Jai Prakash vs Directorate Of Education And Ors
2014 Latest Caselaw 6457 Del

*	 IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
 
+      		W.P.(C) 3542/2014 and 4703/2014

      Decided on : 04.12.2014
      
IN THE MATTER OF:
JAI PRAKASH			      ..... Petitioner in W.P.(C) 3542/2014
INDU					      ..... Petitioner in W.P.(C) 4703/2014
					Through: Mr. Arun Bhardwaj, Advocate 

				versus


DIRECTORATE OF EDUCATION AND ORS		        ..... Respondents

				Through: Mr. Girish Aggarwal and Mr. Suman 				Malhotra, Advocates for R-2 and R-3/School. 

CORAM 
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
1.	 The present petitions have been filed by the petitioners, who were working on the posts of PGT (History) and TGT (Social Science) respectively in the respondents No.2 and 3/School, praying inter alia for issuing directions to the School to revise their pay scales as per the recommendations of the Sixth Pay Commission and pay them gratuity and other consequential benefits. 
2.	As the facts of both the cases are almost similar, with the consent of the parties, a common order is being passed by taking note of the facts in W.P.(C) 3542/2014.

3. The petitioner had joined the respondents No.2 and 3/School as a TGT (Social Science) w.e.f. 03.07.2001. After successfully completing the probation period, he was confirmed to the said post on 02.07.2003. In the course of his service, the petitioner was promoted to the post of PGT (History). On 29.03.2007, the petitioner tendered his resignation and as per the terms of the letter of appointment in lieu of the notice period, he deposited three months salary with the School. On 30.03.2007, the respondents No.2 and 3/School accepted the petitioners resignation letter and relieved him from duty. In the meantime, the recommendations of the Sixth Pay Commission were accepted by the Central Government and the Government of NCT of Delhi and directed to be implemented with effect from 01.06.2006.

4. However, there remained some reluctance for revision of the pay scales of teachers in recognized unaided private schools under the Sixth Pay Commission. To put an end to any ambiguity on this aspect, on 16.04.2009, the respondent No.1/DOE issued a public notice directing implementation of the Sixth Pay Commission for the employees of recognized unaided private schools alongwith arrears from 01.01.2006. As a result, the petitioner approached the respondents No.2 and 3/School vide letter dated 31.08.2009, with a request that the arrears of his salary payable as per the recommendations made by the Sixth Pay Commission till 30.03.2007, the date when his resignation was accepted, be released in his favour. Thereafter, reminders were also issued by the petitioner to the School, but it remained impervious to the petitioners requests. Finally, on 22.10.2009, the petitioner wrote a letter to the respondents No.2 and 3/School, demanding a sum of `91,712/- towards arrears of pay on the basis of the recommendations of the Sixth Pay Commission and a sum of `1,09,021/- towards the unpaid amount of gratuity with interest @ 18% per annum. Learned counsel states that despite the said reminder, when the respondents No.2 and 3/School did not pay any amount and failed to respond to the said letter, the petitioner was compelled to file the present petition.

5. Pleadings are complete. As per the counter affidavit filed by the respondent No.1/DOE, Section 10 of the Delhi School Education Act and Rules, 1973 (in short DSEAR) places the onus of payment of salary and wages at par with the government schools on the respondents No.2 and 3/School. It is further stated that in order to ensure implementation of the Sixth Pay Commission, the respondent No.1/DOE had suo moto issued a notice dated 16.04.2009, informing the public at large that Section 2 of the DSEAR mandates implementation of the Sixth pay Commission for employees of the recognized unaided private schools from September, 2008, alongwith arrears payable from January, 2006 and stating that the aggrieved persons could contact the concerned District Deputy Directors of Education or Zonal Education Officers with their grievances.

6. A counter affidavit has been filed by the respondents No.2 and 3/School, wherein the date of the petitioners resignation from service of the School is not denied but it has been stated that thereafter, he had joined some other school and it has come to the knowledge of the School that the petitioner has availed of the benefits under the Sixth Pay Commission from the said School which information has not been revealed to the Court. As for the gratuity dues, learned counsel for the respondents No.2 and 3/School states that the gratuity has been made payable to employees in educational institutions only after the amendment to the Payment of Gratuity Act, that had taken place in the year 2009, whereas the petitioner had resigned from the School in March, 2007 and therefore, he is disentitled from claiming gratuity.

7. The Court has heard the counsels for the parties and considered their rival submissions in the light of the documents placed on the record.

8. In view of the provision of Section 10 of the DSEAR which prescribes that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of the recognized private schools shall not be less than those of the employees of corresponding status in schools run by the appropriate authority, the respondents No.2 and 3/School cannot deny the benefit of the Sixth Pay Commission to the petitioner herein for the period with effect from 01.01.2006 to 30.03.2007, the date when his resignation was accepted by the School.

9. Furthermore, the public notice dated 16.04.2009 issued by the respondent No.1/DOE had also clarified the said position and made it clear to all the recognized unaided private schools that they must implement the recommendations under the Sixth Pay Commission with effect from September, 2008 alongwith arrears from January, 2006. In such circumstances, it does not lie in the mouth of the respondents No.2 and 3/School to urge that they are not liable to pay to the petitioner the arrears of the Sixth Pay Commission for the period with effect from 01.01.2006 to 30.03.2007. The plea taken by the respondents No.2 and 3/School in its counter affidavit that the petitioner has concealed from the Court the fact that after leaving the services of the School, he had joined some other School and had availed of the benefits under the Sixth Pay Commission is found to be of no relevance. It is not as if the petitioner is claiming the same amount twice over. He has limited the said relief to the period when he was working with the respondents No.2 and 3/School.

10. As for the gratuity dues claimed by the petitioner, a Circular dated 28.03.2003 was issued by the respondent No.1/DOE (Annexure P-9), which drew the attention of all unaided recognized schools to Section 13A of Payment of Gratuity (Amendment) Act, 2009, regarding validation of payment of gratuity and Section 4 of the Payment of Gratuity (Amendment) Act, 2010 to clarify that the gratuity would be payable to the employees of all the educational institutions as if the Payment of Gratuity (Amendment) Act, 2009 had been in force at all material times. Further, the Circular had clarified that under the Payment of Gratuity (Amendment) Act, 2010, the maximum limit of gratuity was enhanced to `10 lacs, with effect from 24.05.2010. As a result, the Management Committees of all the unaided recognized schools were directed to make payment of terminal benefits including gratuity to their employees, strictly in accordance with law.

11. In view of the aforesaid clarification issued by the respondent No.1/DOE through a Circular issued as long back as on 28.03.2003, the respondents No.2 and 3/School cannot deny the legitimate claim of the petitioner for grant of gratuity under the DSEAR, till his resignation was accepted on 30.03.2007.

12. Coming to the reliance placed by learned counsel for the respondents No.2 and 3/School on the decision of the Supreme Court in the case of Ahmedabad Pvt. Primary Teachers Assn. vs. Administrative Officer and Ors. reported as (2004) 1 SCC 755 to contend that teachers are not entitled to claim gratuity under the Act, it is relevant to note that the justification offered in the aforecited decision to arrive at the said conclusion was that under Section 2(e) of the Act of 1972, the definition of the word employee did not cover teachers as they could not be treated at par with those working in the capacity of skilled, semi-skilled, unskilled or clerical persons. Further, it was observed that if the Legislation had intended to cover in the definition of employee, any kind of employees, it could have used such a wide language as was used in Section 2(f) of the Employees Provident Fund Act, 1972 that defines the word employee more expansively. Before parting with the case, the Supreme Court concluded on a positive note and made the following observations:-

26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide.

13. Taking a cue from the above observations made by the Supreme Court, the Legislature decided to carry out amendments in the Payment of Gratuity Act, 1972 by introducing a Bill in the Parliament, which received the assent of the President of India on 31.12.2009. By virtue of the amendments to the Act, Section 2(e), which defines the word employee, was amended and made more inclusive. Further, Section 13A was inserted to make the gratuity payable to an employee, notwithstanding anything contained in any judgment, decree or order of any court, for the period from 03.04.1997 till the Amendment Act, 2009 would receive the assent of the Government of India.

14. The aforesaid amendments take care of any reservation that the respondents No.2 and 3/School have about the entitlement of the petitioner to gratuity. The Act being a beneficial piece of Legislation, was given retrospectivity for it to encompass in its fold, those who had stood excluded due to the restrictive definition conferred on the word employee in the Act of 1972.

15. It is well settled that beneficial legislations may have retrospective application and the justification for the same was recently reiterated by the Supreme Court in CIVIL APPEAL NO.8750 OF 2014 entitled Commissioner Of Income Tax V. Vatika Township Private Limited decided on 25.09.2014, wherein it was held as below:-

33. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. vs. Indian Tobacco Association reported as (2005) 7 SCC 396, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra & Ors. reported as (2006) 6 SCC 286. It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are confronted with any such situation here. (emphasis added)

16. In view of the above legal position and having regard to the fact that the Act is beneficial in nature, which is the sole reason for it to have been applied retrospectively, there is no justification for the respondents No.2 and 3/School to deny payment of gratuity to the petitioner.

17. Accordingly, the present petition is allowed. The petitioner is held entitled to gratuity and revision of pay scale on the basis of the recommendations of the Sixth Pay Commission, for the duration of his service, alongwith the arrears of pay etc. in accordance with law. The aforesaid amount shall be paid by the respondents No.2 and 3/School to the petitioner within four weeks, with interest calculated @9% per annum from the date when the aforesaid amounts became due and payable, till realization. It is further directed that if the amount is not paid within the aforesaid timeline, then the interest payable shall increase from 9% to 11% per annum, upon expiry of four weeks.

18. W.P.(C) 4703/2014 is also allowed and disposed of on the same lines while leaving the parties to bear their own costs.

      
      
      
      							       (HIMA KOHLI)
DECEMBER 04, 2014					             JUDGE 
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