Punjab-Haryana High Court
Shiv Niwas Tiwari And Ors. vs State Of Haryana And Ors. on 24 August, 2006
Equivalent citations: (2006)144PLR701
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
JUDGMENT M.M. Kumar, J.
1. The petitioners are working as teachers/ Science Masters in privately managed schools of Haryana. They have approached this Court through the instant petition filed under Article 226 of the Constitution for quashing order dated 1.5.2006 (Annexure P.5) passed by the Commissioner-cum-Director General School Education, Haryana declining their prayer regarding release of medical allowance. The impugned order dated 1.5.2006 reads as under:
That in compliance of the Court order dated 12.1.2006 claims of the petitioners regarding release of medical allowance was examined in view of the instructions issued by the Haryana Govt. from time to time and law laid down by the various Court in this regard. The employees of the aided schools in the State of Haryana are entitled to parity in pay and dearness allowance only at par with their counter parts working in Govt. schools but they are not entitled for any other benefits in the light of Hon'ble Supreme Court judgement dated 22.10.1991 in CP No. 206 of 1991 passed in CA No. 2566 of 1988 State of Haryana v. Champa Devi wherein it has been held that the employees of the aided schools cannot claim parity in all matters like Govt. employees.
The Medical Allowance to a Govt. employee is an incentive and the employees of the Aided Schools are not entitled for the same because in Champa Devi case the Hon'ble Supreme Court of India held that it is upto the State to decide whether these benefits shall be granted to the employees of the aided schools or not. The provisions of Haryana School Education Rule 2003 under rule 91(5) also run as under:
(5) The benefit of leave encashment, facilities of leave travel concession , bonus and medical reimbursement etc. shall be at the discretion of the Managing committee. No grant-in-aid on this account shall be reimbursement by the Department.
2. It is thus obvious that apart from placing reliance on the judgement of the Supreme Court in the case of State of Haryana v. Champa Devi , the Commissioner also placed reliance on Rule 91(5) of the Haryana School Education Rules, 2003. The petitioners had prayed that the afore-mentioned rule be also declared as ultra vires of the Constitution in as much as it comes into conflict with the directions issued to prepare a scheme for grant of the afore-mentioned allowance. It is appropriate to mention that the petitioners have claimed fixed medical allowance as per the circular issued by the Finance Department on 17.12.2004 (Annexure P.1) which has raised the amount from Rs. 125/- p.m. to Rs. 250/- p.m. w.e.f. 1.12.2004.
3. We have heard the learned Counsel at a considerable length and regret our inability to accept his submissions because in the case of Haryana State Adhyapak Sangh v. State of Haryana 1990 (Supp) SCC 306 it has been held that the teachers/ masters working in privately aided schools must be paid the pay scales and dearness allowance as teachers in government schools for the entire period and the expenditure is to be apportioned between the State and the management in the same proportion in which they share the burden of emoluments of the teachers. The State Government, however, was not held liable to pay other allowances. Thereafter clarificatory application was filed on 21.2.1990 and the Hon'ble Supreme Court clarified and explained the view taken in 1988 in para 9 of the judgement in the case of Haryana State Adhyapak Sangh (supra) and the directions issued in 1988 for bringing parity of teachers of various privately aided schools and the teachers of government schools a committee was constituted under the Chairmanship of the Finance Minister. In the concluding part of para 10, the Hon'ble Supreme Court has summed up as under:
... In the circumstances we are of the view that the directions of this Court in the judgement dated July 28,1988 must be construed to mean that the respondents are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided schools as and when the pay scales and dearness allowance of teachers employed in government schools are revised. It is, therefore, incumbent upon respondents to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in government schools with effect from January 1,1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from January 1,1986 and the pay the salaries and dearness allowance to these teachers on that basis.
4. It is thus obvious that no directions have been issued to the respondent- State to grant the teachers of privately aided schools all the allowances which are given to the teachers working in government schools. The afore-mentioned position has been further made clear by the judgement of Hon'ble Supreme Court in the case of Champa Devi (supra) wherein it has been held that the benefit of certain circulars giving incentive to the teachers working in government schools could not be claimed as a matter of right by the teachers working in private schools. The view taken by this Court by allowing the afore-mentioned benefits was reversed, as is evident from the perusal of para 5 of the judgement which reads as under:
Coming, however, to the question as to whether the benefits given to the government employees under the circulars dated 14.5.1991, 7.8.1992 and 7.1.1994 which were annexed as Annexures P.3, P.4 and P.6, we are of the considered opinion that the High Court committed error in granting the benefits of those circulars to the employees of private schools. In State of Punjab v. Om Parkash Kaushal a Bench of this Court examined the question as to what is the true meaning of "parity in employment" and ultimately came to the conclusion that all incentives granted to the employees of the Government cannot be claimed as a matter of right by the employees under private management, as that would not be within the expression "parity in employment". The Court unequivocally said that the scale of pay and the dearness allowance to a government servant or the teachers of a government school can be claimed as a matter of right by the teachers of a private schools and not other incentives which the Government might be intending to confer on its employees. This being the position and on examining the aforesaid three circulars which were annexed as Annexures P.3, P.4 and P.6 in the writ petition filed before the High Court, we are of the considered opinion that the High Court committed error in granting the benefit of those circulars also to the teachers of the privately managed schools. We, therefore, set aside that part of the conclusion in the impugned judgement.
5. It is evident from the perusal of the afore-mentioned observations that the teachers of the privately aided schools cannot seek parity with the teachers working in government colleges in the matter of incentives and other allowances including medical allowance as is claimed in the instant petition. It is further appropriate to mention that the respondent-State has framed rules known as Haryana School Education Rules, 2003 and under Rule 91(5) it has been clarified that the benefits of leave encashment, facility of leave travel concession, bonus and medical reimbursement are to be granted at the discretion of the Managing Committee and the respondent-State is not to release any grant-in-aid on that account. The afore-mentioned rule falls within the four corners of observations made in Champa Devi's case (supra). Therefore, on principles as well as on precedents, we are constrained to conclude that the petitioners cannot claim medical allowance in pursuance to circular letter dated 17.12.2004 which has confined fixed medical allowance only to the employees of the Haryana Government, pensioners and family pensioners or its Boards/ Corporations / Municipalities etc. Therefore, there is no merit in this petition and the same is accordingly dismissed.