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2021 DIGILAW 2374 (RAJ)

Managing Committee v. Ghanshyam Sharma

2021-12-17

AKIL KURESHI, REKHA BORANA

body2021
JUDGMENT Borana, J. - The present three Special Appeals are decided by this Common Order as the two writ petitions (Ghanshyam Sharma & Rajesh Chandra Sharma) have been decided by the learned Single Judge in terms of the Judgment passed in the third writ petition pertaining to Sudha Gupta. For sake of convenience, facts of Writ Petition No.5508/2017 (Ghanshyam Sharma) are being narranted. 2. The brief facts of the case are as under: 3. The respondent-applicants (employees) moved an application under Section 21 of the Rajasthan Non Government Educational Institutions Act, 1989 (hereinafter referred to as 'Act of 1989') before the Rajasthan Non Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as 'the Tribunal') for seeking relief of benefit of selection scale, amount of leave encashment, gratuity and provident fund. 4. During the pendency of said application, the Division Bench Judgment of this Court in D.B. Special Appeal (Writ) No. 663/2015; State of Rajasthan & ors. Vs. The Management Committee Shri Bhagwan Das Todi College came to be pronounced on 06.11.2015 and therefore, an application was moved on behalf of the Management before the Tribunal on 04.08.2016 with a prayer to decide the matters in terms of the judgment passed in Bhagwan Das Todi's case. 5. The learned Tribunal proceeded on to decide the application vide its order dated 08.11.2016 against which the appellant- Managing Committee preferred the present writ petition before this Court. While issuing notices in the writ petition, an interim order was passed on 20.04.2017 in favour of the petitioners by the learned Single Judge which was continued till further orders from time to time. 6. On 16.12.2020, an application was preferred by the petitioners for extension of the interim order dated 27.11.2017. It has been averred by the counsel for the appellants that the learned Single Judge, instead of deciding the said application, decided the writ petition itself on 13.01.2021 totally in contravention to the judgment of the Division Bench passed in Bhagwan Das Todi's case. The learned Single Judge proceeded on to decide the writ petition relying upon the judgment dated 20.09.2019 passed in S.B. Civil Writ Petition No. 3081/2016; Managing Committee & Another Versus Sudha Gupta & Another wherein the judgment as passed in Bhagwan Das Todi had been considered. 7. The learned Single Judge proceeded on to decide the writ petition relying upon the judgment dated 20.09.2019 passed in S.B. Civil Writ Petition No. 3081/2016; Managing Committee & Another Versus Sudha Gupta & Another wherein the judgment as passed in Bhagwan Das Todi had been considered. 7. In Sudha Gupta's case, the learned Single Judge held as under: 'I have considered the submission and on perusal of the judgment passed by the Division Bench in the case of The Management Committee, Sh. Bhagwan Das Todi College & Ors. (supra), this Court finds that the Division Bench examined the cases in relation to the Rules of 2010 and taking into consideration that the employees of the aided institutions had been absorbed with the State Government, a direction was issued directing the State Government to pay the unpaid amount to the concerned employee, which was due against the concerned educational institution to the extent of aid being granted to the institution. In view of the above, this Court is of the firm opinion that the directions would be confined only to those employees who have been absorbed with the State Government and would not extend to those employees, who retired while working with the institution(s) and are claiming their dues as against the institution(s). Since, admittedly the employees stood already retired, it is the duty of the institution to pay the entire amount as claimed by the employees and if they have any case for reimbursement from the State Government, they can always get the aid to be released from the concerned State Government. It is made clear that if such reimbursement is claimed in terms of the aid being given to the institution, the said reimbursement shall be released by the State Government. Accordingly, no case for interference is made out. The writ petition is found to be devoid of merit and the same is accordingly dismissed. Due payment be made within a period of three months. If any execution proceedings have been initiated, the same shall remain stayed for three months. All the pending applications stand disposed of.' 8. Aggrieved against the orders dated 20.09.2019/13.01.2021 the present Special Appeals have been preferred by the respective Managing Committees. Due payment be made within a period of three months. If any execution proceedings have been initiated, the same shall remain stayed for three months. All the pending applications stand disposed of.' 8. Aggrieved against the orders dated 20.09.2019/13.01.2021 the present Special Appeals have been preferred by the respective Managing Committees. It has been averred by the Counsel for the appellants that the learned Single Judge has erred in holding that the directions as issued in Bhagwan Das Todi's would be confined only to those employees who have been absorbed with the State Government and would not extend to those employees, who retired while working with the institutions and are claiming the dues as against institutions. 9. It has been argued by the Counsel for the appellants that Bhagwan Das Todi is a judgment in rem and it makes no distinction between the employees either absorbed by the State Government under the Rules of 2010 or the employees who retired when the Rules of 2010 came into force or in the employees who declined to join service of the State Government. Bhagwan Das Todi's case is a judgment which applies both to the employees who are members to the Rules, 2010 and to the employees similarly situated. Counsel for the appellants, in addition to Bhagwan Das Todi's case, have relied upon the judgment passed by the Division Bench of this Court and the Hon'ble Apex Court in: 1. D.B. Civil Special Appeal (Writ) No.193/2015; State of Rajasthan & Anr. Vs. Management Committee of Saint Paul's Senior Secondary School, Alwar & Ors., decided on 17.05.2016. 2. D.B. Civil Writ Petition No.15837/2018; Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society Vs. Yashpal, decided on 01.07.2019: 2019(3) WLC (Raj.) 562. 3. Special Leave to Appeal (C) No(s). 13791/2019; State of Rajasthan Vs. Manju Saxena & Ors., decided on 09.09.2021. 10. Per contra Counsel for the respondent-applicants (employee) and the State Government argued that the judgment passed by the Division Bench in Bhagwan Das Todi's case is totally contrary to the earlier judgments passed by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) No. 114/2011; 11. Administrator, Sarvajanik Aacharya Sanskrit Mahaviidhyalaya, Baran Vs. Rajasthan Non Government Educational Institutions Tribunal, Jaipur, decided on 04.04.2011 and D.B. Civil Special Appeal (Writ) No.94/2013; Managing Committee, S.S. Jain Subodh Shiksha Samiti & Anr. Vs. Administrator, Sarvajanik Aacharya Sanskrit Mahaviidhyalaya, Baran Vs. Rajasthan Non Government Educational Institutions Tribunal, Jaipur, decided on 04.04.2011 and D.B. Civil Special Appeal (Writ) No.94/2013; Managing Committee, S.S. Jain Subodh Shiksha Samiti & Anr. Vs. State of Rajastha & Ors., decided on 14.05.2013, and therefore, the same being per in-curiam deserves not to be followed by this Court. 12. It has been argued on behalf of the employee that he is not an employee of the State Government and therefore, the State Government is not responsible to make the payment of the amount directly to him. It is the sole responsibility of the institute to first make the payments of the amount payable to him and then have it reimbursed from the State Government. 13. Heard the learned counsel for the parties and perused the material available on record. 14. So far as the contention of the respondents that Bhagwan Das Todi's case is per in-curiam because of non consideration of the earlier Division Bench judgments of this Court is concerned, it is relevant to take note of the fact that the same question was framed and referred by the learned Single Judge of this Court in the matter of Managing Committee, Baijnath Shriram Saboo Shishu Mandir Society Vs. Yashpal (supra), which was answered by the Division Bench of this Court vide judgment dated 01.07.2019. While answering the reference the Division Bench held as under: '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 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.' 15. Further, while answering the reference, the Division Bench also considered the aspect as to whether Bhagwan Das Todi's case would be applicable only to those employees who were absorbed under the Rules of 2010 or to other similarly situated employees also. While deciding the issue the Division Bench held as under: '15. Further, while answering the reference, the Division Bench also considered the aspect as to whether Bhagwan Das Todi's case would be applicable only to those employees who were absorbed under the Rules of 2010 or to other similarly situated employees also. While deciding the issue the Division Bench held as under: '15. 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 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 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.' The Court further held as under: '16. 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.' 16. In addition to the fact of the above reference being decided by the Division Bench of this Court it is important to note that the Special Leave to Appeal filed against the judgment in Bhagwan Das Todi's case was dismissed by the Hon'ble Apex Court on 28.03.2016 and a review petitioner against the same was also dismissed on 29.08.2017. 17. In view of the above facts it is clear that the judgment passed in Bhagwan Das Todi's case has become final for all purposes and as held in Yashpal's case, the same is not per in- curiam and further, that the same would apply not only to the employees absorbed by the State Government under the Rules of 2010 but also to the employees who have since retired and who did not join service in terms of Rules of 2010. 18. So far as the contention of the State Government that the institution is first obliged to make the payments to the employees and then raise the claim before the State Government is concerned, the same has also been replied in negative by the Hon'ble Apex Court in Special Leave to Appeal(C) No(s). 13791/2019: State of Rajasthan Vs. 18. So far as the contention of the State Government that the institution is first obliged to make the payments to the employees and then raise the claim before the State Government is concerned, the same has also been replied in negative by the Hon'ble Apex Court in Special Leave to Appeal(C) No(s). 13791/2019: State of Rajasthan Vs. Manju Saxena & Ors., decided on 09.09.2021. In Manju Saxena's matter, it was the specific ground of the State that as no subsequent grant in aid was payable to the institution, the reliance on part of the teachers upon Section 31(2) of the Act of 1989, wherein the Government is entitled to deduct from the next or subsequent grant in aid payable to the institution was misplaced. Dealing with the argument, it has been held by the Hon'ble Apex Court as under: 'The intent behind Section 31(2) of the Act is that the employees must be paid their dues and if the aided institution fails to pay the salary to the employees, the Government is obliged to make over the payment to the Teachers and then deduct the same from the grant-in-aid payable to such institution. The responsibility is thus cast on the Government. We, therefore, reject the submissions advanced on behalf of the State Government and direct that: (a) The admitted amount to which the respondent No.1 herein is entitled to, shall be made over to her by the State Government within eight weeks. (b) The State shall, in accordance with law, be entitled to recover this money from the institution if such, institution had drawn grant in-aid in excess of its entitlement. (c) If any employees of the State had not discharged their duties in checking the affairs of the institution, the State shall also be entitled to proceed against such employees, in a manner known to law. We, therefore, dismiss this Special Leave Petition.' 19. In view of the ratio as laid down by the Hon'ble Apex Court and by the Division Bench of this Court, it can be concluded that the finding of the learned Single Judge to the effect that the principles in Bhagwan Das Todi's case would apply only to the employees absorbed with the State Government under the Rules of 2010 is incorrect. Therefore, the impugned orders dated 20.09.2019 (passed in S.B. Civil Writ Petition No. 3081/2016; Managing Committee & Another Versus Sudha Gupta & Another.) and 13.01.2021 (passed in S.B. Civil Writ Petition No. 5508/2017; Managing Committee, Agarwal Senior Secondary School, Agra Road, Jaipur Versus Ghanshyam Sharma and anr., and S.B. Civil Writ Petition No. 5506/2017; Managing Committee, Agarwal Senior Secondary School, Agra Road, Jaipur Vs. Rajesh Chandra Sharma and Anr.) are set aside. Writ petition of the appellant- Managing Committee is allowed. Order dated 08.11.2016 passed by the Tribunal is set aside and it is directed as under: (i) The Appellant Managing Committee shall prepare due drawn statement of the respondent employees in regard to the dues which are expenditure to the extent of grant-in-aid and send the same to the State Government and the State Government after its due verification from its record shall make payment to the employees under intimation to the appellant-institution. (ii) The appellant Management Committee shall make the payment qua its 20 per cent share to the employees, if the same remains due, within a period of two months from the date of this Order failing which the same would be payable along with an interest @ 9% per annum. 20. With these observations, the present Special Appeals are disposed of.