Rajasthan High Court - Jodhpur
Giriraj Sharma And Ors. vs . State Of Rajathan & Ors. And 1 Connected ... on 16 April, 2014
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Writ Petition No.1711/2014
Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014
1/15
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
1. S.B. Civil Writ Petition No.1711/2014
Giriraj Sharma and ors. Vs. State of Rajathan & Ors.
2. S.B. Civil Writ Petition No.2081/2013
Giriraj Sharma and ors. Vs. State of Rajathan & Ors
Date of Order ::: 16th April, 2014
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
Mr.Mukesh Rajpurohit, for the petitioners.
Mr.M.R.Singhvi, Sr. Advocate assisted by
Mr. Bhavit Sharma, for the RSMML
Mr.Akhilesh Rajpurohit, for Vidhya Bhawan Society
Mr.B.L. Bhati, for the State.
--
BY THE COURT:
1. The petitioners in these writ petitions are the teaching and non-teaching staff members employed by the respondent No.3 - Society known as Vidhya Bhawan Society, Udaipur which is running a school at Udaipur. The petitioners in the present writ petitions have sought certain directions from this Court in the present writ petition filed under Article 226 of the Constitution of India and the prayers made in both the writ petitions are quoted below for ready reference:
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 2/15 "SBCWP No.1711/2014
1. The respondents may be directed to allow the benefit of revision of pay under the Sixth Pay commission to the petitioners, with all consequential benefits.
2. The respondents may kindly be further directed to allow the difference of arrears alongwith 18% interest to the petitioner.SBCWP No.2081/2013
"1. the respondents may be directed to protect services of the petitioners on their respective posts and by a writ, order or direction the respondent - State may be directed to absorb the petitioners in the schools run by the State Government/and or they may be absorbed on equivalent posts in the State Government, with all consequential benefits.
2. That while doing aforesaid, the longevity of services rendered by the petitioners may be considered and they may also be allowed the benefit of protection of their seniority.
3. That the respondent School may be directed to continue to grant regular pay scale and other service benefits to the petitioners in-effective of any such impugned action."
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 3/15
2. The learned counsel for the petitioner, Mr. Mukesh Rajpurohit urged that the petitioners had earlier also approached this Court by way of writ petition No.10974/2012 - Giriraj Sharma and ors. V/s State and ors, which came to be disposed by a coordinate bench of this Court on 18.1.2013 giving the petitioners liberty to approach the respondents by way of representations and it was expected that if the respondents find that the petitioners are eligible and entitled for the benefit prayed by them, the benefits may be extended to them in accordance with law. The said order dtd.18.1.2013 is quoted below for ready reference:
"Heard learned counsel for the petitioners.
In this writ petition, the following relief has been prayed by the petitioners:-
"1. The respondents may be directed to allow the benefit of revision of pay under the Sixth Pay Commission to the petitioners with all consequential benefits.
2. The respondents may kindly be further directed to allow the difference of arrears along with 18% interest to the petitioner."
Learned counsel for the petitioners submits that before apporaching this Court, the petitioners filed a detailed S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 4/15 representation before the respondents for granting the benefits but the said representation is still pending and respondents are not deciding the claim of the petitioners.
In this view of the matter, this writ petition is disposed of with liberty to the petitioners to file fresh representation alongwith certified copy of this order for their grievances. The respondents are directed to decide the representation filed by the petitioners with regard to their claim made in the representation within a period of one month from the date of receipt of certified copy of this order. It is expected from the respondents that if it is found that the petitioners are eligible and entitled for benefits as prayed by them, the benefits may be extended to them in accordance with law.
Sd/-
(GOPAL KRISHAN VYAS),J."
3. Thereafter it appears that the petitioners approached the Rajasthan State Mines and Minerals Ltd., a Government of Rajasthan Enterprise (RSMM for short) which was giving grant-in-aid to the respondent - Vidhya Bhawan Society to run the said school by way of the representation Annex.13 dtd. 24.1.2013, which however, came to S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 5/15 be turned down by the respondent - RSMML vide its communication dtd.26.2.2013. The respondent - RSMML refused to reimburse the additional costs incurred/to be incurred by the respondent - Society towards the payment of salary and allowances to the petitioners as per the recommendations of VIth Pay Commission by assigning the following reasons:
"ब न सख -2 क व द भ न म ध ममक व द ल ,
झ मरक ट ड क कमच र छठ तनम न क लभ
आर.एस.एम.एम.एल. स प प करन क अध)क र ह+?
(i) उपर क ब न सख 1 म/ उललख2त तथ 4 ए
उसक ननषकर स ह एक ननव द त तथ ह+ कक
आर.एस.एम.एम.एल. कपन: एकट म/ गदठत एक कपन: ह+ ज=सक> हमत अश) रक र =सA न सरक र ह+ । कपन:
क मख क 2नन ए व पणन ह+ तA कपन: म/
ननगममत स म ज=क न त 4 क तहत श+कखणक
सव ) ओ क व सत र क मलए एक व द ल सच लन क
मलए भ न ए व त: सस )न उपलब) कर त हए एक
नन=: स स ट स अलपक ल न सहमनत-पत व सA
एम०ओ० L० क तहत व द ल सच लन क ननण कक ।
(ii) उक ब न स ह भ: ननव द त तथ ह+ कक
व द भ न स स ट एक नन=: प=:कMत स स ट ह+ तA
धचक कत श+ककक ए ग+र श+ककक क ममक उक नन=:
स स ट द र नन क ए नन बतत क ममक ह+ तA उनक
नन तण ए स शतP क मलए व द भ न स स ट क>
सकम ह+ ।
(iii) आर.एस.एम.एम.एल. ए व दभ न सस ट क
मध उक व द ल सच लन क मलए ननषप द त तम न
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 6/15 एम०ओ० L०क प+र स. 15 म/ उलल2 ह+ कक:-
"The Society shall send their budget for every financial year in advance to company for scrutiny and for taking the approval of such amount to be released from the competent authority. For the year 2009-2010, the amount of grant payable will be Rs.51.48 lacs as per details below:-
a. Salary/Wages - Rs.49,47,684/- per annum. b. Contingent and Misc. expenditure - Rs. 40,000/- per annum including library books. c. Teaching Aids : Rs.500/- on each item, subject to a ceiling of Rs.10,000/- per annum. d. Consultancy/Administrative charges will bep aid to the society in lump sum i.e. 1.50 lacs per year. Total = Rs.51.48 lacs.
The company will also pay the liability on account of increased dearness allowance, actual salary, D.A., H.R.A. And Gratuity in respect of the existing ministerial and non-ministerial staff in the scale and rates approved by the State Government and Provident Fund contribution at the rates applicable for Staff of School will be paid by the company."
(iv) उक एम०ओ० L० क कलQ= स. 5 म/ अककत कक ग ह+
कक:-
"THE COMPANY SHALL PAY GRANT-IN-AID
TO THE SOCIETY FOR RUNNING THE SCHOOL TO S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014
7/15
THE EXTENT OF 100% OF THE APPROVED
RECURRING EXPENDITURE, LESS
INCOME/RECEIPTS BY WAY OF TUITION FEES, ETC. WHICH AS CONVENTION FORM THE PART OF REVENUE ON QUARTERLY BASIS IN ADVANCE WHICH SHALL BE ENDING SEPTEMBER, DECEMBER, MARCH & JUNE EACH YEAR.
DIFFERENCE IF ANY SHALL BE ADJUSTED/PAID IN SUBSEQUENT QUARTER IN THE EVENT ADVANCE GRANT IS PAID ON THE BASIS OF ESTIMATES FURNISHED BY THE SOCIETY."
(v) उक एम०ओ० ०
L द न क 26.10.2010 क र 2009
ए 2010 क मलए समग व 51.48 ल 2 रप
अनम ननत कक ग A । इसक पश त एम०ओ० ०
L क
प ) न4 क अनस र महग ई, भत सतव क तन,
सतव क मक न ककर भत इत द म/ सम सम पर
हई वM W क आ) र पर व द भ न स स ट दर र
2009-10, 2010-11, 2011-12 ए 2012-13 क =ट
आर.एस.एम.एम.एल. क पसतत कक A। त नस र
कपन: व द भ न स स ट क भगत न करत: आ रह ह+ ।
व रण ननमन नस र ह+ :-
आर.एस.एम.एम.एल. द र व द भ न स स ट क
कक ग भगत नक व रण :-
(र मश ल2
म/)
क.स. र व दभ न व दभ न दर आर.एस.एम.एम.एल.
सस ट दर पप कक ग दर सस ट क
=ट सतव क व कक ग भगत न
1 2009-2010 57,40,742.00 51,48,000.00 51,48.000.00
2 2010-2011 68,15,720.00 65,44,362.00 65,44,362.00
3 2011-2012 78,08,447.00 74,87,147.00 74,87,147.00
2012-2013 86,78,592.00 -- 64,41,000.00
4 (द सम र,2012 तक)
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014
8/15
छठ तन आ ग क र म/ एम०ओ० L० म/ ककस:
पक र क प ) न नह कक ग ह+।
(vi) हQ ह भ: उललख2त करन प सधगक ह+ कक छठ
तन आ ग क> मसफ ररश4 क रज कमच रर 4 हत
रज सरक र क> पस व जनप द न क 11.9.2008 द र
ल गL कर द ग A । = कक तम न एम.ओ. L.
उसक द न क 26.10.2010 क हसत कर कर कक
ग । अत: सपष ह+ कक छठ तनम न क अजसतत म/
आन क भ: पकक र4 क> मश क अनरप आपस:
सहमत: स इस एम.ओ. L. क> शतP म/ श ममल नह कक
ग A , अन A इसक सपष उलल2 कर द =त।
व द भ न द र पसतत =ट भ: उपर क नस र ह A ए
एम.ओ. L. कल = 15 म/ भ: त नस र ह र 2009-10
ए उसक उपर नत भ: प ) न कक ग ।
(viii) आर.एस.एम.एम.एल. द र एम०ओ० L० क कलQ=-
15 क अनस र समसत भगत न नन ममत रप स
व द भ न स स ट क कक = रह ह+ । एम०ओ० ०
L क
अनतररक ककस: भ: पक र क त ए क मलए कपन: क
कई न त नह ह+ ।
अत: उक व चन अनस र धचक कत गण
व द भ न स स ट क क ममक ह+, आर.एस.एम.एम.एल.
सतर स न त उक क ममक4 क> नन कक क> गई ह+ और
न ह इनक> स शतP क नन) रण कक ग ह+ । ऐस:
जसAनत म/ छठ तनम न क> मग क ममक दर
आर.एस.एम.एम.एल. स करन पAम दष ह
अव ध)म न ए अस :क र ग ह+ ।"
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 9/15
4. Being aggrieved by the said rejection of their representation, the staff of Vidhya Bhawan Society filed the present writ petition on 5.3.2014 and it was connected with the earlier writ petition No.2081/2013 - Giriraj Sharma v/s State and Ors, which was filed inthis Court on 26.2.2013 to which the respondents have also filed reply.
5. The learned counsel for the petitioners, Mr. Mukesh Rajpurohit submitted that the respondent - RSMML, a Government of Rajasthan Enterprise had entered into a Memorandum of Understanding executed between the RSMML and Vidhya Bhawan Society to pay 100% of the salary and allowances to the teaching and non-teaching staff of the said society and therefore, they cannot refuse to pay such enhanced amount which is agreed to be paid by the respondent No.3 - Vidhya Bhawan Society, on account of implementation of the recommendations of the Sixth Pay Commission.
6. Per contra, Mr. M.R. Singhvi, Sr. Advocate appearing for the respondent - RSMML vehemently opposed this writ petition and relying upon the decision of Hon'ble Supreme Court in the case of S.C. Chandra V/s State of Jharkhand reported in 2007(8) SCC 279 urged that firstly the Memorandum of Understanding is not an enforceable and executable decree in this Court under Article 226 of S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 10/15 the Constitution of India and particularly that Memorandum of Understanding having been terminated prematurely between RSMML and Vidhya Bhawan Society on 5.7.2012 as quoted above, there was no agreement on the part of the RSMML to reimburse the additional costs on account of increase in salary and allowances becoming payable to the petitioners on account of the recommendations of Sixth Pay Commission and such additional financial burden cannot be fastened upon the said company - RSMML, which in discharge of its social corporate responsibility had earlier entered into aforequoted MOU with the respondent - Vidhya Bhawan Society.
7. Mr. Akhilesh Rajpurohit, learned counsel appearing for the Vidhya Bhawan Society however submitted that the respondent - Society is agreeable to pay the benefits of Sixth Pay Commission to the petitioners subject to the reimbursement by the respondent - RSMML.
8. The learned counsel for the State, Mr. B.L. Bhati submitted that the State has been arrayed as a formal party in the writ petition and the absorption of services of the teachers under the Rajasthan Voluntary Rural Education Service Rules, 2010 cannot be given to the present petitioners as they were not working on the aided posts by the State in respondent No.3 - Vidhya Bhawan Society.
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 11/15
9. Having heard the learned counsels and upon perusal of the record and the judgment cited at the Bar, this Court is of the opinion that the present writ petitions filed by the petitioners are misconceived and same cannot be entertained by this Court. Firstly, the issue regarding enforceability of an agreement or MOU between the respondent RSMML and respondent No.3 - Vidhya Bhawan Society, existence of which as on the date itself is in doubt, whether the term of such agreement or Memorandum of Understanding clearly admitted of such additional financial liability to be fastened upon the respondent - RSMML, is also not clearly found in the said agreement. Several disputed questions of facts, terms of contract, its existence at the relevant point of time and later on its premature termination are complex questions of facts, which are required to be first adjudicated by proving such contractual terms before the competent civil court, if at all the petitioners choose to avail such remedy. Such an exercise of determination of such disputed questions of facts and law obviously cannot be undertaken in the extraordinary jurisdiction under Article 226 of the Constitution of India , since the liability is not admitted on the part of the respondent - RSMML which is sought to be so fastened with said liability.
10. Prima facie, from the material placed on record, it S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 12/15 appears that the respondent -RSMML cannot be called upon to discharge such additional financial burden under its Memorandum of Understanding, even if it can be said to be in existence in the period for which such increased financial burden of salary and allowances on account of implementation of recommendations of Sixth Pay Commission qua the petitioners, is sought to be fastened upon RSMM, which the respondent - Vidhya Bhawan Society would naturally like to pass onto the respondent - RSMML. Discharge of its social corporate responsibility under the MOU does not render or convert these petitioners as the employees of the respondent - RSMML itself. They are undoubtedly and admittedly the employees of the respondent
- Vidhya Bhawan Society only which is not even a "State" within the meaning of Article 12 of the Constitution of India to which any direction under Article 226 of the Constitution of India can be issued.
11. The dispute more so appears to be between the RSMML and Vidhya Bhawan Society and fall out of such dispute may be on the present petitioners - teaching and non-teaching staff of the respondent - Vidhya Bhawan Society. The Hon'ble Supreme Court in the case of S.C. Chandra V/s State of Jharkhand in almost similar circumstances negatived such claim of additional financial assistance from the Public Sector company, namely, Hindustan Copper Ltd., by holding as under:
S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 13/15 "Giving financial assistance did not necessarily mean that all the teachers and staff who were working in the school had become the employees of HCL. Therefore, the view taken by the learned Single Judge appeared to be correct that there was no relationship of management of HCL with that of the management of the school though most of the employees of HCL were in the Managing Committee of the school. No inference can be drawn that the school had been established by HCL. The children of workers of HCL were being benefited by the education imparted by the school. Therefore, the management of HCL was giving financial aid but by that it could not be construed that the school was run by the management of HCL.
The State Government can declare a particular School as proprietary secondary school under Section 19 of the Act on fulfilling certain conditions but the basic thing is that the entire finance will have to be borne by the trust, association, corporate body, individual or group of individuals. By this it does not mean that writ of mandamus can be issued to the State Government for taking over the management of the school. By that the employees of the school will not be State Government employees.
Government of Jharkhand in order to fulfil the constitutional mandate of giving free and compulsory education had been admitting students in government schools. If the Managing Committee would have made a S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 14/15 request to this effect, then the Government might have considered it. But there was no such offer by the Managing Committee and as such no direction could be given to the State of Jharkhand to grant recognition to proprietary school because nobody was prepared to take the financial responsibilities of the management of the school. Hence, no direction could be issued to the State Government to take over the management of the school."
12. The respondent - RSMML has already rejected the representation which was filed before them in pursuance of earlier directions of this court vide the communication dtd.26.2.2013 as aforesaid and quoted above. Thus, they have disputed their liability in this regard. The petitioners are not admittedly the employees of the respondent - RSMML as it never appointed them and terms of appointment were not given by the respondent - RSMML by the respondent - Vidhya Bhawan Society only which is an independent body corporate.
13. While the petitioners were free to ventilate their grievance subject to establishment of liability to be fixed on the respondent - Vidhya Bhawan Society for which appropriate remedy would be filing of civil suit and not the writ jurisdiction, but not in the least, the respondent - RSMML assumed to be a 'State' within the S.B. Civil Writ Petition No.1711/2014 Giriraj Sharma and ors. Vs. State of Rajathan & Ors. and 1 connected writ petition.
Order dt: 16/04/2014 15/15 meaning of Article 12 of the Constitution of India cannot be given any such mandamus direction in exercise of powers under Article 226 of the Constitution of India while it is seriously disputing its liability to pay such additional financial burden to the respondent - Vidhya Bhawan Society which in turn could be paid to the present petitioners, the teaching and non-teaching staff of the Vidhya Bhawan Society.
14. In these circumstances, these writ petitions are found to be not maintainable and on merits, no such direction as prayed for can be given to the respondents and the writ petitions deserve dismissal.
15. Accordingly, these writ petitions are dismissed. No order as to costs. A copy of this order be sent to the parties concerned forthwith.
(Dr. VINEET KOTHARI), J.
ss/-
3