Managing Committee Tegor Bal N vs P K Sharma And Ors
2023 Latest Caselaw 5145 Raj/2

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                D.B. Special Appeal Writ No. 160/2006

1.       Managing Committee, Tegor Bal Niketan Samiti Through
         Its Secretary, Kekri District Ajmer
2.       Alok Vigyan Mahavidyala Through Its Principal, Kekri
         District Ajmer
                                                                      ----Appellants
                                       Versus
1.       Sh. P.k. Sharma S/o Sh. Raghuveer Sharma C/o Sh. O.p.
         Sharma Kota Road, Opp. Regional College, Ajme, 302,
         Lancers Road, Timarpur Delhi
2.       Rajasthan      Non       Government            Educational     Institutions
         Tribunal, Through Its Presiding Officer, Jaipur
3.       Director Of College Education, Bikaner, Rajasthan
                                                                    ----Respondents

For Appellant(s) : Mr. Ashish Saksena with Mr. Harshit Mittal For Respondent(s) : Mr. Virendra Dangi Senior Counsel with Mr. Kuldeep Verma & Mr. Rajesh Kumar Sain

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN

Order

Per Hon'ble Sameer Jain, J.

Reserved on                 29/08/2023
Pronoucned on               21/09/2023

1. The instant Special Appeal (Writ) has been filed challenging

the order impugned dated 30.07.2005 passed by the learned

Single Judge whereby S.B. Civil Writ Petition No. 8031/2004 titled

as Managing Committee, Tegor Bal Niketan Samiti & Anr. vs. Sh.

P.K. Sharma & Ors., was dismissed.

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2. It is submitted by learned counsel for the appellants that

S.B. Civil Writ Petition No. 8031/2004 was filed before the learned

Single Judge challenging the order of the learned Rajasthan Non-

Government Educational Institutions Tribunal (hereinafter,

'Tribunal') dated 19.03.2004 passed in Application No. 244/2000

whereby the learned Tribunal directed the petitioner-appellants to

make payment of salary and allowances to the respondent-

employee, equivalent to their counterparts serving in

Government/Aided Colleges while further issuing directions to

allow in favour of the respondent-employee, the benefits of the

Vth Pay Commission.

3. At this juncture, learned counsel for the petitioner-appellants

submitted that the petitioner-appellant is an absolutely unaided

but recognized educational institution. No form of any aid is

conferred upon the petitioner-appellant by the State Government.

Therefore, in this background viz-a-viz the unaided and non-

governmental status of the petitioner-appellant, it was contended

that the order passed by the learned Tribunal, which subsequently

came to be upheld by the learned Single Judge, is contrary to the

provisions of Section 29 of the Rajasthan Non-Government

Educational Institutions Act, 1989 (hereinafter, Act of 1989) and

Rule 34 of the Rules framed under the Act of 1989. Furthermore,

it was submitted that the Education Department issued Order

No.60 dated 29.07.1998 wherein it was categorically stated that

teachers and other employees serving in unaided educational

institutions would be free to enter into an agreement to

pay/receive the emoluments on a mutual basis, till the

government frames any rules in connection therewith.

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4. In support of the submissions made herein-above, learned

counsel relied upon the judgments rendered in Satimbla Sharma

& Ors. vs. St. Paul's Senior Secondary School & Ors.:

(2011) 13 SCC 760, Adarsh Vidhya Mandir Samiti,

Bharatpur & Anr. vs. Raju Lal & Ors.: 2014(2) RLW 1753

(Raj.) and Rekha Devani & Anr. vs. State of Raj. & Ors.:

2015 WLC (Raj.) UC 710. While concluding, learned counsel

argued that courts cannot issue a mandamus to a private unaided

institution to pay to its employees, salary and allowances, equal to

the salary and allowances payable to similarly situated employees

in Government/Aided Institutes, as such private unaided

institutions do not fall under the domain of public law.

5. Per contra, learned counsel for the respondent-employee has

submitted that orders passed by the learned Tribunal as well as

the learned Single Judge, are in consonance with the settled

position of the law as well as the statutory provisions applicable in

connection therewith. To elucidate upon the said submission,

learned counsel contended that while passing the order impugned

dated 30.07.2005, the learned Single Judge duly took into

consideration the judgement of the Hon'ble Apex Court as

rendered in K. Krishnamacharyulu & Ors. vs. Sri

Venkateshwara Hindu College of Engineering & Anr.

reported in AIR 1998 (SC) 295 along with the relevant statutory

provisions and the bi-partite agreement entered between the

contesting parties dated 25.03.1996 and thereafter, ordered for

the payment of salary to the respondent-employee at

par/equivalent to that of the lecturers in Government/Aided

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Colleges for the period subsisting between 25.03.1996 to

07.03.2000, in line with the Vth Pay Commission.

6. Whilst praying for the dismissal of the present appeal,

learned counsel for the respondent-employee placed reliance upon

the dictum of this Court as rendered in S.B. Special Appeal

(Writ) No. 46/2002 titled as Yashpal Sharma vs. RNGEIT

and Ors. which was subsequently upheld by the Division Bench in

D.B. Special Appeal No. 46/2002 vide order dated 22.04.2002

whereby unaided educational institutes were directed to pay at

par/equivalent salaries and allowances to its employees with that

of the Government/Aided educational institutions. Moreover,

reliance was also placed upon the dictum of the Apex Court as

enunciated in K. Krishnamacharyulu & Ors. vs. Sri

Venkateshwara Hindu College of Engineering & Anr.: AIR

1998 (SC) 295. Lastly, in conclusion, learned counsel argued that

as a consequence to the long drawn litigation between the parties,

the respondent-employee has undergone recurring financial

harassment and therefore, the present appeal must be dismissed

with heavy cost.

7. We have heard the arguments and/or submissions advanced

by the learned counsel for the parties, gone through the record of

the appeal and perused the judgments cited at Bar.

8. Preceding to the discussion on merits, this Court deems it fit

to take note of the instrumental legal provisions, necessary for

adjudicating upon the lis in question, namely:-

8.1 Section 29 of the Act of 1989 "29. Pay and Allowances of Employees:

(1) The scales of pay and allowances except compensatory allowances with respect to all the

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employees of an aided institution shall not be less than those prescribed for the staff belonging to similar categories in Government institutions.

(2) Notwithstanding any contract to the contrary, the salary of an employee of a recognised institution, for any period after commencement of this Act, shall be paid to him by the management before the expiry of the fifteenth day or such earlier day, as the State Government may, by general or special order appoint, of the month next following the month in respect of which or part of which it is payable:

Provided that if at any time the State Government deems it fit, it may prescribe a different procedure for payment or salary and allowances.

(3) The salary shall be paid without deductions of any kind except those authorised by the rules made under this Act or by any other law for time being in force." 8.2 Rule 34 of the Rules of 1993 "34. Pay and allowances: The scales of pay and allowances of the staff of the aided educational institutions shall not be less than those prescribed by the Government for the staff of similar category in the Government educational institutions."

8.3 Section 2(a), 2(b) and 2(t) of the Act of 1989

2(a): "aid" means any aid granted to a recognised educational institution by the State Government; 2(b): "aided institution" means a recognised institution which is receiving aid in the form of maintenance grant from the State Government. 2(t): "State Government" means the Government of the State of Rajasthan.

9. Upon a considered perusal of the record of the instant

appeal, the following inescapable and de riguer facts emerge,

namely:

9.1 That the petitioner-appellant is a recognized institution under

the provisions of Section 2(q) of the Act of 1989. The said institute

has never received any "aid" as per the provisions of Section 2(a)

read with Section 2(t) of the Act of 1989 and thus, the petitioner-

appellant does not fall within the ambit of an "aided institution" as

per Section 2(b) of the Act of 1989.

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9.2 The term "aid" has been clarified to be financial assistance

received from the "State Government" i.e. State of Rajasthan as

per Section 2(t) of the Act of 1989 and the petitioner-appellant

has never been a recipient of any aid from the State of Rajasthan

for the purpose of grant of salary/allowance to its employees or

otherwise.

9.3 That a co-joint reading of the aforementioned provisions

makes it clear in categoric terms that employees of unaided

institutions are not entitled for the pay and allowances applicable

to the employees working in Government/Aided institutions.

9.4 That as per Annexure R-1/3, a bi-partite agreement was

drawn between the contesting parties dated 25.03.1996 qua the

employment of the respondent-employee and the fixation of pay

among other things. In terms of the said agreement, the

respondent-employee was given appointment on substantive basis

with the petitioner-appellant in the Pay Scale of 2,200-4,000 and

in pursuance thereof, the respondent-employee submitted his

joining on 25.03.1996 itself.

9.5 That as per Annexure R-1/4, the appointment order issued in

favour of the respondent-employee on 25.03.1996 expressly

stated that the respondent-employee shall be placed in the pay-

scale of 2,200-4,000 with admissible Dearance Allowance thereon

only. Thus, as per the terms of the bi-partite agreement read with

the appointment order, the respondent-employee was eligible for

the pay scale of 2,200-4,000 with Dearance Allowance only,

without any revision, as the contract did not provide for the same.

10. In Satimbla Sharma (Supra), while dealing with a

controversy arising out of a similar factual matrix, the Hon'ble

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Apex Court held that private unaided minority schools/institutes

are not under any duty to ensure equal pay for equal work. The

relevant extract is reproduced herein-under:-

"23. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of Government schools or Government aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law."

11. Similarly, in Adarsh Vidya Mandir Samiti (Supra), while

dealing with a similar controversy, the Division Bench of this Court

held as under:

"14. From the relevant provisions of the Act & Rules referred to, it envisages that Section 16 of the Act of 1989 while regulates the recruitment and conditions of service, including qualifications, pay, gratuity, insurance etc. of aided institutions in the State and at the same time Section 29 further mandates that the scales of pay and allowances except compensatory allowances shall be admissible to the employees of the aided institution which may not be less than those prescribed for the staff belonging to similar categories in Government institution and Section 31 ensures regarding payment of salary to the employees of aided institutions and if Section 16 and Section 29 with Section 31 are read conjointly it makes explicitly clear that while the State regulate the terms and conditions of employment of recognized institution but the State intends to ensure the scale of pay & allowances for employees of aided institutions which may not be less than those prescribed for employees of Govt. institutions and at the same time, the rules were framed by the State Government in exercise of power conferred by sec. 43 of the Act 1989 regulating the recognition, grant-in-aid and service conditions etc. of the Non-Government Educational Institutions for better

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implementation and for giving effect to the provisions of the Act in furtherance thereof the State Govt. intended to monitor and lay down procedure for recognition of the institution and to regulate their grant-in-aid, accounts, audit and general conditions of service which includes recruitment, disciplinary enquiries and the procedure to be adopted for inflicting penalty and at the same time for meeting out the removal of difficulties R. 93 take note of doubts arising in regard to interpretation of any of the provisions of the Scheme of rules or their applicability, the State Govt. reserves its authority and its decision is final, however, for recognition of an institution the procedure has been provided in Schedule 2 to R. 5(1) of Rules 1993 which indicates various requirement for an educational institution to comply with for grant of recognition of a Non Govt. institution and Clause 14 relates to pay and allowances to be paid as per the Government rule but no such rules if any framed by the State Govt. regarding payment of scale of pay to the employees of a recognized unaided institution has been placed before the Court. However, the provisions of the Act 1989 and Rules 1993 framed thereunder clearly mandates such scale of pay and allowances are payable to the employee of aided institution which shall not be less than those prescribed for the staff belonging to similar category in the Govt. institution. Relevant Para 14 of Schedule 2 appended to Rules 1993 reads ad infra.

22. In the instant Scheme of Rule 1993 Schedule 2 on which emphasis was made by the counsel for respondent appended to R. 5(1) of the Rules Para 14 suffice it to say that the State Government has highlighted for making payment of scale of pay & allowances for recognized institution as per rules of the State Govt. but as noticed there are no rules to this effect framed by the State Government so far prescribing scale of pay & allowances for employees of unaided educational institution and what being urged by counsel for respondent if still has been violated it may be within the institution and the State Government but employee of unaided institution cannot seek mandamus regarding scale of pay & allowances equal to and in parity to the

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employees of Government institution moreso when the legislature has confined as regards scale of pay & allowances of employees of the aided institution similar to the employees of Govt. institution but we make it further clear that for other purpose as regards recruitment, recognition, condition of service, leave, accounts & audit, conduct & discipline, constitution of managing committee etc. the legislative in its wisdom has put its control over the recognized institutions irrespective of the fact whether the institution is aided or unaided but in the instant matter scale of pay & allowances is the subject- matter in our considered view under the scheme of Act 1989 & Rules 1993 it is confined to the employees of Non Govt. aided institution and not for the employees of Non-Government recognized unaided institutions."

12. Identically, in Rekha Devani (Supra), the Division Bench of

this Court held that the employees of private unaided institutions

are not entitled to claim pay equal to those in Government or

aided institutions, as unaided institutions are not state and

therefore, they are not bound by the principle of equal pay for

equal work. The relevant extract is reproduced herein-under:

"10. From the reading of the above-quoted Sections 16 and 29 of the Act, 1989 it becomes clear that the State Government is empowered to regulate the recruitments and conditions of service including pay etc. of persons appointed as employees of only aided institutions in the State. And that scales of pay and allowances except compensatory allowances with respect to all the employees of an aided institutions only shall not be less than those prescribed for the staff pertaining to similar categories in Government institutions. In the result, the Management of an unaided educational institution is not under a statutory obligation to pay its employees the same scale of pay which employees of similar categories in Government institutions or aided institutions are being paid.

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In the case of Satimbla Sharma and others (supra), exactly the same controversy was dealt with by the Supreme Court and it held that unaided private schools are not State within the meaning of Article 36 read with Article 12 of the Constitution and as the obligation to ensure equal pay for equal work in Article 39(d) is on the State, a private unaided minority school (educational institution) is not under any duty to ensure equal pay for equal work. The Supreme Court also took note of the fact that employees of Government educational institutions are paid out of Government funds and the employees of Government aided educational institutions are paid mostly out Government funds whereas the employees of private unaided educational institutions are paid out of the fees and other resources of such institutions. In this case, the Supreme Court has also held that decision in Frank Anthony Public School Employees Association (supra), does not assist similarly situated appellants in any manner because the guarantee of equality is not available against unaided private school (educational institute). The Supreme Court has also clarified that Courts cannot issue a mandamus to a private unaided school to pay salary and allowances equal to the salary and allowances payable to similarly situated employees of Government schools or Government aided schools because salary and allowances of employees of private unaided schools is a matter of contract between the school and employees and is not within the domain of public law."

13. Therefore, relying upon the observations made herein-above,

it is noted that the petitioner-appellant is an unaided institution as

per the Act of 1989. Thus, no employee therein can claim parity

with employees serving in Government institutions in wake of

Section 29 of the Act of 1989 read with Rule 34 of the Rules of

1993. Moreover, in the facts of the present case, owing to the

unaided nature of the institute, the services of the respondent-

employee are to be governed by the terms of contract/agreement

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executed on 25.03.1996. In this regard, reliance can be placed on

the dictum of the Hon'ble Apex Court as enunciated in T.M.A. Pai

Foundation & Ors vs. State of Karnataka & Ors. as reported

in (2002) 8 SCC 481 wherein it was held that in cases of private

institutions, the relationship between the management and the

employees is contractual in nature. Hence, the respondent-

employee cannot claim beyond the stipulated terms of the

contract which provide pay scale of 2,200-4,000 with admissible

Dearance Allowance only. Consequentially, the respondent-

employee is not entitled for revision of the pay-scale to its

corresponding fixation in the Vth Pay Commission for the reason

that there is no provision in the agreement/contract for revision of

the same, and the said agreement has been duly signed by the

respondent-employee.

14. Lastly, the reliance placed upon the dictum of the Hon'ble

Apex Court in K. Krishnamacharyulu (Supra) by the learned

Tribunal as well as the learned Single Judge is misplaced on

account of the fact that in the said case, executive instructions

were issued by the Government that the scales of pay of

Laboratory Assistants as non-teaching staff of private colleges

shall be on par with the government employees and in such

circumstances only, the Apex Court held that even though there

were no statutory rules, the Laboratory Assistants as non-teaching

staff of private college were entitled to the parity of pay scales as

per the executive instructions of the Government. However, in the

present case, there are no executive instructions issued by the

Government requiring private institutes such as the petitioner-

appellant to pay the same salary and allowances to their teachers

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as are being paid to teachers of Government/Aided institutes.

Rather, to the contrary, an Executive Order No. 60 dated 29.07.

1998 was issued wherein it was categorically stated that teachers

and other employees serving in unaided educational institutions

would be free to enter into an agreement to pay/receive the

emoluments on a mutual basis, till the government frames any

rules in connection therewith. Therefore, in the facts and

circumstances of the present case, no executive order expressly

mandating for parity in pay was issued. Similarly, the reliance

placed upon the judgment of the Division Bench of this Court in

Yashpal Sharma (Supra) is also misplaced on account of the

same being on different facts in toto wherein provisions of Section

29 of the Act of 1989 and Rule 34 of the Rules of 1993 were never

taken into consideration.

15. Thus, considering the observations made herein-above and

relying upon the judgments as rendered in Adarsh Vidhya

Mandir (Supra), Rekha Devani (Supra), Satimbla Sharma

(Supra) and T.M.A. Pai Foundation (Supra), this Court is

inclined to allow the present appeal.

16. As a result, the instant appeal is allowed. The orders

impugned passed by the learned Single Judge dated 30.07.2005

and the learned Tribunal dated 19.03.2004 are quashed and set

aside. The appellants are directed to pay, if not already paid, the

pay-scale of 2,200-4000 as well as the admissible 'Dearness

Allowance', as per the agreement dated 25.03.1996, to the

respondent-employee equivalent to the UGC Norms along with

interest at the rate of 6% per annum till the date of payment from

the due date within a period of 60 days from the date of receipt of

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copy of this order, failing which, further interest on the amount in

question be paid at the rate of 12% per annum.

17. All pending applications stand disposed of accordingly.

(SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ

Pooja /

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