JUDGMENT 1. :- These three appeals have been filed by the State of Rajasthan challenging the decision of a learned single Judge fastening the liability of payment of proportionate gratuity payable to ex-employees of Government aided private educational institutions, on the State Government. D.B. Civil Special Appeal (W) No. 323/98 arises out of S.B. Civil Writ Petition No. 1289/98 filed by the Rajasthan Welfare Society, a society registered under the Societies Registration Act, which runs a Higher Secondary School at Laxmangarh, District Sikar; D.B. Civil Special Appeal (W) No. 341/98 arises out of S.B. Civil Writ Petition No. 4897/96 filed by Anandi Lal Podar Charitable Society, a registered Society, running a Senior Secondary School at Nawalgarh, District Jhunjhunu; and D.B. Civil Special Appeal (Writ) No. 344/98 arises out of D.B. Civil Writ Petition No. 5417/95 filed by Shri Agrawal Shiksha Samiti, a registered Society which runs Shri Agrawal College and Shri Agrawal Senior Secondary School at Jaipur. 2. The respondent-Institutions in all these appeals receive grant-in-aid from the State of Rajasthan under the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter called the 'Act') and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 framed under it (hereinafter referred to as the 'Rules'). A dispute arose on the question of payment of gratuity to some of the ex-employees of these Institutions on their retirement. The Institutions claimed that it was an approved expenditure under the Rules of 1993 and, therefore, the State Government was bound to contribute towards payment of gratuity to the ex-employees in the same proportion in which it gave grant-in-aid to the Institution. The contention of the State Government, however, was that it was not an approved expenditure and the entire liability of payment of gratuity tested (rested ?) with the Institution itself. Learned single Judge upheld the contention of the Institutions and held that the State Government was liable to reimburse proportionate amount of gratuity in the same proportion as it gave grant and it was an approved expenditure under the Rules of 1993. Aggrieved, the State Government has filed these three appeals. 3. Learned Advocate-General appearing for the appellant State Government submitted that under Section 7 of the Act aid cannot be claimed by an Institution as a matter of right. Aggrieved, the State Government has filed these three appeals. 3. Learned Advocate-General appearing for the appellant State Government submitted that under Section 7 of the Act aid cannot be claimed by an Institution as a matter of right. Sub-section (4) of Section 7 of the Act, according to the learned Advocate-General, makes it very clear that aid may cover such part of the expenditure of the Institution as may be prescribed. According to him, Rule 14 of the Rules makes it further clear that an approved expenditure shall relate to items (a) to (v) enumerated in the rule only and when these items do not include 'gratuity', payment of gratuity cannot be termed as approved expenditure. It was also pointed out that Note-II to Rule 14 also makes it clear that gratuity cannot form part of approved expenditure for the purpose of grant-in-aid without approval of the Government. 4. On the other hand, learned counsel for the respondents submitted that the learned single Judge was right in holding that payment of gratuity was approved expenditure as it was specifically provided by Rule 82 of the Rules that the employees of the aided educational institutions shall be entitled to gratuity as admissible under the Payment of Gratuity Act, 1972, as amended from time to time. According to the learned counsel, there is no necessity of separate approval spoken of by Note-II to Rule 14 of the Rules when in the same Rules it was provided that gratuity shall be payable. 5. We have heard learned counsel and perused the record. Learned single Judge, it seems, was over-influenced by the argument based on certain Supreme Court decisions that to impart education to the citizens is a State function and various provisions of the Constitution of India make it obligatory for the State to provide education to the citizens and every citizen has a right to get education. It was observed by the learned single Judge that the State cannot deny its obligation to establish educational institutions to enable the citizens to enjoy the right of education. It was observed by the learned single Judge that the State cannot deny its obligation to establish educational institutions to enable the citizens to enjoy the right of education. Referring to the decisions of the Supreme Court in Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 : 1984 Lab IC 560 and Unnikrishnan J.P. v. State of U.P., AIR 1993 SC 2178 , it was observed that right to life guaranteed by Article 21 does take in its ambit educational facilities and right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Constitution of India. Learned single Judge further observed that since huge financial lay out is involved in extending the benefit of education to all the citizens, the State Government has been discharging its obligation through the State or State recognised educational institutions. By granting recognition to private educational institutions, the State Government creates an agency to fulfil its obligation under the Constitution. The State Government exercises its power to regulate imparting of education by private institutions by granting recognition to them and steps are taken by the State to protect interest of the teachers employed in such educational institutions by regulating connected matters. It was further observed that in order to make the recognised institution financially viable in running the schools properly, the State Government has been providing grant-in-aid, though it is not obligatory for a private educational institution to accept grant-in-aid from the State. Grant-in-aid by the State facilitates and ensures recognised educational institutions to function effectively and in a meaningful manner with proper infrastructure and well trained teachers. Aided educational institutions, therefore, discharge State function as instrumentalities of the State. 6. With very great respect, we cannot agree in toto with such sweeping generalisations. In our opinion, that is not the spirit or plain meaning of the decisions given by the Supreme Court. What the legislature intended in enacting the Act and framing the Rules thereunder has to be culled out from the Act and the Rules themselves and not from the decisions of the Supreme Court. If it is true that it is not compulsory for an institution to accept the grant-in-aid from the State, it is equally true that the State Government is also under no legal obligation to give grant-in-aid to each and every institution to meet 100% of its expenditure. If it is true that it is not compulsory for an institution to accept the grant-in-aid from the State, it is equally true that the State Government is also under no legal obligation to give grant-in-aid to each and every institution to meet 100% of its expenditure. In our view, the entire scheme of giving grant-in-aid to private educational institutions is based on the principle of public participation in certain fields of public activities. Government cannot be expected to rely completely on its own resources to run educational institutions in requisite numbers for imparting education to all the citizens who desire to get themselves educated. What it cannot do directly through the Government servants, the Government is free to do through the help of private individuals or non-governmental organisations. Public participation therefore is welcome not only for management of such institutions but also for pooling together the financial resources for the purpose. Thus, the private institutions who can provide requisite infrastructure and management and who can also share the financial burden of running such institutions to some extend are given grant-in-aid by the State. It is for this purpose that such institutions, who undertake to discharge the public duty of imparting education, are relieved from the rigor of fully financing the efforts on their own and the Government gives them a helping hand by sharing some of the burden by giving grant-in-aid. The arrangement cannot be looked at only through the other angle that it is the constitutional duty of the State Government to impart education to its citizens and make available educational facilities to its citizens and any private institution of non-governmental organisation, undertaking to discharge such functions obliges the State Government to fully reimburse the expenses of running of such institution. If the Government had that kind of resources and if it was under an obligation to fully reimburse the entire expenditure of running such institutions why should the Government not run it as a Government institution at all ? It is, therefore, implicit in the situation that the institutions are mainly to be run on the resources to be found and collected by the private institutions or the NGO running the institution and the Government expected to contribute towards the expenses to certain extent in certain proportion by giving grant-in-aid. It is, therefore, implicit in the situation that the institutions are mainly to be run on the resources to be found and collected by the private institutions or the NGO running the institution and the Government expected to contribute towards the expenses to certain extent in certain proportion by giving grant-in-aid. We, therefore, find that the observations in certain Supreme Court decisions relating to the duties of the State Government in the field of education have no relevance for the decision of questions involved in this case which have purely to be determined on the basis of the provisions of the Act and the Rules. 7. Sub-section (1) of Section 7 of the Act of 1992 declares that no aid shall be claimed by an institution as a matter of right. Sub-section (4) of Section 7 declares that the aid may cover such part of the expenditure of the institution as may be prescribed. It is, therefore, clear that there is no obligation to meet 100% expenditure of an institution fastened on the Government. Rule 14 of the Rules prescribes the 'approved expenditure'. It declares that 'approved expenditure' shall only relate to the items No. (a) to (v) made under the Rule. Except item (a), none of the other items are relevant for our purpose. The relevant part of Rule 14 of the Rules reads as under : "Rule 14 : Approved Expenditure - Approved expenditure referred to in Rule 14 above, shall relate to the following items only : "(a) Actual salary, and provident fund contribution not exceeding 8.33% of the admissible teaching and non-teaching staff......." An attempt was made to canvass that gratuity shall form part of salary itself. 'Salary' has been defined in Section 2(r) of the Act and Rule 2(t) of the Rules in identical terms as under : "Salary" means, the aggregate of the emoluments or an employee including dearness allowance or any other allowance or relief for the time being payable to him but does not include compensatory allowance." 8. Obviously, gratuity cannot be termed to be an emolument for the time being payable to the employee. In the very nature of things, anything which is not a recurring payment, cannot be included in the definition of salary. Gratuity is payable only once and that too, on the termination of the employment and not during the employment. Obviously, gratuity cannot be termed to be an emolument for the time being payable to the employee. In the very nature of things, anything which is not a recurring payment, cannot be included in the definition of salary. Gratuity is payable only once and that too, on the termination of the employment and not during the employment. It cannot be said to be a payment receivable for the time being. It is a terminal benefit and not a part of salary. 9. It is contended on behalf of the respondents that Rule 13(2) provides that 'approved expenditure' shall be arrived at according to these rules and such other instructions that may be issued from time to time. It is further contended that as Rule 82 declares that the employees of the aided educational institutions shall be entitled to Gratuity as admissible under Payment of Gratuity Act, 1972 as amended from time to time, it will be an 'approved expenditure' as it is payable under the Rules and it can even be said to be an 'instruction' within the meaning of Rule 13(2). It is also contended on the basis of Note-II to Rule 14 that by framing Rule 82 the State Government has approved the payment of gratuity to the teachers of non-government aided institutions. Note-II to Rule 14 reads as under : Note-II "Charges on account of contribution made by the Institution to a pension fund or a gratuity scheme or on account of the pension or gratuity to former teachers are ordinarily not admitted for the purpose of grant-in-aid unless the rules on the subject are approved by Government : Provided that in case of staff obtained on lent services from any State Government or Government of India, pension and leave salary contribution shall be allowed as approved expenditure." (Emphasis supplied) 10. It is clear from this Note that charges on account of payment of gratuity paid to former teachers are not ordinarily admitted for the purpose of grant- in-aid unless the Rules on the subject are approved by the Government. The words 'Rules on the subject' used in the Note-II clearly refer to the Rules framed by the non-governmental institution and not by the Government. It cannot be interpreted in any other manner. If the rules are framed by the Government, there would be no question of further approval by the Government itself. The words 'Rules on the subject' used in the Note-II clearly refer to the Rules framed by the non-governmental institution and not by the Government. It cannot be interpreted in any other manner. If the rules are framed by the Government, there would be no question of further approval by the Government itself. Rule 82 cannot be said to be an approval granted by the Government to any amount to be counted as 'approved expenditure'. If Rule 82 is to be taken to be an approval for the purpose of this Note, the very necessity of the Note and declaration that charges on account of payment of gratuity etc. shall not ordinarily be admitted for the purpose of grant-in-aid will lose its meaning. There would have been no occasion for such a declaration in the Note if the intention was to make payment of gratuity a part of 'approved expenditure'. Actually, Rule 82 of the Rules makes it obligatory for an aided institution to pay gratuity in accordance with Payment of Gratuity Act, 1972 to its teachers etc. It does not in any way cast a liability on the Government to reimburse wholly or proportionately to the aided institutions the expenditure incurred by it on payment of gratuity to its teachers etc. In the aforesaid position of the Rules, we cannot accept that any expenditure incurred on payment of gratuity is a part of 'approved expenditure'. 11. There is one more reason why gratuity cannot be included in the approved expenditure. Chapter-III of the Rules relates to aid, accounts and audit. Rule 9 relating to Grants, reads as under : "9. Grants. - The State Government may at its discretion sanction following grants:- (1) Maintenance or recurring grant; (2) Non-recurring grant towards equipment, building etc. (3) Ad hoc, non-recurring or recurring grant to an institution which is of an All India Character and its project and activities have been approved by the Central or State Government on such terms and conditions as it may deem fit to impose. (4) Such other grants as may be sanctioned by the Govt. from time to time." 12. Rule 10 provides for the general conditions governing grant-in-aid. Clause (xv) The Grant-in-aid will be payable to the management of the institution subject to availability of funds and shall not be claimed as a matter of right. (4) Such other grants as may be sanctioned by the Govt. from time to time." 12. Rule 10 provides for the general conditions governing grant-in-aid. Clause (xv) The Grant-in-aid will be payable to the management of the institution subject to availability of funds and shall not be claimed as a matter of right. Clause (xvii) provides that in case of financial crisis the State Government may stop/reduce or modify the grant without assigning any reasons whatsoever. 13. Under Rule 9 above, therefore, four categories of grants are provided. Grant for payment of gratuity cannot be brought in the category of maintenance or recurring grant. It cannot be brought into the category of non-recurring grant towards equipments, building etc. It can only be brought under the category No. (4) i.e. such other grants as may be sanctioned by the Government from time to time. Rules 12 and 13 relate to recurring grants. A close look at Rule 14 also shows that it also relates to recurring expenditure. Rule 15 also relates to recurring grants. Then, Rule 16 provides for non-recurring grants. A perusal of Rule 16 shows that non-recurring grants are to be spent on construction of building etc. It, therefore, becomes clear that payment of gratuity is an expenditure which cannot be covered by maintenance or recurring grant, non-recurring grant, ad hoc non-recurring or recurring grant which is available to an institute of All India character for carrying out certain projects and activities. Such grant could only fall under Clause (4) of Rule 9 in the category of other grants as may be sanctioned by the Government from time to time. Special sanction is, therefore, necessary for providing grant to meet the expenditure on payment of gratuity to ex-employees of an institution. 14. For the aforesaid reasons, we find that the decision of the learned single Judge cannot be sustained. It has to be and is hereby set aside. We, however, make it clear that we are not laying down that no grant could be given for meeting the expenditure of the institutions on payment of gratuity to its ex-teachers or ex-employees. We are only laying down that it cannot be claimed as of right. It has to be and is hereby set aside. We, however, make it clear that we are not laying down that no grant could be given for meeting the expenditure of the institutions on payment of gratuity to its ex-teachers or ex-employees. We are only laying down that it cannot be claimed as of right. The State Government is duty-bound to consider any request of the Institutions to sanction a grant under clause (4) of Rule 9 of the Rules and it can decide to either meet the total expenditure on the count or in whatever proportion it deems fit depending upon its financial resources and priorities. The appeals are allowed. No order as to costs.Appeals allowed. *******