Rajasthan High Court - Jaipur
Jagdish Prasad Saini And Ors vs State Of Raj And Ors on 26 April, 2019
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Writ Miscellaneous Application No.357/2017
1. Jagdish Prasad Saini S/o Shri Sunda Ram Saini, R/o
Rekhawali Dhani, Post Bagar, Distt. Jhunjhunu, Rajasthan.
2. Baldev Singh Shekhawat S/o Shri Bhairon Singh
Shekhawat, R/o Kalipahari, Via Islampur, Distt.
Jhunjhunu, Rajasthan
3. Yogendra Kumar Tyagi S/o Shri Jai Nand Singh Tyagi, R/o
Village Badhaull, Post Khakhauda, Distruct Merrut, Uttar
Pradesh.
4. Rahitashwa Kumar Sharma S/o Shri Tor Mal Sharma, R/o
Village And Post Charawas, Via Chirawa, District
Jhunjhunu, Rajasthan
5. Subhash Chandra S/o Shri Kartar Singh, R/o Village Moi
Sadda, Post Moi Purani, Via Sigana, District Jhunjhunu,
Rajasthan
6. Om Prakash Singh Shekhawat S/o Shri Sursingh
Shekhawat, R/o Mukam Post Kali Pahari, Via Islampur,
Distt. Jhunjhunu, Rajasthan
7. Ghisa Ram Sharma S/o Shri Ram Niwas Sharma, R/o
Rajgarh Road, Industrial Area, Shanti Nagar, Pilani Tehsil
Chirawa, District Jhunjhunu, Rajasthan
8. Laxman Ram Saini S/o Annaram Saini, Arma, R/o
Kalipathari Ka Bass, Via Islampur, Post Kalipahari, Distt.
Jhunjhunu, Rajasthan
9. Pitram Saini S/o Mahaveer Prasad Saini, R/o Pirmal Gate
Ke Bahar, Ward No. 10, Rao Gate Ke Saamne, New
Colony, Post Bagar, District Jhunjhunu, Rajasthan
10. Vinod Kumar S/o Shri Malaram Harijan, R/o Post Bagar
District Jhunjhunu, Rajasthan
----Petitioners
Versus
1. State Of Rajasthan Through Its Secretary To The
Government, Department Of Education, Secretariat,
Jaipur Rajasthan.
2. Commissioner, Secondary Education Rajasthan, Bikaner
District Bikaner Rajasthan
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3. District Education Officer, Secondary, District Jhunjhunu
Rajasthan
4. Managing Committee B.l. Senior Secondary School,
Bagad, District Jhunjhunu, Through Its Secretary, Shri
Pramod Gangwal Residing At 47/11, Kiran Path
Mansarovar, Jaipur, Rajasthan 302020
5. Bishambhar Lal High School, Trust, Bagar, District
Jhunjhunu Raj. Through Its Secretary, Shri Pramod
Gangwal Residing At 47/11, Kiran Path Mansarovar,
Jaipur, Rajasthan 302020
6. Mr. K.g. Maheshwari, Maheshwari House, 36-L, Jagmohan
Das Marg, Mumbai-36 Deceased
7. Mr. K.k. Maheshwari Managing Trustee, 507, Raheja
Centre, 214, Nariman Point, Mumbai-21.
8. Sobhagya Singh Shekhawat S/o Late Shri Sawai Singh
Shekhawat, R/o Shekhawaton Ki Kotadi, Main Market,
Mukam Post Bagar, District, Jhunjhunu Raj.
9. Hoshiyar Singh Yadav S/o Shri Sobha Ram Yadav, R/o
Village And Post Kalakhari, Tehsil, District, Jhunjhunu Raj.
10. Jagdish Prasad Sharma S/o Late Shri Hanuman Prasad
Sharma, R/o Village Post Malsar, Via Bada Gaon, District
Jhunjhunu Raj.
11. Bhagirath Singh S/o Shri Moti Singh Shekhawat, R/o Post
Bagar, Shekhawat Colony, Bagar District, Jhunjhunu Raj.
----Respondents
For Petitioner(s) : Mr.Sehban Naqvi.
For Respondent(s) : Mr.V.K. Sharma,
Mr.Ganesh Meena, AAG.
HON'BLE MR. JUSTICE ALOK SHARMA
Order
26/04/2019
This application has been filed pursuant to the order dated 06.03.2017 passed by the Apex Court in Contempt Petition (Civil) (Downloaded on 28/06/2019 at 02:29:37 AM) (3 of 10) [WMAP-357/2017] No.640-642/2017 in Civil Appeal No.6601-6603/2016. Under the said order the applicants were allowed to withdraw the contempt petition with liberty to move to High Court for enforcement of the order of Apex Court by resort to Order 45 Rule 15 CPC.
Order 45 Rule 15 CPC reads as under:-
15. Procedure to enforce orders of the Supreme Court.-(1) Whoever desires to obtain execution of (any decree or order) of (the Supreme Court) shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the court from which the appeal to (the Supreme Court) was preferred.
(2)Such Court shall transmit the (decree or order) of (the Supreme Court) to the Court which passed the first decree appealed from, or to such other Court as (the Supreme Court) by such (decree or order) may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said (decree or order) is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.
The application before this court is therefore one of execution of the order dated 19.07.2016 passed by the Apex Court in Civil Appeal No. 6601-6603/2016. The said Civil Appeal No. 6601-6603/2016 to the extent relevant to this application was disposed of by the Apex Court as under:-
We, therefore, set aside the orders denying such absorption and remit the matter back to Respondent No.1/State Government to consider the claim of the eleven aided teachers for their absorption as from the date when the 2010 Rules came into effect and such order shall be passed within one month from the date of receipt of a copy of this order.(Downloaded on 28/06/2019 at 02:29:37 AM)
(4 of 10) [WMAP-357/2017] After passing such orders of absorption, it is needless to state that whatever salary (underlining mine) that fell due and payable to the said eleven teachers for the past period i.e. from 28.3.2008 shall be restored in the manner such aid is to be granted prior to the coming into force of the 2010 Rules. In other words, such aid is to be sanctioned to an extent of 70% and 30% to be borne by the School Management, such calculation shall be made and the extent to which aid is to be sanctioned shall be granted up to the date by which the order of absorption is passed and thereafter the full salary payable for an absorbed teacher in the State service shall also be calculated and sanctioned by Respondent No.1/State Government.
On such orders being passed, we also direct the School Management to take necessary steps for paying the 30% of their liability from March, 2008 up to the date of the absorption of the eleven teachers, as per the orders to be passed by the State Government.
A perusal of the aforesaid order of the Apex Court makes it evident that the non-applicant nos.4 and 5 was required to pay "whatever salary" that was due and payable to the applicants commencing 01.04.2008 when the non-applicant-institution on its own ceased availing grant-in-aid from the State Government, till the date of absorption of the applicant under Rajasthan Voluntary Rural Education Service Rules, 2010 (hereinafter 'the Rules of 2010'), which was 16.10.2016. It is an admitted fact that following the Apex Court's order the differential salary due to the applicants for the period 01.04.2008 to 16.10.2016 has been paid. Counsel for the applicant Mr.Sehban Naqvi doe not dispute this fact.
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(5 of 10) [WMAP-357/2017] Mr.Sehban Naqvi however submitted that the directions of the Apex Court in its order dated 19.07.2016 in Civil Appeal No.6601-6603/2016 also entailed though not expressly but by way of necessary implication payment of due gratuity and leave encashment for the period from 01.04.2008 to 16.10.2016. For this submission Mr.Sehban Naqvi relied on the definition of word 'salary' under Rule 2 (n) of the Rules of 2010 which is the aggregate of emolument of an employee including dearness allowance or any other allowance or relief for the time being payable to him. This would include gratuity and leave encashment submitted Mr.Sehban Naqvi. Yet nothing on the aforesaid two counts having been paid to the applicants as part of salary, it now be directed, pursuant to this application, to be paid to the applicants by the non-applicant nos.4 and 5 whose liability it unquestionably is, as for the period in issue, it was admittedly the applicant's employer. The applicants honorably ceased their employment with non-applicant nos.4 and 5 on 16.10.2016 following their absorption in the service of the State Government by availing the Rules of 2010. Mr.Sehban Naqvi submitted that infact the leading appellant before the Apex Court in Civil Appeal No. 6601-6603/2016 i.e. Sobhagya Singh Shekhawat has been (Downloaded on 28/06/2019 at 02:29:37 AM) (6 of 10) [WMAP-357/2017] suo moto allowed by the non-applicant nos.4 and 5, as the employer following the order dated 19.07.2016 by the Apex Court, the benefit of gratuity and leave encashment aside of salary due month to month.
Per contra, Mr.V.K. Sharma counsel for the non-applicant submitted that the proceedings before this court are in the nature of an execution proceedings, and hence this court cannot go beyond the plain language of the final judgment of the Apex Court in Civil Appeal No. 6601-6603/2016. The Apex Court has therein only directed payment of differential salary between the period 01.04.2008 to 16.10.2016. That salary due admittedly having been paid to the applicants, nothing remains for further enforcement of the Apex Court's order. He submitted that this application for execution is therefore completely misdirected, more so the Apex Court itself did not find the non-applicant/s in contempt for non-compliance of its order dated 19.07.2016. Mr.V.K. Sharma then submitted that gratuity and leave encashment amount as claimed by the applicants is even otherwise not covered within the word "salary" as defined under Rule 2 (n) of the Rules of 2010. The issue of non-payment of gratuity and leave encashment amount to the applicants as now (Downloaded on 28/06/2019 at 02:29:37 AM) (7 of 10) [WMAP-357/2017] furtively raised in this application under Order 45 Rule 15 CPC is an independent cause of action for which the applicants were and will be, law of limitation permitting, free to take their remedy of an appeal (application) before the Rajasthan Non-Government Educational Tribunal under the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter 'the Act of 1989'). They have not so done and cannot gloss over that failure by this misdirected application based on an assumed and implied direction to that end in the Apex Court's judgment dated 19.07.2016. Mr.V.K. Sharma submitted that it is well-settled that the Executing Court, as this court presently is in this application under Order 45 Rule 15 CPC, cannot go beyond or behind the final judgment (decree) in question.
Heard. Considered.
In the instant application under Order 45 Rule 15 CPC this court is to confine self to the execution/ enforcement of the judgment dated 19.07.2016 passed by the Apex Court in Civil Appeal No. 6601-6603/2016. It has jurisdiction in respect of nothing more. A perusal of the relevant portion of the Apex Court's judgment indicates that the non-applicant nos.4 and 5 in the civil appeal before the Apex Court was directed to pay (Downloaded on 28/06/2019 at 02:29:37 AM) (8 of 10) [WMAP-357/2017] "whatever salary" due to the applicants with reference to the salary payable on similar posts in government schools from 01.04.2008 to date of absorption in government service under the Rules of 2010, which turned out to be 16.10.2016. That salary comprised of all due emoluments and allowances payable month to month and has been paid to the applicants as conceded by their counsel Mr.Sehban Naqvi.
I am of the considered view that it is not for this court in proceedings under Order 45 Rule 15 CPC to go into the issue of alleged discrimination, as agitated by Mr.Sehban Naqvi, against the applicants vis-a-vis similarly placed Sobhagya Singh Shekhawat. That would be the function of the Educational Tribunal under the Non-Aided Governmental Institutional Act, 1989 (hereinafter 'the Act of 1989') or a court exercising Article 226 of the Constitution of India jurisdiction. Further this court cannot construe the word 'salary' in the Apex Court's judgment of 19.07.2016 with reference to the definition of "salary" under the Rules of 2010, which in any event has no bearing on the applicants claims for gratuity and leave encashment against the non-applicant nos.4 and 5 on the basis of their employment under the Act of 1989. I am of the considered view that salary as (Downloaded on 28/06/2019 at 02:29:37 AM) (9 of 10) [WMAP-357/2017] directed by the Apex Court under its order dated 19.07.2016 in Civil Appeal No. 6601-6603/2016 having been paid to the applicants, the obligations of the non-applicant nos.4 and 5 to the applicant under the Apex Court's order stands fully discharged and satisfaction of the "decree" of the Apex Court has to be found. Besides it is well settled that in an execution application it is not open for this court to go beyond the decree before it and read anything therein not expressly stated. I am also of the considered view that neither gratuity nor the leave encashment is covered in the definition of the word "salary" even under Rule 2 (n) of the Rules of 2010 or for that matter under the Act of 1989 and Rajasthan Non-Government Educational Institutions (Recognition, Grant-In-Aid and Service Conditions Etc.) Rules 1993 (hereinafter 'the Rules of 1993') framed thereunder. I am therefore not inclined to hold from the judgment of the Apex Court in Civil Appeal No.6601-6603/2016 that it entailed payment of gratuity and leave encashment to the applicants.
However as held hereinabove, the applicants shall be free to take whatever legal remedies as they be advised, to assert their claim and right to payment of gratuity and leave encashment from the non-applicant nos.4 and 5.
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(10 of 10) [WMAP-357/2017] There is no force, for reason of discussion above, in this application under Order 45 Rule 15 CPC. Dismissed.
(ALOK SHARMA),J Karan Bhutani /531/2 (Downloaded on 28/06/2019 at 02:29:37 AM) Powered by TCPDF (www.tcpdf.org)