B.N. Misra, J. - (1.) THE question for consideration is whether the petitioner, as claimed by him, is continuing in the post of principal or he has wilfully abandoned his service as pleaded by the respondent Committee of Management. The facts giving rise to this writ petition may be briefly stated. Petitioner was appointed as the Principal, N.R.E.C College, Khurja, in 1966 and was confirmed in the post. The college is affiliated to Meerut University. On 12.2.1980 the Vice Chancellor of Meerut University tendered his resignation. From amongst the Principals of all the colleges affiliated to Meerut University, the petitioner was the senior -most and as such under section 12(11) of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act) he was appointed to discharge the duties of the Vice Chancellor in addition to his own duties. He took over charge as officiating Vice Chancellor on 19.2.1980. He applied for and was granted privilege leave from 11.4.1980 to 22.5.1980 vide letter dated 12.4.1980 issued by the Secretary of the Managing Committee, respondent No. 3, annexure 2. Thereafter the petitioner was appointed as the whole time officiating Vice -Chancellor of Meerut University under section 12(10) of the Act with effect from 14.4.1980 for a period of six months, vide letter from the Secretary to the Chancellor dated 22.5.1980, annexure 3. On being appointed as officiating Vice -Chancellor on whole -time basis, he applied for extra -ordinary leave. Respondent No. 3 informed the petitioner that the matter relating to the sanction of extra -ordinary leave to the petitioner will have to be placed before the Managing Committee for decision. The Managing Committee met on 1.6.1980 and passed the following resolution: - - Extra -ordinary leave asked by you cannot be sanctioned as the institution cannot afford to have frequent changes in the Principal as we have experienced a lot of trouble and instability in the administration of the college and financial losses. It will be a great injustice to the college to allow to continue such unstable condition. The College will not be able to secure the services of a good Principal unless the vacancy is clear and on long term.
(2.) THE petitioner again wrote to the Managing Committee to reconsider its decision. On 6.7.1980 the Managing Committee passed the following Resolution : - - Letter No. SV -I 3/955 dated 20.6.80 received on 26.6.80 from Dr. P.C.Gupta was discussed. In view of resolution No. 3 dated 1.6.80 the Managing Committee regrets to note that Dr. P.C. Gupta has failed to join his duty as desired and instead raised irrelevant issues. In view of the failure of Dr. P.C. Gupta to comply with the aforesaid resolution No. 3 dated 1.6.80 the post of the Principal has fallen vacant. Secretary to take necessary action to fill the post. Vide letter dated 15.9.80, the Joint Secretary of the Education Department of the State Government wrote to the respondent No. 3 that it would be proper that the petitioner should be granted leave as prayed for by him for the period during which he was working as whole -time Vice Chancellor. On 19.9,80 the petitioner in exercise of his powers as officiating Vice Chancellor declared the Managing Committee illegal and appointed an ad -hoc Committee of Managing till fresh elections were held. The Secretary of the ad hoc Managing Committee informed the petitioner that in its meeting held on 19.10.1980 the petitioner has been sanctioned extra -ordinary leave from 14.4.1980 to 13.10.1980 The erstwhile committee of Management, respondent No. 3, challenged the order of the petitioner declaring their committee as illegal and appointing an ad -hoc Committee of Management in a writ petition and the petitioner's orders in this regard were set aside by this Court by order dated 23.12.1980 in writ petition 8486 of 1980. In the meanwhile the petitioner after completing his term as officiating Vice Chancellor resumed his duties as Principal of the College on 14.10.80. However, the respondent Managing Committee by its order dated 1.1.81 directed the Acting Principal to continue to discharge the duties of the Principal. The petitioner thereafter wrote to respondent No. 3 that continuance of the Acting Principal while he had already taken over as the Principal was illegal and in violation of statutory provisions. Respondent No. 3 wrote to the petitioner that until the whole matter including the State Government letter recommending sanction of extra -ordinary leave to the petitioner was considered by the Managing Committee, he should not interfere with the work of the Acting Principal. The petitioner, next made a representation to the Vice Chancellor. By his letter dated 25.4.1981 (Annexure 24), respondent No. 3 informed the petitioner that the Managing Committee at its meeting held on 19.4.1981 did not find sufficient reasons of grounds to review its earlier decisions dated 16.1980 and 6.7.1980. In the said letter the petitioner was further asked to vacate the Principal's residential quarters so that the new incumbent may move into it. Respondent No. 3 also made a representation to the Vice Chancellor seeking permission to advertise the Principal's post on the ground that the said post was lying vacant after the petitioner had wilfully abandoned it. By his order dated 24.10.81 the Vice Chancellor held that as the petitioner had failed to resume duties as per direction of the Managing Committee, he should be deemed to have abandoned his post and the Principal's post had accordingly become vacant. This order of the Vice Chancellor contained in Annexure 32 is challenged in the writ petition. It is not in dispute between the parties that privilege leave was sanctioned to the petitioner from 11.4.1980 to 22.5.1980, vide letter of respondent No. 3, Annexure 2. On being appointed as whole -time officiating Vice Chancellor for a period of six months from 11.4.1980 the petitioner had applied for grant of extra -ordinary leave. This request of the petitioner was turned down by the Managing Committee vide its resolution dated 1.6.1980 (Annexure 8) followed by a further resolution dated 6.7.1980 (Annexure 10). The request of the Department of Education of the State Government to the Managing Committee recommending the petitioner's application for grant of extra -ordinary leave was also turned down by the Management, vide its resolution dated 19.4.1981 communicated by respondent No. 3 vide letter dated 25.4.1981, Annexure 24. This unrelenting stand of the Managing Committee was supported by its learned counsel on the grounds that the petitioner cannot claim leave as of right and that his services could not be spared in the interest of the College. In this context reference has been made to statute 16.20 of the First Statutes of the University of Meerut (hereinafter referred to as the Statutes) which provides that leave cannot be claimed as a matter of right and that if the exigencies of the occasion demand the sanctioning authority may refuse leave of any kind and may even cancel the leave already granted. No doubt this provision gives a discretion to the Managing Committee but as is well known, discretion must always be judiciously exercised. The petitioner had been selected and appointed by the Chancellor as the whole -time officiating Vice -Chancellor and properly speaking the Management would have done well to consider that the petitioner's appointment was a matter of honour and prestige and also in the interest of the College. The Joint Secretary of the Education Department of the State Government had indeed written to the Managing Committee that it would be just and proper to grant extra -ordinary leave to the petitioner for the period during which he had been appointed by the Chancellor as the officiating Vice Chancellor. In the circumstances it must be held that refusal of extraordinary leave to the petitioner was not an act of exercise of sound discretion by the Managing Committee.
(3.) EVEN if it is assumed that the Managing Committee had rightly refused extraordinary leave to the petitioner, the question is whether on his failure to rejoin his duties as Principal of the College on rejection of his application for extra -ordinary leave, he shall be deemed to have wilfully abandoned his service. Neither the counter filed by the Vice Chancellor nor that filed by the Managing Committee contains a satisfactory explanation of the term 'abandonment.' Learned counsel appearing for the respondent Managing Committee submitted that when the petitioner failed to rejoin the post as Principal on refusal of leave applied for by him, in law, he shall be deemed to have voluntarily and wilfully abandoned his service. No authority was cited in support of this proposition. On examination of relevant provisions we have not been able to find anything which supports this stand of the respondents. In this context reference may be made to Chapter XVII of the Statutes and the written contract set out in Appendix 'D' to the Statutes. Neither in the statutes nor in the written contract there is any provision relating to implied abandonment of service. As already noted, in the resolutions of the Managing Committee dated 1.6.1980, 6.7.80 and 19.4.1981 there is no indication that the petitioner shall be deemed to have abandoned his service on his failure to rejoin his post of Principal on refusal of leave. In its resolution dated 6.7.1980 the Managing Committee declared that the post of Principal had fallen vacant. May be, according to the Management, the petitioner should be held to have abandoned his service on 6.7.80 when it declared the post vacant. However, the Vice Chancellor decided otherwise. In his order dated 24.10.1981 he held that the petitioner remained absent from his duties with effect from 14.4.1980 and his leave application having been rejected, when he failed to resume his duties and continued to remain absent, he shall be deemed to have abandoned his post. Thus it appears that though the Management and the Vice Chancellor have put forward the plea of abandonment, neither of them is sure as to from which date the petitioner should be deemed to have abandoned his post. Again assuming that the Management was justified in refusing extra -ordinary leave to the petitioner, the proper course to follow should have been to draw up proceedings against him and/or terminate his service according to the provisions laid down in Statute 17.04. Admittedly this procedure has not been followed in this case. Therefore, the so -called doctrine of 'abandonment' put forward by the Managing Committee and upheld by the Vice Chancellor must be rejected being in contravention of the Statutes and the terms contained in the written contract. Accordingly this petition is allowed. The order of the Vice Chancellor dated 24.10.81 (Annexure 32) is hereby quashed. The decisions of the Managing Committee and the Vice Chancellor to treat the post held by the petitioner as vacant are hereby set aside. The petitioner was granted privilege leave upto 22.5.80. The period of his absence from 23.5.1980 to 13.10.1980 shall be treated as extra -ordinary leave. The petitioner is held entitled to continue in the post of Principal of N.R.E.C College. Khurja with effect from 14.10.1980 and he shall also be entitled to all consequential benefits. Parties are left to bear their own costs.;