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Judgment
Ajay Rastogi, J.—Since common question of law and facts are involved in both the special appeals hence disposed of by the present order. The facts have been noticed from SAW No. 1082/2005. The respondent-employee Mangilal Sharma made a complaint before the Non-Government Educational Institutions Tribunal by filing an application u/S. 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 and prayed that he was paid his regular salary of the post of Teacher in the grade of Rs. 1200-2050 continuously but from October, 1994 without any justification his salary was reduced to half i.e. 50% from November, 1994 onwards and he being an employee of a recognized Aided Institution is entitled to be paid salary as admissible to a Government employee in terms of Sec. 29 of the Act, 1989.
The appellant-Institution filed their reply before the ld. Tribunal and their basic objection was that the State Government has withheld their 50% grant from 1990 onwards, in absence whereof they are not in a position to pay full pay and allowances, as admissible to a Government employee to respondent-Teacher and as regards their share of contribution to the extent of 50% of pay and allowances admissible to him, that is being continuously paid.
The ld. Tribunal after taking into consideration material on record came to the conclusion that if the Institution is a recognized and aided Institution but if aid has been withheld by the Government for any good reasons, that could not be a ground to deprive the rights of the employee and the remedy can always be availed by the Institution provided under the Scheme of Rules 1993 and at least the Teachers/Employees of an aided Institution are entitled for their pay and allowances in terms of Sec. 29 of the Act which postulates that scales of pay and allowances of the employees of aided institution shall not be less than those prescribed for the staff of similar category in the Government Institutions and accordingly ld. Tribunal directed the appellant-Institution to make payment of pay and allowances in full to which the respondent-Teacher was entitled for to the extent withheld from November, 1994 and shall continue to pay the same vide order dt. 27th May, 1996. However, the application filed for recalling of the order by the appellant-Institution came to be rejected by the ld. Tribunal vide order dt. 26th September, 1996 and the ld. Single Judge after hearing the parties also affirmed the order of the ld. Tribunal. Hence, this appeal.
Counsel for appellant-Institution vehemently contends that appellant-Institution was an aided Institution but it is not receiving any aid after 1990 and several correspondence was made to the State Government and all the discrepancies, pointed out by the officials of the State Government, were complied with but the fact still remains that the State Government failed to release their Grant-in-Aid in absence whereof Sec. 29 of the Act 1989 has no application and the Institution is not under obligation to pay such pay and allowances payable to employees of State Government.
Counsel further submits that Section 2(b) which defines "aided-institution" clearly postulates that only such of the Institutions could be considered to be aided-Institution which are recognized Institutions receiving aid in the form of maintenance grant from the State Government and since the appellant-Institution is not receiving aid after 1990 onwards, the appellant-Institution could not be considered to be an aided Institution and Sec. 29 of the Act castes no obligation upon such of the recognized Institutions to pay such pay and allowances admissible to employees, as admissible to staff belonging to similar category in the Government Institutions.
Counsel made a further submission that if at all this court comes to the conclusion that the appellant-Institution is an aided-Institution and is under an obligation to pay such pay and allowances, as admissible to the staff belonging to similar categories in the Government Institutions, provided u/S. 29 of the Act, at least a mandamus may be issued to the State Government to release Grant-in-Aid to the appellant-Institution in meeting out its obligation, provided under the provisions of the Act 1989.
Counsel for respondent while supporting judgment of the ld. Single Judge submits that what has been urged by the appellant-Institution before this court, has been examined in detail in the order impugned by the ld. Single Judge and the present special appeal deserves to be dismissed.
We have heard learned counsel for parties and perused the relevant material placed before us.
It would be relevant to first take note of the relevant provisions of the Act, 1989 to examine the Scheme of the Act which read ad infra:-
Sec. 2. Definitions-In this Act, unless the context otherwise requires,-
(a) "aid" means any aid granted to a recognised educational institution by the State Government;
(b) "aided institution" means a recognised institution which is receiving aid in the form of maintenance grant from the State Government;
(q) "recognised institution" means a non-Government educational institution affiliated to any University or recognised by the Board, Director of Education or any officer authorised by the State Government or the Director of Education in this behalf;
Sec. 7. Grant of aid to recognised institution.-
(1) No aid shall be claimed by an institution as a matter of right and an aid granted under the provisions of this Act or the Rules made thereunder may be stopped by the State Government at any time.
(2) Unrecognised institutions shall not be eligible to receive any aid.
(3) Subject to such terms and conditions as may be prescribed, the sanctioning authority may sanction and distribute aid to recognised institutions from time to time in accordance with the procedure as may be prescribed.
(4) The aid may cover such part of the expenditure of the institution as may be prescribed.
(5) No amount out of aid given for salary of the employees of an institution shall be used for any other purpose.
(6) The sanctioning authority may stop, reduce or suspend aid on breach of any of the terms and conditions prescribed in this behalf.
(7) The amount of aid may normally be paid to the secretary of the managing committee of an institution but, in special circumstances and for reasons to be recorded in writing, such amount may be paid to any person authorised by the Director of Education or by any other officer empowered by him in this behalf.
S. 29. Pay and allowances of employees.-
(1) The scales of pay and allowances except compensatory allowances with respect to all the 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 the 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 of 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 the time being in force.
At the same time, it is relevant to take note of the relevant provisions of the Rajasthan Non-Government Educational Institutions Rules, 1993 which read ad infra:-
Rule. 2. Definitions-In these rules unless the context otherwise requires-
(c) ''Aided institution'' means, a recognised institution, which is receiving regular aid in the form of maintenance grant from the State Government;
(l) "Grant-in-aid" means any aid granted to a recognised Non-Government Educational Institution by the State Government;
Rule. 9. Grants-The State Government may at its discretion sanction following grants:-
(1) Maintenance or recurring grant,
(2) Non-recurring grant towards equipments, building etc.
(3) Adhoc, non recurring or recurring grant to an institution which is of an all India Character and its project and activities have been approved by the Central or State Government on such terms and conditions as it may deem fit to impose,
(4) Such other grants as may be sanctioned by the Government from time to time.
Rule. 11. Procedure for Grant-In-Aid- (1) Any non-Government educational institution seeking grant-in-aid from the Government shall submit its application in the form prescribed in Appendix-IV to the concerned Director of Education latest by 30th September of the year immediately preceding the year in which the grant-in-aid has been applied for. By 31st October each year the Director of Education shall order for a panel inspection by a Committee, to be nominated by him and direct such in the proforma as specified in Appendix-V. Committee to submit its report latest by 31st of December. The panel inspection report shall be scrutinised by the Head of Accounts Branch of the Directorate. A list of institutions recommended by the Panel Inspection Committee shall be sent to the State Government by 31st of January, such reports, after due scrutiny shall be put-up before the Grant-in-aid Committee, which shall consists of the following:-
(2) The Director of Education shall intimate the amount that may be available for the above grants in the financial year to the above committee, when it meets to consider the applications for grant-in-aid.
(3) The Government shall convey its approval of the quantum of aid etc. to the concerned Director of Educations for further necessary action.
(4) The quantum of aid shall depend upon the recommendations of the grant-in-aid committee and finally as may be approved by the Government and may range from 50% to 90% of the approved expenditure of the institutions:
Provided that in case of Railway schools situated in Rajasthan grant-in-aid may be allowed as follows:-
Provided further that the percentage of aid for a new faculty or subject shall not be less than that already being paid for another faculty or subject in an institution.
(5) A declaration shall be furnished by the person authorised by the management of the institution for which grant-in-aid is being sought, to the effect that it has sufficient assets (list to be attached) which are free from all encumbrances and do not include assets created or added out of the grant-in-aid received and that the income of such assets supplemented by grant-in-aid will be adequate to enable the management to carry on the institution efficiently and to pay the salaries of the staff of the institution regularly and in time.
Rule. 18. Stoppage, Reduction and Suspension of Grant-The grant-in-aid shall be liable to be stopped, reduced or suspended at the discretion of the sanctioning authority if in its opinion the management has failed to satisfy or abide by any of the conditions or to comply with any of the provisions enumerated in these rules or to manage the institution efficiently, but before any such action is taken under this rule, the management shall be given an opportunity of showing cause against the charges levelled and action proposed to be taken against it.
Rule. 19. Appeal against Stoppage, Reduction or Suspension of Grant-The management may appeal to the State Government against an order of stopping, reducing or suspending the grant within two months from the date of the receipt of the said order. The decision of State Government shall be final.
The relevant provisions of the Act, 1989 clearly envisage that all aided Institutions are recognized Institutions but recognized Institutions may not be aided Institutions and such of the Institutions are eligible for grant-in-aid which are recognized Institutions affiliated to any University or recognized by any Board or Director of Education or any officer authorized by the State Government or the Director of Education in this behalf and such of the recognized Institutions who fulfill the terms and conditions, as prescribed by the State Government, the sanctioning authority may sanction and disburse grant-in-aid from time to time in accordance with the procedure prescribed under the law and the recognized Institutions to whom aid has been granted/sanctioned by the State Government on fulfillment of terms and conditions, as prescribed by the sanctioning authority, may be casted an obligation to make payment of pay and allowances to its employees which shall not be less than those prescribed to the staff belonging to similar category in the Government Institutions at the same time the Rules which are framed by the State Government in exercise of power u/S. 43 of the Act, 1989 also postulate regarding the aid granted to recognized Non-Government Educational Institution termed as "Grant-in-Aid" and R.9 leaves discretion for the State Government to sanction grants for the heads referred to therein and such of the Non-Government Educational Institutions to whom grant-in-aid has been sanctioned they have to comply with the general conditions governing Grant-in-Aid, as referred to u/R.10 and procedure prescribed u/R.11 for a Non-Government Educational Institution has to fulfill for seeking Grant-in-Aid from the State Government and the State Government, as sanctioning authority, is empowered to stop/reduce or suspend the grant, if the management has failed to satisfy or abide by any of the conditions or failed to comply with the provisions enumerated under the Scheme of Rules and against such order, if passed by the sanctioning authority, either regarding stoppage, reduction or suspension of grant, the management of such Institution has a right to file appeal to the State Government against such order within two months, as provided u/R.19 of the Rules and such decision of the State Government shall be final.
Thus, under the Scheme of the Act and Rules framed thereunder even aided-Institution is pre-supposed to be a recognized Institution and such Institutions are under obligation who are in the list of aided-Institutions categorized by the State Government to pay such pay and allowances to the employees which shall not be less than those prescribed to the staff belonging to similar category in the Government Institution.
In the instant case, the appellant-Institution in the writ petition came with specific averment that the appellant-Institution is an aided-Institution but aid was released upto 1989-90 and has not been released thereafter on account of lapse on the part of the then Principal who has not furnished the relevant documents and papers, as required to be furnished under the law but, as alleged that discrepancy was meted out by the appellant-Institution and disciplinary action was also taken against the then Principal and they undertook several correspondence with the District Education Officer and forms were also submitted in meeting out the discrepancies and irregularities committed by the then Principal which has ultimately caused delay in audit of the same but the sanctioning authority did not pay any heed to their request and fact remains that there aid could not be released by the State Government so far after 1990 and that constrained the appellant-Institution to reduce the salary to half of respondent-employee from November, 1994 onwards and the salary was continuously paid 50% of the pay & allowances to the respondent-employee, which was their contribution.
In our considered view, the averments made by the appellant-Institution in para-2 of the writ petition holding that Institution is an aided-Institution but aid has not been released to them after the year 1990 because of non-compliance of certain provisions of Scheme of Rules 1993 and lapses on the part of the appellant-Institution in not complying with the provisions for the purpose of release of Grant-in-Aid, would not affect the category of the appellant-Institution as not being an aided-Institution and in case the aid of the Institution was not released in time, as submitted by the appellant, or withheld by the sanctioning authority in not complying with the provisions of law or procedure provided under the Scheme of Rules 1993 has not been followed, the remedy to an Institution is available of filing appeal against the order of the sanctioning authority u/R.19 of the Scheme of Rules 1993 and such decision of the State Government is final but the appellant has failed to avail the remedy as contemplated under the law and for that purpose the appellant-Institution cannot be forbidden and state that the appellant-institution is not an aided-Institution and as such is not under the obligation to pay such pay and allowances, as contemplated u/S. 29 of the Act, as provided for the staff belonging to the similar category in the Government Institutions and this what the learned Single Judge observed in the order impugned dt. 24th August, 2005.
The submission of counsel for appellant that appellant-Institution is not receiving aid from the State Government may be for reasons whatsoever for the period in question they are not entitled to comply with u/S. 29 of the Act is wholly without substance for the reason that once the Institution is categorized as an Aided-Institution, such aided-Institutions are under obligation to make payment of such pay & allowances to the employees of the Institutions which shall not be less than those prescribed for the staff belonging to such categories in the Government Institutions, as provided u/S. 29 of the Act.
As regards submissions made for issuance of mandamus against State Government for release of Grant-in-Aid to meet out its legal obligation, suffice it to say that the writ petition came to be filed by the appellant in the nature of certiorari jurisdiction u/Art. 226 of Constitution assailing the order of ld. Tribunal dt. 27th May, 1996 and if at all their Grant-in-Aid was withheld by the sanctioning authority/State Government in violation of the Scheme of Rules 1993, of which reference has been made above, it is always open for the appellant to avail the remedy which the law permits and this what the learned Single Judge also observed while dealing with the contentions advanced before us. We do not find substance in the instant appeals, being devoid of merits and are hereby dismissed. The stay granted by this court dt. 9th August, 2007 stands vacated accordingly.