Rajasthan High Court - Jaipur
Devi Lal Choudhary And Anr vs State Of Raj And Ors on 13 November, 2009
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH JAIPUR
ORDER
(1) S.B.CIVIL WRIT PETITION NO.9221/2007
Devi Lal Choudhary and another
Versus
The State of Rajasthan and others
(2) S.B.CIVIL WRIT PETITION NO.7966/2007
Shri Parasrampuria Rajasthan
Ayurveda College Samiti
Versus
The State of Rajasthan and others
(3) S.B.CIVIL WRIT PETITION NO.3432/2008
Inder Singh and another
Versus
The State of Rajasthan and others
(4) S.B.CIVIL WRIT PETITION NO.13154/2008
Prof.Krishan Gopal and others
Versus
The State of Rajasthan and others
DATE OF ORDER --- November 13, 2009
PRESENT
HONBLE MR.JUSTICE PREM SHANKER ASOPA
Mr.Anoop Dhand, Mr.J.K.Singhi, and
Ms.Neelam Pareek on behalf of Mr.G.K.Garg,
for the petitioners
Mr.Dinesh Yadav, Addl.AG
Mr.Sanjay Tyagi, for the respondent
REPORTABLE BY THE COURT
(1) By this common order, three writ petitions CWP No.9221/2007, CWP No.13154/2008, CWP No.3432/2008 filed by the employees of the Shri Parasrampuria Rajasthan Ayurveda College Samiti and one more CWP No.7966/2007 filed by Shri Parasrampuria Rajasthan Ayurveda College Samiti are being decided together as identical relief of payment of salary, appointment of the Administrator has been claimed by employees of the Samiti whereas the Samiti has filed the writ petition to call off the strike.
(2) The question of law involved in all these three writ petitions relates to the running of Shri Parasrampuria Rajasthan Ayurvedic College (hereinafter referred to as `the Institution) run by Shri Parasrampuria Rajasthan Ayurveda College Samiti (hereinafter referred to as 'the Samiti) and payment of salary and other benefits to the working staff of the College, and further in case, it is not possible for the Samiti to run the College, then whether the provisions of the Rajasthan Non-Government Educational Institutions Act, 1989 (in short `the Act of 1989') and the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-Aid and Service Conditions etc.) Rules, 1993 (in short `the Rules of 1993') can be invoked or not ?
(3) Briefly stated, the relevant facts of the case, as mentioned in CWP No.13154/2008 Prof.Krishna Gopal and others V. State and others are that the petitioners are working either as Professor, Lecturer, L.D.C. and Class IV employees of the Institution, claiming the relief of payment of arrears of salary and regular monthly salary whereas the Samiti has also filed CWP No.7966/2007 to direct the private respondents therein to resume the teaching work and hospital activities forthwith by calling off their agitation. In other writ petitions, it has been submitted that the symbolic strike was called in early 2008 when the management of the Institution did not fix their salary as per Vth Pay Commission and further did not pay salary to the staff. However, the strike was kept in abeyance on 14.5.2008 and ultimately, the strike was called off from 21.5.2008. On 6.9.2008, the Institution received a letter of the Secretary, Central Council of Indian Medicine which directed the Rajasthan Ayurved University to transfer students of Shri Parasrampuria Rajasthan Ayurveda College to two other private colleges i.e. Bhanwar Lal Dugar Vishwabharti Ayurved College, Sardar Shahar and J.R.Tatia Ayurved College, Sri Ganganagar. At this stage, serious apprehension was expressed by the petitioners that if the students of the other Colleges were transferred, then certainly, the Institution will be closed and their services will be dispensed with and further, the Samiti will get success in grabbing the property and assets of the Institution. Certain important facts with regard to the establishment and the prestige of the Institution are as follows:
(i)The present Institution was first established on 19.12.1942 in the name of Rajputana Ayurveda College, Sikar having a campus of 36 Bighas of land where on some part the building was constructed and soon became a prestigious Ayurved institution;
(ii)On 4.3.1963 the Samiti was registered under the provisions of the Rajasthan Societies Registration Act,1958.
(iii)Professors, Lecturers, L.D.C. and Class-IV employees appointed subsequently are working since more than twenty years and hospital activities are also being carried on.
(4) It is stated in the writ petition that in between 1997 and 2005, a lot of correspondence was also made between the Institution and the State Government for taking over the Institution and merging it in government college but the Managing Committee was not interested to convert the Institution into government college because it wanted to grab the properties and assets of the Institution by removing the teaching and non-teaching staff.
(5) It is further stated in the writ petition that prior to the year 2007, the Institution was running, except withholding payment of salary. On 26.6.2007, a Committee was constituted by the Rajasthan Ayurved University, Jodhpur in pursuance to which the Directorate of Ayurved, Rajasthan, Ajmer issued an order on 10.7.2007 for the purpose of inspection. On 11.7.2007, the said Committee carried out the inspection and gave its report on 17.7.2007. On 31.7.2007, the Vice Chancellor of the Rajasthan Ayurved University, Jodhpur and other officials inspected the Institution suddenly and found several irregularities. On 23.8.2007, the District Ayurved Officer, as per order of the District Collector, Sikar made a visit to the Institution for inspection but the inspection was got done on 24.8.2007. On 6.9.2007, the Directorate of Ayurved made recommendation to the State Government for appointment of the Administrator in the Institution. On 12.10.2007, the Managing Committee passed Resolution that the land, building and affairs of the Institution may be handed over to the State Government and till the finalization of all formalities, Administrator may be appointed by dissolving the Managing Committee.
(6) It is also stated in the writ petition that with a view to run the Institution as a private College, the Managing Committee of the Institution started harassing the petitioners, stopped making payment of salary since last thirteen months and prior to that also, the Management did not pay salary and other benefits to the petitioners as per the recommendations of the Vth Pay Commission. For this reason, the petitioners went on symbolic strike against the mis-deeds of the Managing Committee of the Institution but the classes were taken by the teaching staff in the campus of the Institution and the strike was kept in abeyance on 14.5.2008, and ultimately, called off finally on 21.5.2008.
(7) It is then stated in the writ petition that in the similar circumstances, the State Government directed the Director of Ayurved, Rajasthan, Ajmer to absorb the services of the staff working in the Ayurved Vishwabharti College, Sardar Shahar in government service vide order dated 16.7.1972.
(8) In CWP No.13154/2008, the order of transfer of students dated 6.9.2008 was challenged and interim prayer was also sought for not to transfer the students. On 17.12.2008, this Court passed an order of maintaining status quo with liberty to the petitioners to file representation before the State Government.
(9) In CWP No.3432/2008, interim order was sought that the respondents may be restrained from taking any steps for privatisation of Shri Parasrampuria Rajasthan Ayurved College, Sikar and interim order was passed on 17.4.2008 restraining the respondents from privatizing Shri Parasrampuria Rajasthan Ayurved College, Sikar.
(10) The State Government in its reply, filed in CWP No.9221/2007, has stated that the Rajasthan Ayurved Grant-in-Aid Rules, 1972, (hereinafter referred to as `the Rules of 1972) will apply and there are no provisions for appointment of the Administrator in the Rules of 1972 and the same have been followed by the respondents No.1 and 2. It is also stated in the reply that for any wrong done by the respondents No.3 and 4, the State Govt. cannot be held responsible.
(11) Respondents No.3 and 4,in reply to CWP No.9221/2007, have raised the preliminary objection of disputed questions of fact and continuation of strike without any reasonable cause, with the further submission on merit that the services of the petitioner No.1 in CWP No.9221/2007 has been terminated on disciplinary ground before filing the writ petition. Further, the fact of receipt of any grant-in-aid from the State Government, under the Rules of 1972, since last three years has been denied and even prior to that, 50% aid was granted. The Institution was run with the aid received from Alok Parasrampuria. The report submitted by the other concerned officer has been stated to be biased report and the grant in aid was stopped by the State Government. In such circumstances, there was no fault on the part of the Samiti in not paying the salary to its employees. It has further been stated that there is no mal-functioning, mismanagement or misutilisation of funds and breach of statutory provisions. It is pertinent to mention here that on 12.10.2007, an emergency meeting of the Samiti was called and the Samiti, in the interest of the Institution, resolved that the State Government may appoint an Administrator.
(12) Respondent No.5 has filed reply stating that it did not receive any complaint from the petitioners, therefore, the respondent No.5 has not been able to take any action.
(13) On the basis of the aforesaid pleadings of the parties, while passing the aforesaid order on 17.12.2008 the petitioners were given liberty to file representation before the State Government with a further direction to the State Government that the representation so filed by the petitioners will be considered and decided within a period of one month and decision of the Government will be produced before the Court in sealed cover on the next date. On 22.1.2009, it was submitted by Mr.Dinesh Yadav, Additional Advocate General that the provisions of the Act of 1989 and the Rules of 1993 are not applicable to the present case and there is no provision for appointment of the Administrator in the Rajasthan Ayurved Grant in Aid Rules, Rules of 1972, (in short `the Rules of 1972') therefore, after prima facie discussion of the provisions of the Act of 1989, the Rules of 1993 and the Rules of 1972, again time was granted to the State Government to decide the representation by 4.2.2009. On 25.5.2009, the State Government placed its decision dated 3.3.2009 on record stating that the Act of 1989 and the Rules of 1993 are not applicable in case of Institution/Ayurved Department, as held by this Court in CWP No.921/1995 decided on 26.2.2007 at the Principal Seat of this Court at Jodhpur.
(14) Counsel for the petitioners, on the issue of not releasing the salary and further appointment of the Administrator under the Act of 1989 and release of grant under the Rules of 1993, placed reliance on judgment of this Court at the Principal Seat dated 14.10.2008 in Dr.Raj Singh Malik and others V. State and others, CWP No.3314/2006 wherein it has been held that the Rules of 1972 which were in existence prior to the enactment of the Act of 1989 are now governed by the Rules of 1993 framed under the provisions of Sec.43 of the Act of 1989, therefore, the entire controversy revolve around the question of applicability of the Act of 1989 and the Rules of 1993 on which arguments were addressed by both the parties and ultimately, the same were recorded in the order sheet dated 12.10.2009.
(15) It is stated at the bar that no appeal has been filed against the aforesaid judgment dated 14.10.2008 and the same has attained finality.
(16) Counsel for the State submitted that the College was receiving aid under the Rules of 1972, therefore, the service conditions of the employees of the Samiti will be governed by the Rules of 1972 and there is no such provision for appointment of the Administrator in the Rules of 1972. In support of his submission, counsel for the State has relied on the judgment dated 26.2.2007 of this Court in Smt.Kamla Devi V. State and another (supra) (17) Counsel for the Samiti submitted that it could not make payment of the salary to its staff either on account of not getting 80% grant in aid in time or stopping of the same by the Government despite several letters and further the call of strike has paralysed the work of the College.
(18) I have gone through record of the writ petition and further considered rival submission of counsel for the parties.
(19) Before proceeding further,it is relevant to reproduce the orders dated 16.6.1972, 6.9.2007 and Resolution dated 12.10.2007, the order sheet dated 12.10.2009 and Sec.10, 14 and 40 of the Act of 1989 which are as under:
Order dated 16.6.1972 Government of Rajasthan Medical and Public Health Department (Gr.III) No.F.24(1)Ayurved/71 Jaipur, the 16th June,1972 The Director, Ayurved Department, Rajasthan, Ajmer.
Sub: Absorption of the staff of Ayurved Vishva Bharti Sardarshahar College in Government Service.
Ref: Your letter No.Prati-1/72/3715 dated 7.2.72. Sir,
I am directed to convey sanction of the Governor to the absorption of the following personnel of the defunct Ayurved Vishwa Bharti Sardarshahar College in Rajasthan Government Service in the Ayurved Department against the available vacancies in the following manner with effect from the date they take over charge of the post on which they are absorbed: (emphasis supplied) S.No. Name Date of Birth Post on which Absorbed Pay Scale 1 Shri Ved Prakash 01/07/35 Lecturer 375-850 2 Shri Draveshwar Jha 15.4.1933 Demonstrator 225-525 3 Shri Ramavatar 15.10.1935 Demonstrator 225-525 4 Shri Yamuna Lal 02/02/44 Vaidya Gr.III 180-425 5 Shri Sagar Mal 01/12/34 Vaidya Gr.III 180-425 On their appointment on these posts these persons will be allowed the same pay that they were drawing as on 31.3.1971 before the Management of the Institution decided to revise their Pay Scales w.e.f. 1.4.1971.
2. The absorption would be subject to the following conditions:
1)The absorption on the posts indicated above is purely ad hoc and provisional subject to the selection by the R.P.S.C.
2)The service rendered in Ayurved Vishwa Bharti shall not count for any purpose whatsoever.
3)These personnel will be governed by the relevant Ayurvedic Service Rules and other rules applicable to Rajasthan Government Servants.
4)Age Relaxation would be done as per rules.
5)They will be required to produce Medical Certificate of fitness for Government Service before joining the post.
This issues with the concurrence of the Finance Department (Exp.1) vide their U.O. Note No.D.1707/FD/Exp.I/72 dated 15.5.1972.
Sd/-
Yours faithfully, (Moti Lal Kakkar) Dy.Secretary to the Govt.
Order dated 6.9.2007 ???????? ?????
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??? ?????? ??? ????? ?? ?????? ??? ????? ????? ?????? ?????? ???? ???? ???? ?????? ?? ??? ??????? ??????? ???? ???? ?? ????????? ???? ?????????? ??? (emphasis supplied) ?????
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Resolution dated 12.10.2007 ???? ???????????? ???????? ???????? ?????????, ???? (332001)????????
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???????? ???? ??? ?? ??????? ????? ?????? ?? ????? ??????????? ?? ?????? ?? ??????? ?? ??? ??? ?????? ?? ????? ?? ??? ?????? ?? ????? ????? ?? ????? ??? ??????? ??? ??????? ????? ????????-????????? ???????????? ???? ????? ???? ???? ???? ?? ??????? ???? ??? ??? ???? ????????? ????????? ????? ???? ?? ??????? ??????? ????? ?? ??? ?? ?????? ?????? ?? ?????? ??? ??????? ??? ????????? ????? ?????? ???? ??????? ?? ???????? ???? ?? ??? ????? ????? ?? ?????? ???? ???? ??????? ????? ??????? ???????????? ??? ?????? ?? ?????? ?????? ?? ????? ???? ??? ??????? ???????? ?? ???? ????? ????? ?????? ? ???? ????
(emphasis supplied) ?? ?? ?? ???????/????????? ?????????? ???? Order dated 12.10.2009 The main issue involved in the matter is whether the provisions of the Rajasthan Non-Government Educational Institutions Act,1989 and the Rules of 1993 framed thereunder, are applicable to Shri Parasrampuria Rajasthan Ayurvedic College, Sikar and if yes, then further, keeping in view the present state of affairs, the Government may act as per Section 10 of the Act of 1989 for appointment of staff. (emphasis supplied) Arguments heard. Order is reserved. Section 10 10.Powers of the State Government to take over management (1) Notwithstanding anything contained in any law for the time being in force, whenever it appears to the State Government that the managing committee of any recognised institution has neglected to perform any of the duties assigned to it by or under this Act or the rules made thereunder or has failed to manage the institution properly and that it has become necessary in the public interest to take over the management of such institution, it may, after giving to such managing committee a reasonable opportunity of showing cause against the proposed action, take over such management and appoint an administrator to exercise control over the assets of the institution and to run the institution for such period as the State Government may from time to time fix. (emphasis supplied)
(2) Where, before the expiry of the period fixed under sub-section (1), the State Government is of opinion that it is not necessary to continue the management of the institut6ion by an administrator, such management shall be restored to the managing committee.
14. Closure of recognised institutions (1) No recognised institutin or its class or the teaching of any subject therein shall be closed without a notice in writing to the Competent Authority. It shall have to be shown that adequate arrangements have been made for the continuance of teaching of the students for th entire remaining period of study for which the students had been admitted or for the refund of the remaining fees, if any, paid by the students. (emphasis supplied) (2) The period of notice under sub-section (1) shall be such as may be prescribed and different periods of notice may be prescribed for different classes of institutions having regard to the period of each course of study.
40.Over-riding effect of the Act The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any instrument having effect by virtue of any law. (emphasis supplied) (20) In the judgment dated 26.2.2007 passed in CWP No.921/1995 Smt.Kamla Devi V. State and another (supra), relied by the respondents, the issue was with regard to age of superannuation and although there is a reference of the Act of 1989 and the Rules of 1993 framed thereunder simply for the reason that on raising query by the Court, it has been asserted that the Institution is receiving aid under the Rules of 1972 and not under the provisions of the Act of 1989 and the Rules of 1993, therefore, the same has not been discussed, debated and no finding was recorded regarding the over riding effect and it was simply held that since the Institution is getting aid under the Rules of 1972, the petitioner, who was an employee of Bhanwar Lal Dugar Vishwa Bharti Sardarshahar, his service conditions will be governed by the Rules of 1972 and he was rightly retired on attaining the age of superannuation of 58 years as per the Rules of 1972. The relevant portion of the aforesaid judgment is as under:
It is contended by counsel for the petitioner that under Rajasthan Non-government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 ( hereinafter for short the Rules of 1993), the age of retirement as prescribed is of 60 years, as such the respondents erroneously ordered for retirement of the petitioner w.e.f. 31.12.1994.
Per contra, in reply to the writ petition, it is stated by the respondents that in accordance with Rule 8(2)(a) of the Rajasthan Ayurved Anudan Sahayata Rules, 1972 (hereinafter for short the Rules of 1972) as amended under the notification dated 09.11.1989 (Annexure R/3), the age of retirement for doctors, compounders/nurse and members of the other cadres is 58 years. On asking, it is asserted that the respondent institution is getting aid under the Rules of 1972 and not by the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter for short the Act of 1989) or the rules framed thereunder. A set of the Rules of 1972 is also placed on record. (emphasis supplied) The Rules of 1972 pertains to grant of aid to the Non-government Ayurved, Unani, Naturopathy, Homeopathy and other indigenous alternative medicinal Educational institutions. The dispensary where the petitioner was working is affiliated with teaching of Ayurved at the respondent institution. The respondent is getting aid under the Rules of 1972 and not under the Act of 1989 or the rules framed thereunder. The service conditions of the petitioner were required to be regulated in accordance with the Rules of 1972 and not by the Rules of 1993. It is not in dispute that under the Rules of 1972, the age of retirement prescribed for doctors, compounders/ nurse and members of other cadres that includes Class IV Cadres, is 58 years and,therefore, I am of the opinion that no illegality is committed by the respondents while retiring the petitioner on acquiring the age of 58 years.
In result, the writ petition is having no merit, the same, therefore, is dismissed. (emphasis supplied) (21) In the later writ petition CWP No.3314/2006 Dr.Raj Singh Malik & Others V.State and others, the controversy was with regard to the grant of benefit of Revised Pay Scale Rules,1998 from the date of their promulgation and not from later date i.e. 1.1.2006 and the Court held that the employees of the private Ayurvedic Colleges are entitled for benefit of Revised Pay Scale Rules, 1998 from the date of applicability of the Rules as per the Act of 1989 and the Rules of 1993. Relevant portion of the same is as under:
In that Act, under Section 2 (b), Aided institution means a recognised institution which is receiving aid in the 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 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 : (emphasis supplied)
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: (emphasis supplied) 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.
.........
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 :
(emphasis supplied) 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 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 grantin- 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 quantum of grant in aid no 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-inaid.
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 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 privilege leave shall be subject 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 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.
(emphasis supplied) (22) In CWP No.921/1995,Smt.Kamla Devi V. State and another (supra) decided on 26.2.2007, the applicability of the Act of 1989 and the Rules of 1993 has neither been raised nor the Rules of 1993 have been discussed/debated nor any finding has been given, for the simple reason that the query regarding the aid was raised by the Court and it was asserted by the Counsel that the aid is being received under the Rules of 1972 which has been recorded in the judgment and the case was simply decided on the issue that the aid is being received under the Rules of 1972, therefore, the service conditions as laid down under the Rules of 1972 would apply and further, the issue of over-riding effect of the provisions of the Act of 1989 and the Rules of 1993 has not been discussed but in the later case, the said provisions have been discussed and debated and it has been specifically held that after the promulgation of the Act of 1989 and the Rules of 1993, wherein there is also non-obstante clause envisaged under section 40 of the Act of 1989 giving over-riding effect to the said provisions of the Act of 1989 and the Rules of 1993 oN any other Rules including the Rules of 1972, for the reason that the same were promulgated prior to the Act of 1989 and the Rules of 1993. For the aforesaid reasons, ratio decidendi of the later judgment dated 14.10.2008 will hold the field and the provisions of the Act of 1989 and the Rules of 1993 are applicable.
(23) The petitioners are claiming salary as well as absorption in other Government Colleges/Institutions and the fact is that Shri Parasrampuria Rajasthan Ayurveda College, Sikar which was earlier termed as Rajputana Ayurved College, Sikar is one of the oldest colleges of the State having full facilities as well as teaching staff and is running the attached Ayurvedic hospital also but the dispute is with regard to the mis-management of the Institution by the Samiti and availability of the students in the Institution and running of the attached hospital also, therefore, any direction to close the Institution by transferring the students will not be in public interest. Providing medical aid by the State within its resources is a part and parcel of fundamental rights under Article 21 of the Constitution of India, therefore, intervention of the Government in the aforesaid facts and circumstances of the case is necessary and further, the provisions of Sec.10 of the Act of 1989 assume importance.
(24) This Court, while dealing with the issue of absorption of the surplus staff of non-government educational institutions, in Managing Committee, Vaidik Kanya P.G.College, Jaipur and another V. Presiding Officer and others (CWP No.1717/2006 decided on 1.5.2009) has considered the judgment of this Court in Agrawal Shiksha Samiti V. State of Rajasthan (2006(3) WLC 1), Andhra University V. M.Sivaram and others (1994) Supp (3) SCC 750) and Sant Ram Sharma V. State of Rajasthan and others (AIR 1967 SC 1910) and has held that the State Government can fill up the lacuna by evolving a scheme of transfer/absorption of the surplus staff of non-government educational institutions. The aforesaid judgment dated 1.5.2009 has been considered and relied by this Court in its later judgment dated 29.5.2009 passed in Managing Committee Vaidik Kanya P.G.College, Jaipur and another V.Rajasthan Non Government Educational Institutions Tribunal, Jaipur and others (CWP No.6665/2008 decided on 29.5.2009). The relevant portion of paras 13 to 20 of the aforesaid judgment dated 1.5.2009 in Managing Committee, Vaidik Kanya P.G.College (supra) are as under:
(13) Before proceeding further, I would like to quote Section 16 of Rajasthan Non-Government Educational Institutions Act, 1989 and Rules 92 and 93 of the Rajasthan Non-Government Educational Institutions Rules, 1993 which read as under:
Section-16. Power of the State Government to regulate the terms and conditions of employment- (1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline of a persons appointed as employees of aided institutions in the State.
Provided that the rights and benefits accruing to an employee of an existing institution under the grant in aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him to him immediately before the commencement of this Act:
Provided also that, irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed.
(2)Every recognized institution shall constitute a provident fund for the benefit of its employees in such manner and subject to such conditions as may be prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time. (Emphasis supplied) Rule- 92 Powers to exempt from Rules- The State Government may, by general or special order exempt any institution or any class of institutions from any of the provisions of the rules or may direct that such provisions shall apply to such institution or class or institutions with such modification and, or conditions as may be specified in the orders.
Rule-93 Removal of Doubts- Where a doubt arises as to the interpretation of any of the provisions of these rules or their applicability, the matter shall be referred to the Government in the Education Department, whose decision thereon shall be final.
(14) In the case title as Avas Vikash Sansthan and Anr. Vs Avas Vikash Sansthan Engineers Assocation and ors (Supra), the Supreme Court has observed in para 51 as under:-
Power to abolish posts as a measure of economy: It is well settled that the power to abolish a post which may result in the holder thereof ceasing to be a Government Servant has got to be recognized. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, a Department which was abolished or abandoned wholly or partially for want of funds, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. In the instant case, the State of Rajasthan has framed a scheme and offered alternative employment in the other local bodies as a Welfare State on humanitarian grounds.
(Emphasis supplied) (15) In the case titled Agrawal Shiksha Samiti (Shri) and Anr. Vs State of Rajasthan (supra), the Division Bench of this court has observed in paras Nos. 14 to 21 as under:-
14. The Supreme Court in State of Madhya Pradesh v. Sardul Singh 1970 SLR 101, in para Nos. 8 and 9, has held that 'condition of service' is an expression of wide import which means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it , in matters like pension. The same view has been followed in Lily Kurian v. Sr. Lawina 1979 (1), in para 13 and it has been held that expression 'condition of service' includes everything from the state of appointment to the stage of termination of service and even beyond, and relates to matters pertaining to disciplinary action and in State of Punjab v. Kailash Nath 1989 (1) SLR 12, in para Nos. 6 and 7 dealing with a case of prosecution against a retired Government employee, the Supreme Court while interpreting the term condition of service, further followed the judgment of Sardul Singh (supra) and it was held that in the normal course what falls withing the purview of the term condition of service may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, Provident Fund, Gratuity, Confirmation, promotion seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation deputation and disciplinary proceedings. Para No. 7 of the aforesaid judgment is as follows:
(7) In the normal course what falls withing the purview of the term condition of service may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale , leave, Provident Fund, Gratuity, Confirmation, promotion, seniority tenure or termination of service, compulsory or premature retirement, superannuation, pension changing the age of superannuation deputation and disciplinary proceedings. Whether or not a Government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. Making a provision that a Government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offence including embezzlement and misappropriation by some of them at the fag end of their tenure of service and making an effort that the offence is not detected withing the period prescribed for launching prosecution or manipulating delay in the matter of launching prosecution. Further, instances are not wanting where a Government servant may escape prosecution at the initial stage for want of evidence but during the course of prosecution of some other person evidence may be led or material may be produced which establishes complicity and guilt of such Government employee. By that time period prescribed, if any, for launching prosecution may have expired and in that even on account of such period having expired the Government servant concerned would succeed in avoiding prosecution even though there may be sufficient evidence of an offence having been committed by him. Such a situation, in our opinion, cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as condition of service.
15. The Supreme Court has further held in Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhia Mahala and others (AIR 1987 SC 1293)that new condition of service can be prescribed by executive order. The relevant para No. 13 of the aforesaid judgment is as follows:
13. ...... It is well recognized that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of article 309 of the Constitution of by a statute.
16. Thus, it can safely be concluded that not only the conditions of service which are initially prescribed will be covered by the terms and conditions of the service but the same can also be subsequently prescribed either by Rules or by executive order.
17. Promotion is a condition of service as held by the Supreme Court in State of Maharastra v. Jagannath Achyut Karandikar 1989 (2) S.L.R. 31. In para 7 of the aforesaid judgment the Supreme Court has also held that the Government preserved power to dispense with, or relax the requirements of any rule regulating the condition of service of Government servants; or any class there of. The relevant portion of para No.7 of the aforesaid judgment is reproduced hereunder for ready reference:-
(7) ...The aforesaid Rules expressly provided power to the Government to grant more changes for passing the examination in any individual case or in class of cases. Under the 1955 Rules, the Government preserved power to dispense with , or relax the requirements of any rule regulating the conditions of service of Government servants; or any class thereof. In exercise of this power, the Government could dispense or relax the operation of any rule, if it cause undue hardships in any particular case. It is needless to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion.
18. As regards condition of service detailed out in Section 16(1) of the Act of 1989, the expression condition of service as mentioned in Section 16(1) of the Act of 1989 is inclusive, therefore, the same has to be given the meaning of wide import. The list of service conditions illustrated in the said Section is inclusive and not exhaustive. The Supreme Court while interpreting the word includes in definition Industry under Section 2(j) of the Industrial Disputes Act, 1947 in the case of The State of Bombay and Ors. Vs The Hospital Mazdoor Sabha and Ors. (AIR 1960 SC 610),in para No.10, interpreting the inclusive definition, has held that the inclusive definition denote extension and cannot be treated as restricted in any sense. Where the courts are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wide denotation. Para No.10 of the aforesaid judgment is reproduced hereunder for ready reference:-
(10) There is another point which cannot be ignored. Section 2(j) does not define industry' in the usual manner by prescribing what it means the first clause of the definition gives the statutory meaning of industry and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sens . (Vide: Stround's Judicial Dictionary, Vol. 2, P.1415), Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.
19. The said judgment has been held to be a good law by the majority view of the seven Judges Constitution Bench of the Supreme Court in Banglore Water Supply & Sewerage Board v. A. Rajappa and Ors. (1978) 2 SCC 213, in para No.140, while again interpreting the term industry which was given a wide import. Similarly the Supreme Court in State of Maharasthtra v. Labour Law practitioners' Association and Ors.(1998) 2 SCC 688, in para No.10, has held that term District Judge indicates that a wide interpretation is to be given to the expression District Judge'. The extensive definition of a District Judge under Article 236 is inclusive Judge of the Labour Court and the Judge of the Industrial Court.
20.In view of the above not specifying the term ' promotion' as a condition of service in Section 16(1) of the Act of 1989 is of no help to the petitioners. The term of regulate condition of service will include promotion also.
21.As concluded herein above, even new condition of service for promotion can be laid down by the State Government, we have no hesitation in holding that the State Government can still make promotion as a condition of service either by amending the rules or by executive order for employees of non Government educational institutions.
(16) In the case title Andhra University vs M.Sivaram and others (supra), the Supreme Court has observed in para 2 as under:-
2. the respondents were serving the Institute of Coastal and Offshore Research (INCOR) in different capacities. In the year 1989, the INCOR as department was wound up and all the posts therein were abolished. The respondents sought a writ in the nature of mandamus from the Andra Pradesh High Court seeking a direction that INCOR being a part of the Andhra University, the respondents were entitled to be absorbed in the University on equivalent posts. A learned Single Judge of the High Court rejected the contention of the respondents that INCOR was a unit of the University. The learned Single Judge, however, directed the University to frame a scheme to absorb the respondents in the service of the University in the existing and future vacancies. The learned Single Judge dismissed the writ petition in the following terms:
............... They have been working in an institution which had been in some association with the University. It will be fair for the University to consider and absorb many employees of the INCOR as are eligible and willing to come in the service of the University in suitable posts and the existing vacancies or the vacancies which may arise at the foreseeable future. I am not suggesting that direct recruitment by University should be totally banned for this purpose.
(Emphasis supplied) (17) In the instant case, Act of 1989 and the Rules of 1993 are silent on the issue of transfer/ absorption and in such a situation, the executive powers can be exercised as held by the Supreme Court in case of Sant Ram Sharma vs State of Rajasthan and others reported in AIR 1967 SC 1910 which has been consistently followed till today. The relevant paragraph of para-7 of Sant Ram Sharma's case (Supra), is as under:
It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not consistent with the rules already framed.
(18) For the aforesaid reasons, there is no impediment for the Government to frame a scheme of transfer/absorption of the employees who have been declared surplus in one institution and other institution is willing to take the employee on the same status.
(19) In view of the Division Bench judgment of Agrawal Shiksha Samiti (Shri) and Anr.(supra) the term of transfer/ absorption is also inclusive of term 'condition of service' as referred in Sec.16 of the Act of 1989. The Government being a welfare Government and its duty not to generate unemployment and discontent among teachers/ employees even of Non-Government Educational Institution and it can interfere in such kind of situation by framing the scheme.
(20) The Supreme Court has also approved the judgment of the learned Single Judge of Andhra Pradesh High Court for framing such kind of scheme in the similar circumstances for their absorption in the university on closure of INCOR wherein it has also been upheld by the Supreme Court although INCOR was not a unit of the University.
(25) The aforesaid judgments have been further followed by this Court in Smt.Manju Rani Sharma V. Managing Committee and others (CWP No.10223/2008 and other connected five writ petitions decided on 29.6.2009) wherein the State was directed to frame government policy/scheme for absorption of surplus employees of the non-government educational aided institutions to another non-government educational aided institutions where the posts are lying vacant, by fixing appropriate percentage and to further pass appropriate orders in such cases. The ratio of the aforesaid judgment is also applicable so far as the issue of absorption of surplus employees of the non-government educational institutions is concerned.
(26) Although the provisions of the Act of 1989 and the Rules of 1993 are silent on the issue of transfer/absorption but in such a situation, as held by this Court as well as the Supreme Court in the aforesaid cases, the said gap can be filled by the State Government by issuing circular in exercise of its executive power. In the present case, counsel for the petitioners has cited one example of absorption of the staff of Ayurved Vishva Bharti, Sardarshahar in government service, therefore, as a last resort, in case the State Government comes to the conclusion that it is not possible to run the Institution, either by the Samiti or by the State Government by appointing an Administrator, then, their services may be transferred and absorbed as decided by this Court in Smt.Manju Rani Sharma V. Managing Committee CWP No.10223/2008 decided on 29.6.2009 and other connected five writ petitions (supra).
(27) The reports referred to in the writ petition highlight misdeeds by the Samiti up to the year 2007. The last inspection was made on 11.7.2007 and the present position and affairs of the College are not known. However, it is not disputed that the College can now be also started but the dispute is as to which authority will run the College and make payment of the arrears of salary and monthly salary, therefore, in my view, in the interest of ayurvedic education in one of the oldest Institution, it would be proper that a Committee consisting of the following be appointed:
(i) District Ayurved Officer, Sikar (as representative of the State Government.
(ii) Professor of Ayurved, in any Branch, Rajasthan Ayurved University, Jodhpur (as representative of the Rajasthan Ayurved University).
(iii) Representative of the Central Council of Indian Medicine, New Delhi.
which will conduct joint inspection and submit its report/ recommendations to the State Government keeping in view the public interest as well as the interest of the students (to be admitted) or staff and their pay etc., (28) Accordingly, all the four writ petitions are disposed of as indicated hereunder:
(i)on receipt of the report/recommendation of the aforesaid Committee, the State Government shall issue notice to the Samiti as well as its employees, including the petitioners, to be heard in representative capacity, and then after hearing both the parties, shall take a decision for running of the Institution by the Samiti.
(ii)in case, the report of the Committee is that the Samiti has committed serious illegalities, which have resulted in mismanagement of the Institution, and now it will not be proper to grant further opportunity to the Samiti to run the Institution, then show cause notice u/s 10 of the Act of 1989 shall be issued for appointment of the Administrator for running the Institution and pass appropriate orders.
(iii)in case, neither the Samiti nor the State Government is in a position to run the Institution, then, after framing scheme for absorption under the provisions of the Act of 1989 and the Rules of 1993, the staff of the Institution shall be absorbed in some other Government College/Institution;
(iv) necessary orders of grant of any of the aforesaid Reliefs (i) to (iii) by the State Government shall be also passed within a period of three months, which shall also include order for making payment of arrears and regular monthly salary etc. from the 80% unpaid grant-in-aid now released by the State to Shri Parasrampuria Rajasthan Ayurveda College.
(Prem Shanker Asopa) J.
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