Madhya Pradesh High Court
M.P. Madhyamik Shikshak Sang vs The State Of Madhya Pradesh on 29 January, 2013
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No. 18771/2011)
M.P. Madhyamik Shikshak Sangh
Vs.
State of M.P. and another
PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for Petitioners Shri K.C. Ghildiyal, Advocate.
Counsel for respondents Shri S.M. Lal, Government Advocate
O R D E R (29/01/2013) PER SANJAY YADAV, J Order passed in this writ petition shall lead to final disposal of Writ Petition Nos. 18026/2011, 18773/2011, 17898/2012, 18050/2012, 18116/2012, 18272/2012, 18277/2012, 18282/2012, 18295/2012, 18034/2012, 18536/2012, 19268/2012, 20336/2012, 20340/2012, 20545/2012, 200551/2012 and 21173/2012, and the Contempt Petition Nos. 1399/2010, 1400/2010, 787/2011, 789/2011, 1728/2011, 1742/2011, 1786/2011, 1895/2011, 309/2012, 380/2012, 631/2012, 1606/2012, 1607/2012 and 1638/2012, as the grievance raised in these batch of petitions is nongrant of benefits accruing to the teachers and other employees working in various non government educational institutions receiving grant in aid from the State Government.
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2. These batch of petitions as apparent from the pleadings on record, are successive round of litigation. Earlier, being aggrieved by the inaction of respondent State of Madhya Pradesh and its functionaries, regarding nonimplementation of recommendation of Fifth Pay Commission in favour of teachers and other staff of nongovernment education institution receiving grant in aid from State Government, petitioner association filed Writ Petition No. 17875/2010 (S), which was disposed of on 10.12.2010 with a direction to take action in accordance with law and directions in V.V. Asthana and others v. State of Madhya Pradesh and others :
W.P. No. 2029/2000, decided on 29/10/2003. Review Petition: R.P. No. 64/2011 preferred thereagainst was dismissed on 4.2.2011.
This led to filing of Intra Court Appeal by the State Government:
W.A. No. 597/2011: wherein while dwelling upon I.A. No. 7195/2011, the Division Bench passed the following order on 22.6.2011:
"Learned Government Advocate for the appellants submits that learned single Judge erred in disposing of the writ petition preferred by the respondent with a direction to the appellants herein to examine the case of the members of the respondent association for grant of benefit of 5th Pay Commission in the light of directions issued by this Court vide order dated 29.1.2003 in the case of V.V. Ashthana and others v. State of M.P. and others , (W.P. No. 2029/2000). Learned Government Advocate further submitted that it ought to have been appreciated that the proposition of law laid down in V.V. Ashthana (supra) has become stale in view of the subsequent amendment incorporated in the M.P. Ashasakiya Shikshan Sanstha (Anudan Ka Praday) Adhiniyam, 1978. On the other hand, 3 learned counsel for the respondent while opposing the submissions made by learned Government Advocate contended that against the order passed by the Division Bench of this Court in V.V. Ashthana (supra) the State Government has preferred S.L.P before the Supreme Court, namely, S.L.P. (C) No. 19188/2008. In the aforesaid SLP the Supreme Court vide interim order dated 18.12.2008 had directed the State Government to accord the benefit of 5th Pay Commission upto 31.3.2009 to the teachers in the private educational institutions which receives grantin aid. However, the aforesaid order was subsequently modified by order dated 5.11.2009 and the State Government has been directed to pay the teachers of the private Governmentaided Schools at the rate of 50% of the benefits of the 5th Pay Commission up to 31.3.2009. He, therefore, submits that the State Government may be directed to pay 50% of the benefits of 5th Pay Commission to the teachers of private Governmentaided schools. Taking into account the submissions made by learned counsel for the parties and in view of the interim order dated 5.11.2009 passed by the Supreme Court in S.L.P (C) No. 19188/2008, we direct the State Government to pay 50% of the benefits of 5th Pay Commission to the teachers of the private educational institutions which receive grant inaid from the State Government from the date of order passed by learned Single Judge, i.e., 10.12.2010 within a period of one month from today subject to furnishing an undertaking before the concerned District Education Officer by the teachers that in case the instant appeal is allowed, they would refund the amount paid to them during the pendency of appeal."
3. In pursuance to aforesaid directions an order came to be passed by State Government through School Education Department on 22.7.2011 that:
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jkT; 'kklu }kjk eku- mPp U;k;ky; ds funsZ'kksa ds mDr funsZ'kksa ds ikyu esa jkT; ds leLr v'kkldh; vuqnku izkIr laLFkkvksa ds f'k{kd@deZpkfj;ksa dks fnukad 10@12@2010 ls ikapos osrueku ds eku ls 50 izfr'kr Hkqxrku dh Lohd`fr fuEu 'krksaZ ds v/khu iznku dh tkrh gS%& 1 mDr Hkqxrku ewy ,l-,y-ih- esa eku- loksZPp U;k;ky; ds varxZr fu.kZ; ds v/khu jgsxk A 2 lacaf/kr f'k{kd@deZpkfj;ksa dks bl vk'k; dk ?kks "k.kk i= nsuk gksxk fd jkT; 'kklu }kjk izLrqr flfoy vihy dzekad 6362@04] 6637@04 ,oa vU; le:i ;kfpdkvksa esa eku- mPpre U;k;ky; }kjk jkT; 'kklu ds i{k esa fu.kZ;
nsus ij mDr ikapos osrueku ds :i esa fn;s x;s ykHk dh jkf'k ,deq'r olwy dh tk ldsxh A 3 lacaf/kr f'k{kd@deZpkfj;ksa }kjk ftyk f'k{kk vf/kdkfj;ksa dks ;g vaMj Vsfdax nsuk gksxk fd ekuuh; mPp U;k;ky; esa fjV vihy dz- 597@2011 esa 'kklu ds i{k esa fu.kZ; gksus ij mudks Hkqxrku dh xbZ jkf'k ,deq'r olwy dh tk ldsxh A 4 f'k{kdksa@deZpkfj;ksa dks fnukad 10-12-2010 ls fnukad 30-6-2011 rd ds ,fj;lZ dk Hkqxrku ,deq'r fd;k tk;sxk A ekg tqykbZ 2011 ls Hkqxrku c<+h gqbZ njksa ij fu;fer gksxk A 5 ;g Hkqxrku eku- mPp U;k;ky; esa nk;j MCY;w- ,- dz- 597@11 ds v/;/khu jgsxk
4. Accordingly, District Education Officers of the entire State vide letter dated 29.8.2011 issued by the Commissioner, Public Instructions were directed to abide by the order. This letter, however, created confusion by interpreting the order passed by the Division Bench and the consequential order by State Government stating that " fo"k;karxZr lanfHkZr 'kklu vkns'k fnukad 22-7-2011 tks lapkyuky; ls dzekad vuqnku@ch@11@371 fnukad 26-7-11 }kjk i`"Bkafdr fd;k x;k gS A mDr vkns'k dh dafMdk &4 esa **fn- 10-12-2010 ls 30-6-11 rd ds ,fj;j dk Hkqxrku ,d eq'r fd;k tkuk gS A ekg tqykbZ 2011 ls Hkqxrku c<+h gqbZ njksa ij fu;fer gksxk ** ls rkRi;Z ;g gS fd ekuuh; mPpre U;k;ky; ds varfje vkns'k fnukad 6-5-2002 ds vuqlkj vHkh rd dsUnz~h; osrueku ¼pkSFks osrueku½ ds vuqlkj 50 izfr'kr Cykd xzkaV dk Hkqxrku fd;k tk jgk Fkk] vc ikapos osrueku esa mlh ds rRLFkkuh fn-31-3-2000 dks izkIr osru] egaxkbZ HkRrk ,oa x`g HkkM+k HkRrs dk 50 izfr'kr Cykd xzkaV ds :i esa Hkqxrku 12-10-2010 ls fd;k tk, A "
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5. The clarification created anomaly as though the teachers and other Staff were paid salary at the rate of 50% of the Fifth Pay Commission but the increments and other allowances were paid at the rate as on 31.3.2000.
6. This order dated 29.8.2011 came to be challenged in Writ Petition No. 15564/2011 (S) where by order dated 19.9.2011 its operation and consequent recovery was stayed. In another Writ Petition: W.P. No. 18026/2011 (S) the State Government was directed to pay to the petitioners "the benefit of 5 th Pay Commission recommendation to the extent of 50% which shall include the payment of interim relief and dearness allowance and House Rent Allowance."
7. In the present batch of petitions and contempt petitions grievance is again raised that the order passed in W.A. 597/2011 has not been complied with.
8. On 9.7.2012 taking note of various orders, the respondents were directed "to ensure that the benefit of Vth Pay Commission Recommendation in its totality is paid to the petitioner, which includes not only the basic pay, but also increment, dearness allowance, House Rent etc., subject, however, to 50% as ordered by the Supreme Court. The aforesaid amount to be paid to the employees w.e.f 1.12.2010 and a report submitted to this Court."
9. The order dated 9.7.2012 led the State Government to pass an order on 19.7.2012 of quashing the order dated 29.8.2011 passed by the Commissioner, Public Instructions. It was ordered:
dzekad ,Q 37&5@2011@20&3 %% fjV ;kfpdk dzekad 18771@2011¼,l½ esa ikfjr vkns'k fnukad 9-7-2012 ds ikyu essa 'kklu 6 vkns'k fnukad 22-7-2011 dks la'kksf/kr djrs gq, ekg fnlEcj] 2010 ls ikapos osrueku ds vuq:i vuqnku izkIr v'kk- f'k{k.k laLFkkvksa ds f'k{kdksa@deZpkfj;ksa dks c<+h gqbZ nj fnlEcj] 2010 ¼ewy osru$osru o`f)$egaxkbZ HkRrk$x`g HkkM+k HkRrk½ ls Hkqxrku djus dh Lohd`fr iwoZ mYysf[kr 'krksZa ds v/khu iznku dh tkrh gS A rn~ laca/k esa vk;qDr] yksd f'k{k.k e-iz- Hkksiky }kjk tkjh i= dzekad@vuqnku @ch@10@11@420] Hkksiky fnukad 20-08-2011 rRdky izHkko ls fujLr fd;k tkrk gS A
10. Again on 1.8.2012 the respondents were directed "that the amount which is due and payable to the petitioner under the order dated 19.7.2012 as well as the amount of interim relief and Contributory Provident Fund be paid by the State Government to the concerned school within a period of one month". This order led to passing of order dated 22.10.2012 that:
1- ikapos osrueku varxZr vuqnku izkIr v'kkldh; f'k{k.k laLFkkvksa esa dk;Zjr f'k{kdksa@deZpkfj;ksa dks iznk; osrueku esa ewyosru] osruo`f)] egaxkbZ HkRrk] x`gHkkM+k HkRrk] varfje jkgr rFkk lh-ih-,Q 'kkfey gS A 2 'kklu vkns'k fnukad 19&7&2012 }kjk ewyosru osruo`f) egaxkbZ HkRrk rFkk x`gHkkM+k HkRrk ds Hkqxrku dh Lohd`fr iznku dh tk pqdh gS A 3 ekuuh; mPp U;k;ky; tcyiqj esa fopkjk/khu ;kfpdk MCY;w-ih-
18771@2011¼,l½ esa ikfjr vkns'k fnukad 1&8&2012 ds ikyu esa 'kklu vkns'k fnukad 19&7&2012 dks la'kksf/kr djrs gq, varfje jkgr ,oa lh-ih-,Q dh jkf'k dks Hkh 'kkfey fd;k tkrk gS rFkk ikapos osrueku ds eku ls le;≤ ij ns; egaxkbZ HkRrk ns; gksxk 'ks"k 'krsZa 'kklu vkns'k fnukad 22&7&2011 vuqlkj ;Fkkor jgsxh A
11. Accordingly, payment of arrears w.e.f 10.12.2010 to 30.6.2011 was made. This fact is borne out from affidavit dated 27.10.2012; wherein, paragraph 6 it is stated by the Commissioner, Public Instructions that:
6. The deponent further respectfully submits that payment of arrears w.e.f. 10/12/2010 till 30/6/2011 has already been made. Thereafter in most of the Schools, 7 payment has also been made from July 2011 till today as per the increased rate, but in some schools payment could not be made because of deficiency of budget. It is submitted that on account of the fact that three times amount of grant in comparison to earlier grant sanctioned to the aided institutions is required to be given, therefore proposal of supplementary budget for the year 201213 has been sent to the State Govt. is received, same shall be paid to the Teachers/Employees. Copy of the statement showing payment already made as also statement showing expenses of previous year, provision for the year 201112, proposed amount for the year 201213 and demand is annexed herewith as DOCUMENTB.
12. That, on 30.10.2012, learned Advocate General appeared and gave a statement that efforts are being made for settling the claims of the petitioners. That, subsequently status report was furnished by the Director, Legal Cell on 21.11.2012 stating therein that:
2. The answering respondents respectfully submit that position regarding payment on the basis of recommendation of 5th Pay Commission to the Teachers/employees of aided private institutions is as under:
(i) In Raisen, Rajgarh and Singrauli (three districts), aided private Schools are not operating.
(ii) In accordance with the order dt.22/7/2011 issued by the State Govt., payment upto October 2012 has been made to theTeachers/Employees working in all Primary/Middle/High School/Higher Secondary schools of District Bhopal, Sehore, vidisha, Gwalior, Guna, Datia, Jabalpur, Mandla, Balaghat, Seoni, Katni, Narsinghpur, Dindori, Sagar, Damoh, Panna, Chhatarpur, Tikamgarh,Indore, Dhar, Jhabua, Khargone, Khandwa, Badwani, Burhanpur, Alirajpur, Ujjain, 8 Dewas, Shajapur, Ratlam, Neemach, Mandsaur, Satna, Rewa, Sidhi, Hoshangabad, Harda, Shahdol, Anuppur (39 Districts). In these districts, allotment has been granted of 26,28,61,390/.
(iii) In District Umaria, there is only one aided private institution operating in Chilhari, which has no recognition on account of some dispute in regard to Society, therefore payment could not be made.
(iv) Only in seven districts namely Bhind, Morena, Shivpuyri, Sheopur, Ashok Nagar, Chhindwara and Betul, payment could not be made in all aided private institutions upto October 2012. Allotment of Rs.8,59,06,731/ has been granted for these districts. Position is as under:
(a) In Ashok Nagar, payment Oct. 2012 has been made to all the teachers/ employees working in District Ashok Nagar and Sheopur except some Teachers/ Employees. In Ashok Nagar, payment has been made to two Teachers upto August, 2012 and in Sheopur District, payment has been made to 15 Teachers upto May, 2012.
As the budget has been made available to these districts in the first week of November, 2012, therefore, payment upto October shall be made shortly.
(b) Payment up to May 2012 has been made in all Primary, High School and Higher Secondary Schools of District Bhind. In Morena District, payment has been made in Primary Schools up to month of July, 2012 and in Middle School payment has been made upto month of September, 2012.
(c) In District Betul, Chindwara and Shivpuri, payment has been made upto October 2012 in all Middle Schools and Higher Secondary Schools.
(v) In compliance of order dt.9/7/2012 and 1/8/2012, State Govt. has issued orders dt. 19/7/2012 and 22/10/12. The proposal for allotment of budget of Rs.88 crore has been sent to the Finance Department for sanction. As soon as budget has been approved in the month of December 2012 by the M.P. State Legislative Assembly, the same shall be paid immediately in all the districts."
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Copy of the document showing aforesaid details is annexed herewith as DOCUMENTA.
13. Later on, an application came to be filed by the respondents seeking modification of order dated 27.11.2012 to the extent that 'the salary and allowance be paid dated 27.11.2012 to the petitioners in pursuant to the earlier orders issued in respect of 5th Pay Commission but not in accordance with the circular dated 16.9.2009. The modification is opposed by the petitioners.
14. Circular dated 16.9.2009 stipulates:
foRr foHkkx ds lanfHkZr ifji= fnukad 23 tqykbZ 2009 }kjk jkT; 'kklu ds deZpkfj;ksa dks NBosa osrueku esa ns; egaxkbZ HkRrs esa fnukad 1&7&2009 ls 4% dh o`f) dh xbZ gS A bl laca/k esa dfri; foHkkxkaas }kjk ;g ekxZn'kZu pkgk x;k gS fd ,sls 'kkldh; lsod ftUgksaus NBosa osrueku ds p;u dk fodYi ugha fn;k gS vFkok vHkh Hkh orZeku ¼ikapos½ osrueku esa osru izkIr dj jgs gSa ds izdj.kksa esa lanfHkZr ifji= ds vuqlkj Lohd`r egaxkbZ HkRrs dh x.kuk fdl izdkj dh tk;sxh A 2@ bl laca/k esa Li"V fd;k tkrk gS fd e/;izns'k osru iqujh{k.k fu;e] 2009 ds varxZr fo|eku ¼ikapos½ osrueku esa cus jgus dk fodYi nsus okys rFkk vHkh Hkh fo|eku ¼ikapos½ osrueku izkIr djus okys 'kkldh; lsodksa dss izdj.kksa esa mUgsa ikapos osrueku esa izkIr ewy osru ¼egaxkbZ osru lfEefyr ugha½ dks 1-86 xq.kk dj fu/kkZfjr dkYifud osru (Notional Pay) ij uohu nj ls Lohd`r egaxkbZ HkRrs dh x.kuk dh tk, A [(when translated in English the circular speaks of) "Dearness allowance, payable to the State Government employees under Sixth Pay Commission, has been increased by 4% from 01.07.2009 vide the Circular under reference from the Department of Finance dated 23 July, 2009. In this regard, certain departments have sought the guidance that in the cases of Government 10 employees, who have not given the option to opt Sixth Pay Commission or who are still drawing the salary as per current (Fifth) pay scale, in what manner dearness allowance would be determined as per the Circular under reference.
2/ It is made clear in this regard that in the cases of Government employees having option to remain with current (Fifth) pay scale, under the Madhya Pradesh Pay Revision Rules, 2009 and who are still drawing the salary as per the current (Fifth) pay scale, the dearness allowance sanctioned at new rate be calculated on the fixed Notional pay after multiplying their basic pay (without dearness allowance) granted under (Fifth) pay scale with 1.86." ]
15. In the case at hand apparent it is from the pleadings that the teachers and other staff of the nongovernment institutions receiving grant in aid are in receipt of salary and other allowances under Vth Pay Commission. There is no material on record to establish that the payment as per Sixth Pay Commission is being made. By circular dated 16.9.2009 guidelines have been issued as to how the dearness allowance has to be worked out in case the employees are still drawing pay as per Fifth Pay Commission. The fact that the teachers and other staff of the non government education institutions receiving grant in aid are still getting benefit of Vth Pay Commission is also not denied by the respondents. In that case of the matter, the guidelines issued by the letter dated 16.9.2009 is squarely applicable to these employees. The application for modification being misconceived deserves to be and is hereby dismissed with cost of Rs.5000/, as the same seems 11 to have been filed to hamper the rightful claim of the employees. The respondents would, therefore, abide by circular dated 16.9.2009 while computing the dearness allowance of the teachers and other staff of nonGovernment Educational Institution receiving grant in aid.
16. That, vide compliance report dated 17.1.2013 it is stated on behalf of respondents:
"2. On 27.11.2012, Hon'ble Court was pleased to direct the respondents that they shall ensure that all the teachers and employees are paid salary including Dearness Allowance, House Rent Allowance etc. in accordance with the directions issued by this Hon'ble Court and in the matter of payment of Dearness Allowance, parity shall be maintained in the case of all the employees/teachers and strictly in accordance with the circular of the Finance Department dt. 16.9.2009, payment of DA shall be made. It is also directed that the benefits accruing to the petitioner be paid every month and salary and DA shall be calculated and paid to the employees without there being any default committed.
3. It is respectfully submitted that now after sanction of budget by the Finance Department, amount of Rs.88 crore has been made available to the Directorate of Public Instructions in the last week of December 2012. Immediately thereafter, Directorate of Public Instructions vide order dt. 1.1.2013 has issued directions to all the District Education Officers to make payment of arrears as also to make regular payment. It is further submitted that vide order dt. 9/1/2013, Directorate has issued directions to calculate final DA in accordance with the directions earlier issued for making payment of DA as per amended Fifth Pay. In District Raisen, Rajgarh and Singrauli, aided 12 institutions are not operating and in Badwani district aided institutions are not operating on account of transfer of Teacher to another institution, who was posted there. No payment can be made in the institution operated in District Umaria because of not having recognition on account of some dispute between Society and Employees. Therefore, in five districts, payment is not being made. Out of remaining 45 districts, in 23 districts, regular payment upto the month of December and arrears as per order dt. 22.10.2012 of the State Govt. has been made. As regards remaining 22 districts, Bills have been produced before the concerned Treasury and payment shall be made at the earliest. Copy of the letter dt. 15.1.2013 containing aforesaid information is annexed herewith as Annexure CR/1.
17. In view of above the petition is disposed of with a direction to respondents to abide by decision taken on 16.9.2009, 22.7.2011, 19.7.2012, 22.10.2012 in letter and spirit, any deviation therefrom, subject to any order being passed in W.A 597/2011 or the Supreme Court in the pending Special Leave Petition, will be seriously viewed. The cost which has been imposed while rejecting the application seeking modification be deposited with the High Court Legal Aid for the poor within 30 days.
18. The petition is disposed of finally in above terms.
(SANJAY YADAV) JUDGE vivek tripathi