Rajasthan High Court - Jodhpur
Dr. Raj Singh Malik & Ors vs State Of Rajasthan & Ors on 14 October, 2008
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.3314/2006.
(Dr. Raj Singh Malik & Others Vs. State of Rajasthan & Others)
DATE OF ORDER : October 14th, 2008
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. M. Mridul, Sr. Advocate with Mr. R.N. Upadhyay,
For the petitioner.
Mr. K.R. Saharan for the respondent.
Mrs. R.R. Kanwar, Counsel for the State.
Reportable : BY THE COURT :
In this writ petition, the petitioners have prayed that the order Annex.-2 dated 19.12.2005 may be declared invalid and quashed so far it chooses to deny the petitioners right to have their emoluments fixed in accordance with the Revised Pay Scale Rules, 1998 from the date the Rules came into force till 31.12.2005. Further, it is prayed that the respondent State be directed to extend government aid for the purpose of giving effect 2 to the selection grades, encashment of earned leave and for the purpose of making available all the allowance at par with the Government educational institutions and other aided institutions and also declare that the petitioners are entitled to gratuity being given.
The petitioners have also prayed that the respondent State may be directed to make available government aid for the aforesaid purposes and saddled with the liability of making payments with interest at the rate of 9% per annum.
Brief facts of the case are that initially a writ petition was preferred by the petitioners before this Court being S.B. Civil Writ Petition No.470/2003. In that writ petition, it was prayed that the respondents may be directed to give necessary sanction for giving the benefits of Vth Pay Commission i.e., Revised Pay Scale 1998 to the petitioners with effect from 01.09.1996 with all consequential benefits. The said writ petition was disposed of by the learned Single Judge of this Court on 12.07.2005 in which a direction was issued that the petitioners may file a fresh representation within a period of 15 days and respondent No.2 shall consider and decide the same either way in accordance with law within a period of one month from the date of receipt of the representation. It was further observed in the direction that if it is found that the 3 petitioners are entitled for any relief in accordance with law, then the same may be given to the petitioners and if the petitioners are not found entitled to the relief sought for, then a reasoned and speaking order strictly in accordance with law may be passed.
As per the petitioners, a representation was filed by them as directed by this Court and after considering the said representation, order was passed on 19.12.2005 (Annex.-2) whereby although the benefit of Revised Pay Scale Rules 1998 was allowed to the petitioners but the benefits have been extended with effect from 01.01.2006. Further, it is also observed in the order that in the Institution where the petitioners are working, they will not be entitled to any additional aid and the aid granted in the past years will be frozen.
The petitioners are challenging the aforesaid order on the ground that they are employees of the aided institution which is instrumentality of the State and the benefit of Revised Pay Scale Rules was allowed to the employees of the aided institutions from time to time by the respondent State and all the employees of the aided institutions were held to be entitled for the benefit of Revised Pay Scale Rules as granted to the government employees also; but, in the case of the petitioners, the respondents have denied the actual benefits with effect 4 from 01.09.1996 whereas the employees of other aided institutions were granted the said benefit from the date of applicability of the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998. Therefore, according to the petitioners, the respondents cannot discriminate against the petitioners' case. Further, it is contended that while deciding the representation of the petitioners as ordered by this Court, vide the order impugned dated 19.12.2005, the case of the petitioners was considered under the Ayurved Department Aid (Relief) Rules, 1972 whereas, in the past, when the Rajasthan Civil Services (Revised Pay Scale) Rules, 1989 were promulgated, an order was issued by the Government on 01.12.1990 and all the benefit which is made available under those rules in the year 1989 were allowed to the aided institutions of the Ayurved Department. The petitioners have placed on record Annex.-5, the order impugned. Learned counsel for the petitioners have also invited attention of this Court towards order dated 21.05.1998 whereby the Government passed order for granting benefit of Revised Pay Scale Rules 1998 with effect from 01.09.1996 at par with government employees and this order was passed by the Special Secretary, Education for all the aided educational institutions, therefore, the petitioners are claiming the benefit of revised pay-scale rules with effect from the date 5 the same was allowed to the government employees and other aided institutions of the Education Department.
Learned counsel for the petitioners while claiming the aforesaid relief invited my attention towards the judgment of the Full Bench of this Court, reported in 2002 (3) WLC 586, rendered in the case of S.R. Higher Secondary School & Another Vs. Rajasthan Non-Governmental Educational Institutions Tribunal & 23 Others, in which the Full Bench of this Court has held that teachers of non-governmental educational institutions are entitled for all such benefits as are available to the teachers of the government educational institutions. Learned counsel for the petitioners vehemently argued that the State Government cannot discriminate the case of the petitioners because after coming into force of the Rajasthan Non Governmental Educational Institutions Act, 1989 all those Grant in Aid Rules which were in existence prior to coming into force of the Act were repealed and, now, all the educational institutions including the Institutions of the Ayurved Department are required to be governed under the Act because the respondent institution is an educational institution and affiliated with the Rajasthan Ayurvedic University, Jodhpur and getting grant-in-aid from the State Government, therefore, it is prayed that although after passing an order in the earlier writ petition the 6 respondents have allowed the benefit of Revised Pay-scale Rules 1998 to the petitioners but certain conditions were imposed whereby it is ordered that the benefits will be extended with effect from 01.01.2006 and, so also, no additional grant-in-aid will be allowed to the institutions and grant-in-aid allowed to the institutions in the past years will be frozen. This order is illegal to the extent it provides the benefit with effect from 01.01.2006 and not from 01.09.1996 as prescribed in the Revised Pay Scale Rules 1998, therefore, to the extent of imposing such condition the order dated 19.12.2005 may be quashed and the respondents may be directed to grant all benefits as are available to the employees of the aided educational institutions which are recognized by the State Government and are getting aid under the provisions of the Act of 1989.
Per contra, learned counsel for the State vehemently argued that the respondents are within their jurisdiction to grant any benefit from a particular date looking to the financial condition of the State and the Department. Further, it is submitted on behalf of the respondent State that the petitioners are not entitled for the benefits as claimed by them at par with other educational institutions because in the respondent department there are other rules known as Ayurved Department Grant in Aid (Relief) Rules, 1972 under which there is power vesting in the 7 Ayurved Department to allow the benefits as per the financial condition of the State/Department. Learned counsel for the respondent State submits that no benefit can be claimed as a matter of right, therefore, no direction can be issued to the respondents for granting the benefits at par with the government employees and employees of the other educational institutions.
In the reply, numerous judgments have been cited by the respondent Department to substantiate its action and it is prayed that the competent authority has passed the order in the peculiar facts and circumstances of this particular case which is legal, valid and justified. The petitioners have already been granted benefit as per orders, directions, circulars and guidelines issued by the State Government as well as directions of this Court, therefore, there is no force in this writ petition and the same deserves to be dismissed.
I have considered the rival submissions made by both the parties.
First of all, it is obvious from the fact that vide Annex.-2 representation filed by the petitioners was decided and they were held entitled for the benefits of the Revised Pay Scale Rules 1998 which is evident from the order itself. However, two conditions have been imposed in the said order. Order Annex.-2 reads as under : 8
र जस न सरक र च ककतस (गप-4) आयरद वरभ ग कम क:प.(59)आय./05 जयपर, कदन क 19-12-05
-: आदश :-
म नन य उच नय य लय र जस न ज#धपर ब& द र एस.ब .चसवरल ररट वपट+शन स. 470/2003 श र जचसह मचलक र अनय बन म र जय सरक र म0 प ररत चनर3य कदन क 12.7.05 म0 पदत चनदश6 क7 अनप लन म0 य द र पसतत अभय रदन कदन क 19-7-05 क पर+कर एर अनश लन आयरद वरभ ग य अनद न (सह यत ) चनयम,1972 क पररपकय म0 ककय गय ।
पकरर म0 वरत वरभ ग क मखय पकक र ह#न क पररर मसररप वरत वरभ ग स भ पकरर म0 र य एर पर मश3 चलय गय ।
मनन य नय य लय क चनर3य त चनयम6 क अरल#कन पश त ? य द र पसतत अभय रदन क चनसत रर चनमन नस र ककय ज त हA:-
1. य च य6 क# पनर+ककत रतनम न चनयम 1998 क ल भ कदन क 1-1-2006 स पद न ककय ज न क7 सर कC चत एतदद र पद न क7 ज त हA ।
2. य च ओ क# पनर+ककत रतनम न चनयम 1998 क ल भ पद न ककय ज न हत इन सस ओ क# अनय ककस भ पक र क अचतररक अनद न दय नह+ ह#ग । अनद न र चश वरगत ररH क सतर पर फ#जन (Frozen)क7 ज त हA ।
उपर#क नस र य च ओ द र पसतत अभय रदन क चनसत रर ककय ज त हA । वरत वरभ ग क7 सर कC चत, वरत वरभ ग क7 पत रल सखय प.16 (8)वरत/चनयम/98 आई.ड+. स. 3832 कदन क 13-12-05 द र प प क7 ज क7 हA ।
एस.ड+.
पमख श सन सच र"
Upon perusal of the above order it is revealed that the representation of the petitioners was considered under the Ayurved Department Grant in Aid (Relief) Rules, 1972.
In the year 1989, the State Government promulgated the Rajasthan Non Governmental Education Institutions Act, 1989.
In that Act, under Section 2 (b), "Aided institution"
means a recognised institution which is receiving aid in the 9 form of maintenance grant from the State Government. In clause (p) "non-Government educational institution" is defined to mean any college, school, training institute or any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate, degree, diploma or any academic distinction recognised by the State or Central Government or functioning for the educational, cultural or physical development of the people in the State and which is neither owned nor managed by the State or Central Government or by any University or local authority or other authority owned or controlled by the State or Central Government.
Upon perusal of the above definition clauses contained in Section 2 of the Act of 1989, it is clear that all those institutions as receiving aid in the form of maintenance grant from the State Government have been defined as "aided institutions".
Similarly, in clause (j) of Section 2 "existing institution" means any recognised institution established before the commencement of this Act and continuing as such at such commencement. Further, as noted hereinabove, "non-Government educational institution" is defined to mean any college, school, training institute or 10 any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate, degree, diploma or any academic distinction recognised by the State or Central Government or functioning for the educational, cultural or physical development of the people in the State and which is neither owned nor managed by the State or Central Government or by any University or local authority or other authority owned or controlled by the State or Central Government. Thereby meaning that the petitioner institution is a non-Governmental Education Institution imparting education as an affiliated college of the Rajasthan Ayurvedic University, Jodhpur and imparting education of Ayurved. In this view of the matter, all those rules which were in existence prior to enactment of the Act of 1989 are now governed by the Rules of 1993 framed under the provisions of Section 43 of the Act of 1989.
In my opinion, after enactment of the Act of 1989 known as Rajasthan Non-Governmental Educational Institutions Act, 1989 and the Rules of 1993, framed thereunder, all those rules which were in existence for granting aid prior to enactment of the Act were repealed. The repealing clause incorporated in the Rules of 1993 is as follows :
11
"91.Repeal and Saving.-(1) The Rajasthan Grant-in-aid to Educational and Cultural Institutions Rule, 1963 and any Notification issued and orders made under any such rules to the extent to which they apply to the person/institution to whom these rules apply and in so far as they relate to recognition, grant-in-aid, Service-conditions, or confer powers to make appointments, grant- recognition, sanction grant-in-aid, impose penalties, or entertain appeals are hereby repealed:
Provided that -
(a) Such repeal shall not effect the previous operation of the said rules, notification and orders or anything done, or any action taken thereunder;
(b) Any proceedings under the said rules, notification or orders pending at the commencement of these rules shall be continued and disposed off as far as may be, in accordance with the provisions of these rules.
(2)Nothing in these rules shall operate to deprive any person or institution to whom these rules apply of any right of appeal which had accrued to them under the rules notification or orders repealed by sub-rule (1) in respect of any order decided before the commencement of these rules. (3) An appeal pending at or preferred after the commencement of these rules against an order made before such commencement shall be considered and order thereon shall be passed in accordance with these rules."
Meaning thereby, the petitioners were entitled for all the benefits as are available to the other institutions receiving grant-in-aid as well as State government employees under the Revised Pay Scale Rules, 1998. In the case of the petitioners, although it is accepted by the Ayurved Department that the petitioners are entitled for the benefit 12 of Revised Pay Scale Rules, 1998 but, in the impugned order, the benefits have been extended to the petitioners with effect from 01.01.2006 which is totally in contravention of the judgment rendered by the Full Bench of this Court in S.R. Higher Secondary School's case (supra) in which it has been held that all the benefits which are available to the State government employees are required to be given to the employees of the aided non- governmental institutions also. Para 17 to 21 of the said judgment run as under :
"The Apex Court while laying down the principles on consideration of the question of right to education expressed that in the matter of providing sole and spirit to fundamental rights conferred on the individuals, the directive principles of the State policy to achieve the goal of the Constitution for building the egalitarian society free from exploration were laid in Part IV. Article 41 in the context of the present controversy invites attention which says that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. The need to provide free education to the children until they complete the age of fourteen years, as a matter of compulsory obligation of the State and to endeavour to secure the right to education thereafter to its citizens subject to financial resources available to it as envisaged under Art.45 of the Constitution of India. With this constitutional scheme, we find that the teachers of aided educational institutions must be paid the same pay scale and allowances as that of the teachers in 13 government educational institutions. We are, therefore, of the view, after reading it, along S.29 of the Act and R.34 of the Rules, and circular dated 25.1.1992, that selection scale is not a promotion to higher post but a higher pay scale in the same post. Once it is held that the aforesaid circular provides pay scales to the teachers of government educational institutions, by virtue of the statutory provision, it shall also be payable to teachers of NGEIs.
It is submitted by the counsel for petitioners that in the NGEIs as there is no promotional post available, the circular giving selection scale cannot be applied on them and further the selection scale cannot automatically be claimed on completion of 9, 18 and 27 years of service, it depends upon satisfactory performance of the employee, which cannot be ascertained in the cases of teachers in NGEIs and, therefore, they are not entitled for selection scale. Considering the entire scheme of the Act and the Rules framed thereunder, and the circular issued by the government on 25.1.1992, it is for the government to adjudicate upon the extent of grant of selection scale to an individual teacher working in NGEIs. Clause 5 of the circular/order dated 25.1.1992 reads thus -
"In case there is no post for first, second or third promotion, as the case may be, in the same service/dacre or the employees does not possess academic qualifications prescribed for promotion and in respect of the isolated posts, the Selection Grades shall be as specified below -
......... .............. ..........
......... ................ .......... ......... ................ .......... It is clear from this that the circular has taken into consideration, and allocate pay scales where there is no post for first, second a third promotion available in the same service or cadre and in respect of isolated posts. Suffice it to say, that the government can take into consideration Cl.5 of the circular while issuing grant-in-aid to 14 the NGEIs. The petitioners are not correct in saying that satisfactory service of the teachers working in the NGEIs cannot be ascertained from the record maintained by the NGEIs. R.44 of the Rules specifically provides to maintain service book wherein every step in the employees official life is to be entered. On the basis of service book maintained, satisfactory service of an employee can certainly be ascertained. After all, it is for the government agencies granting aid to NGEIs to consider all these aspects.
Now, it brings us to the question as to whether the State is obliged to contribute grant-in-aid for the selection scale provided under the circular dated 25.1.1992. The Act of 1989 has been enacted to provide for better organisation and development of education in the Non-Government educational institution in the State of Rajasthan. S.7 of the Act provides for grant of aid. Only a recognised institution run by a Society registered under the Societies Registration Act would be given the grant in aid subject to such terms as may be prescribed. The sanctioning authority may sanction and distribute aid to a recognised institution from time to time in accordance with the procedure as may be prescribed. In exercise of the powers conferred by R.43 of the Rules the State Government framed Rules regulating recognition, grant of aid and service conditions etc. of the NEGIs. R.10 of the Rules provide for general conditions governing grant-in-aid. R.11 deals with procedure for grant-in-aid. R.12 is for finalisation of maintenance or recurring grant. R.13 is in regard to assessment of annual recurring grant on the basis of estimated expenditure of the current year and will be subject to adjustment of grant payable in the next year. R.14 deals with approved expenditure. R.15 is for payment of recurring grant. R.16 deals with non recurring grant. S.7 of the Act reads as under :15
"Grant of aid to recognised institutions.-(1) No aid shall be claimed by an institution as a matter of right. (A) Unrecognised institutions shall not be eligible to receive any aid.
(B) Subject to such terms and conditions as may be prescribed, the sanctioning authority may sanction and distribute aid to recognised institutions from time to time in accordance with the procedure as may be prescribed.
(C) The aid may cover such part of the expenditure of the institution as may be prescribed.
(D) No amount out of aid given for salary of the employees of an institution shall be used for any other purpose.
(E) The sanctioning authority may stop, reduce or suspend aid on breach of any of the terms and conditions prescribed in this behalf.
The amount of aid may normally be paid to the secretary of the managing committee of an institution but, in special circumstances and for reasons to be recorded in writing, such amount may be paid to any person authorised by the Director of Education or by any other officer empowered by him in this behalf.
On the basis of S.7 it is contended by the counsel for State that no aid can be claimed as a matter of right. It is for the government to decide not only whether the grant-in-aid is to be given to recognised institution but also as to how much and under what heads the grant is to be sanctioned to the NGEIs. In counter it is submitted by the counsel for petitioners that once educational institution is registered, it is entitled to grant-in-aid from government as a matter of right and for this proposition reliance was placed on the decision of State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730. This case, in our opinion, does not assist the petitioners in contending that they are entitled as a matter of right to get the grant-in-aid to the 16 recognised private law colleges while the same was extended to other faculties of the private colleges. The court emphasised upon the necessity of giving legal education and to fulfill the obligation under Article 39A of the Constitution of providing free legal aid and held that the faculty of law in the matter of considering grant-in-aid run by private recognised colleges cannot be discriminated on the ground of being a professional course falling upon the economic resources. The court emphasising upon the necessity of maintaining status of legal education held that these aspects necessarily flowing from Articles 21 and 39A of the Constitution were totally lost sight of by the Government when it denied the grant-in-aid to the recognised private law colleges as was afforded to other faculties. The State has abdicated the duty enjoined on it by the relevant provisions of the Constitution of aforesaid. Accordingly, the Court directed the Government to extend grant-in-aid scheme to Govt. recognised private law colleges on the same criteria on which such grant were given to other faculties viz., Arts, Science, Commerce, Engineering and Medicine from the Academic Year 1995.
Under sub-section (1) of S.7, educational institutions cannot claim grant- in-aid from the government as a matter of right i.e. to say on an application moved by an NGEI for grant of aid, it is not incumbent on the government to grant aid to such an institution if reasonable ground exists for not granting aid to such an institution if reasonable ground exists for not granting aid to such an institution. However, the government cannot refuse grant arbitrarily or without there being any justiciable reason. In the present case all the petitioners have been allocated grant-in-aid. The question really is whether once the aid is sanctioned, the sanctioning authority has a power to fix it exercising its own discretion or the grant has to be made as provided under sub-sections (3) and (4) of S. 7 of the Act read with the Rules and in the matter of 17 quantum of grant in aid n o discretion is left with the sanctioning authority.
It is an admitted fact that the petitioners are enjoying grant-in-aid from the government. From the scheme of the Rules, it appear that the assessment of annual recurring grant would be sanctioned on the basis of the estimated expenditure of the current year, and the institutions shall be categorised under advise of the grant-in-aid Committee and would be allowed grant-in- aid.
20. R. 13(2) speaks of approved expenditure to be arrived at according to these Rules and such other instructions that may be issued from time to time. R.13(3) speaks of categorisations of the institutions under advise of the grant-in-aid committee and to be allowed grant-in-aid as -
Category A 80% of the approved expenditure of the previous year plus likely annual increment of staff.
B 70%
C 60%
D 50%
Special Category 90%
R. 14(a) includes actual salary, and provident fund contribution not exceeding 8.33% in respect of teaching and non-
teaching staff, apart from the other approved expenditures as laid down in R.14.
"Salary" is defined in S.2(r) of the Act which means the aggregate of the emoluments of an employee including dearness allowance or any other allowance or relief for the time being payable to him but does not include compensatory allowance. The extended definition of salary provides for aggregate of emoluments received by the teacher which also includes all allowances excluding the compensatory allowance and also extended to the relief for the time being payable to the 18 teacher. The selection scale given to the teacher shall certainly fall within the four corners of the definition of "Salary".
Although, S.7 of the Act provides that no aid shall be claimed by an institution as a matter of right, once it is decided to grant aid under S.7(3) of the Act, the sanctioning authority is to sanction and distribute to a recognised institution aid from time to time in accordance with the procedure as may be prescribed. S.7(4) of the Act provides that the aid may cover such part of the expenditure of the institution as may be prescribed. S.7(3) read with S.7(4) of the Act it leaves no room for the sanctioning authority to exercise its discretion to grant or not to grant the aid in regard to the items covered under Ss.7(3) and 7(4) of the Act. Selection scale being salary, once the State Government has decided to grant aid to an NGEI, it will form the part of grant-in aid and thus the State Government in the eventuality of sanctioning the grant, will pay for the same in accordance with the percentage prescribed to the category in which the NGEIs is placed.
It is then submitted by the counsel for petitioners that teachers of NGEIs are not entitled for leave encashment. There is nothing in the Act or the Rules providing for leave encashment to the teachers on their retirement. The relevant portion of R.47(2) of the Rules reads as under :
2. Teaching staff -
(a) Privilege leave is not admissible to the members of teaching staff, whether temporary or permanent, in respect of duty performed in any calendar year, in which they avail themselves of the full vacation, except to the extent indicated under clause
(b) of this sub-rule.
(b) The teaching staff in schools and colleges shall be entitled to fifteen days/privilege leave in a calendar year. The leave account shall be credited with fifteen days privilege leave immediately after expiry of every calendar year. The grant of 19 privilege leave shall be subvject to the following conditions -
(i)Eight days privilege leave out of fifteen days in a calendar year, shall qualify for carry forward of balance to the next year.
(ii) Rest/seven days privilege leave, out of fiteen days in a calendar year shall if not availed of, during the calendar year in which it is credited to leave-
account, shall lapse at the end of the calendar year.
(c) The teaching staff appointed during a calendar year shall be allowed privilege leave @ 1 - 1 days for each completed months of the service immediately after the expiry of that calendar year subject to the condition laid down in clause (b) above in proportion of 8.7 respectively."
Thus, there is a provision for accumulation of privilege leaves. Admittedly the teachers working in government educational institutions are entitled for encashment of privilege leave on their retirement. By virtue of S.29 of the Act the teachers of NGEIs are entitled for the similar scale of pay and allowances except compensatory allowance it being the post of grant-in-aid, therefore, whatever allowances the teachers of government educational institutions are entitled to, would also be available to the teachers of NGEIs. Leave encashment is an allowance and the teachers in the NGEIs would have the right to claim this allowance"
In this view of the matter, the denial of the benefits to the petitioners at par with the employees of other aided institutions is violative of Article 14 and 21 of the Constitution of India. The respondents are under obligation to comply with the directions issued by the Full 20 Bench of this Court and the petitioners are entitled for all the benefits as are available to other aided educational institutions of the State. The order passed by the respondents dated 19.12.2005 is hereby modified and it is ordered that the petitioners may be granted all those benefits as are prescribed under the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998 from the date of applicability of the rules. It is also further ordered that the respondents shall grant all other benefits as per the verdict of this Court vide the aforesaid Full Bench decision within a period of three months from the date of receipt of certified copy of this order. The State shall ensure that the necessary aid is made available to the respondent institution.
The writ petition is allowed in the above terms.
(Gopal Krishan Vyas) J.
Ojha, a.