Rajasthan High Court - Jaipur
Dr. Sushil Jain S/O Sh. Jawan Mal Jain vs Shri Subodh Agarwal I.A.S. Additional ... on 16 May, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Contempt Petition No. 2290/2018
Dr. Sushil Jain
----Petitioner
Versus
Shri Subodh Agarwal, I.A.S., Additional Secretary, High
Education Department & Others
----Respondents
With D. B. Civil Contempt Petition No. 2299/2018 Dr. Deepesh Jain
----Petitioner Versus Shri Subodh Agarwal, I.A.S., Additional Secretary, High Education Department & Others Respondent With D. B. Civil Contempt Petition No. 2301/2018 Dr. Roshan Napalia
----Petitioner Versus Shri Subodh Agarwal, I.A.S., Additional Secretary, High Education Department & Others Respondent With D. B. Civil Contempt Petition No. 2302/2018 Dr. Om Prakash Sharma
----Petitioner Versus Shri Subodh Agarwal, I.A.S., Additional Secretary, High Education Department & Others Respondent With D. B. Civil Contempt Petition No. 2303/2018 Rakesh Pandey
----Petitioner Versus (Downloaded on 29/06/2019 at 01:39:43 AM) (2 of 11) [CCP-2290/2018] Shri Subodh Agarwal, I.A.S., Additional Secretary, High Education Department & Others Respondent With D. B. Civil Contempt Petition No. 232/2019 Man Singh Shekhawat & Another
----Petitioners Versus Shri Vaibhav Galariya, Secretary to the Government, Department of College Education & Others.
Respondent With D. B. Civil Contempt Petition No. 234/2019 Amita Vyas
----Petitioner Versus Vaibhav Galariya, Secretary to the Government, Department of College Education & Others.
Respondent For Petitioner(s) : Mr. Vinodi Lal Mathur;
Mr. Amit Dhawan;
Mr. Ishwar Lal Jain.
For Respondent(s) : Dr. Vibhuti Bhushan Sharma, AAG with Mr. Prakhar Gupta;
Mr. Anuroop Singhi with Mr. Tarun Verma.
Mr. Dharmendra Jain.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order 16/05/2019 These contempt petitions have been filed by the petitioners, who were lecturers in the non-government aided educational institutions and were subsequently appointed with the State Government, by way of absorption, under the Rajasthan Voluntary Rural Education Service Rules, 2010 (for short 'the (Downloaded on 29/06/2019 at 01:39:43 AM) (3 of 11) [CCP-2290/2018] Rules of 2010'). Their grievance is that despite judgment dated 30.11.2017 of Division Bench of this Court, the respondent-State has not paid them their dues payable towards arrears of salary including arrears consequent upon implementation of recommendations of Sixth Pay Commission, gratuity and leave encashment.
Learned counsel for the petitioners submitted that the Division Bench of this Court in State of Rajasthan & Another Vs. The Management Committee Sh. Bhagwan Das Todi College, 2016 (2) WLC (Raj.) 1, while dismissing the appeals filed by the State Government against order passed by the Single Bench of this Court, directed the concerned non-Government aided educational institutions to prepare due drawn statement of each of the employees of their institution, who have worked against the sanctioned and aided post, with regard to arrears and other dues, which are approved expenditures, to the extent of grant-in-aid and send the same to the State Government. The State Government was further directed to make payment of arrears to all such employees, who either have now been appointed with the State Government under the Rules of 2010 or retired or left the job (upto the period one has worked), after due verification from their records. In para 47 of the Report, it was specifically directed that the benefit of that judgment may not remain confined to only such employees who have approached this Court. Considering that large number of the employees were in litigation with the State Government and the non-government aided educational institutions, it was directed that the said judgment shall be mutatis mutandis applicable to all such employees, who are similarly situated. Payment was made in (Downloaded on 29/06/2019 at 01:39:43 AM) (4 of 11) [CCP-2290/2018] compliance of the above judgment to approximately 150 employees of different non-government aided educational institution upto 30.06.2017 and thereafter, the State Government has stopped making payment.
Learned counsel for the petitioners argued that Special Leave Petitions No. 30061/2016 (State of Rajasthan Vs. Secretary, Management Committee Shri Bhagwan Das Todi College and Others) and Special Leave Petition No. 4728/2016 (State of Rajasthan Vs. The Management Committee Smt. Kamla Devi Gouri Dutt Mittal Girls P.G. College & Another) filed against the aforesaid judgment have been dismissed by the Supreme Court vide order dated 09.12.2016 and 28.03.2016 respectively. Thereafter, the State Government filed Review Petition (C) No. 2670/2016 (State of Rajasthan Vs. Management Committee Kamla Devi Gouri Dutt Mittal Girls P.G. College & Another) along with Review Petition No. 2449/2016 before the Supreme Court which too were dismissed vide order dated 20.07.2016. The respondents should therefore be required to make compliance of the judgment passed by this Court. It is submitted that as far as management of the non- government aided educational institution are concerned, except in one case, they have paid their share of the arrears of the salary pursuant to implementation of recommendations of the Sixth Pay Commission including other dues. However, it is the State Government, which has not yet paid its share of the aforesaid dues.
It is also argued that some of the management committees as also many of the employees of such non- government aided educational institutions have approached this Court by filing number of contempt petitions. This Court vide (Downloaded on 29/06/2019 at 01:39:43 AM) (5 of 11) [CCP-2290/2018] order dated 30.11.2017 directed that looking to the over all circumstances of the case, the matters are required to be attended by the highest officers of the concerned department namely Commissioner, College Education; Secretary, School Education; Secretary, Sanskrit Education; Secretary, Technical Education. It was further directed that the contempt petitions filed by number of employees be treated as representations to the concerned Secretary, who shall issue notice to the management for fixing date of hearing. Hearing shall be concluded within 30 days and due payment shall be made within 15 days thereafter. All the aforesaid formalities were directed to be completed on or before 25.01.2018 and payment was directed to be made on or before 15.02.2018. It was further directed that if the management of any such non-government aided educational institution does not cooperate, it will be presumed that it is not obeying the order of the Court and the Government will be free to deduct their contribution towards grant and payment will be directly made to the employees concerned.
Dr. Vibhuti Bhushan Sharma, learned Additional Advocate General submitted that the Supreme Court, while dismissing the Special Leave Petition in State of Rajasthan Vs. Secretary, Management Committee Shri Bhagwan Das Todi College & Others (supra), left the question of law opened. It is submitted that contempt petitions may not be entertained because some of the petitioners-employees filed misc. application, i.e. D.B. Civil Misc. Application No. 101/2018 (Dr. Ekta Shrimal & Another Vs. Shri Rajhans Upadhya, Principal Secretary to the Government, Department of College Education & Others) and D.B. Civil Misc. Application No. 102/2018 (Anil Kumar Bhardwaj & Another Vs. (Downloaded on 29/06/2019 at 01:39:43 AM) (6 of 11) [CCP-2290/2018] Shri Rajhans Upadhya, Principal Secretary to the Government, Department of College Education & Others), for revival of the earlier filed contempt petitions, which were dismissed vide order dated 26.04.2018. It is submitted that the petitioners are not similarly situated persons, as the respondents in the case of State of Rajasthan & Another Vs. The Management Committee Sh. Bhagwan Das Todi College (supra) were those, who first approached Rajasthan Non-Government Educational Institutions Tribunal, which passed order in their favour. Thereafter, the matters reached this Court in the Single Bench and ultimately, the judgment was delivered by the Division Bench. It is submitted that in terms of Rule 5 of the Rules of 2010, the petitioners cannot claim payment of any arrears from the State Government.
We are surprised to find the kind of stand the State Government has taken in these matters. If what the respondent- State is contending, is accepted, this would mean that large number of employees, who were working with different non- government aided educational institutions across the State, should be first compelled to avail their remedy before Rajasthan Non- Government Educational Institutions Tribunal first; thereafter the Single Bench of this Court and ultimately the Division Bench. We do not find any force in the argument, which is based on order dated 26.04.2018 whereby Misc. Applications No. 101/2018 and 102/2018 seeking revival of the contempt petitions filed by two of the petitioners, whose contempt petitioners were disposed off by common judgment dated 30.11.2017, were dismissed with the observation that in view of the earlier order passed in contempt petition No. 1127/2017 and 1806/2017, misc. applications will not survive. However, the Division Bench observed that it will be open (Downloaded on 29/06/2019 at 01:39:43 AM) (7 of 11) [CCP-2290/2018] for the applicants to challenge the same order independently. This order shall have to be read in context that the Division Bench, which passed the aforesaid order, had earlier disposed off all the contempt petitions vide judgment dated 30.11.2017 and therefore was congnigant of the fact that direction which it issued in para 5 of the said order, which reads as under:-
"5. Therefore, in all these matters, we issue the following directions:-
1. The directions which are issued are required to be complied with by the respondents in its true spirit.
2. All these contempt petitions will be treated as representation to the concerned Secretary. Copy of the same will be given to the concern Secretary by the petitioners and office is directed to give copy of the same to each of counsel who is appearing for the department.
3. Notice will be issued to management by the Secretary for fixing date of hearing which reads as under:
In Contempt Petition No.1200/2016, 1639/2016, 1640/2016, 1671/2016 & 209/2017 fixed on 18th December, 2017 and every five matters everyday thereafter and hearing will be fixed on all working days.
4. The matters will be heard within 30 days from the date of hearing and payment will be made within 15 days from the date of the order as stated hereinabove.
5. The officers concern will hear the petitioners as well as officers of the department and representative of Management and will pass a reasoned order for accepting or not accepting the claim of the petitioners.
6. All these formalities will be completed on or before 25 January, 2018 and payment will be made on or before 15th February, 2018.
7. After this order is passed by the authority, if any of the party is aggrieved by the order, it will be open for him to challenge by way of writ or file a contempt proceedings before this Court."
In point no. 7 of para 5 of supra, the Division Bench observed that after the order is passed by the authority, if any of the party is aggrieved by the order, it will be open for him to challenge by way of writ or file a contempt proceedings before this Court. It is in the aforesaid context that in two civil misc. applications as mentioned above, the Division Bench observed (Downloaded on 29/06/2019 at 01:39:43 AM) (8 of 11) [CCP-2290/2018] that it will be open for the applicants to challenge the said order independently. It is regrettable and quite unfortunate that the State Government, which owed liability to pay grant-in-aid till the time it had committed to do so, to the non-government aided educational institutions, has neither paid its share of the grant-in- aid to such institutions, nor to the concerned employees. The Division Bench of this Court by the aforesaid judgment in State of Rajasthan & Another Vs. The Management Committee Sh. Bhagwan Das Todi College (supra) taking note of the enormity of the problem and to cut short the controversy, directed that the aforesaid judgment shall be applied mutatis mutandis to all identically situated employees, thus not forcing them to unnecessary litigation. The aforesaid judgment of the Division Bench was challenged by the State Government before the Supreme Court by filing Special Leave Petitions, which were dismissed and thereafter, review petitions filed by the State were also dismissed.
The argument that on account of stipulation made in Rule 5(vii) of the Rules of 2010, the employees concerned would not be entitled to claim any arrears from the State Government, has already been noted, elaborately discussed and rejected by the Division Bench in the aforesaid judgment in State of Rajasthan & Another Vs. The Management Committee Sh. Bhagwan Das Todi College (supra) in the following terms:-
"37. In our considered view, Cl.(vii) of R.5 of Rules, 2010 has no application in regard to the Non-Government Educational Institutions under the scheme of the Act, 1989 & Rules, 1993 framed thereunder. To the extent of grant-in-aid sanctioned by the State Government to the Institutions against arrears of salary being approved expenditures, the Government is under legal obligation to sanction grant-in-aid and has to (Downloaded on 29/06/2019 at 01:39:43 AM) (9 of 11) [CCP-2290/2018] be paid to the employees of the Non-Government Aided Institutions under the Act, 1989 & Rules, 1993 framed thereunder, for which we have made a detailed discussion in the earlier part of the judgment.
38. However, Cl.(vii) of R.5 of the Rules, 2010 mandates the employees not to claim arrears from the State Government. However, the scheme of Act, 1989 and Rules, 1993 framed thereunder provides that the privity of contract is between the Institutions and the employees for payment of salary and all other approved expenditures and the State Government has to reimburse to the Non-Government Aided Institutions and there is no restriction/prohibition on the Institution to claim arrears from the Government towards salary and other approved expenditures, as contemplated u/R.14 of the Rules, 1993 and Cl.
(vii) of R.5 of the Rules, 2010 will not come in the way of the Institutions in claiming grant-in-aid to the extent sanctioned by the State Government and it can be further noticed that u/Sec.31(2) of the Act, 1989 in the peculiar circumstances where the management of the Aided Institution fails to pay the salary of its employees as referred to in sub-sec.(1) or in Sec.29 of the Act, the Director of Education or any officer authorized by him holds authority to deduct such salary from the amount payable as the next grant-in-aid or, if necessary, from the amount of any subsequent grant-in-aid and pay directly to the staff such salary on behalf of the management and such payment shall be deemed to be a payment of money to the management of the Institution itself."
In view of the aforesaid observations by the Division Bench, which have been upheld by the Supreme Court by rejecting Special Leave Petitions and thereafter Review Petitions filed by the State, the lackadaisical approach of the State Government in continuously delaying the payment of arrears of salary including arrears payable on implementation of recommendations of Sixth Pay Commission and not complying the aforesaid judgment deserves deprecation. This Court cannot appreciate desire of the State Government to drag all such employees to unnecessary litigation and then buy time. (Downloaded on 29/06/2019 at 01:39:43 AM)
(10 of 11) [CCP-2290/2018] We, therefore, grant one more opportunity to the respondents-State Authorities to make compliance of the judgment passed by this Court by paying their share of all the dues namely arrears of salary including the arrears payable consequent upon implementation of recommendations of Sixth Pay Commission to the employees concerned and dues of the management of the aided institutions which they have paid to the concerned employees on their (State's) behalf, to such institutions.
Mr. Dharmendra Jain, learned counsel appearing on behalf of the respondent-management in D.B. Civil Contempt Petition No. 234/2019 prays for time to file compliance report so far as liability of the management is concerned.
He may do so before next date of hearing.
List these matters on 30.07.2019.
If by that time payments are not made, this Court would consider directing the respondent-State to pay interest on such delayed payment to each of the affected employee at appropriate rate. If the compliance of the judgment of this Court is not made before the next date of hearing, this Court would be constrained to consider these contempt petitions on merits to hold the respondents-contemnors guilty of willful and deliberate disobedience of judgment passed by this Court.
We direct the Chief Secretary of the Government of Rajasthan to examine all these matters and ensure true and faithful compliance of the order passed by this Court.
A copy of this order be forwarded to the Chief Secretary to the Government of Rajasthan for compliance. (Downloaded on 29/06/2019 at 01:39:43 AM)
(11 of 11) [CCP-2290/2018] Office is directed to place a copy of this order on record of each connected file.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J MANOJ NARWANI /46 to 50, 53 & 54 (Downloaded on 29/06/2019 at 01:39:43 AM) Powered by TCPDF (www.tcpdf.org)