTE Act, 1987, and guidelines framed thereunder would have to be followed over any inconsistent Resolution passed by the State… It has been further held that… provisions of the Rules, 2002 would not be applicable to (petitioners) who are eligible for pursuing further studies as per QIP policy of AICTE as they would be granted study leave with salary on deputation for duration of course…”

Stating that the reliance placed by the State on a 2023 Government Resolution– which clarifies and distinguishes between the full salary payment and those entitled to half salaries– was “not legally sustainable” to justify the 2018 order of recovery of salaries. The HC said, “the aforesaid Resolution cannot be applied retrospectively in absence of anything in this regard expressly observed in the said resolution.”

The court rejected the submissions of the state regarding the applicability of the 2023 GR to the professors, who went for higher studies at centres other than the QIP centres approved by the AICTE and upheld that the case of the present petitioners “would be governed by the Resolution dated February 3, 2016, under which the study leave (was) sanctioned” by the state as no such distinction was made.

The court held that the state was “not entitled to recover any amount from the petitioners; rather it is hereby held that all the petitioners are entitled to receive full salary during the period of their study leave”.