R. Banumathi, C.J.

The Petitioners seek declaration that clause 9 of the resolution issued by the Government of Bihar as contained in Letter No. 68 dated 29.6.83 is unconstitutional as the same is in violation of Article 14 and 300A of the Constitution of India and the Petitioners also seek for a direction to the Respondents to release the leave encashment amount of the Petitioners along with the statutory and penal rate of interest and to quash the impugned orders.

2. Whether the teachers employed in Non-Government Aided/ Minority Schools can avail the benefit of leave encashment or not is the question falling for consideration in these writ petitions.

3. In C.W.J.C. No. 2162 of 1999(R) (Smt. Alice Purty v. The State of Bihar and others) vide order dated 20.08.2002, the benefit of leave encashment was granted to the Petitioner therein who was a teacher working in Non-Government Aided Minority Middle School. In the said judgment (Annexure-4 to W.P.(S) No. 512 of 2013), the learned Single Judge held as under :-

“One more question was raised that whether unutilized leave encashment facility can be allowed or not to such petitioner or such teacher also. Learned counsel for the respondent argued that a regulation was made in this regard which is Annexure-7 of the petitioner’s reply to the Counter affidavit which is a resolution of the Government of Bihar dated 20.02.1990 in paragraph 2 it categorically provides for extending all the additional benefits which are admissible to Government School teachers. Same issue was also raised earlier by another petitioner which ultimately led to an M.J.C. No. 243 of 1995 ® (Annexure-10)”

4. In another writ petition W.P.(S) No. 522 of 2002 (Paul Mangra Kujur v. The State of Jharkhand and others) the same issue was raised by the Petitioner and in the said writ petition, the learned Single Judge considered the question of payment of retiral benefits to a Head Master employed in a Government Aided Minority School. Referring to the Resolution No. 237 dated 20th February, 1990 the learned Single Judge held that Resolution No. 237 dated 20th February, 1990 is related to in service benefits such as Dearness Allowance, Medical Allowance, House Rent Allowance, City Compensatory Allowance etc., but it does not include retirement benefits. Referring to the above two conflicting judgments, in W.P.(S) No. 512 of 2013, the learned Single Judge referred the matter to the Division Bench on the following question :-

“Whether Resolution dated 20th February, 1990 would be applicable to the petitioner and other similarly situated persons or not”

5. The learned counsel for the Petitioner Mr. Rahul Kumar has drawn the attention of the Court to the Resolution No. 237 dated 20th February, 1990 and submitted that the said resolution states that teaching staff of the State Recognized Non-Government Minority Primary/Middle/Secondary Schools should be given equal pay and all other benefits on par with Government schools. The learned counsel further submitted that in C.W.J.C. No. 2162 of 1990 (R) same question was raised and the learned Single Judge held that the teachers employed in Government Aided Minority Schools are entitled to leave encashment. In the said case, the State of Jharkhand preferred Civil Review No. 81 of 2002 which was dismissed by the learned Single Judge vide order dated 19th March, 2004. It was further submitted that the State of Jharkhand preferred L.P.A. No. 295 of 2004 against the order passed in Civil Review No. 81 of 2002 and L.P.A. No. 490 of 2004 against the order passed in C.W.J.C. No. 2162 of 1999(R) and both the LPAs were dismissed. The SLPspreferred against the order passed in the LPAs were also dismissed by the Hon’ble Supreme Court. Relying upon Para-25 of Dr. DudhNath Pandey’s case reported in 2007(4)JCR 1 (Jhr)(FB), it was submitted that the leave encashment is paid on account of unutilized leave and therefore it partakes the character of salary. Reliance was also placed upon S