Tara Chand Chokdayat and ors. Vs. State of Rajasthan and anr. - Court Judgment

Excerpt:
- - 2 institution under the management and control of shiksha samiti, jaipur for about 30 years to the best of his ability and last served on the post of vice-principal and throughout his career no blemish or any adverse report was conveyed to the petitioner which fact is also borne out on perusal of the service book which was produced by learned counsel for respondent institutions during the course of hearing. ' 6. it shall be pertinent to mention in this context that prior to the enactment of the act of 1989 by the state legislature the pay scales, gratuity and other service benefits of the employees were protected by the rules of 1963 which came into force vide notification dated january 19, 1963 published in the rajasthan gazette as amended from time to time and the last amendment in the rules was carried out on april 1, 1979 vide notification dated may 28, 1979. from the perusal of the writ petition as well as reply to show cause notice served on the respondents, it is apparent that the fact regarding receipt of grant-in-aid by both the institutions in the above noted writ petitions has not been disputed though not specifically stated in reply or disputed by the learned counsel for respondents during the course of hearing which of course is subject to the requisite budget sanctioned by the state legislature from time to time. 8. it is relevant to mention in this context that the petitioners have rendered best and valuable period of their life by educating the wards of the parents/guardians who will prove to be useful citizens of the society at-large for tomorrow and be an asset to the nation and have thus rendered yeoman's service to the nation. after having spent the best period of their life during the hay day of their career, they (petitioners) who were on the verge of their retirement were told by their respective managements that since the service conditions do not contain any provision for grant of pension and gratuity they shall not be entitled to the payment of the same and hence they were left totally unprotected by the aforesaid educational institutions who pleaded their total helplessness in this regard. 9. it is well established and undisputed fact that the payment of gratuity, insurance, medical as well as all other allowances which are admissible to a government employee/ teachers of government educational institutions who are serving either in central or state government or teachers in non-government educational institutions are entitled to the extension of all such privileges of protection not only as regards payscale and other allowances as admissible under the rules e. pension, gratuity and other benefits which is integral and essential part of their service conditions and (but) are equally admissible to employees of state government instrumentalities as well as educational institutions. i fail to understand as to what is the reason for denial of protection of the aforesaid allowances and privileges which obviously are covered within the ambit and scope of the term 'service condition' by taking the plea of financial stringency by the said private educational institutions which are not only charging heavy admission and tuition fees but also capitation fee from helpless parents of their wards/students in absence of any rules and contrary to the guidelines of the directorate of education and the state government in this regard which amounts to exploitation of the helpless parents who succumb to their pressures and have no option but to pay whatever is demanded. it is well settled proposition of law that it is not open to a party to plead estoppel against the statute or the rules nor it is open to an educational institution to contend that service condition of an employee or a teacher of an aided non-government educational institution does not cover the admissibility as regards payment of the aforesaid perquisites and allowances. it is not open to the said institutions to plead that they are not answerable to the public at-large which includes besides the students and their guardians/parents members of teaching staff as well as other employees who are devoting their precious time whole heartedly for the welfare of the students who shall be future citizens of the country who are receiving education from the said institutions. thus, its own resources coupled with financial aid received from the concerned institutions as well as state government, the respondent-institution is in well equipped position to ensure proper management and upkeep of the said institutions by augmenting its own resources. from the perusal of appendix ii to rules 1963, it is apparent that all the educational instutions are required to enforce the strict sense of discipline amongst the students as well as from the perusal of appendix iii to rules 1963, it is also apparent that a form of agreement has been prescribed to be executed by the teachers who are employed by the management of the said institutions subject to the terms and conditions as stipulated therein. in this context, it was clarified by the learned counsel for the petitioners during the course of hearing that they had declined to accept the payment of the amount offered to them by the management of respondent-institutions for the reason that the amount offered was falling short of the calculated amounts as admissible to them after taking in view their entire length of service and since it had not been determined in accordance with the total period of service actually rendered by them to the said management, they had obviously not accepted the same under protest and without prejudice to their legal right to claim the same in accordance with the rules which they have now claimed by way of the instant writ petitions apart form gratuity and pension as well as other allowances as admissible to them. 16. prima facie, i am of the view that the petitioners being employees of the non-government educational aided institution functioning within the state of rajasthan are entitled for the payment of gratuity, pension as well as other allowances as admissible to the employees of the government educational institutions functioning in the state of rajasthan and are to be treated at par with the similarly placed teachers of the central government educational institutions which are protected by the provisions of section 4(2) of the act of 1972 and the payment of gratuity (central) rules, 1972. 17. my observations are fortified from thejudgments of the apex court in the matters of,k. 20. the respondents are accordingly directed to pay/release gratuity as well as pension and other allowances as admissible to the petitioners, at such rate as admissible to the similarly placed teachers of the rajasthan government educational institutions so as to treat them at par with the latter. the respondents are further directed to make the payment of arrears of gratuity as well as pension to which the petitioners namely;orderarun madan, j.1. since identical questions of law have been raised by the petitioners in both the aforesaid writ petitions hence, they are being finally dealt with and decided by this common order. for the sake of convenience and ready reference, i deem it appropriate to refer to the facts of s.b. civil writ petition no. 566/88 (tara chand chokdayat v. state of rajasthan), which has been treated as the main case. the petitioners in both the writ petitions are teachers of non-government (aided) educational institutions of rajasthan who retired from the services of the said institutions on attaining the age of their superannuation after having rendered more man 30 years of service each to their credit. as regards their service conditions, they are not governed by the rajasthan non-government educational institutions act, 1989 but are governed by grant-in-aid to non-government educational, cultural and physical education institutions rules, 1963 for short 'the rules of 1963'. 2. the grievance of the petitioners in short is that notwithstanding the fact that the petitioners have rendered their continuous and meritorious service to the said institutions for a long spell of time and they were regular employees of the said institutions but as regards their pay-scales and allowances and post-retiral benefits their service conditions were not treated at par with similarly placed teachers of rajasthan government educational institutions since it did not include the benefit of gratuity and pension which are the statutory obligations imposed on the employer towards their employees by virtue of central legislation viz payment of gratuity act, 1972 as extended to all establishments functioning in all states of the union of india including the state of rajasthan though, the provision in this regard was made later on by the management of the said institutions at much belated stage in the year 1989 as applicable to the petitioners and similarly placed teachers of the respondent no. 2-subodh jain stiiksha samiti which is a society registered vide no. 99/1965-66 under the rajasthan state societies registration act w.e.f. january 1, 1993. 3. the petitioner in s.b. civil writ petition no. 566/1988 was appointed as assistant teacher in the institution run by shri vardhman sthanakwasi jain sharawak jaipur sangh on august 4, 1958 as inter-grade teacher which was constituted for the management of new educational institutions and also for the mental, physical and moral development of different sections of society represented through wards admitted to said institutions. later on, he was promoted on the post of teacher grade-ii in the pay-scale of rs. 115-330 on july 1, 1963 and, thereafter, he was promoted as senior teacher in the grade of rs. 225-525 as on august 1, 1986. on perusal of the service record, the date of appointment of the petitioner as assistant teacher is borne out as august 9, 1958 in the grade of rs. 70-4-90 with da of rs. 25/- w.e.f. august 4, 1958 upto may 14, 1959 on temporary basis. thereafter, the petitioner was promoted to the post of vice-principal of s. s. jain subodh higher secondary school, jaipur-respondent no. 2 in the grade of rs. 860/- as revised from time to time from which post, he retired on attaining the age of superannuation w.e.f. december 31, 1987. 4. in this manner, the petitioner served the respondent no. 2 institution under the management and control of shiksha samiti, jaipur for about 30 years to the best of his ability and last served on the post of vice-principal and throughout his career no blemish or any adverse report was conveyed to the petitioner which fact is also borne out on perusal of the service book which was produced by learned counsel for respondent institutions during the course of hearing. 5. as regards, the service conditions since there was no provision for payment of gratuity and pension, the petitioner was deprived of the said benefit as on the date when he was superannuated notwithstanding that payment of gratuity is an essential part of service condition of an employee whether he is serving in government institutions or in a non-government aided educational institution. as regards non-government educational institutions functioning in the state of rajasthan employees of which are now protected by virtue of state enactment known as the rajasthan non-government educational institutions act, 1989 for short 'the act of 1989' in which it has been provided by section 29, 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 the employee of a recognized 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.' 6. it shall be pertinent to mention in this context that prior to the enactment of the act of 1989 by the state legislature the pay scales, gratuity and other service benefits of the employees were protected by the rules of 1963 which came into force vide notification dated january 19, 1963 published in the rajasthan gazette as amended from time to time and the last amendment in the rules was carried out on april 1, 1979 vide notification dated may 28, 1979. from the perusal of the writ petition as well as reply to show cause notice served on the respondents, it is apparent that the fact regarding receipt of grant-in-aid by both the institutions in the above noted writ petitions has not been disputed though not specifically stated in reply or disputed by the learned counsel for respondents during the course of hearing which of course is subject to the requisite budget sanctioned by the state legislature from time to time. 7. once, the fact regarding receipt of grant-in-aid has not been disputed by the respondent institution, it becomes abundantly clear that it is not open to the educational institutions to take a contrary view of the matter or to seek shelter behind the bush by saying that since they are non-government institutions not withstanding the grant-in-aid received by them from state government, they are not bound to follow the rules and regulations as applicable to teachers of state educational institutions and formulate or frame rules and regulations which would be contrary to the state run educational institutions by creating service conditions which would be adverse to their teachers and other employees thereby adversely jeopardizing their service career. as regards the protection of pay-scales and service conditions of its employees are concerned including those who have already retired from service of the said institutions on attaining the age of superannuation. i am of the view that in view of the aforesaid position it is not open to the management of said institutions to discriminate with their teachers and employees qua similarly placed individuals in state operated educational institutions since there is no reasonable nexus for making any such classification as regards the said classification and the purpose sought to be achieved by the same and which deserves to be struck down as arbitrary and unconstitutional. 8. it is relevant to mention in this context that the petitioners have rendered best and valuable period of their life by educating the wards of the parents/guardians who will prove to be useful citizens of the society at-large for tomorrow and be an asset to the nation and have thus rendered yeoman's service to the nation. after having spent the best period of their life during the hay day of their career, they (petitioners) who were on the verge of their retirement were told by their respective managements that since the service conditions do not contain any provision for grant of pension and gratuity they shall not be entitled to the payment of the same and hence they were left totally unprotected by the aforesaid educational institutions who pleaded their total helplessness in this regard. 9. it is well established and undisputed fact that the payment of gratuity, insurance, medical as well as all other allowances which are admissible to a government employee/ teachers of government educational institutions who are serving either in central or state government or teachers in non-government educational institutions are entitled to the extension of all such privileges of protection not only as regards payscale and other allowances as admissible under the rules e.g. pension, gratuity and other benefits which is integral and essential part of their service conditions and (but) are equally admissible to employees of state government instrumentalities as well as educational institutions. i fail to understand as to what is the reason for denial of protection of the aforesaid allowances and privileges which obviously are covered within the ambit and scope of the term 'service condition' by taking the plea of financial stringency by the said private educational institutions which are not only charging heavy admission and tuition fees but also capitation fee from helpless parents of their wards/students in absence of any rules and contrary to the guidelines of the directorate of education and the state government in this regard which amounts to exploitation of the helpless parents who succumb to their pressures and have no option but to pay whatever is demanded. hence, i am of the firm view that is not open to the respondents to say that since there was no provision in their service rules at the time of the retirement of the petitioners from the services of the said institutions hence, they are not entitled to claim the said benefits notwithstanding the fact that the said institutions are receiving grant-in-aid from the state government regularly and they are also charging hefty fees from the students though, this fact has been disputed by the learned counsel representing the respondents during the course of hearing that they are only charging normal fees as prescribed by the government and the fees revised from time to time. if this is the position, then the undisputed fact which emerges for consideration of this court is as to whether the said educational institutions who are not only receiving .grant-in-aid but are also receiving financial assistance by virtue of donations for their proper management and upkeep which they may be receiving from the students though the same is not permissible under the rules, yet the fact remains that it is not open to the respondents to take shelter behind the bush by saying that since the rules were silent for payment of gratuity, pension and other allowances as on the date when the petitioners joined the services of the said institutions, they are not entitled to receive any protection with regard to the same as on the date when tbey were superannuated or even thereafter notwithstanding their continuous representations in this regard to the management of the said institutions has gone unheeded. it is well settled proposition of law that it is not open to a party to plead estoppel against the statute or the rules nor it is open to an educational institution to contend that service condition of an employee or a teacher of an aided non-government educational institution does not cover the admissibility as regards payment of the aforesaid perquisites and allowances. during the course of hearing, mr. virendra dangi, learned counsel for the petitioners has vehemently contended at the bar that the conditions of service of every member of a teaching staff appointed substantively by the aforesaid educational institution is entitled to the payment of all allowances and service benefits as admissible to them at par with the similarly placed employees and teachers of the government institutions and in this regard and it is not open to the respondents to make arbitrary denial of the same to the petitioners on flimsy grounds as aforesaid. in order to appreciate the aforesaid contentions as advanced by learned counsel for the parties it is appropriate to refer relevant rules on the subject. rule 4 of the rules of 1963 is reproduced hereinbelow:- '4, conditions of service of the staff (a) the conditions of service of every member of the teaching and ministerial staff appointed substantively shall be governed by an agreement executed by him and the governing body/council or the managing committee, in the form given in appendix iii. variations in minor details may be approved by the director of education. the agreement must be executed within one month of the appointment of the persons on probation. (b) the scale of pay and allowances to the staff of the institutions shall not be less than those prescribed by the government for the staff of similar category in government institutions. in case of higher salary scales grant-in-aid shall ordinarily be admissible at the prescribed government scales only. the government may in special cases allow grant on higher scales. (c) rules governing private tuitions and appearing public examinations for members of the staff of the institution shall not be more liberal than those prescribed for government institutions of the same type and standard. (d) salaries to the staff shall be paid in full and regularly every month and no unauthorized cut shall be made therein. the director of education may, if he considers, it necessary, direct the governing body/council or the management of any particular institutions to discharge salaries by cheque.' rule 3 (ii) provides, as under:- '3(ii) the institution shall promptly comply with the instructions issued by the department for the proper running of the institution.' 10. the aforesaid provision has been inserted on the principle of accountability as regards the non-government educational institutions are concerned. the said institutions cannot claim any privilege, immunity or any exemption under the rules as regards the applicability of the rules qua management-employees relationship under the garb of private educational institutions being not responsible or accountable to the state since they are obviously deriving grant-in-aid as, regards the payment of funds for proper upkeep, welfare and running of the said institutions. it is not open to the said institutions to plead that they are not answerable to the public at-large which includes besides the students and their guardians/parents members of teaching staff as well as other employees who are devoting their precious time whole heartedly for the welfare of the students who shall be future citizens of the country who are receiving education from the said institutions. the aforesaid contentions have been vehemently contended at the bar by mr. man singh gupta, learned counsel representing the respondent no. 2 in s.b. civil writ petition no. 566/88 and mr. j.m. saxena, learned standing counsel representing the respondent no. 1. in the reply to show cause notice filed by the respondent no. 2 the said respondent has taken a stand that shri s. s. jain subodh shiksha samiti, jaipur has been receiving the grant-in-aid only to the extent of 80% as regards pay and allowances of the employees and teachers of the said institutions are concerned while no grant-in-aid is provided to the school by the state government in respect of medical bills, travelling allowances and gratuity. as regards appointment of teachers, it has been stated in the reply that the said appointments are made with the approval of the state government and in fact the selection committee makes their appointment which consists of one representative of the education department and the said committee comprises of atleast 5 members. from this fact, it is apparent that the school is functioning under the overall control and supervision of the education department of the state and hence it is bound by the rules and regulations as are applicable to the government educational institutions and is consequently bound to safeguard the interest of the teachers who are on its pay rolls. it is undisputed fact that the aided or recognised institutions have to conform to all the norms and prescribed standards of education as laid down by the board of secondary education and hence it would be totally incorrect to state that the state government or its functionaries do not exercise any control over the functioning of the aided institutions and in case the government instructions are not followed by the said institutions receiving grant-in-aid, in my view it is always open to the state government to stop giving grant-in-aid to the said institutions. moreover, the state government is equally responsible to contribute its respective prescribed share under the rules for proper maintenance and upkeep of the said institutions apart from the grant-in-aid which the said institutions are receiving regularly. thus, its own resources coupled with financial aid received from the concerned institutions as well as state government, the respondent-institution is in well equipped position to ensure proper management and upkeep of the said institutions by augmenting its own resources. it has been provided in clause (5) of appendix-i of the rules of 1963 that the education department will nominate one member on the managing committee who will be a senior education officer or eminent educationists. note 3 of clause (7) further provides that while making nomination the department will see that the officer to be nominated is not inferior in status to the head of the institution concerned. thus, it is apparent that the education department of the state exercises an active control over the said educational institutions which are receiving grant-in-aid under the rules of 1963 and thus it is apparent that it is not permissive or evasive but actual and effective control and overall supervision of the state under which the said educational institutions receiving grant-in-aid are expected to function and hence they are not entitled to claim any immunity at their own whims and fancies contrary to rules. from the perusal of appendix ii to rules 1963, it is apparent that all the educational instutions are required to enforce the strict sense of discipline amongst the students as well as from the perusal of appendix iii to rules 1963, it is also apparent that a form of agreement has been prescribed to be executed by the teachers who are employed by the management of the said institutions subject to the terms and conditions as stipulated therein. clause (14) of appendix iii deals with terms and conditions of appointment of the teachers which provides that the committee will not except with the previous sanction to be obtained in writing of the director of education, exercise its right under clause (8) between january 1 and march 31, of any calendar year. clause (1) of appendix iii provides that the teacher has to be employed in the first instance for one year on probation and period of probation shall in no case exceed two years and for the option to the management to terminate his services if he is not found competent or otherwise suitable before the expiry of his probationary period. if the teacher is confirmed after the expiry of his probationary period, the teacher shall be employed in regular pay-scale in the grade admissible to him as per rules. 11. during the course of hearing, it has been pointed out by the learned counsel for the respondent no. 2 that no such agreement was executed by the petitioners with the management of the respondent no. 2 nor the management insisted the petitioner to such an agreement to be executed since there were no rules in force at the relevant time. from the perusal of service book, it is apparent that the basic last pay drawn by the petitioner in c.w.p. no. 566/88 when he retired from the services of the institution on attaining the age of superannuation was rs. 2480- 3050 excluding other allowances as admissible to him under the rules. as regards the payment of gratuity to the employees of the state government, the central legislation protects the payment of the same by virtue of payment of gratuity act, 1972 for short 'the act of 1972'. section 2(e) of the act of 1972 hereinafter referred to as the act which provides as under:- '(c) 'employee' means any person (other than an apprentice) employed on wages, not exceeding two thousand and five hundred rupees per mensem, or such higher amounts as the central government may, having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shops to do any skilled, semiskilled or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the central government or a state government and is governed by any other act or by any rules providing for payment of gratuity: explanation - in the case of any employee, who, having been employed for a period of not less than five years on wages not exceeding the amount for the time being specified by or under clause (e) per mensem is employed at any time thereafter on wages exceeding that amount, gratuity in respect of the period during which such employee was employed on wages not exceeding that amount, shall be determined on the basis of the wages received by him during that period.' 12. the term 'employee' in the context as defined in section 2(e) of the payment of gratuity act, 1972 obviously means and implies any person (other than an apprentice) who is employed on wages not exceeding rs. 2500/- (rupees two thousand and five hundred only) per mensum or such higher amount as the central government may having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company of shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the central government or a state government and is governed by any other act or by any rules providing for payment of gratuity. the term 'establishment' in the present context of educational institutions would mean not only an industrial establishment but also any other establishment including private educational institutions serving the welfare and cause of education for the society at-large whether government or non government educational institutions, receiving grant-in-aid from the state government out of the tuition fees, welfare fund and donations etc., derived from the students/their parents and guardians. minimum time which has been specified in the definition of term 'employee' as regards the protection of his service condition for payment of gratuity and other allowances as admissible to him under the rules is 5 years and the said allowances have to be calculated and determined on the basis of last pay drawn by him during the relevant period by virtue of explanation to section 2(e) of the act, 1972. as regards computation of gratuity admissible to employees falling in the aforesaid category whether on the date of his termination of his services or when he retires after attaining the age of superannuation as per section 4(2) of the act of 1972 the position is stipulated, as under:- 'for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to any employee at the rate of fifteen days wages based on the rate of wages last drawn by the employee concerned.' 13. clause (3) of section 4 stipulates that the amount of gratuity payable to an employee shall not exceed fifty thousand rupees in all. 14. in para 13 of writ petition no. 566/88, the petitioner has contended that the management of shri s.s. jain subodh shiksha samiti, jaipur had formulated their own rules in the year 1983 which came into force w.e.f. january 1, 1984 for payment of gratuity and other retiral benefits in the form of ex-gratia payments to the employees of respondent no. 2. as regards applicability, rule 2 of the said rules stipulates that all permanent employees joining services in the said institutions and central office of the shiksha samiti as on december 31, 1983 or after the date of coming into force of the said rules, shall be entitled to the protection of the same and will be entitled to emoluments prescribed and admissible to the employees of the state by shiksha samiti shall also be benefited under the said rules. the maximum outer limit as regards payment of gratuity as stipulated under rule 5 of the said rules is seven and half months' basic salary or rs. 10,000/- (consolidated) whichever is less. during the course of hearing, it has been contended by the learned counsel representing the respondent no. 2 that the aforesaid consolidated amount by way of gratuity of rs. 10,000/- has been revised to rs. 20,000/- as of today and the same amount was offered/tendered to him as on the date of his superannuation but he declined to accept the same which fact is borne out from para 27 of the reply filed by the respondents. in this context, it was clarified by the learned counsel for the petitioners during the course of hearing that they had declined to accept the payment of the amount offered to them by the management of respondent-institutions for the reason that the amount offered was falling short of the calculated amounts as admissible to them after taking in view their entire length of service and since it had not been determined in accordance with the total period of service actually rendered by them to the said management, they had obviously not accepted the same under protest and without prejudice to their legal right to claim the same in accordance with the rules which they have now claimed by way of the instant writ petitions apart form gratuity and pension as well as other allowances as admissible to them. 15. as a result of the above discussion the obvious conclusion which emerges is that the bona fide denial of an employee in not accepting the deficit amount offered by the concerned department cannot be construed as forfeiture of his right to receive the said amount or to claim the same by way of instant writ petitions before this court. the total amount of gratuity payable under the rules and the act of 1972 in the case of a permanent employee whether of the government educational institutions or aided non- government educational institutions on the eve of retirement of an employee shall be calculated at the rate of 7 and half days per year of his/her service period on the basis of the last basic pay drawn by the employee on the date of retirement/death. however, the total amount of gratuity payable shall be subject to the maximum of 7 and half months basic pay which the petitioners are entitled to receive in accordance with the rules as applicable to them as on the date of their superannuation and since it has not been paid to them till date, they shall also be entitled to the payment of revised allowances along with simple interest at the rate of 12 per cent per annum w.e.f. due date till payment. 16. prima facie, i am of the view that the petitioners being employees of the non-government educational aided institution functioning within the state of rajasthan are entitled for the payment of gratuity, pension as well as other allowances as admissible to the employees of the government educational institutions functioning in the state of rajasthan and are to be treated at par with the similarly placed teachers of the central government educational institutions which are protected by the provisions of section 4(2) of the act of 1972 and the payment of gratuity (central) rules, 1972. 17. my observations are fortified from thejudgments of the apex court in the matters of,k. krishnamacharyulu v. sri venkateshwarahindu college of engineering, (1997) 3 jt(sc) 455, haryana state adhyapak sangh v.state of haryana, (1995-iii-llj(suppl)-710)(sc) state of haryana v. ramchander,(1998-i-llj-750) (sc), frank anthony publicschool employees association v. union, ofindia, (1986) 4 scc 707, state of kerala v. m.padmanabhan nair (1985-i-llj-530) (sc),unni krishna j. p. v. state of andhra pradesh,air 1993 sc 2178, mahesh shikshansansthan, jodhpur, v. ravindra, d.b. civilspecial appeal no. 257/96 decided in august1996. rajasthan university and collegeteachers association v. state of rajasthan:d.b. civil writ petition no. 443/87, decidedon december 16, 1987, sarkari sahayatashikshan sanstha, shikshak avam karmacharisangh v. state of rajasthan, s.b. civil writpetition no. 1647/89, decided on january 1,1991, prakash chaturvedi v. state ofrajasthan, d.b. civil writ petitionno. 2027/1988, decided on december 19,1988. 18. during the course of hearing, learned counsel for the respondent no. 2 has also placed reliance upon various decisions in the matters of air 1965 sc 1196. i have examined the ratio of the decisions cited at the bar by the learned counsel for the petitioners which are fully attracted and are applicable while the decisions referred to and relied upon by the learned counsel for the respondents are not attracted nor applicable to the instant case. 19. as a result of above discussion, the petitioners deserve to succeed and they are held entitled to the payment of pension at such rate as admissible to the teachers of the government educational institutions whose service conditions and pay-scales are governed and protected by rajasthan service rules, 1951 and as regard the payment of gratuity, the petitioners shall be entitled to the same rate as admissible to the employees of the central/state government who are protected by the payment of gratuity act, 1972. during the course of hearing, it has been stated by the learned counsel for the petitioners that they have confined their relief only to the payment of pension and gratuity and are not raising any dispute with regard to other allowances such as leave encashment, provident fund, medical reimbursement etc. 20. the respondents are accordingly directed to pay/release gratuity as well as pension and other allowances as admissible to the petitioners, at such rate as admissible to the similarly placed teachers of the rajasthan government educational institutions so as to treat them at par with the latter. the respondents are further directed to make the payment of arrears of gratuity as well as pension to which the petitioners namely; tara chand chokadayat and radhey shyam tatar who are entitled under the rules w.e.f. date of their superannuation i.e. december 31, 1987 and march 31, 1988, respectively and the payments of amount shall be made within a period of 4 months from the date of receipt of the certified copy of the order of this court. 21. as a result of the above discussion, the writ petitions are allowed. it is further directed that the petitioners having rendered more than the qualifying period of service for the purpose of their entitlement to the payment of pensionary benefits, and all such allowances, i.e. house rent allowance, travelling allowance, medical reimbursement, leave encashment, gratuity and pension shall be payable on the principle of 'equal pay for equal work' as admissible to the similarly placed teachers of rajasthan government educational institutions. it is further directed that for the purpose of computation of aforesaid benefits the petitioners shall be entitled to the same pay scales as prescribed by the state of rajasthan for the teachers functioning in rajasthan government educational institutions governed by the rajasthan secondary education act, 1957 and the rules made thereunder for secondary and higher secondary school teaching staff. there will be no order as to costs.

Judgment:
ORDER

Arun Madan, J.

1. Since identical questions of law have been raised by the petitioners in both the aforesaid writ petitions hence, they are being finally dealt with and decided by this common order. For the sake of convenience and ready reference, I deem it appropriate to refer to the facts of S.B. Civil Writ Petition No. 566/88 (Tara Chand Chokdayat v. State of Rajasthan), which has been treated as the main case. The petitioners in both the writ petitions are Teachers of Non-Government (Aided) Educational Institutions of Rajasthan who retired from the services of the said institutions on attaining the age of their superannuation after having rendered more man 30 years of service each to their credit. As regards their service conditions, they are not governed by the Rajasthan Non-Government Educational Institutions Act, 1989 but are governed by Grant-in-Aid to Non-Government Educational, Cultural and Physical Education Institutions Rules, 1963 for short 'the Rules of 1963'.

2. The grievance of the petitioners in short is that notwithstanding the fact that the petitioners have rendered their continuous and meritorious service to the said institutions for a long spell of time and they were regular employees of the said institutions but as regards their pay-scales and allowances and post-retiral benefits their service conditions were not treated at par with similarly placed teachers of Rajasthan Government Educational Institutions since it did not include the benefit of gratuity and pension which are the statutory obligations imposed on the employer towards their employees by virtue of central legislation viz Payment of Gratuity Act, 1972 as extended to all establishments functioning in all States of the Union of India including the State of Rajasthan though, the provision in this regard was made later on by the Management of the said institutions at much belated stage in the year 1989 as applicable to the petitioners and similarly placed teachers of the respondent No. 2-Subodh Jain Stiiksha Samiti which is a Society registered vide No. 99/1965-66 under the Rajasthan State Societies Registration Act w.e.f. January 1, 1993.

3. The petitioner in S.B. Civil Writ Petition No. 566/1988 was appointed as Assistant Teacher in the institution run by Shri Vardhman Sthanakwasi Jain Sharawak Jaipur Sangh on August 4, 1958 as Inter-grade Teacher which was constituted for the management of new Educational Institutions and also for the mental, physical and moral development of different sections of society represented through wards admitted to said institutions. Later on, he was promoted on the post of Teacher Grade-II in the pay-scale of Rs. 115-330 on July 1, 1963 and, thereafter, he was promoted as Senior Teacher in the grade of Rs. 225-525 as on August 1, 1986. On perusal of the service record, the date of appointment of the petitioner as Assistant Teacher is borne out as August 9, 1958 in the grade of Rs. 70-4-90 with DA of Rs. 25/- w.e.f. August 4, 1958 upto May 14, 1959 on temporary basis. Thereafter, the petitioner was promoted to the post of Vice-Principal of S. S. Jain Subodh Higher Secondary School, Jaipur-respondent No. 2 in the grade of Rs. 860/- as revised from time to time from which post, he retired on attaining the age of superannuation w.e.f. December 31, 1987.

4. In this manner, the petitioner served the respondent No. 2 Institution under the management and control of Shiksha Samiti, Jaipur for about 30 years to the best of his ability and last served on the post of Vice-Principal and throughout his career no blemish or any adverse report was conveyed to the petitioner which fact is also borne out on perusal of the service book which was produced by learned counsel for respondent institutions during the course of hearing.

5. As regards, the service conditions since there was no provision for payment of gratuity and pension, the petitioner was deprived of the said benefit as on the date when he was superannuated notwithstanding that payment of gratuity is an essential part of service condition of an employee whether he is serving in Government Institutions or in a Non-Government Aided Educational Institution. As regards Non-Government Educational Institutions functioning in the State of Rajasthan employees of which are now protected by virtue of State enactment known as the Rajasthan Non-Government Educational Institutions Act, 1989 for short 'the Act of 1989' in which it has been provided by Section 29, 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 the employee of a recognized 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.'

6. It shall be pertinent to mention in this context that prior to the enactment of the Act of 1989 by the State Legislature the pay scales, gratuity and other service benefits of the employees were protected by the Rules of 1963 which came into force vide Notification dated January 19, 1963 published in the Rajasthan Gazette as amended from time to time and the last amendment in the Rules was carried out on April 1, 1979 vide Notification dated May 28, 1979. From the perusal of the writ petition as well as reply to show cause notice served on the respondents, it is apparent that the fact regarding receipt of grant-in-aid by both the institutions in the above noted writ petitions has not been disputed though not specifically stated in reply or disputed by the learned counsel for respondents during the course of hearing which of course is subject to the requisite budget sanctioned by the State Legislature from time to time.

7. Once, the fact regarding receipt of grant-in-aid has not been disputed by the respondent Institution, it becomes abundantly clear that it is not open to the Educational Institutions to take a contrary view of the matter or to seek shelter behind the bush by saying that since they are Non-Government institutions not withstanding the grant-in-aid received by them from State Government, they are not bound to follow the Rules and Regulations as applicable to teachers of State Educational Institutions and formulate or frame Rules and Regulations which would be contrary to the State run educational institutions by creating service conditions which would be adverse to their teachers and other employees thereby adversely jeopardizing their service career. As regards the protection of pay-scales and service conditions of its employees are concerned including those who have already retired from service of the said Institutions on attaining the age of superannuation. I am of the view that in view of the aforesaid position it is not open to the management of said institutions to discriminate with their teachers and employees qua similarly placed individuals in State operated educational institutions since there is no reasonable nexus for making any such classification as regards the said classification and the purpose sought to be achieved by the same and which deserves to be struck down as arbitrary and unconstitutional.

8. It is relevant to mention in this context that the petitioners have rendered best and valuable period of their life by educating the wards of the parents/guardians who will prove to be useful citizens of the society at-large for tomorrow and be an asset to the nation and have thus rendered yeoman's service to the Nation. After having spent the best period of their life during the hay day of their career, they (petitioners) who were on the verge of their retirement were told by their respective managements that since the service conditions do not contain any provision for grant of pension and gratuity they shall not be entitled to the payment of the same and hence they were left totally unprotected by the aforesaid Educational Institutions who pleaded their total helplessness in this regard.

9. It is well established and undisputed fact that the payment of gratuity, insurance, medical as well as all other allowances which are admissible to a Government employee/ Teachers of Government Educational Institutions who are serving either in Central or State Government or Teachers in Non-Government Educational Institutions are entitled to the extension of all such privileges of protection not only as regards payscale and other allowances as admissible under the Rules e.g. pension, gratuity and other benefits which is integral and essential part of their service conditions and (but) are equally admissible to employees of State Government instrumentalities as well as Educational Institutions. I fail to understand as to what is the reason for denial of protection of the aforesaid allowances and privileges which obviously are covered within the ambit and scope of the term 'service condition' by taking the plea of financial stringency by the said private educational institutions which are not only charging heavy admission and tuition fees but also capitation fee from helpless parents of their wards/students in absence of any rules and contrary to the guidelines of the Directorate of Education and the State Government in this regard which amounts to exploitation of the helpless parents who succumb to their pressures and have no option but to pay whatever is demanded. Hence, I am of the firm view that is not open to the respondents to say that since there was no provision in their Service Rules at the time of the retirement of the petitioners from the services of the said institutions hence, they are not entitled to claim the said benefits notwithstanding the fact that the said Institutions are receiving grant-in-aid from the State Government regularly and they are also charging hefty fees from the students though, this fact has been disputed by the learned counsel representing the respondents during the course of hearing that they are only charging normal fees as prescribed by the Government and the fees revised from time to time. If this is the position, then the undisputed fact which emerges for consideration of this Court is as to whether the said Educational Institutions who are not only receiving .grant-in-aid but are also receiving financial assistance by virtue of donations for their proper management and upkeep which they may be receiving from the students though the same is not permissible under the Rules, yet the fact remains that it is not open to the respondents to take shelter behind the bush by saying that since the rules were silent for payment of gratuity, pension and other allowances as on the date when the petitioners joined the services of the said institutions, they are not entitled to receive any protection with regard to the same as on the date when tbey were superannuated or even thereafter notwithstanding their continuous representations in this regard to the management of the said institutions has gone unheeded. It is well settled proposition of law that it is not open to a party to plead estoppel against the statute or the Rules nor it is open to an educational institution to contend that service condition of an employee or a Teacher of an aided non-Government educational institution does not cover the admissibility as regards payment of the aforesaid perquisites and allowances. During the course of hearing, Mr. Virendra Dangi, learned counsel for the petitioners has vehemently contended at the Bar that the conditions of service of every member of a teaching staff appointed substantively by the aforesaid educational institution is entitled to the payment of all allowances and service benefits as admissible to them at par with the similarly placed employees and Teachers of the Government Institutions and in this regard and it is not open to the respondents to make arbitrary denial of the same to the petitioners on flimsy grounds as aforesaid. In order to appreciate the aforesaid contentions as advanced by learned counsel for the parties it is appropriate to refer relevant Rules on the subject. Rule 4 of the Rules of 1963 is reproduced hereinbelow:-

'4, Conditions of Service of the staff

(a) The conditions of service of every member of the teaching and ministerial staff appointed substantively shall be governed by an agreement executed by him and the Governing Body/Council or the Managing Committee, in the form given in Appendix III. Variations in minor details may be approved by the Director of Education. The agreement must be executed within one month of the appointment of the persons on probation.

(b) The scale of pay and allowances to the staff of the institutions shall not be less than those prescribed by the Government for the staff of similar category in Government Institutions. In case of higher salary scales grant-in-aid shall ordinarily be admissible at the prescribed Government scales only. The Government may in special cases allow grant on higher scales.

(c) Rules governing private tuitions and appearing public examinations for members of the staff of the institution shall not be more liberal than those prescribed for Government Institutions of the same type and standard.

(d) Salaries to the staff shall be paid in full and regularly every month and no unauthorized cut shall be made therein. The Director of Education may, if he considers, it necessary, direct the Governing Body/Council or the Management of any particular institutions to discharge salaries by cheque.'

Rule 3 (II) provides, as under:-

'3(II) The institution shall promptly comply with the instructions issued by the Department for the proper running of the institution.'

10. The aforesaid provision has been inserted on the principle of accountability as regards the non-Government educational institutions are concerned. The said institutions cannot claim any privilege, immunity or any exemption under the Rules as regards the applicability of the Rules qua management-employees relationship under the garb of private educational institutions being not responsible or accountable to the State since they are obviously deriving grant-in-aid as, regards the payment of funds for proper upkeep, welfare and running of the said institutions. It is not open to the said institutions to plead that they are not answerable to the public at-large which includes besides the students and their guardians/parents members of teaching staff as well as other employees who are devoting their precious time whole heartedly for the welfare of the students who shall be future citizens of the country who are receiving education from the said institutions. The aforesaid contentions have been vehemently contended at the Bar by Mr. Man Singh Gupta, learned counsel representing the respondent No. 2 in S.B. Civil Writ Petition No. 566/88 and Mr. J.M. Saxena, learned standing counsel representing the respondent No. 1. In the reply to show cause notice filed by the respondent No. 2 the said respondent has taken a stand that Shri S. S. Jain Subodh Shiksha Samiti, Jaipur has been receiving the grant-in-aid only to the extent of 80% as regards pay and allowances of the employees and Teachers of the said institutions are concerned while no grant-in-aid is provided to the school by the State Government in respect of medical bills, travelling allowances and gratuity. As regards appointment of Teachers, it has been stated in the reply that the said appointments are made with the approval of the State Government and in fact the Selection Committee makes their appointment which consists of one representative of the Education Department and the said Committee comprises of atleast 5 members. From this fact, it is apparent that the School is functioning under the overall control and supervision of the Education Department of the State and hence it is bound by the Rules and Regulations as are applicable to the Government educational institutions and is consequently bound to safeguard the interest of the teachers who are on its pay rolls. It is undisputed fact that the aided or recognised institutions have to conform to all the norms and prescribed standards of education as laid down by the Board of Secondary Education and hence it would be totally incorrect to state that the State Government or its functionaries do not exercise any control over the functioning of the aided institutions and in case the Government instructions are not followed by the said institutions receiving grant-in-aid, in my view it is always open to the State Government to stop giving grant-in-aid to the said institutions. Moreover, the State Government is equally responsible to contribute its respective prescribed share under the Rules for proper maintenance and upkeep of the said institutions apart from the grant-in-aid which the said institutions are receiving regularly. Thus, its own resources coupled with financial aid received from the concerned institutions as well as State Government, the respondent-institution is in well equipped position to ensure proper management and upkeep of the said institutions by augmenting its own resources. It has been provided in Clause (5) of Appendix-I of the Rules of 1963 that the Education Department will nominate one member on the Managing Committee who will be a Senior Education Officer or eminent educationists. Note 3 of Clause (7) further provides that while making nomination the department will see that the Officer to be nominated is not inferior in status to the head of the institution concerned. Thus, it is apparent that the Education Department of the State exercises an active control over the said educational institutions which are receiving grant-in-aid under the Rules of 1963 and thus it is apparent that it is not permissive or evasive but actual and effective control and overall supervision of the State under which the said Educational Institutions receiving grant-in-aid are expected to function and hence they are not entitled to claim any immunity at their own whims and fancies contrary to Rules. From the perusal of Appendix II to Rules 1963, it is apparent that all the Educational instutions are required to enforce the strict sense of discipline amongst the students as well as from the perusal of Appendix III to Rules 1963, it is also apparent that a form of agreement has been prescribed to be executed by the teachers who are employed by the management of the said institutions subject to the terms and conditions as stipulated therein. Clause (14) of Appendix III deals with terms and conditions of appointment of the teachers which provides that the Committee will not except with the previous sanction to be obtained in writing of the Director of Education, exercise its right under Clause (8) between January 1 and March 31, of any calendar year. Clause (1) of Appendix III provides that the Teacher has to be employed in the first instance for one year on probation and period of probation shall in no case exceed two years and for the option to the management to terminate his services if he is not found competent or otherwise suitable before the expiry of his probationary period. If the teacher is confirmed after the expiry of his probationary period, the teacher shall be employed in regular pay-scale in the Grade admissible to him as per Rules.

11. During the course of hearing, it has been pointed out by the learned counsel for the respondent No. 2 that no such agreement was executed by the petitioners with the management of the respondent No. 2 nor the management insisted the petitioner to such an agreement to be executed since there were no rules in force at the relevant time. From the perusal of service book, it is apparent that the basic last pay drawn by the petitioner in C.W.P. No. 566/88 when he retired from the services of the institution on attaining the age of superannuation was Rs. 2480- 3050 excluding other allowances as admissible to him under the Rules. As regards the payment of gratuity to the employees of the State Government, the Central Legislation protects the payment of the same by virtue of Payment of Gratuity Act, 1972 for short 'the Act of 1972'. Section 2(e) of the Act of 1972 hereinafter referred to as the Act which provides as under:-

'(c) 'employee' means any person (other than an apprentice) employed on wages, not exceeding two thousand and five hundred rupees per mensem, or such higher amounts as the Central Government may, having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shops to do any skilled, semiskilled or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity:

Explanation - In the case of any employee, who, having been employed for a period of not less than five years on wages not exceeding the amount for the time being specified by or under Clause (e) per mensem is employed at any time thereafter on wages exceeding that amount, gratuity in respect of the period during which such employee was employed on wages not exceeding that amount, shall be determined on the basis of the wages received by him during that period.'

12. The term 'employee' in the context as defined in Section 2(e) of the Payment of Gratuity Act, 1972 obviously means and implies any person (other than an apprentice) who is employed on wages not exceeding Rs. 2500/- (Rupees Two Thousand and Five Hundred only) per mensum or such higher amount as the Central Government may having regard to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company of shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any Rules providing for payment of gratuity. The term 'establishment' in the present context of Educational Institutions would mean not only an Industrial Establishment but also any other establishment including private educational institutions serving the welfare and cause of education for the society at-large whether Government or Non Government Educational Institutions, receiving grant-in-aid from the State Government out of the tuition fees, welfare fund and donations etc., derived from the students/their parents and guardians. Minimum time which has been specified in the definition of term 'employee' as regards the protection of his service condition for payment of gratuity and other allowances as admissible to him under the Rules is 5 years and the said allowances have to be calculated and determined on the basis of last pay drawn by him during the relevant period by virtue of Explanation to Section 2(e) of the Act, 1972. As regards computation of gratuity admissible to employees falling in the aforesaid category whether on the date of his termination of his services or when he retires after attaining the age of superannuation as per Section 4(2) of the Act of 1972 the position is stipulated, as under:-

'For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to any employee at the rate of fifteen days wages based on the rate of wages last drawn by the employee concerned.'

13. Clause (3) of Section 4 stipulates that the amount of gratuity payable to an employee shall not exceed fifty thousand rupees in all.

14. In para 13 of Writ Petition No. 566/88, the petitioner has contended that the management of Shri S.S. Jain Subodh Shiksha Samiti, Jaipur had formulated their own rules in the year 1983 which came into force w.e.f. January 1, 1984 for payment of gratuity and other retiral benefits in the form of ex-gratia payments to the employees of respondent No. 2. As regards applicability, Rule 2 of the said Rules stipulates that all permanent employees joining services in the said Institutions and Central Office of the Shiksha Samiti as on December 31, 1983 or after the date of coming into force of the said Rules, shall be entitled to the protection of the same and will be entitled to emoluments prescribed and admissible to the employees of the State by Shiksha Samiti shall also be benefited under the said Rules. The maximum outer limit as regards payment of gratuity as stipulated under Rule 5 of the said Rules is seven and half months' basic salary or Rs. 10,000/- (consolidated) whichever is less. During the course of hearing, it has been contended by the learned counsel representing the respondent No. 2 that the aforesaid consolidated amount by way of gratuity of Rs. 10,000/- has been revised to Rs. 20,000/- as of today and the same amount was offered/tendered to him as on the date of his superannuation but he declined to accept the same which fact is borne out from para 27 of the reply filed by the respondents. In this context, it was clarified by the learned counsel for the petitioners during the course of hearing that they had declined to accept the payment of the amount offered to them by the management of respondent-institutions for the reason that the amount offered was falling short of the calculated amounts as admissible to them after taking in view their entire length of service and since it had not been determined in accordance with the total period of service actually rendered by them to the said management, they had obviously not accepted the same under protest and without prejudice to their legal right to claim the same in accordance with the Rules which they have now claimed by way of the instant writ petitions apart form gratuity and pension as well as other allowances as admissible to them.

15. As a result of the above discussion the obvious conclusion which emerges is that the bona fide denial of an employee in not accepting the deficit amount offered by the concerned department cannot be construed as forfeiture of his right to receive the said amount or to claim the same by way of instant writ petitions before this Court. The total amount of gratuity payable under the Rules and the Act of 1972 in the case of a permanent employee whether of the Government Educational Institutions or aided Non- Government Educational Institutions on the eve of retirement of an employee shall be calculated at the rate of 7 and half days per year of his/her service period on the basis of the last basic pay drawn by the employee on the date of retirement/death. However, the total amount of gratuity payable shall be subject to the maximum of 7 and half months basic pay which the petitioners are entitled to receive in accordance with the Rules as applicable to them as on the date of their superannuation and since it has not been paid to them till date, they shall also be entitled to the payment of revised allowances along with simple interest at the rate of 12 per cent per annum w.e.f. due date till payment.

16. Prima facie, I am of the view that the petitioners being employees of the non-Government educational aided institution functioning within the State of Rajasthan are entitled for the payment of gratuity, pension as well as other allowances as admissible to the employees of the Government Educational Institutions functioning in the State of Rajasthan and are to be treated at par with the similarly placed teachers of the Central Government Educational Institutions which are protected by the provisions of Section 4(2) of the Act of 1972 and the Payment of Gratuity (Central) Rules, 1972.

17. My observations are fortified from thejudgments of the Apex Court in the matters of,K. Krishnamacharyulu v. Sri VenkateshwaraHindu College of Engineering, (1997) 3 JT(SC) 455, Haryana State Adhyapak Sangh v.State of Haryana, (1995-III-LLJ(Suppl)-710)(SC) State of Haryana v. Ramchander,(1998-I-LLJ-750) (SC), Frank Anthony PublicSchool Employees Association v. Union, ofIndia, (1986) 4 SCC 707, State of Kerala v. M.Padmanabhan Nair (1985-I-LLJ-530) (SC),Unni Krishna J. P. v. State of Andhra Pradesh,AIR 1993 SC 2178, Mahesh ShikshanSansthan, Jodhpur, v. Ravindra, D.B. CivilSpecial Appeal No. 257/96 decided in August1996. Rajasthan University and CollegeTeachers Association v. State of Rajasthan:D.B. Civil Writ Petition No. 443/87, decidedon December 16, 1987, Sarkari SahayataShikshan Sanstha, Shikshak Avam KarmachariSangh v. State of Rajasthan, S.B. Civil WritPetition No. 1647/89, decided on January 1,1991, Prakash Chaturvedi v. State ofRajasthan, D.B. Civil Writ PetitionNo. 2027/1988, decided on December 19,1988.

18. During the course of hearing, learned counsel for the respondent No. 2 has also placed reliance upon various decisions in the matters of AIR 1965 SC 1196. I have examined the ratio of the decisions cited at the Bar by the learned counsel for the petitioners which are fully attracted and are applicable while the decisions referred to and relied upon by the learned counsel for the respondents are not attracted nor applicable to the instant case.

19. As a result of above discussion, the petitioners deserve to succeed and they are held entitled to the payment of pension at such rate as admissible to the teachers of the Government Educational Institutions whose service conditions and pay-scales are governed and protected by Rajasthan Service Rules, 1951 and as regard the payment of gratuity, the petitioners shall be entitled to the same rate as admissible to the employees of the Central/State Government who are protected by the Payment of Gratuity Act, 1972. During the course of hearing, it has been stated by the learned counsel for the petitioners that they have confined their relief only to the payment of pension and gratuity and are not raising any dispute with regard to other allowances such as leave encashment, provident fund, medical reimbursement etc.

20. The respondents are accordingly directed to pay/release gratuity as well as pension and other allowances as admissible to the petitioners, at such rate as admissible to the similarly placed teachers of the Rajasthan Government Educational Institutions so as to treat them at par with the latter. The respondents are further directed to make the payment of arrears of gratuity as well as pension to which the petitioners namely; Tara Chand Chokadayat and Radhey Shyam Tatar who are entitled under the Rules w.e.f. date of their superannuation i.e. December 31, 1987 and March 31, 1988, respectively and the payments of amount shall be made within a period of 4 months from the date of receipt of the certified copy of the order of this Court.

21. As a result of the above discussion, the writ petitions are allowed. It is further directed that the petitioners having rendered more than the qualifying period of service for the purpose of their entitlement to the payment of pensionary benefits, and all such allowances, i.e. House Rent Allowance, Travelling Allowance, Medical Reimbursement, Leave Encashment, Gratuity and pension shall be payable on the principle of 'equal pay for equal work' as admissible to the similarly placed teachers of Rajasthan Government Educational Institutions. It is further directed that for the purpose of computation of aforesaid benefits the petitioners shall be entitled to the same pay scales as prescribed by the State of Rajasthan for the teachers functioning in Rajasthan Government Educational Institutions governed by the Rajasthan Secondary Education Act, 1957 and the Rules made thereunder for Secondary and Higher Secondary School Teaching Staff. There will be no order as to costs.