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Judgment
Ajay Rastogi, J.—Since in both these special appeals common question of fact and law are involved, with the consent of parties, the matters were analogously heard and are decided by this present order. Instant intra court appeals have been filed by the appellants assailing order of the Ld. Single Judge dt. 9.5.2013 upholding the order of Rajasthan Non Government Educational Tribunal, Jaipur (The Tribunal) directing the appellants to make payment of selection scale in terms of Circular of the Govt. dt. 25.1.1992 on completion of 9-18 years of satisfactory service and giving benefit of Fifth Pay Commission with effect from 1.9.1996 under the Rajasthan Civil Services (Revised Pay) Rules, 1998 (Revised Rules 1998) and thereafter of Sixth Pay Commission under Rajasthan Civil Services (Revised Pay) Rules, 2008 (Revised Rules 2008) w.e.f. 1.9.2006 and all such pay revision and dearness allowances extended to the teachers working in the non Govt. Aided Institutions and the gratuity and payment of leave encashment to which the employee was entitled upto the date of relieved from the respective post held in the non govt. aided institution i.e. 30.6.2011 along with simple interest @ 6% per annum.
The appellant No. 1 is a Managing Committee of the society registered under the Rajasthan Societies Registration Act, 1958 (Act 1958) and running education institution in the name of Bal Mandir School which is an aided institution receiving 90% aid & grant from the State Govt. of Rajasthan. Respondents 3-7 are the employees of the Educational Institution who initially approached by filing of their application u/S. 21 of the Rajasthan Non Govt. Educational Institutions Act, 1989 (Act 1989) claiming their dues regarding fixation of pay in the revised pay scales, gratuity, leave encashment, benefits of selection scale, difference of pay and dearness allowance etc.
It is to be noted that the respondents 3-7 initially joined service as a teacher after their regular selection in the aided educational institution and for employees working in non govt. aided institution to safeguard their service conditions, the state government in exercise of powers conferred by proviso to Art. 309 of the Constitution of India framed rules regulating appointment and other service conditions of persons who are in recognized non govt. aided education institution and working against the aided and sanctioned post by introducing the Rajasthan Voluntary Rural Education Service Rules, 2010 (Rules 2010) and the Scheme of Rules 2010 recognized such of the employees who were working in the recognized non govt. aided institution and worked against aided and sanctioned post and under the Scheme of Rules 2010, the State Govt. provided procedure of appointment in Govt. service by adjudging their suitability and to be screened by the Screening Committee constituted under sub-rule 3 of R. 4 of the Rules 2010 and those found to be suitable by the committee were recommended for appointment. At the same time, while such of the employees who were given employment in state government their terms and conditions for appointment is being regulated in terms of R. 5 of the Rules 2010.
After the respondents 3-7 were found suitable by screening committee for being appointed under the Scheme of Rules 2010, indisputably each of them furnished undertaking provided in Form-II appended to sub rule (xi) of R. 5 of Rules 2010 and vide order dt. 30.6.2011, the respondents 3-7 were appointed and joined service of the state government and thereafter filed applications before the Tribunal u/s. 21 of the Act 1989 with the grievance that for the period of service which has been rendered by each of them in Non Govt. Aided Institution, their due benefits like gratuity, leave encashment, selection scale, fixation of pay in the Revised Pay Rules 1998 & 2008 and also difference of pay and dearness allowance etc. along with simple interest which the Tribunal may considered appropriate.
The appellants filed their reply before the Tribunal and the Ld. Tribunal after taking into consideration the material which came on record allowed the application of respondents 3-7 vide order dt. 11.1.2013 with the direction to the appellant (Aided Education Institution) to make payment of such dues to which the employees while in service were entitled for along with simple interest @ 6% upto the date of actual payment and further directed that the payment shall be made in compliance thereof within three months and at the same time directed the Directorate, Elementary Education, Bikaner for ensuring compliance of the order. The order of the Tribunal came to be assailed by the appellants by filing writ petition before the Ld. single Judge and that was dismissed vide order dt. 9.5.2013 which is a subject matter of challenge in the instant intra court appeal.
The main thrust of submission of counsel for the appellant is that once the undertaking has been furnished by the respective employee as contemplated under sub R. (xi) of R. 5 of the Rules 2010 no arrears of any kind whatsoever could be claimed by the employee after demitting office.
Counsel further submits that terms and conditions on which the employees were considered for appointment under the Scheme of Rules 2010 cannot be altered after demitting office by the state government vide its circular dt. 8.11.2011 and even copy of which was not made available to the appellant and further submits that after undertaking was furnished, the employees are estopped from assailing such conditions more so when the same was accepted with open mind and after it has been acted upon, the same cannot be challenged before the Court of law, however, at the same time, there was feeble attempt made to assail the order of the Ld. single Judge that there was gross inordinate delay in filing application which dis-entitle the employees for alleged benefits claimed before the Tribunal u/s. 21 of the Act 1989. His further submission is that as regards grant in aid to the institution is concerned, it is being regulated under Rules 9, 10, 14 of the Rajasthan Non-Government Educational Institutions Rules, 1993 (Rules 1993) and grant being sanctioned by the state govt., the learned tribunal could not be held justified in directing the institution to make payment of such alleged admissible dues to the employees more so after each of them has demitted the post held with effect from 30.6.2011.
Mr. Rajveer Sharma appearing for respondents 3-7 supported the order of the Tribunal and submitted that the submissions made by counsel for the appellant are nothing but a reiteration made before the Tribunal and each of the submission has been considered in detail and affirmed by the Ld. single Judge and does not require interference in the intra court appeal.
We have considered the submissions made by the respective parties and with their assistance perused the material on record. We have also noticed the Scheme of Rules 2010 and the relevant provisions of the Act 1989 including terms and conditions which are being offered to the employee while being appointed in the state government and so also the benefits which the employee is entitled for the period of service which the individual rendered prior thereto as employee of recognized non govt. aided institution and were appointed against the aided and sanctioned post.
At the outset, we may like to record that as regards entitlement of gratuity, selection scale, leave encashment, the issue has been settled by the Apex Court in a judgment reported in Rajasthan Welfare Society Vs. State of Rajasthan, and also by the Larger Bench of this Court in 2002 (2) DNJ (Raj.) 613 and as regards entitlement of leave encashment by the judgment reported in 2005 (1) WLC (SC) Civil 301, thus the controversy as regards entitlement is no more remain res integra.
At the same time, regarding fixation of pay of the employees who were working in the aided educational institution were granted benefit for 5th Pay Commission under the Revised Pay scale Rules 1998 with effect from 1.9.1988 and for 6th Pay Commission under Revised Rules 2008 w.e.f. 1.9.2006 their fixation remain no more res integra as it has been settled by the judgment of this Court that the employees of aided institution are also entitled for the same pay and allowance belonging to the similar category in govt. institution as provided u/S. 29 of the Act 1989 read with R. 34 of Rules 1993.
The question for consideration in the instant appeal is that what will be the effect of the benefits to which the employee of non govt. aided institution is entitled for after demits the post from an aided institution and join services of the State government under the Rules 2010. The relevant terms and conditions for appointment of employees in government service under Rules 2010 relevant for the present purpose reads ad infra-
Terms and condition for appointment of employees in Government Service.-(vi)The salary of all the appointed employees shall be fixed on the basis of the salary as drawn at the time of appointment as per the Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Services (Revised Pay Scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales) for Government College Teachers including Librarian and PTI Rules, 1999 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2010 respectively with effect from the date they join in the Government after appointment under these rules.
(vii) No arrears on any account whatsoever, (including arrears of salary, selection scale, Assured Career Progression or Career Advancement Scheme) shall be paid by the State Government for the period prior to the date of their joining in the Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not be allowed. Employees shall be free to get payment of encashment of balance of P.L. from the respective grant-in-aid educational institutions.
(ix) The persons who are appointed in the government service under these rules shall governed by the provisions of the Rajasthan Civil Service (Contributory Pension) Rules, 2005 and the provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non-Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government.
(x) The period of service in the aided institutions shall not be counted for payment of gratuity. The employees shall be free to obtain payment of gratuity from the respective grant in aid educational institution.
(xi) Each employee shall be required to execute an undertaking, in Form-II, that, he/she voluntarily accepts all the terms and conditions of service prescribed under these rules and agrees to serve in the government educational institutions situated in the rural areas till attaining the age of superannuation in the service of Government.
Conditions of Form-II attached to R. 5(xi) of Rules 2010 relevant for the present purpose reads ad infra-
That I shall not make any claim for payment of arrears on any account whatsoever, including arrears of salary, selection grade, ACP or CAS for the period prior to my joining in the Government service under the said rules.
That I shall not make any claim for carry forward of the balance of Privilege Leave or for payment of encashment of balance of Privilege Leave.
That I hereby opt to continue to be member of the contributory Provident Fund/Opt for the Rajasthan Civil Service (Contributory Pension) Scheme, 2005 in accordance with the provisions of clause (ix) of Rule 5 of the said rules. (Cross out whichever is not applicable).
The I shall not make any claim for payment of any Contributory Provident Fund contribution if not deposited by the Non-Government Grant-in-aid Educational Institution for the period prior to the date of my joining in Government service.
Thus, from the Scheme of Rules 2010 it clearly emerges that the basic object appears is to regulate the appointments and other conditions of service of the employees who were working in the non govt. aided education institution against aided and sanctioned post and after screened are considered for appointment under the voluntary scheme of the state government for such of the employees who were interested for safety of their employments in the state of Raj. obviously were supposed to submit their application for appointment under prescribed form-I appended to R. 4(1) to be forwarded by the Secretary of the Institution verifying the service particulars of an employee of aided institution and their suitability was to be adjudged by the screening committee constituted by Govt. under R. 4(3) and after adjudging suitability, such of suitable candidates are to be forwarded for appointment to the authority.
A bare perusal of terms and conditions referred to supra clearly indicates that the employees appointed after being screened are to be fixed in the sixth pay commission from the date they joined service in the government but the state government claiming its financial immunity put a further rider that is evident from Clause (vii) (viii) (ix) of the terms and conditions of R. 5 and at the same time state government holds its liability to make payments and share responsibility of employee join service in the government after being screened by the screening committee and the financial liability prior to joining the government remains of the aided educational institution and to make its intention further clear the state government vide circular dt. 8.11.2011 made its intention explicit to the authorities that such employees who worked in aided educational institution are entitled to be fixed under Revised Pay Rules 2008 w.e.f. 1.9.2006 and as per undertaking which has been furnished by each of the employee as contemplated under Clause (xi) of R. 5 of the Rules 2010, the state government own its liability from the date of joining in government after appointment under the Scheme of Rules 2010.
We are not impressed by either of the submission made by counsel for appellant for the reason that the undertaking was furnished by the employees of non govt. aided educational institution in terms of clause (xi) of R. 5 of Rules 2010 which clearly postulate that employees will not claim payment of arrears of any kind whatsoever for the period of service which they rendered in non government aided institution prior to joining service in the government from the state govt. and in our considered view, the condition referred to has been misread & misinterpreted by the institution in absolving themselves from their financial liability which is to be discharged by making payment of dues to each of the employee for the period of service which has been rendered in their aided institution. Even the undertaking which the employee has furnished prescribed in Form-II and what the Scheme of Rules 2010 also contemplate that at least the state government will not own responsibility for any of the arrears of any kind whatsoever for the period prior to the date of joining service in the government under the Rules 2010, however, it does not mean that the employee will be deprived of his rights accrued to which he is entitled for under the Scheme of the Act 1989 and Rules 1993 framed thereunder. The submission of counsel for appellant regarding applicability of Clause (vii) of R. 5 of Rules 2010 suffice to say that the terms & conditions are self explanatory that arrears shall not be paid of any kind whatsoever by the state government for the period prior to joining service in the government after appointment under the Rules 2010 and we have already observed that the educational institution have misread the conditions of undertaking which has been furnished by the employee provided in Form-II appended to R. 5(xi) of Scheme of Rules 2010 for their own benefits & self interest in depriving the employees who had served the aided educational institution for sufficient long time more so after the entitlement for such benefits being settled by the judicial pronouncement of this Court.
As regards the submission made that after one demit from the post, the service conditions cannot be changed suffice to say that there is no change in service conditions of the employee and earlier those who are serving employee of non government aided institution, their service conditions are governed under the Act 1989 and Rules 1993 framed thereunder and after such of the employees joined service who are appointed after being screened in the state government their service conditions are to be governed under the Scheme of Rules 2010. Thus demitting from the post held in the non government aided institution has no significance as regards benefit to which the employee had already earned and entitled for under the Scheme of Act 1989 and Rules 1993 framed thereunder.
The submission made by counsel for appellant as regards circular dt. 8.11.2011 issued by the state government that it was neither published nor communicated to the institution is wholly bereft of merit for the reason that the state government vide circular dt. 8.11.2011 makes its intention clear and circulated to all the respective departments that as regards the employees of aided educational institutions are concerned they are entitled for their fixation under Revised Pay Rules 2008 with effect from 1.9.2006 and as regards undertaking which has been furnished provided under Clause (xi) of R. 5 of Rules 2010, it is only in reference that arrears could not be claimed of any kind arising prior to the date of their joining in the government after appointment under the Rules 2010 from the state govt. but that will not absolve the non government aided institution from its obligation which is to be discharged under the provisions of Act 1989 and Rules 1993 framed thereunder.
As regards submission made regarding delay in filing of the application u/Sec. 21 of Act 1989 suffice to say that employees were appointed in the state govt. vide order dt. 30.6.2011 and without any loss of time each of them approached the Tribunal by filing application u/S. 21 of the Act 1989 and to make it further clear that there is no limitation provided for filing application u/S. 21 of the Act. We fail to understand that what justification the counsel wanted to show this Court by raising objection regarding delay in filing application.
The last submission made by counsel for appellant that if they are liable to make payment under different heads to the employee for the period of service which each of them has rendered in the non government aided institution, the state is also supposed to sanction matching grant for the purpose to meet out the additional expenses, in our considered view, the employees are only concerned for their entitlement which can be claimed only from non government aided institution in which they have served but as regards the release of aid & grant from state government is concerned that may be between the institution and the state government for which the employee has no concern and his entitlement cannot be made dependent upon the grant to be released by the state govt. as alleged and prayed for by the appellant. We do not find any apparent error being committed by the learned single Judge in passing order impugned which may require interference in the instant intra court appeal. Consequently, the appeals are wholly being devoid of merit and accordingly dismissed. No cost.