Punjab-Haryana High Court
State Of Punjab And Others vs Kapil Paul And Others on 26 July, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
LPA No. 739 of 2011 (O&M)
Date of Decision: July 26, 2011
State of Punjab and others
...Appellants
Versus
Kapil Paul and others
...Respondents
CORAM: HON'BLE MR
MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE GURDEV
GURDEV SINGH
Present: Mr. Suvir Sehgal, Addl. AG, Punjab,
for the appellants.
None for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR,
KUMAR, J.
1. The short issue raised in the instant appeal is whether an employee working in a privately managed government aided school is entitled to get reimbursement of the expenses incurred on his treatment as an indoor patient like his counterparts working in the government run schools. The State of Punjab and its officers have filed the instant appeal under Clause X of the Letters Patent against the judgment dated 30.9.2010 rendered by the learned Single Judge allowing the writ petition holding that the writ petitioner- respondent Nos. 1 and 2 are entitled to reimbursement of medical expenses in terms of the policy of the State prevalent at the time when bills were submitted by the petitioners.
2. The factual matrix of the case may first be noticed. Mrs. LPA No. 739 of 2011 (O&M) 2 Neelam Arora, wife of petitioner-respondent No. 1 and daughter of petitioner-respondent No. 2, was a Social Studies Mistress in the D.A.V. Girls High School, Gurdaspur, against a post for which the State of Punjab was disbursing 95% grant-in-aid. On 9.9.2003, she was got admitted in the Escort Heart and Super Specialty Institute, Amritsar, as an indoor patient with the ailment of Diabetic Ketoacidosis. On 3.10.2003, she unfortunately expired. The petitioner-respondent Nos. 1 and 2 being the legal representative of Smt. Neelam Arora, submitted medical bills of `2,97,122/- for reimbursement with the respondent No. 3 School, which were forwarded to the office of the District Education Officer (SE), Gurdaspur. In the absence of any response, the petitioner- respondent Nos. 1 and 2 filed CWP No. 977 of 2005 before this Court. On 5.5.2005, the said writ petition was disposed of with a direction to the appellants to take a decision within a period of four months and to pass a speaking order in case the claim is to be denied. On 29.8.2005, the District Education Officer passed an order that as per the provisions of the Punjab State Medical Attendant Rules, 1940 (for brevity, 'the 1940 Rules'), the employees of the private aided schools are not entitled to the benefit of medical reimbursement (P-9).
3. Feeling aggrieved the petitioner-respondent Nos. 1 and 2 again filed CWP No. 17112 of 2005 challenging order dated 29.8.2005 (P-9). In the writ petition they have claimed that on 31.3.1999 the State of Punjab has issued a notification whereby the employees of the private recognised aided schools are to be paid the same pay scale, dearness allowance (house rent and medical allowance) as was paid to the employees of the State Government LPA No. 739 of 2011 (O&M) 3 (P-3). On the other hand the respondent-appellants after placing reliance on the judgment of Hon'ble the Supreme Court rendered in the case of State of Punjab and others v. Om Parkash Kaushal and others, others, (1996) 5 SCC 325, 325 contended before the learned Single Judge that the employees of private aided schools are not entitled to reimbursement of medical expenses. The learned Single Judge after noticing Section 7 of the Punjab Privately Managed Recognised Schools (Security of Service) Act, 1979 (for brevity, 'the Act') and extracting the contents of notification dated 31.3.1999 (P-
3), allowed the writ petition by observing as under:
" Counsel for the State has relied upon a judgment of Hon'ble the Apex Court rendered in Civil appeal No. 9103-05 of 1996 titled as 'State of Punjab and Others v. Om Parkash Kaushal and Others' decided on July 8, 1996 reported as AIR 1996 Supreme Court 2584, to contend that the employees of private Aided Schools are not entitled to reimbursement of medical expenses. This judgment is of no help to the State as subsequently, in the year 1999, notification (Annexure P-3) was issued. Therefore, the State is bound by the said notification. The opinion of the Finance Department is contrary to the notification (Annexure P-3), which specifically stated that there shall be parity in the pay-scales and Dearness Allowance (House Rent and Medical allowance) to all the employees of the private Recognised Aided School with that of the Government employees."
4. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, would submit that the claim of the petitioner-respondent LPA No. 739 of 2011 (O&M) 4 Nos. 1 and 2 has been rightly rejected because there is a difference between the expressions 'medical allowance' and 'medical reimbursement'. According to the learned counsel, the expression 'medical allowance' refers to a fixed allowance which is admissible to an employee every month irrespective of the fact whether he/she fell ill nor not whereas the expression 'medical reimbursement' is related to reimbursement of the actual expenses incurred by an employee for his/her treatment either as an outdoor/indoor patient. He has further pointed out that such a reimbursement is made in accordance with the provisions of the 1940 Rules, which have no application to the employees of a privately managed recognised aided school. Therefore, the learned Single Judge has erroneously extended the benefit of 'medical allowance' by treating the same to be 'medical reimbursement', which is impermissible under the 1940 Rules.
5. Despite service no one has put in appearance on behalf of the petitioner-respondent Nos. 1 and 2 consecutively on two dates.
6. Having heard learned counsel for the appellants we are of the considered view that the question posed in the opening para is no longer res integra. It has been repeatedly held that the teachers/masters working in privately aided schools are entitled only to the pay scales and dearness allowance which is admissible to their counterparts working in the government schools and the State Government is not liable to pay other allowances. In that regard reliance may be placed on the judgments of Hon'ble the Supreme Court rendered in the cases of Haryana State Adhyapak Sangh v. State of Haryana, Haryana, 1990 (Supp) SCC 306, 306 Om Parkash LPA No. 739 of 2011 (O&M) 5 Kaushal (supra), (supra), State of Haryana v. Champa Devi, Devi, (2002) 10 SCC 78 and a Division Bench judgment of this Court rendered in the case of Shiv Niwas Tiwari v. State of Haryana, Haryana, 2007 (2) RSJ 254.
254 It would be fruitful to read the pertinent observations made by Hon'ble the Supreme Court in para 5 of the judgment in Champa Devi's case (supra):
(supra) "5. Coming, however, to the question as to whether the benefits given to the government employees under the circulars dated 14.5.1991, 7.8.1992, and 7.1.1994 which were annexed as Annexures P-3, P-4 and P-6, we are of the considered opinion that the High Court committed error in granting the benefits of those circulars to the employees of private schools. In State of Punjab Ors. v.
Om Prakash Kaushal Ors., (1996) 5 SCC 325, a bench of this Court examined the question as to what is the true meaning of "parity in employment" and ultimately came to the conclusion that all incentives granted to the employees of the government cannot be claimed as a matter of right by the employee under private management, as that would not be within the expression "parity in employment". The Court unequivocally said that the scale of pay and the dearness allowance to a government servant or the teacher of a government school can be claimed as a matter of right by the teachers of a private school and not other incentives which the government might be intending to confer on its own employees. This being the position and on examining the aforesaid three circulars which were LPA No. 739 of 2011 (O&M) 6 annexed as P-3, P-4 and P-6 in the writ petition filed before the High Court, we are of the considered opinion that the High Court committed error in granting the benefit of those circulars also to the teachers of the privately managed schools. We, therefore, set aside that part of the conclusion in the impugned judgment." [Emphasis Added]
7. Obviously, the teachers of the privately aided schools cannot seek parity with the teachers working in government colleges in the matter of incentives and other allowances including medical reimbursement as claimed by the petitioner-respondent Nos. 1 and 2. Moreover, it has remained un-controverted that medical reimbursement is made under the provisions of the 1940 Rules which have no application to the employees working in the privately aided schools. Even the instructions dated 31.3.1999 (P-3), cannot be applied to the present case because there is no whisper in the said instructions about 'medical reimbursement'. Therefore, on principles as well as on precedents, we are constrained to set aside the judgment rendered by the learned Single Judge and hold that the petitioner-respondent Nos. 1 and 2 cannot claim reimbursement of the medical bills in question.
8. In view of above, the instant appeal succeeds and the impugned judgment dated 30.9.2010 rendered by the learned Single Judge is set aside.
(M.M. KUMAR)
JUDGE
(GURDEV SINGH)
SINGH)
LPA No. 739 of 2011 (O&M) 7
July 26, 2011 JUDGE
PKapoor