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2023 DIGILAW 532 (HP)

Manohar Lal v. State of Himachal Pradesh

2023-12-14

RANJAN SHARMA

body2023
JUDGMENT : (Ranjan Sharma, J.) Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No.1 & 2. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings. 3. The petitioner has filed the instant writ petition with the following prayer(s):- “(i) That the Respondents may kindly be directed to release the gratuity and Leave Encashment due to the Petitioners with interest immediately, in the interest of justice.” 4. The case of the petitioners is that they were appointed as Lecturers (College Cadre) in subjects of History, Mathematics, Chemistry, Biology and Hindi on different dates as mentioned in Para 3 of the writ petition in 95% Government Aided Privately Managed College i.e. Shri Vishnu S.D. College, Bhatoli, District Una. The petitioners retired from the service of the aforesaid college on attaining the age of superannuation on 31.03.2017, 30.06.2018, 31.03.2012, 31.03.2016 and 29.02.2000 as mentioned in Para 4 of the writ petition. 5. The question as to whether the teachers of 95% Government Aided Privately Managed Colleges as in this case were entitled to the gratuity and leave encashment and if so on what analogy and to what extent stands adjudicated by the Co-ordinate Bench of this Court in CWP No.60/2006, titled as Jagdev Katoch versus State of Himachal Pradesh & ors., decided on 20.06.2008, Annexure P-3. The operative part of the judgment reads as under:- “Now, the question which arises for consideration is: by whom the gratuity in the present case is to be paid? The petitioner, as already noticed hereinabove, was to superannuate on 31.3.2005. The amount of gratuity is to be calculated from 12.8.1971 to 31.3.2005. The management of the college was dependent to the extent of 95% aid to be released under the rules framed by the State. The management had to defray the expenses to the extent of 5% only. The management as per rule 12-A, as noticed above, was bound to pay the gratuity to the petitioner and the State had to bear this expenditure to the extent of 95%. Consequently, it is held that the State Government will pay 95% amount of the gratuity to the petitioner and the remaining 5% has to be paid by respondent No.7-society. The management as per rule 12-A, as noticed above, was bound to pay the gratuity to the petitioner and the State had to bear this expenditure to the extent of 95%. Consequently, it is held that the State Government will pay 95% amount of the gratuity to the petitioner and the remaining 5% has to be paid by respondent No.7-society. The next question which fell for consideration is: whether the petitioner is entitled to leave encashment or not? The case of the petitioner has been turned down by merely stating that there is no provision for the grant of leave encashment to the petitioner. The leave encashment is a part of “salary” and the same could not be denied to the petitioner. Their Lordships of the Hon’ble Supreme Court in State of Rajasthan and another versus Senior Higher Secondary School, Lachhmangarh and others, (2005) 10 SCC 346 have held as under: “The contention urged is that Section 16 refers to various conditions of service including pay whereas Section 29(1) refers only to 'scales of pay and allowances' and not the 'conditions of service'. Learned counsel submits that by implication, Section 29 excludes the benefit of leave encashment. We are unable to accept the above contention. Section 16 confers a rule-making power on the State Government to regulate recruitment and conditions of service including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline etc. of employees of aided institutions. Section 16 has to be read and worked harmoniously with Section 29 which directs maintenance of parity in the scales of pay and allowances between employees of aided institutions and Government institutions. As we have held above the expression 'pay and allowances in Section 29 read with wider definition of the word 'salary' in Section 2(r) of the Act has a very vide connotation. We have come to the conclusion that the expression includes benefit of leave encashment which is nothing but salary for the unavailed leave to the credit of the employee. Section 16 confers rule-making power on the State Government to regulate 'Conditions of service' of employees of aided institutions. We have come to the conclusion that the expression includes benefit of leave encashment which is nothing but salary for the unavailed leave to the credit of the employee. Section 16 confers rule-making power on the State Government to regulate 'Conditions of service' of employees of aided institutions. The Section specifically confers power to frame rules regarding entitlement of leave, if leave salary is of kind a salary within the wide definition of 'salary' under Section 2(r), the rules to regulate conditions of service of employees of aided institutions, must be so framed as to maintain parity in conditions of service in that regard with employees in Government institutions. That is the mandate of Section 29 of the Act. The contention, therefore, advanced that subject-matter of entitlement of leave encashment is covered by Section 16 of the State but is beyond the purview of Section 29 of the Act, is fallacious and has to be rejected.” It is evident from rule 8 of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 that the petitioner is also entitled to the same salary which is being paid to his counter-part teaching in the Government Colleges. In view of the definitive law laid down by the Hon’ble Supreme Court, the word ‘leave encashment’ is to be treated as integral part of the ‘salary’ and the petitioner is entitled to the same. Accordingly, the respondents will also release the payment of leave encashment in the same ratio as laid down for the payment of the gratuity in earlier part of the judgment i.e. 95% by the State and 5% by the respondent No.7-society. In view of these observations, the writ petition is allowed. It is declared that the petitioner will be deemed to have retired on 31.3.2005 with all consequential benefits i.e. arrears of salary on the pattern of Mr. O.P. Kaushal, as noticed above. He will be paid the gratuity and leave encashment within a period of 8 weeks from today. There shall be no order as to costs. 6. The judgment in the case of Jagdev Katoch (Annexure P-3) was assailed by the State Authorities in LPA No.23 of 2009, titled as State of Himachal Pradesh & ors. versus Jagdev Katoch & ors., decided on 07.01.2020 (Annexure P-4) along with other connected LPAs/writ petitions. There shall be no order as to costs. 6. The judgment in the case of Jagdev Katoch (Annexure P-3) was assailed by the State Authorities in LPA No.23 of 2009, titled as State of Himachal Pradesh & ors. versus Jagdev Katoch & ors., decided on 07.01.2020 (Annexure P-4) along with other connected LPAs/writ petitions. While deciding the LPAs/connected writ petitions the Division Bench of this Court, has passed the following directions:- 8. Since, as, aforestated, the afore controversy, does, bear analogity, vis-a-vis, the therewith connected LPAs, and, writ petitions, (a) thereupon, vis-a-vis, all the superannuated employees, of, all the privately run educational institutions, and, who, all receive the apposite grant-in-aid, from, the Government of Himachal Pradesh, and, pointedly, also vis-a-vis, those employees, who are likely, to, become superannuated therefrom, are, all likewise declared to not become entitled, to, apposite financial liability(ies) hence towards gratuity, and, leave encashment, becoming saddled, upon, the, Government, of, Himachal Pradesh, (i) and, rather all the financial liabilities, qua therewith, are, enjoined to become saddled, upon, all the privately run educational institutions concerned, or, if, the, latter institutions, are, taken over, by, the, Government, of, Himachal Pradesh, yet, the superannuated employees therefrom, and, who become hence superannuated, prior to the institution concerned, becoming taken over, by the State Government, are yet not, entitled, to, claim, the, release, of, the, gratuity, and, leave encashment, from, the Government, of, Himachal Pradesh, rather financial liability(ies) qua therewith, are, to be borne, by, the apposite privately run institutions. 9. However, since, vis-a-vis, the St. Bede's College, Shimla, a notification of 6th April, 2017, exists, on record, and, as becomes issued, by, the, Principal Secretary (Hr. Education) to the Government of Himachal Pradesh, and, wherein, in clause 11-A, and, 11-B, thereof, it becomes mandated qua, vis-a-vis, St. Bede's College, Shimla, (a) the Government of Himachal Pradesh, becoming encumbered with the liability, to, release grant-in-aid, to, every staff member of the afore institution, (b) given its becoming run exclusively, for, girls, (c) and, with the afore release(s), of, grant-in-aid, also, covering, the, entitlements, of, the, superannuated therefrom, hence staff, towards gratuity, thereupon(s), the, financial liability qua therewith becomes encumbered, upon, the State of H.P., hence, in, the, proportion, as, mentioned therein, (d) whereupon, the afore notification hence enjoins its becoming meted deference. Inconsonance therewith rather only, vis-a-vis, the staff of the St. Inconsonance therewith rather only, vis-a-vis, the staff of the St. Bede's College, Shimla, the Government of Himachal Pradesh, is, directed, to, vis-avis, the, superannuated staff therefrom, hence, at, the, relevant stage(s), release, grants-in-aid, also encompassing, the, apposite claim(s) towards gratuity, and, also towards leave encashment.” 7. The attention of this Court is drawn towards an order dated 31.08.2023 (Annexure P-5) passed in Execution Petition No.247 of 2021, titled as Hem Raj Jaswal versus State of Himachal Pradesh & ors., wherein the petitioner i.e. Hem Raj Jaswal of the same college i.e. Shri Vishnu S.D. College, Bhatoli, District Una, has been granted the benefit of Leave Encashment, notwithstanding the fact that the SLP has been filed and the judgment of the Division Bench of this Court has not been stayed as yet. Reference is drawn to the operative part of the orders dated 31.08.2023 (Annexure P-5) which read as under:- “By way of CMP No. 7396 of 2023 in Ex. Pet. No. 247 of 2021, a prayer has been made to recover the amount payable to the petitioner(s) by taking coercive steps against respondents No.3 and 4. Detail of immovable property belonging to respondent No.4, S.V.S.D. College Bhatoli, District Una, H.P. has also been provided. A copy of jamabandi for the year 2019-20 in respect of immovable property owned by respondent No.4, has also been placed on record. In reply, it has been submitted that the matter is still subjudice and is pending in SLP before the Hon'ble Supreme Court. The fact with respect to the ownership of immovable property referred in CMP No. 7396 of 2023 has neither been affirmed nor denied. Learned Additional Advocate General has placed on record instructions, according to which, the amount due to the petitioners on account of payment of leave encashment has already been credited to the account of the college, which will be disbursed to the petitioners as per their respective shares. Respondents No.3 and 4 are directed to release the aforesaid amount to the petitioners as per their respective shares out of the amount deposited by the State Government with the college. 8. Per contra, Mr. Vishal Panwar, learned State Counsel submits that order dated 31.08.2023 (Annexure P-5) only covers the claim of leave encashment as granted to a similarly placed incumbent i.e. Hem Raj Jaswal. 8. Per contra, Mr. Vishal Panwar, learned State Counsel submits that order dated 31.08.2023 (Annexure P-5) only covers the claim of leave encashment as granted to a similarly placed incumbent i.e. Hem Raj Jaswal. He further submits that the claim regarding gratuity which flows from the Division Bench judgment passed on 07.01.2020 (Annexure P-4) needs to be looked into. 9. Faced with this situation, Mr. Bhuvnesh Sharma, learned Senior Counsel assisted by Mr. Shekhar Badola and Mr. Parav Sharma, Advocates, submits that keeping in view the above background of entirety of facts as well as law referred to above, he may be permitted to make a representation to Respondent No.1-Secretary (Education), Himachal Pradesh, Shimla, within two weeks from today. The prayer so made being innocuous is not opposed by the learned State Counsel also. 10. In this background, this Court permits the petitioners to make a representation to Respondent No.1-Secretary (Education), Himachal Pradesh, Shimla, within two weeks from today; with further directions to the aforesaid respondent to examine the case of the petitioner for leave encashment in terms of the judgments in case of Jagdev Katoch (supra) (Annexure P-3 & Annexure P4); also the orders in execution in case of Hem Raj Jaswal (Annexure P-5); and also to examine the claim for admissibility of gratuity, if otherwise admissible under the Rules and Law, and to pass appropriate orders in the matter within six weeks from today. 11. Needless to say that upon consideration, in case the respondents arrived at a conclusion that the benefits of Gratuity and Leave Encashment are to be released then, since the SLP is pending, against Annexure P-4, therefore, the benefits may be released, subject to the outcome of the SLP and furnishing of undertaking/bond by the petitioners, which shall also be subject to the outcome of the SLP as aforesaid. 12. Needless to say that, this Court has not adverted to the rival contentions and merits of the matter and all questions of facts and law are left open. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.