Order
1. Delay condoned and leave granted in SLP (C) No. 10499 of 2004.
2. The judgment rendered by the Rajasthan Non-Government Educational Tribunal came up for consideration before a Full Bench of the High Court. The questions that were considered by the Full Bench are as under:
“(1) 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 employees/teachers serving in government educational institutions by virtue of the circular/order dated 25-1-1992;
(2) whether the Government is bound to give grant-in-aid for selection of the teachers of NGEIs receiving aid; and
(3) whether the teachers of NGEIs receiving aid are entitled to leave encashment benefits after retirement under the Act and the Rules framed thereunder.”
3. By the impugned judgment, the aforesaid questions have been answered in favour of teachers of non-government educational institutions (for short “NGEIs”). In the present cases, we are concerned with aided non-government educational institutions. These institutions are governed by the Rajasthan Non-Government Educational Institutions Act, 1989 (for short “the Act”) and the Rules framed thereunder. The correctness of the impugned judgment in respect of the first two questions has been challenged mainly by the State of Rajasthan. In one civil appeal (CA No. 9394 of 2003), it was also sought to be challenged by the management.
4. On 18-8-2004, on a submission made that there has been a change of counsel for the State of Rajasthan, the cases were adjourned for a period of two weeks so that necessary alternative arrangements could be made. The cases are listed as first item today. A request made yesterday for adjournment was not entertained. It was repeated again today. It can be noticed that although the matters were adjourned for two weeks, in fact, they have come up for hearing about four weeks later. Various counsel are appearing in these matters. The decision by the Tribunal was rendered more than five years ago. Learned counsel appearing for the State of Rajasthan submits that the State Government has neither given any instructions nor any file or papers to him and as such it is not possible to make any submission assailing the impugned judgment of the Full Bench. Learned counsel for the appellant in CA No. 9394 of 2003 has also failed to make any submission in support of the said appeal. Submissions have only been made on behalf of teachers and managements of schools in relation to Question (3). Therefore, we are left to examine the correctness of the impugned judgment to the extent of the answer to the third question in the light of the said submissions.
5. On the third question in relation to entitlement for leave encashment benefit, the Full Bench has held that by virtue of Section 29 of the Act, the teachers of NGEIs are entitled to a similar benefit as is allowed to the teachers of government educational institutions. It has been held that whatever allowance the teachers of government educational institutions are entitled to, would also be available to the teachers of NGEIs. In the opinion of the Full Bench, leave encashment is an “allowance” and the teachers in NGEIs would have the right to claim this allowance.
6. Mr Rupinder Suri and Mr Sushil Kumar Jain, learned counsel appearing in civil appeal arising out of SLP (C) No. 10499 of 2004 and Civil Appeals Nos. 9388-94 of 2003 respectively, assailing the correctness of the aforesaid view, have contended that leave encashment is not an “allowance” within the meaning of Section 29 of the Act and to that extent, learned counsel submit the impugned judgment deserves to be reversed. The contention is that the teachers of NGEIs are not entitled to leave encashment. In support, reliance has been placed by learned counsel upon a decision of this Court in State of Haryana v. Champa Devi (2002) 10 SCC 78 in particular para 5 thereof, where this Court observed that the High Court had committed an error in granting parity to the employees of private schools. Other observations were also made, referring to an earlier decision in the case of State of Punjab v. Om Parkash Kaushal (1996) 5 SCC 325. In Om Parkash Kaushal case (1996) 5 SCC 325 this Court examined the question as to what was the true meaning of “parity in employment” and came to the conclusion that all incentives granted to the employees of the Government could not be claimed as a matter of right by the employee under private management, as that would not be within the expression “parity in employment”. In that decision, this Court said that the scale of pay and dearness allowance to a government servant or teacher of a government school could be claimed as matter of right by teachers of private schools but not other incentives which the Government might be intending to confer on its own employees.
7. The contention urged is that the benefit of leave encashment is an “incentive” and not an “allowance”. The High Court erroneously, came to the conclusion that it is an allowance, granted relief to the teachers of NGEIs.
8. In order to appreciate the aforesaid contention, it is necessary to examine the case of Om Parkash Kaushal (1996) 5 SCC 325. It is true that in the said case it was held that the incentives provided in the instructions concerned (1960 instructions) in the shape of advance increments to the government teachers who improved their educational qualifications could not be automatically extended to the teachers of private institutions. What, however, is to be kept in view is the statutory provision which came to be considered in that case. The Court was considering Section 7 of the Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1979 which came into force with effect from 23-1-1981. Section 7 thereof reads as under:
“7. Salaries of employees.—Notwithstanding anything contained in Section 3, the scale of pay and dearness allowance of the employees shall not be less than those of the employees of the State Government holding corresponding posts in the schools run by the State Government:
Provided that where the scales of pay and dearness allowance of the employees are less than those of the employees of the State Government holding corresponding posts in the schools run by the State Government, the Director shall direct the managing committee concerned to bring the same at par with those of such employees of the State Government.”
9. Construing the aforesaid section, it was held that the said section granted parity to the private teachers in the matter of scales of pay and dearness allowance with the government teachers. Reference was made to the executive instructions whereunder parity was allowed only in respect of pay scales and dearness allowance. The other conditions of service relating to government teachers were not extended to the teachers of private schools. Under these circumstances, the Court held that the incentives provided in the executive instructions in the shape of advance increments to the government teachers who improved their educational qualifications could not be automatically extended to the teachers of private schools.
10. In the light of the aforesaid, we have to examine the statutory provision applicable in the case in hand. It is Section 29 of the Act, which reads as under:
“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 any 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 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 time being in force.”
(emphasis supplied)
11. Reading Section 7 of the Punjab Act and Section 29 of the Act under consideration, it becomes clear that under Section 7, the parity was granted in the scale of pay and dearness allowance whereas under Section 29 it has been allowed in respect of pay and allowances except compensatory allowance. The use of the word “allowances” and exclusion of only “compensatory allowance” under Section 29 show the width of the provision under consideration as compared to Section 7 of the Punjab Act which restricted the parity, insofar as the allowances are concerned, to only “dearness allowance”. Apart from the aforesaid point of distinction, reference to certain other provisions of the Act and Rules would make it clear that the High Court has rightly concluded that these teachers are entitled to parity in the matter of leave encashment. The expression “salary” has been defined under Section 2(r) of the Act as under:
“2. (r) ‘salary’ 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;”
(emphasis supplied)
12. It is an inclusive definition and takes in its encompassment the aggregate of all emoluments of an employee including dearness allowance or any other allowance or relief for the time being payable to him. Like Section 29, it excludes only “compensatory allowance”. The use of the expression “any other allowance” and “aggregate of emoluments” shows the intention of the legislature.
13. Reference can also be made to Rule 34, which is part of Chapter V relating to “general conditions of service”, and Rules 46(i) to (xviii), 47(2)(b), (c) and 51, which are part of Chapter V relating to “admissibility of leave”. Leave is earned by duty only. Rule 47 deals with different kinds of leave such as commuted leave, half-pay leave, committed leave, privilege leave, etc. The privilege leave earned under this rule is encashable in the manner provided for under Rule 51. In this state of affairs of the Act and Rules, we find it difficult to accept the contention that leave encashment is an incentive and, therefore, the teachers of the aided private schools are not entitled to it.
14. There is additional reason for rejecting the contention advanced on behalf of the aided private institutions and the State that encashment of leave salary is neither “pay” nor “allowances” within the meaning of Section 29 of the Act. Section 29 directs maintenance of parity in respect of “scales of pay and allowances” between same categories of employees of private aided institutions and government institutions. A closer scrutiny of the relevant provisions, quoted above, would show that the expressions “pay and allowances” in the title to the section and “scales of pay and allowances” in the body of Section 29 have been used to give it a wider meaning so as to encompass within them “aggregate of emoluments” and “other allowances and reliefs”, as per the definition of the word “salary” in Section 2(r) of the Act. Clause (r) in Section 2 defines “salary” to mean the aggregate of the emoluments of an employee including “dearness allowance or any other allowance or relief”. The wider definition of the word “salary” has to be read into Section 29 which directs maintenance of parity in pay and allowances of the employees of aided institutions and government institutions.
15. A critical examination of Rules 47 to 53 in Chapter VI prescribing various categories of leave admissible to an employee also indicates that benefit of leave encashment is nothing but payment of salary for the leave earned and credited but not availed by an employee. “Privilege leave” admissible to an employee belonging to non-teaching or teaching staff is 15 days in every calendar year. The unavailed portion of privilege leave is carried forward to the next year up to a maximum limit of 300 days. Under Rule 51 an employee is entitled to leave salary for unavailed privilege leave and half-pay leave. Rule 51 reads thus:
“51. Amount of leave salary.—(1) An employee on privilege leave is entitled to leave salary equal to the pay to which he is entitled to on the day before the leave commences.
(2) An employee on half-pay leave will be entitled to leave salary equal to half the amount specified in sub-rule (i) above subject to a maximum of Rs 3000:
Provided that this limit shall not apply if the leave is taken on medical certificate or for pursuing an approved course of study otherwise than on study leave terms.
(3) An employee on commuted leave will be entitled to leave salary as admissible during the privilege leave.
(4) An employee on extraordinary leave is not entitled to any leave salary.”
16. From the aforesaid Rules, regulating leave, it is clear that benefit of encashment of leave is nothing but payment of salary for the leave not availed by an employee and which is to his credit.
17. For the aforesaid additional reason, the conclusion reached by the High Court is supportable that leave encashment is part of “salary” and covered in the wider expression “scales of pay and allowances” used in Section 29 of the Act which has to be read and understood with the definition of the word “salary” contained in Section 2(r) of the Act.
18. Another contention was sought to be made assailing the High Court judgment based on Section 16 of the Act, which reads as under:
“16. Power of the State Government to regulate the terms and conditions of employment.—(1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, of persons appointed as employees of aided institutions in the State:
Provided that the rights and benefits accruing to an employee of an existing institution under the grant-in-aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him immediately before the commencement of this Act:
Provided also that, irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed.
(2) Every recognised institution shall constitute a provident fund for the benefit of its employees in such manner and subject to such conditions as may be prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time.”
19. The contention urged is that Section 16 refers to various conditions of service including pay whereas Section 29(1) refers only to “scales of pay and allowances” and not the “conditions of service”. Learned counsel submits that by implication, Section 29 excludes the benefit of leave encashment. We are unable to accept the above contention.
20. Section 16 confers a rule-making power on the State Government to regulate recruitment and conditions of service including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, etc. of employees of aided institutions. Section 16 has to be read and worked harmoniously with Section 29 which directs maintenance of parity in the scales of pay and allowances between employees of aided institutions and government institutions.
21. As we have held above, the expression “pay and allowances” in Section 29 read with the wider definition of the word “salary” in Section 2(r) of the Act has a very wide connotation. We have come to the conclusion that the expression includes benefit of leave encashment which is nothing but salary for the unavailed leave to the credit of the employee.
22. Section 16 confers rule-making power on the State Government to regulate “conditions of service” of employees of aided institutions. The section specifically confers power to frame rules regarding entitlement of leave. If leave salary is a kind of salary within the wide definition of “salary” under Section 2(r) the rules to regulate conditions of service of employees of aided institutions, must be so framed as to maintain parity in conditions of service in that regard with employees in government institutions. That is the mandate of Section 29 of the Act. The contention, therefore advanced that subject-matter of entitlement of leave encashment is covered by Section 16 of the State but is beyond the purview of Section 29 of the Act, is fallacious and has to be rejected.
23. While construing the provision under consideration, it is to be borne in mind that interpretation of a welfare legislation should be to promote education. The service conditions of the employees of the aided institutions are sought to be improved and brought on a par with those in government educational institutions to maintain educational standards. It has also to be borne in mind that our Constitution-makers have placed the field of education at a higher pedestal and granted it a special status. Various provisions of the Constitution deal with the aspect of advancement of education. Primary education has been held to be a fundamental right in the decision of this Court in Unni Krishnan, J.P v. State of A.P (1993) 1 SCC 645 and this aspect still holds the field despite the decision having been overruled on some other aspects in T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481. To improve education, various State Governments grant aid to educational institutions and, by and large, teachers of aided private schools deserve to be treated on a par with teachers of government institutions to the extent possible. The provisions of these Acts deserve to be liberally interpreted in favour of the teaching class except where statute may compel otherwise. A statute of no other State has been brought to our notice where similar benefit has been denied to the teachers of the aided institutions to improve education. The service conditions of the teachers also deserve to be improved.
24. Article 21-A added to the Constitution makes education a fundamental right.
25. Having regard to the aforesaid, we find it difficult to hold that the High Court has committed any error in coming to the conclusion that the employee of the aided private educational institutions in question are entitled to the benefit of leave encashment on a par with employees of government institutions.
26. For the aforesaid reasons, we find no merit in these appeals. They are, accordingly, dismissed, with costs.