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Rajasthan High Court
Honble ARUN KUMAR, CJ. Honble P.P. NAOLEKAR, H.R. PANWAR, JJ.
S.R. Higher Secondary School - Appellant
Versus
Rajasthan Non Government Educational Institutions Tribunal Jaipur & Others - Respondents
D.B. Civil Writ Petition No. 2565 of 1999
Decided On : May 28, 2002
Art. 41 in the context of the present controversy invites attention which says that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of underserved want. The need to provide free education to the children until they complete the age of fourteen years, as matter of compulsory obligation of the State and to endeavour to secure the right to education thereafter to its citizens subject to financial resources available to it as envisaged under Art. 45 of the Constitution of India. With this constitutional scheme, we find that the teachers of aided educational institutions must be paid the same pay scale and allowances as that of the teachers in government educational institutions. We are, therefore, of the view, after reading it, along Sec. 29 of the Act and Rule 34 of the Rules, and circular dated 25.1.1992, that selection scale is not a promotion to higher post but a higher pay scale in the same post. Once it is held that the aforesaid circular provides pay scales to the teachers of government educational institutions, by virtue of the statutory provisions, it shall also be payable to teachers of NGEIs. (Para 17)
Rule 14(a) includes actual salary, and provident fund contribution not exceeding 8.33% in respect of teaching and non- teaching staff, apart from the other approved expenditures as laid down in Rule 14. ``Salary is defined in Sec. 2(r) of the Act which means the aggregate of the emoluments of an employee including dearness allowance or any other allowance or relief for the time being payable to him, but does not include compensatory allowance. The extended definition of salary provides for aggregate of emoluments received by the teacher which also includes all allowances excluding the compensatory allowance and also extended to the relief for the time being payable to the teacher. The selection scale given to the teacher shall certainly fall within the four corners of the definition of ``Salary. Although Sec. 7 of the Act provides that no aid shall be claimed by an institution as a matter of right, once it is decided to grant aid under Sec. 7(3) of the Act, the sanctioning authority is to sanction and distribute to a recognised institution aid from time to time in accordance with the procedure as may be prescribed. Sec. 7(4) of the Act provides that the aid may cover such part of the expenditure of the institution as may be prescribed. Sec. 7(3) read with Sec. 7(4) makes it clear that the aid which has to be granted to a recognised institution shall cover the estimated expenditure of the current year and the approved expenditure as provided under Rule 14 of the Rules. Once it is decided by the Government to provide grant-in-aid in accordance with Secs. 7(3) and 7(4) of the Act, it leaves no room for the sanctioning authority to exercise its discretion to grant or not to grant the aid in regard to the items covered under Sec. 7(3) and 7(4) of the Act. Selection scale being salary, once the State Government had decided to grant aid to an NGEI, it will form the part of the grant-in-aid and thus the State Government in the eventuality of sanctioning the grant will pay for the same in accordance with the percentage prescribed to the category in which the NGEIs is placed. (Para 20)
There is a provision for accumulation of privilege leaves. Admittedly, the teachers working in government educational institutions are entitled for encashment of privilege leave on their retirement. By virtue of Sec. 29 of the Act the teachers of NGEIs are entitled for the similar scale of pay and allowances except compensatory allowance, it being the post of granted in aid therefore, whatever allowances the teachers of government educational institutions are entitled to, would also be available to the teachers of NGEIs. Leave encashment is an allowance and the teachers in the NGEIs would have the right to claim this allowance. (Para 21)
whether the teachers of Non Government Educational Institutions (for short `NGEIs) who are receiving grant-in-aid under the Rajasthan Non Government Educational Institutions Act 1989 (for short `the Act) read with the rules framed thereunder, namely the Rajasthan Non Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules 1993 (for short `the Rules), are entitled to selection scale as given to the employee/teachers serving in government education institutions by virtue of the circular/order dated 25.1.1992,
whether the government is bound to give grant-in-aid for selection scale of the teachers of NGEIs receiving aid, and
whether the teachers of NGEIs receiving aid are entitled for leave encashment benefits after retirement under the Act and the Rules framed thereunder and it was thought proper by the Division Bench to place writ petitions before the Full Bench for determination of the question involved in these writ petitions.
In all these petitions, petitioners are recognized private educational institutions, which are run by various educational societies, receiving aid from the government. Respondents, who are the working/retired teachers of the petitioner educational institutions, had approached the Non Government Educational Institutions Tribunal under Sec. 21 of the Act for redressal of their grievances regarding grant of selection scale and benefit of leave encashment. The Tribunal allowed their applications which resulted in filing of these petitions by the educational institution who were respondents therein. The Division Bench referred the matter to Larger Bench.
(2). The Government of Rajasthan vide circular issued on 23.1.1985, has given selection scale on completion of fifteen years of satisfactory service after regular appointment on a post to the Government servants in the ministerial and subordinate services including isolated posts drawing pay in Rajasthan Civil Services (Revised Pay Scales) Rules, 1983. Similarly, vide circular dated 25.1.1992 the State of Rajasthan has provided selection scales to the employees in class IV, ministerial and subordinate services and those holding isolated posts and drawing pay in revised pay scales after completion of nine, eighteen and twenty-seven years of service on a post from the date of their initial appointment and whose record of service is satisfactory.
After issuance of the circular by the government on 25.1.1992 the question arose as to whether the teachers of NGEIs are entitled to claim the benefit under the aforesaid circular issued, therefore, the government issued another circular issued, therefore, the government issued another circular dated 17.11.1997 clarifying that selection scale will not be available to the teachers of NGEIs.
(3). The counsel for petitioners submitted that the grant of selection scale is a substitute for promotion and the Teachers of NGEIs being not entitled for any promotion as there are no promotional avenues available to them, they are not entitled to selection scale. It is further contended that no record is maintained for appraisal of their calibre in service and, therefore, the test laid in the Circular that the government servant will only be entitled for selection scale on completion of 9, 18 and 27 years of satisfactory service, cannot be applied in their cases, it indicates that the circular has no application to the cases of these teachers nor they can claim any benefit under the circular.
(4). Before we consider the legal submissions made by the counsel for petitioners we would like to refer to certain decisions of the Apex Court to find out as to how the right to education has been taken note of and as to what is the status of teachers in NGEIs vis-a-vis the teachers of government schoo
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