Managing Committee vs Ghanshyam Sharma S/O Late Shri ...
2021 Latest Caselaw 7750 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             D.B. Special Appeal Writ No. 280/2021

Managing Committee, Agarwal Senior Secondary School, Agra
Road, Jaipur Through Its Secretary.
                                                                     ----Appellant
                                   Versus
1.    Ghanshyam Sharma S/o Late Shri Ganga Bux Sharma,
      R/o   Village    And      Post      Kheda       Mangal        Singh,      Tehsil
      Laxmangarh, Via Gadhi Sawai Ram, District Alwar (Raj.).
2.    The     Director/commissioner,                 Secondary            Education,
      Rajasthan, Bikaner (Raj.).
                                                                  ----Respondents

Connected With D.B. Special Appeal Writ No. 1693/2019

1. Managing Committee, D.a.v. Sr. Secondary School, Sekarganj, Ajmer (Dav College Managing Committee, Ajmer) Through Its Regional Director.

2. Regional Director/ Secretary, Dav College Managing Committee, New Delhi.

----Appellants Versus

1. Sudha Gupta W/o Shri Rakesh Kumar Gupta, Behind Lalkothi, Opposite Minister Ink Factory, Kesarganj, Ajmer.

2. Director, Secondary Education, Rajasthan, Bikaner.

----Respondents D.B. Special Appeal Writ No. 315/2021 Managing Committee, Agarwal Senior Secondary School, Agra Road, Jaipur Through Its Secretary.

----Appellant Versus

1. Rajesh Chandra Sharma S/o Dr. Anand Bihari Sharma, R/o 2312, Surya Bhawan, Deenanathji Ka Rasta, Chandpole Bazar, Purani Basti, Jaipur (Raj.)

2. The Director/commissioner, Secondary Education, Rajasthan, Bikaner (Raj.)

----Respondents

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For Appellant(s) : Mr. Arvind Gupta Ms. Naina Saraf with Mr. Preetam Singh For Respondent(s) : Mr. D.P. Sharma, for respondents.

Mr. Saurabh Sharma on behalf of Mr. Ganesh Meena, AAG (in SAW No.1693/2019) for the State.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA Judgment 17/12/2021

(PER HON. 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.

The brief facts of the case are as under:

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.

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

(3 of 11) [SAW-280/2021]

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.

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.

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.

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

(4 of 11) [SAW-280/2021]

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."

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.

(5 of 11) [SAW-280/2021]

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.

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;

                                          (6 of 11)                [SAW-280/2021]


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.

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.

Heard the learned counsel for the parties and perused the

material available on record.

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

(7 of 11) [SAW-280/2021]

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."

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

(8 of 11) [SAW-280/2021]

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."

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.

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-

(9 of 11) [SAW-280/2021]

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.

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.

(10 of 11) [SAW-280/2021]

(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."

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.

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                                   (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.

With these observations, the present Special Appeals are

disposed of.

                                    (REKHA BORANA),J                                                (AKIL KURESHI),CJ




                                   PCG/6-8









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