Rajasthan High Court - Jaipur
Managing Committee, Baijnath Shriram ... vs Yashpal S/O Shri Radheyshyam, By Caste ... on 1 July, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 15837/2018
With
D.B. Civil Misc. Stay Application No.12549/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir
Society, Shyam Mandir Road, Pilani, District Jhunjhunu,
Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior
Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer
Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o
Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District
Jhunjhunu, Rajasthan.
-----Petitioners
Versus
1.Yashpal S/o Shri Radheyshyam, by caste Jat, aged about 47
years, R/o Village and Post Kithana, Via Sultana, District
Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent Connected with D.B. Civil Writ Petition No.15218/2018 With D.B. Civil Misc. Stay Application No.12070/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Rajendra Prasad Sharma S/o Shri Tarachand Sharma, R/o Ward No.17, Behind Eye Hospital, Pilani, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.15289/2018 With D.B. Civil Misc. Stay Application No.12132/2018 (Downloaded on 04/07/2019 at 10:31:09 PM) (2 of 33) [CW-15837/2018]
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Rajesh Bagla S/o Shri Chaturbhuj Bagla, R/o Ward No.25, Near Shyam Mandir, Pilani, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
---Performa Respondent D.B. Civil Writ Petition No.15377/2018 With D.B. Civil Misc. Stay Application No.12195/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Subash Chandra S/o Shri Purnaram, by caste Jat, R/o Village and Post Lamba Via Baggar, Tehsil Chirara, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.15590/2018 With D.B. Civil Misc. Stay Application No.12353/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
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-----Petitioners
Versus
1.Shiv Onkar Sharma S/o Shri Shishupal Sharma, R/o Ward No.11, Near Dalmiya Kunwa, Municipality Pilani, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.15615/2018 With D.B. Civil Misc. Stay Application No.12373/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Smt. Saroj Saini wife of Guturam Saini, R/o Near Loyalka Ki Kothi, Ward No.10, Pilani, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.15630/2018 With D.B. Civil Misc. Stay Application No.12385/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Kailash Chand Sharma S/o Shri Vishvanath Sharma, R/o Ward No.17, Near Bhagat Singh Circle, Pilani, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
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----Performa Respondent
D.B. Civil Writ Petition No.15852/2018
With
D.B. Civil Misc. Stay Application No.12562/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Omprakash S/o Shriram Sharma, by caste Brahmin, aged about 49 years, R/o Near Sabu School Ward No.11, Pilani, Tehsil Suragarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16249/2018 With D.B. Civil Misc. Stay Application No.12891/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Rajpal Singh S/o Shri Prabhu Singh, by caste Jat, aged about 61 years, R/o Ward No.21, Near Rakesh Academy, Pilani, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16257/2018 With D.B. Civil Misc. Stay Application No.12899/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, (Downloaded on 04/07/2019 at 10:31:09 PM) (5 of 33) [CW-15837/2018] Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Madan Lal S/o Shri Laxmanram Saini, aged about 53 years, by caste Mali, R/o Near Ranisati, Laxmi Colony, Ward No.17, Gali No.2, Pilani, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16486/2018 With D.B. Civil Misc. Stay Application No.13136/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Anil Kumar S/o Shri Mahaveer Prasad, aged about 61 years, R/o C/o Pramod Nagwan, Savitri Bhawan, Near Jutharam Senior Secondary School Pilani, Tehsil Suragarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16510/2018 With D.B. Civil Misc. Stay Application No.13155/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
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-----Petitioners
Versus
1.Radheyshyam Saini S/o Shri Rameshwar Singh, by caste Mali, aged about 43 years, R/o Village and Post Kishorepura, Via Ponkh, Tehsil Udaipurwati, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16522/2018 With D.B. Civil Misc. Stay Application No.13164/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Bajrang Lal Saini S/o late Shri Ganpatram Saini, aged about 63 years, by caste Mali, R/o Ward No.16, Near Old Birla Senior Secondary School, Pilani, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan Bikaner.
----Performa Respondent D.B. Civil Writ Petition No.16523/2018 With D.B. Civil Misc. Stay Application No.13165/2018
1.Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Shyam Mandir Road, Pilani, District Jhunjhunu, Rajasthan.
2.Managing Committee, Baijnath Shriram Saboo Senior Secondary School, Pilani.
Both are represented through the Secretary Shri Raghuveer Singh Shekhawat S/o Shri Mansingh aged about 65 years R/o Sheoraon-Ki-Dhani, Post Deoroad, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
-----Petitioners Versus
1.Banwari Lal S/o Shri Teruram Godara, aged about 48 years, R/o Behind Shyam Mandi Ward No.25, Pilani, Tehsil Surajgarh, District Jhunjhunu, Rajasthan.
----Respondent
2.The Director/Commissioner Secondary Education Rajasthan (Downloaded on 04/07/2019 at 10:31:09 PM) (7 of 33) [CW-15837/2018] Bikaner.
----Performa Respondent For Petitioner(s) : Mr. N.K. Maloo, Senior Advocate, assisted by Mr. Vishnu Bohra Mr. D.S. Poonia, Mr. Hitesh Jatawat for Mr. Vivek Dangi For Respondent(s) : Mr. Ganesh Meena, Additional Advocate General, with Mr. Pushp Raj Solanki HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment //Reportable// 01/07/2019 All these matters have come up before the division bench on a reference made by learned Single Judge vide order dated 01.08.2018 in a batch of writ petitions, which were filed by the Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society, Pilani, challenging identical orders dated 05.04.2018 and 20.02.2018, passed by the Civil Judge, Pilani, District Jhunjhunu in different execution proceedings initiated by respondents. Petitioners are the Managing Committees of private aided educational institutions, which for the relevant period of time was receiving grant-in-aid to the extent of 80% from the State Government.
Facts of the case are that the respondents approached the Rajasthan Non-Government Educational Institutions Tribunal, Rajasthan, Jaipur, (for short, 'the 'Tribunal') by filing applications under Section 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short, 'the Act of 1989'), claiming benefit of selection scales on completion of 9, 18 and 27 years of (Downloaded on 04/07/2019 at 10:31:09 PM) (8 of 33) [CW-15837/2018] service, encashment of privilege leaves, gratuity and revised pay scales at par with the government teachers, as per the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998 and further pay scale revised from time to time. The Tribunal by common judgment dated 09.03.2016 partly allowed the aforesaid applications directing the petitioner to pay to the respondents the amount of encashment of leaves credited in their account and amount of gratuity and the benefit of senior and selection scales as per the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998 as also the benefit of the Rules of 2008. The arrears of Dearness Allowances, if any due, was also ordered to be paid. That apart, the benefit of selection scales as per the Order dated 25.01.1992 of the State Government was also ordered to be given after making pay fixation as per the Rules. They were also held entitled to interest at the rate of 6% per annum on the entire due amount from the due date till its actual payment. It was also directed that if any amount has already been paid then that should be adjusted towards the payable amount. The Director/Commissioner, Secondary/Elementary Education, Rajasthan, Bikaner, was directed to ensure compliance of the aforesaid directions from the petitioners.
When the directions contained in judgment were not complied with, the respondents filed execution petitions in the court of Civil Judge (Junior Division), Pilani, on 07.04.2016 as per the provisions of Section 27A of the Act of 1989. Upon properties of the petitioners being attached in the execution of the aforesaid judgment, the petitioners filed S.B. Civil Writ Petition No.21323/2017 before this Court, which however was allowed to be withdrawn vide order dated 24.11.2017 with liberty to file the (Downloaded on 04/07/2019 at 10:31:09 PM) (9 of 33) [CW-15837/2018] objection under Order XXI Rule 54(1-A) of the Code of Civil Procedure (for short, 'the CPC'). The Executing Court vide order dated 20.02.2018 passed an order directing auction of the properties in question for execution of the decree. The petitioners filed an application under Order XXI Rule 54(1-A) of the CPC, as per the liberty granted by this Court in the aforesaid order. The petitioners also filed a further application under Order XXI Rule 66 of the CPC for deciding certain objections before auction and sale of their property. The Executing Court vide common order dated 05.04.2018 dismissed both the applications. In this background, the petitioners have approached this Court by filing these writ petitions.
The case of the petitioner-institution before the learned Single Judge was that since it was entitled to receive grant-in-aid to the extent of 80% of the approved expenditure as sanctioned by the State Government under the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-Aid and Service Conditions etc.) Rules, 1993 (for short, 'the Rules of 1993'), the liability under the judgment of the Tribunal was not of the petitioners alone but was also that of the State Government to the extent of grant-in-aid, as held by the Division Bench of this Court in State of Rajasthan and Another Vs. The Management Committee Sh. Bhagwan Das Todi College - 2016 (2) WLC (Raj.)
1. The petitioners would have no objection to the auction of their land attached to the recovery of the amount up to 20% of the dues payable to the respondent, however, payment of remainder 80% amount of the sanctioned grant-in-aid is liable to be paid by the State Government. Reliance in this connection is placed on earlier judgment passed by the learned Single Judge dated (Downloaded on 04/07/2019 at 10:31:09 PM) (10 of 33) [CW-15837/2018] 08.02.2017 in a bunch of writ petitions, leading one being S.B. Civil Writ Petition No.8228/2013 - Management Committee of Shri Swetamber Jain Secondary School through its Secretary, Ghee Walon-ka-Rasta, Jaipur.
The case of the State Government before the learned Single Judge was that the Division Bench of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, did not deal with the situation where the employees of a non- governmental aided school/college entitled to sanctioned grant-in- aid could be denied the fruits of a judgment/decree of the Education Tribunal despite its finality. It was submitted that in the course of the execution of the decree of the Tribunal, matters extraneous to the Education Tribunal's judgment, which would even include judgment(s) of this Court in unrelated proceedings where the decree holder was not a party, cannot be considered. Such consideration would entail modifying a final judgment/decree of the Education Tribunal and such a situation would lead to chaos in the administration of justice.
The learned Single Judge was persuaded to uphold the contention of the State that the Division Bench judgment in the Management Committee Sh. Bhagwan Das Todi College, supra, did not deal with the situations of finality of judgments of Education Tribunal and execution thereof as decree statutorily provided for and the effect of that division bench judgment thereon. The learned Single Judge was of the view that whether the aforesaid DB judgment can have relevance to the execution of the final decree of the Tribunal in a wholly unrelated case. The learned Single Judge therefore passed the following order making reference to the larger bench on following three questions:- (Downloaded on 04/07/2019 at 10:31:09 PM)
(11 of 33) [CW-15837/2018] "In this view of the matter, I would be inclined to doubt the correctness of the judgment of this court itself in the case of Management Committee of Shri Swetamber Jain Secondary School Versus State of Rajasthan--as legal aspects brought forth by Mr. S.K. Gupta AAG were neither agitated nor considered therein. I would therefore refer to a larger Bench of this court the following question for its determination:-
(I) whether following the decree of the Education Tribunal, in the course of execution proceedings, its finality and executibility can be collaterally put to question on the basis of the judgment of this court in the case of State of Rajasthan & Another Versus The Management Committee Sh. Bhagwan Das Todi College (supra) where the concerned decree holder was not a party?
(II) whether the final decree of the Education Tribunal founded on its judgment only against the non-
government aided institution could also be executed against the State Government to the extent of its grant in aid sanctioned to the concerned institution even though the State Government was not party before the Education Tribunal?
(III) whether recovery through the executing court only to the extent of the Non-Government Educational Institutions share of the salary paid on the sanctioned post to an employee would be satisfaction of the decree of the Education Tribunal for whole of the salary/arrears/retiral benefits and interest due thereon to an employee/decree holder.
Let this matter be placed before the Hon'ble Chief Justice for constitution of an appropriate Bench." The Registrar (Judicial) of this Court by order dated 11.03.2019 was directed to get a notice published three days in advance in the cause-list for information of the learned Members of the Bar, whoever wanted to address the Court on the aforementioned questions. Apart from Mr. D.S. Poonia, the learned counsel for the petitioner, Mr. N.K. Maloo, learned Senior Counsel, Mr. D.S. Poonia and for Mr. Vivek Dangi, learned counsel, have made their submissions as interveners.
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(12 of 33) [CW-15837/2018] Mr. D.S. Poonia, learned counsel has submitted that the learned Single Judge could not have doubted correctness of the judgment of the Division Bench of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, more particularly when the SLP No.30061/2016 against the aforesaid judgment has been dismissed by the Supreme Court vide judgment dated 09.12.2016 and further the petition seeking review has been dismissed by the Supreme Court vide order dated 29.08.2017. The reference could not have been made because there was no contrary view than the one expressed by Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, was taken by any Bench of equal strength. The learned Single Judge of this Court was therefore bound by the aforesaid judgment of the division bench. The reference in the present case is thus incompetent and should be returned unanswered. Moreover, the order of reference framed by the learned Single Judge is based on misreading of the pleadings and incorrect factual assumption that the State was not party to proceedings before the Tribunal and therefore the judgment of the Tribunal could not be executed against the State to the extent of its grant-in-aid sanctioned by it to the concerned institutions. Attention of the court is invited to the judgment of the Tribunal dated 09.03.2016 to point out that the Director/Commissioner of Secondary/Elementary Education, was very much impleaded as respondent no.2. Therefore, the reference should be refused to be answered also because it is founded on incorrect fact.
It is submitted that the judgment in the Management Committee Sh. Bhagwan Das Todi College, supra, is a judgment in rem and the Single Bench as also Division Bench of this Court in (Downloaded on 04/07/2019 at 10:31:09 PM) (13 of 33) [CW-15837/2018] number of matters have later followed the aforesaid judgment in which the State Government was directed to make payment in proportion of the grant-in-aid directly to the teachers/employees concerned upon the non-government educational institutions submitting due drawn statement of each such employees who worked against the sanctioned posts with regard to their arrears of salary and other dues, forming part of approved expenditure. After verification of the same, the State Government was then required to make payment thereof to each of the employees who have now become members of the services under the Rules of 2010 or have retired or left the job up to the period of their working. The details of number of judgments passed by different Single Benches and Division Benches of this Court, including one by learned Single Judge himself, relying on the Management Committee Sh. Bhagwan Das Todi College, supra, have been given.
Mr. N.K. Maloo, learned Senior Counsel appearing as intervener, submitted that the Act of 1989 and the Rules of 1993 have provided a complete scheme for payment of grant-in-aid. Rule 10(xx) of the Rules of 1993 provides that the unutilized balance at the end of the financial year shall be surrendered to the Department/Government on or before 31 st March each ear, failing which it shall be adjusted towards next installment of aid becoming due. Note-II to Rule 13 provides that during each year every institution admitted to the grant-in-aid list shall provisionally be paid a monthly sum equal to 1/12th or a quarterly sum equal to 1/4th of the annual grant fixed for the previous year till the current year's grant is sanctioned, subject to its final adjustment. Rule 12 provides that the institution already receiving recurring (Downloaded on 04/07/2019 at 10:31:09 PM) (14 of 33) [CW-15837/2018] grant shall submit application for finalization of the grant of previous year in prescribed proforma to the competent authority. Thus the State Government is required to make payment of the grant-in-aid monthly or quarterly in advance on provisional basis, which is calculated on the basis of grant-in-aid sanctioned in the previous year. The management then pay salary to the staff after including its own share at the end of the financial year as per Rule 12, supra.
It is submitted that there is misconception that the amount of grant-in-aid is reimbursed to the aided educational institution and its management has to pay first and then claim reimbursement. Non-payment or delayed payment of salary to the employees by the non-government aided educational institutions arose only because of non-payment of grant-in-aid by the State regularly as per the afore-noted scheme. After 1998 the due amount of grant-in-aid was not paid even after audit and finalization of accounts of such institutions. The Government of India in its Ministry of Human Resources Development, Department of Education, vide order/letter dated 17.06.1987 addressed to all the State Governments and Union Territories, conveyed that the Government of India have decided to implement the recommendations of the Fourth Central Pay Commission with effect from 01.01.1986. The State Government also decided to implement the same on the condition that the Central Government will provide assistance to the extent of 80% of the additional expenditure upto March 31, 1990, and the State Government shall provide remaining 20% of the expenditure from its own resources and then it will take entire responsibility for making payment of revised pay scales with effect 01.04.1990. The (Downloaded on 04/07/2019 at 10:31:09 PM) (15 of 33) [CW-15837/2018] State Government decided to implement the aforesaid scheme and issued an order on 06.08.1988. Similarly order dated 27.07.1998 was issued by the Government of India for implementation of the revised UGC Pay Scales-V and VI in pursuance of the report of the Fifth Central Pay Commission, which too was implemented by the State Government by order dated 03.07.1999 unconditionally.
Mr. N.K. Maloo, learned counsel, argued that Shri Agarwal Shiksha Samiti filed a Writ Petition No.5271/1992 against the State Government, which was allowed by a learned Single Judge vide judgment dated 07.05.1993 directing the State Government to reimburse the petitioner Society the additional expenditure involved in giving effect to the revision of pay for the relevant period and make payment of arrears within three months. The Special Appeal No.787/1993 filed against that judgment was dismissed by the division bench vide judgment dated 19.11.1993. The Special Leave Petition, being SLP No.20691/1994, filed against that judgment was also dismissed by the Apex Court vide judgment dated 18.09.1995. Even then the State Government has not made payment to similarly situated institutions. Identical Writ Petition No.2275/2002 titled Anandi Lal Trust Vs. State of Rajasthan, was also allowed by this Court and that judgment was upheld by the Division Bench vide judgment dated 08.07.2008 as also by the Apex Court by dismissing SLP vide judgment dated 20.10.2011. Reliance is also placed on similar judgment in State of Rajasthan and Another Vs. Management Committee M.K. Saboo P.G. College, Pilani - 2008 (5) WLC (Raj.) 1.
It is argued that the State Government from whom the amount of grant-in-aid is recoverable by the management is a (Downloaded on 04/07/2019 at 10:31:09 PM) (16 of 33) [CW-15837/2018] 'garnishee' against whom recovery proceedings can be taken. Order 21 Rule 46(1c) also entitles the executing court to decide the disputed question about liability. Relying on the judgment of the Supreme Court in Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Limited - (2008) 14 SCC 171, Mr. N.K. Maloo, learned Senior Counsel, argued that the executing court would be well within its jurisdiction in applying the dictum of law laid down by this Court in the Management Committee Sh. Bhagwan Das Todi College, supra,. The Supreme Court in that case has held that if a subsequent decision alters the earlier one, the later decision does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. The executing court is therefore entitled to take into consideration the subsequent events and the relevant provisions of law including the judgment of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, as it was a judgment in rem. Reliance is also placed on the judgments of the Supreme Court in Municipal Board, Kishangarh Vs. Chand Mal and Co. - (1999) 9 SCC 198, Haji Sk. Subhan Vs. Madhorao - AIR 1962 SC 1230 and Smt. Radhi Dei and Others Vs. Lalit Bihari Mohanty - AIR 1991 Orissa 36.
Mr. Vivek Dangi, learned counsel appearing as intervener, submitted that in terms of well settled principle of stare decisis, the ratio of the judgment of the Division Bench of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, is binding on all the courts of lessor and co-equal strength and certainly on subordinate courts and Tribunals. Reliance is placed on the judgment of the Supreme Court in State of U.P. and Others Vs. Ajay Kumar Sharma and Others - Civil Appeal No.13727/2015 (Downloaded on 04/07/2019 at 10:31:09 PM) (17 of 33) [CW-15837/2018] decided on 26.11.2015. It is argued that judgment of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, is a judgment in rem and therefore directions given therein are applicable in all proceedings pending before this Court as also the Tribunal. It is argued that the direction in rem issued by this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, cannot be held to be collateral and therefore inapplicable, to the execution proceedings. The executing court in this behalf is bound to examine this aspect and issue appropriate direction for due compliance as per ratio of the Management Committee Sh. Bhagwan Das Todi College, supra. The learned counsel has cited orders passed by the very same Tribunal in identical cases requiring the State Government to comply with the judgment in the Management Committee Sh. Bhagwan Das Todi College, supra. It is argued that the second question formulated in the reference order on the assumption that the State Government was not party before the Tribunal is wholly misconceived as the State Government was represented by the Director/Commissioner of the Secondary/Elementary Education, Bikaner, and thus was very much party to the proceedings before the Tribunal. As regard third question, reliance is placed on the Circular dated 27.05.2002, which has provided for sanction and disbursal of grant-in-aid as a process broadly classified into four stages. It is argued that according to the said Circular, the payment of grant-in-aid is not to be sanctioned and disbursed in the form of reimbursement but originally sanction of aid is required to be made on the basis of estimated expenditure.
Per contra, Mr. Ganesh Meena, learned Additional Advocate General, has submitted that the Division Bench of this Court in the (Downloaded on 04/07/2019 at 10:31:09 PM) (18 of 33) [CW-15837/2018] Management Committee Sh. Bhagwan Das Todi College, supra, is per incuriam as it has omitted to consider earlier Division Bench judgment of this Court dated 14.05.2013 in D.B. Civil Special Appeal (Writ) No.94/2013 - Managing Committee S.S. Jain Subodh Shiksha Samiti and Another Vs. State of Rajasthan and Others & ten other connected matters, in which a contrary view was taken that payment of retiral dues and other payable arrears falling within the approved expenditure cannot be made to depend upon payment of grant-in-aid to the aided institutions. Contention that payment be ordered to be made to the employees only after grant-in-aid is paid to the aided institutions by the State Government was rejected on the premise that both cannot be linked. The institution is bound to make payment to the employees though subsequently it is entitled to get reimbursement in proportion of grant-in-aid from the State Government provided such payment is made of the approved expenditure. The Division Bench of this Court in Managing Committee, Gaur Vipra Primary School Vs. Smt. Kusum Agarwal @ Kusum Lata Agarwal - D.B. Special Appeal (Writ) No.983/2012, decided vide judgment dated 12.09.2012, while dismissing the intra court appeal, also required the institution to make payment of retiral dues to the employees before the Tribunal and then make an application before the State Government claiming reimbursement of the amount. The Division Bench of this Court in a bunch of special appeals, leading one being D.B. Civil Special Appeal (Writ) No.94/2013 - Managing Committee, S.S. Jain Subodh Shiksha Samiti and Another Vs. State of Rajasthan and Others, decided vide judgment dated 14.05.2013 also took a similar view, directing the concerned Institution to make payment (Downloaded on 04/07/2019 at 10:31:09 PM) (19 of 33) [CW-15837/2018] to the employee concerned in compliance of the judgment of the Tribunal and then submit an application to the State Government for reimbursement.
Mr. Ganesh Meena, learned Additional Advocate General, argued that Section 7 of the Act of 1989 provides in regard to grant-in-aid to the recognized institutions subject to such terms and conditions as may be prescribed by the sanctioning authority which may cover such part of the expenditure of the institution as may be prescribed. Rule 10 of the Rules of 1993 provides for general conditions governing grant-in-aid which provides that grant-in-aid will be payable to the Management of the Institution subject to the availability of funds and shall not be claimed as a matter of right. The Institutions are therefore liable to make payment of remainder of dues to concerned employees and thereafter move the State Government for reimbursement. However, the judgment of the Tribunal for that reason cannot be executed against the State Government only because the Institution has not made payment of the dues to the employees. If the decree passed by the civil court against the institution is allowed to be executed against the State Government, the provisions of the Rules of 1993 would stand nullified. The Division Bench of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, has completely omitted to consider this aspect of the matter.
It is submitted that the judgment of the Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, being rendered in the proceedings unrelated to the decree-holder, wherein the State was not a party to the proceedings, would be an extraneous consideration for the executing court. The Tribunal has (Downloaded on 04/07/2019 at 10:31:09 PM) (20 of 33) [CW-15837/2018] in its judgment directed the entire payment to be made by the educational institution. The executing court is under an obligation to get the judgment/decree executed as a whole against the institution and not just to the extent of 20% which it admitted to pay and remaining 80% against the State. It is therefore submitted that all the questions should be answered in favour of the State and against the petitioner institution.
Having heard the rival submissions, we have given our thoughtful consideration to the matter.
Before venturing to answer the aforenoted questions, we shall at the outset examine the contention that the learned Single Judge, being bound by the judgment of the Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, could not have doubted the correctness of the same and the order of reference is thus incompetent and therefore need not be answered, has to be examined in the contextual back-ground. The orders, which were under challenge before the learned Single Judge have been passed by the executing court. The question that arose for consideration before the learned Single Judge was whether the DB judgment of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, by virtue of the decree can be executed against the State Government. The learned Single Judge in the first question noted that its finality cannot be collaterally put to question on the basis of the judgment of this court in the case of the Management Committee Sh. Bhagwan Das Todi College, supra, since the concerned decree- holder was not a party thereto and in second question held that the decree in any case cannot be executed against the State Government to the extent of its grant-in-aid sanctioned to the (Downloaded on 04/07/2019 at 10:31:09 PM) (21 of 33) [CW-15837/2018] non-government aided institution as the State Government was not a party before the Education Tribunal. In fact, the learned Single Judge has doubted the correctness of his own previous judgment in Management Committee of Shri Swetamber Jain Secondary School through its Secretary, Ghee Walon-ka-Rasta, Jaipur, supra, as he was of the view that legal aspect brought forward now before the Court has not been agitated nor considered therein. In that case, the learned Single Judge had relied on the DB judgment in the Management Committee Sh. Bhagwan Das Todi College, supra, and held that the amount to the extent of sanctioned grant-in-aid, i.e., 70% to the petitioner school approved by the State Government is now directly payable by the State Government to each of the private respondents on the basis of the due drawn statement submitted by the petitioner school. The aforesaid judgment was however rendered in six writ petitions. Learned Single Judge, in our view, being bound by judgment of division bench, could not doubt correctness of the judgment in Management Committee Sh. Bhagwan Das Todi College, supra. Even then, looking to enormity of matters of this nature coming before this Court, we shall proceed to examine the matter on merits and answer the questions so as to give a quietus to the matter.
We shall begin with dealing with the first question which is whether, following the decree of the Education Tribunal, in the course of execution proceedings, its finality and executibility can be collaterally put to question on the basis of the judgment of this Court in the case of the Management Committee Sh. Bhagwan Das Todi College, supra, where the concerned decree holder was not a party? Perusal of this question indicates that the learned Single (Downloaded on 04/07/2019 at 10:31:09 PM) (22 of 33) [CW-15837/2018] Judge has proceeded on the footing that since the respondent- employee/decree-holder was not a party to the proceedings in the Management Committee Sh. Bhagwan Das Todi College, supra, the execution of the decree of the Tribunal in his case cannot be made on the basis of the aforesaid judgment. The Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, noted the undisputed fact that the State Government was under
legal obligation to sanction grant-in-aid to the non-government aided educational institutions for the employees who were appointed with it under the Rajasthan Rural Education Service Rules, 2010 (for short, 'the Rules of 2010') after screening for the period such employees had worked against the sanctioned aided posts in such institutions as the same would be 'approved expenditure' as contemplated by Rule 14 of the Rules of 1993. The State cannot claim immunity from its liability to sanction grant-in- aid to the non-government aided educational institutions by making the Rules of 2010. The argument of the State 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 was noted, elaborately discussed and turned down by the Division Bench, which would be evident from paras 37, 38 and 39 of the report, which read as under:-
"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 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.(Downloaded on 04/07/2019 at 10:31:09 PM)
(23 of 33) [CW-15837/2018]
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.
39. Thus, the grant-in-aid can be sanctioned and paid directly by the State Government to the employees of the Aided Educational Institutions in the exigency, if arises, as being postulated, by the Legislature in its wisdom, u/Sec.31(2) of the Act, 1989 and in our considered view the financial liability, which has been created upon the State Government and settled by this court, of which we have made reference supra receiving grant-in-aid from the State Government against the approved expenditures under the Act, 1989 and Rules, 1993 framed thereunder, at least for the period till the employees are absorbed in the State Government under the Rules, 2010, w.e.f. 01.07.2010 remained on the sanctioned & aided posts in the Non-Government Aided Institutions, cannot be abrogated or absolved by creating a subordinate Legislation by virtue of Cl.(vii) and u/C.(xi) of R.5 of the Rules, 2010."
As would be evident from afore-extracted paras of the judgment, the Division Bench directed that the benefit of the aforesaid judgment may not remain confined to such of the employees who are covered under that litigation and since the (Downloaded on 04/07/2019 at 10:31:09 PM) (24 of 33) [CW-15837/2018] employees of the non-government aided institution were in litigation with such institutions and the State Government at various levels either before the Education Tribunal or before the High Court. After this issue being settled therein, the Division Bench thought it appropriate to direct that order be made applicable mutatis mutandis, as directed therein, to all such employees, who are similarly situated. In other words, that was a judgment in rem which would apply to all employees on whose account grant-in-aid was payable to the non-government aided educational institutions but the payment thereof would be directly made to the concerned employee. In para 42 of the judgment, the Court noted the argument of the State Government until the payment is first made by the non-government aided educational institution, the State Government cannot be called upon to reimburse the same. The Division Bench observed that in peculiar facts and circumstances of the case when the employees of the non-government aided educational institutions are either absorbed in the Rules of 2010 with effect from 01.07.2011 or retired when the Rules of 2010 came into force or declined to join service in the State Government and the matter pertains to arrears of salary and other dues which are the approved expenditure payable to each of the employee under Rule 14 of the Rules of 1993 and accrued to each of them under the Act of 1989 and Rules of 1993 framed thereunder, in view of Section 31(2) of the Act of 1989, the Government was required to directly pay the same to employees concerned. The Division Bench therefore directed that the non- government recognized institutions shall prepare due drawn statement of each of the employee of non-government aided recognized institutions in regard to their arrears of salary and (Downloaded on 04/07/2019 at 10:31:09 PM) (25 of 33) [CW-15837/2018] other dues which are the approved expenditures to the extent of grant-in-aid and the same be sent to the State Government and the State Government, after its due verification from their records, make payment of arrears to each of the employee, who are members of the Rules of 2010 or to other similarly situated employees under intimation to the concerned non-government recognized institution. That judgment in rem was thus made applicable not only to those employees who were appointed with the Government under the Rules of 2010 but also to other employees who were otherwise similarly situated.
In M/s. Laxmi & Co. Vs. Dr. Anant R. Deshpande and Another
- (1973) 1 SCC 37, the Supreme Court held that the court can take notice of subsequent events. But such notice is taken in order to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice, for example where the court finds that because of altered circumstances, like devolution of interest, it is necessary to shorten litigation or where the original relief has become inappropriate by subsequent events or when the Court finds that the judgment of the Court cannot be carried into effect because of the changed circumstances, or when the Court finds that the matter is no longer in controversy or that the disputed property is no longer available. The Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, taking note of the fact that large number of such matters are being filed before the Education Tribunal as also the High Court by employees, who are working with different non-government aided educational institutions, acknowledged that the peculiar circumstances where the management of the non-government aided educational institution fail to pay the salary to its (Downloaded on 04/07/2019 at 10:31:09 PM) (26 of 33) [CW-15837/2018] employees, as referred to in sub-section (1) or in Section 29 of the Act of 1989, the Director of Education or any officer authorized by him, as per Section 31(2) is competent to deduct such salary from the amount payable as the next grant-in-aid or 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 considered to be deemed payment of money to the Management of the institution itself. While interpreting Section 31(2) of the Act of 1989 it was held that grant-in-aid can be sanctioned and paid directly by the State Government to the employee of the aided institution in the exigency if arises as being prescribed by the Legislature in its wisdom under Section 31(2) of the Act of 1989 and the financial liability which been created upon the State Government on payment of grant-in-aid against the approved expenditure to the aided institution at-least for the period till the employees were working against such sanctioned and aided post. It is further held that such employees could not be further compelled to again go in litigation and therefore while rejecting the argument of the State based on misconstruction of Rule 5(vii) of the Rules of 2010 has taken a pragmatic view by directing that similar benefits of the aforesaid judgment be extended to all similarly situated employees. There is therefore no reason why the executing court should not execute the aforesaid decree against the State Government in proportion of the grant- in-aid committed by it to the aided educational institution, particularly when it was a party before the Tribunal and the Tribunal itself had directed it to ensure compliance of the judgment from the petitioner-institution. In doing so, the (Downloaded on 04/07/2019 at 10:31:09 PM) (27 of 33) [CW-15837/2018] executing court can very much apply the aforesaid DB judgment in the Management Committee Sh. Bhagwan Das Todi College, supra.
The second question is to the effect whether the final decree of the Education Tribunal founded on its judgment only against the non-government aided institution could also be executed against the State Government to the extent of its grant in aid sanctioned to the concerned institution even though the State Government was not party before the Education Tribunal? The learned Single Judge has proceeded on the assumption that since the final decree of the Education Tribunal has been passed only against the non- government aided institution, how can it be executed against the State Government to the extent of its grant-in-aid sanctioned to the concerned institution even though the State Government was not a party before the Education Tribunal? Perusal of the judgment of the Education Tribunal dated 09.03.2016 indicates that the Director/Commissioner, Secondary/Elementary Education, Rajasthan, Bikaner, was very much a party, as respondent no.2 in all these matters. The Tribunal however in the operative part of the judgment has directed the petitioners, who were respondents no.1 and 3 before it, to make payment of the aforesaid dues but simultaneously required the Director/Commissioner, Secondary/Elementary Education, Rajasthan, Bikaner, to ensure compliance of the said directions from the petitioner. The question that therefore arises is whether the executing court by virtue of dictum of law enunciated by this Court in the Management Committee Sh. Bhagwan Das Todi College, supra, execute the decree against the State Government as well. Therefore, as far as the second question referred for determination to this Bench, the same proceeds on misreading of record as the (Downloaded on 04/07/2019 at 10:31:09 PM) (28 of 33) [CW-15837/2018] Director/Commissioner, Secondary/Elementary Education, Rajasthan, Bikaner, was very much party as respondent no.2 in all the matters.
In the scheme of the Act of 1989, only the Director/Commissioner, Secondary/Elementary Education,
Rajasthan, Bikaner, or the College Education, where the employee concerned was working against the sanctioned aided post, would be proper party to implead, who, according to Section 31(2) of the Act of 1989, has been required to deduct the amount of grant-in- aid payable to the concerned aided institution and pay directly to the employee concerned in the event of the failure of the former to pay the salary and other emoluments to him. The employees of the aided institutions become entitled to scale of pay and allowances except compensatory allowances payable to the staff belonging to the similar categories in the government institutions by virtue of Section 29 of the Act of 1989 and Rule 34 of the Rules of 1993. The 'Recognized Institutions' have been defined under Section 2(q) and Rule 2(s), the 'Affiliated Institutions' have been defined under Rule 2(b) of the Rules of 1993 and the 'Aided Institutions' have been defined under Section 2(b) of the Act of 1989. The petitioner institution is obliged to pay the scale of pay and allowances equivalent to those in the government schools by virtue of the fact that it is an aided institution and therefore the payment of grant-in-aid to the petitioner institution is a sine qua non for it to pay such benefits to its employees. The grant-in-aid payable to the Non-Government Aided Educational Institutions has been envisaged as a budgetary allocation as per Rule 15 of the Rules of 1993, based on estimated expenditures as per Rule 13 and subject to finalization as per Rule 12 of the same at the end of (Downloaded on 04/07/2019 at 10:31:09 PM) (29 of 33) [CW-15837/2018] the current financial year. In the judgment of the Tribunal, of which execution is sought, not only the Director/Commissioner, Secondary/Elementary Education, Rajasthan, Bikaner, was party but the direction in the judgment was also issued to them to get the said judgment complied from the respondents no.1 and 3, the petitioners herein. It is for this reason that Section 31(2) of the Act of 1989, as per interpretation placed by the division bench in Management Committee Sh. Bhagwan Das Todi College, supra, would be attracted and the executing court, would be required to follow the dictum of law enunciated therein on interpretation of Section 31(2) of the Act.
In taking that view, we are supported by the judgments of the Supreme Court in Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another - (1973) 2 SCC 40, which held that executing court cannot go behind the decree under execution but that does not mean that it has no duty to find out the true effect of that decree and for construing a decree, it can and in appropriate cases, it ought to, take into consideration the pleadings as well as the proceedings leading up to the decree. It was further held that in order to find out the meaning of the words employed in a decree the court often has to ascertain the circumstances under which those words came to be used. In the facts of that case, the Supreme Court held that despite the fact that the pleadings as well as the earlier judgmnets rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. We would do well to reproduce the relevant discussion in para 20 of the judgment, which reads as under:- (Downloaded on 04/07/2019 at 10:31:09 PM)
(30 of 33) [CW-15837/2018] "20. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them." We may notice at this juncture that the same Tribunal, presided over by the same officer, in its judgment dated 22.06.2016 decided a bunch of 13 applications, leading one being Application No.988/2012 - Hemant Singh Vs. Managing Committee, Shri Raghunath Higher Secondary School Laxmangarh, Sikar, through Secretary and Others, requiring the Director/Commissioner, Secondary/ Elementary Education, Rajasthan, Bikaner, to ensure compliance of the directions (Downloaded on 04/07/2019 at 10:31:09 PM) (31 of 33) [CW-15837/2018] contained in the judgment of Division Bench of this Court in the Management Committee Sh. Bhagwan Das Todi College, supra. A copy of the said judgment has been placed on record.
The third question is to the effect whether recovery through the executing court only to the extent of share of the salary paid on the sanctioned post to an employee, the Non-Government Educational Institutions, would be satisfaction of the decree of the Education Tribunal for whole of the salary/arrears/retiral benefits and interest due thereon to an employee/decree holder. This question has to be understood in the light of answer to the second question because the order of reference proceeds on the footing that the State Government was not a party before the Education Tribunal and therefore the third question that the recovery through the executing court only to the extent of the liability of the Non-Government Educational Institutions would be satisfaction of the decree of the Education Tribunal. Since the second question has been founded on assumption of incorrect fact, the third question would also stand answered accordingly because if the execution has to proceed jointly against both the State Government or its officials and also the Non-Government Aided Educational Institutions, obviously the execution to the extent of share of the non-government aided educational institutions, excluding the extent of the grant-in-aid, qua the approved expenditure, would be liable to be recovered from such institution.
In so far as the division bench of this court in Managing Committee S.S. Jain Subodh Shiksha Samiti and Another Vs. State of Rajasthan and Others, supra, is concerned, no doubt it was held therein that payment of retiral dues and other payable arrears falling within the approved expenditure cannot be made to depend (Downloaded on 04/07/2019 at 10:31:09 PM) (32 of 33) [CW-15837/2018] upon payment of grant-in-aid to the aided institutions, but that judgment was rendered in appeals against the judgment of the learned Single Judge whereby writ petition filed by aided institutions challenging the order of the Education Tribunal requiring them to make payment of the arrears of selection scale and leave encashment and other retiral dues. The Management Committee concerned did not press the challenge to the judgment of the Tribunal before the Single Bench but confined the relief to the prayer that the State Government be directed to reimburse the amount payable to such employee to the extent of such institution was in receipt of grant-in-aid, which was 80% of the approved expenditures. The learned Single Judge directed that the claim of reimbursement should be preferred only after making payment to the concerned employees, and the State Government would consider the same within a period of four weeks. In the aforesaid judgment, neither the provisions of Section 31(2) of the Act of 1989 nor those of the Rules, 10, 11, 12 and 13 of the Rules of 1993 were discussed and analyzed and the issues as to the liability of the State Government to directly make payment to the concerned employee as per the provisions of Section 31(2) of the Act of 1989 in the event of failure of the aided institution concerned to pay, was not considered. It cannot therefore be said that the later judgment of the Division Bench in the Management Committee Sh. Bhagwan Das Todi College, supra, is per in-curium. The Division Bench in the latter judgment, on taking a pragmatic interpretation of Section 31(2) of the Act of 1989, as discussed above, required the non-government aided institutions to prepare and submit due drawn statement to the State Government and the State Government, in turn, was directed to verify the same (Downloaded on 04/07/2019 at 10:31:09 PM) (33 of 33) [CW-15837/2018] from the records and then directly make payment of the arrears of the dues to the employees concerned to the extent the aided institutions were in receipt of the grant-in-aid.
The reference is answered accordingly. The matters be listed before the Single Bench.
Office to place a copy of this judgment in all connected files. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J //Jaiman// (Downloaded on 04/07/2019 at 10:31:09 PM) Powered by TCPDF (www.tcpdf.org)