R.S.A. No. 3326 of 2008 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3326 of 2008 (O&M) Date of decision: 2.12.2008 K. L. Mehta Dayanand Public Senior Secondary School No.2, Sector 16, Faridabad. ..Appellant v. Veena Goswami .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. P. K. Mutneja, Advocate for the appellant. Mr. S. S. Saini, Advocate for the respondent. .. Rajesh Bindal J. The defendant is in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by the respondent-plaintiff for recovery of Rs. 1,06,924/- on account of balance earned leave at the time of retirement for a period of 144 days was decreed to the extent of wages for 120 days. Briefly, the facts are that the respondent- plaintiff was appointed in the appellant-school on 5.9.1974 as Principal. She retired from service on attaining the age of superannuation on 30.6.2002 and at that time, she was drawing salary of Rs. 22,276/- per month. As the appellant is a privately managed public school affiliated to Central Board of Secondary Education (for short, `CBSE'), she claimed that she was entitled to consolidated leave of 30 days for every completed year of service and unavailed leave accumulated in her account was for 144 days. The leave encashment for that for a sum of Rs. 1,06,924/- was claimed in the suit, as the appellant-defendant failed to pay the same at the time of retirement. The claim made by the respondent-plaintiff was contested by the appellant-defendant denying being governed by the bye-laws of CBSE stating that the appellant-defendant is a privately managed public school which is not getting any grant in aid from the government and is regulated by its own laws and Constitution. The respondent's entitlement to leave encashment was denied. It was further submitted that as per Rule 8.116 of the Punjab Civil Services Rules (as applicable to the State of Haryana), maximum 120 days earned leave could be R.S.A. No. 3326 of 2008 [ 2] granted to en employee and further referring to Rule 8.117, it was sought to be claimed that earned leave is not admissible to a government employee serving in a vacation department in which he avails of full vacation. The courts below found that though the respondent- plaintiff was in vacation department, but was prevented from availing the vacation during her service period because of her job requirements, she would be entitled to leave encashment to the extent of 120 days, the maximum. Learned counsel for the appellant submitted that neither the Punjab Civil Services Rules nor CBSE bye-laws would be applicable as the respondent is not a government employee. The Haryana School Education Act, 1995, which came into force in 1999, specifically provides that it is at the option of the employer to provide such benefits and accordingly, the respondent-plaintiff shall not be entitled to any leave encashment and the judgments and decrees of the learned courts below are not in conformity with law. Reliance has been placed upon State of Punjab and others v. Om Parkash Kaushal and others, (1996) 5 SCC 325 and Shiv Niwas Tiwari and others v. State of Haryana and others, 2007(1) SCT 695. On other hand, learned counsel for the respondent submitted that as per bye-laws of CBSE, under which the appellant was granted affiliation, the grant of salary and other allowances equivalent to what is paid to the staff employed in government schools and in terms thereof, the respondent is entitled to leave encashment. Referring to bye-law 16(6) of Chapter IV providing for norms for permanent affiliation and bye-law 41 providing for leave to the employees, the submission is that if at the time of affiliation, the appellant had agreed to certain conditions put therefor, later in the day it cannot be permitted to wriggle out of the same merely by saying that bye-laws framed by CBSE have no statutory force. The appellant could not have been permitted to run the school had there been no affiliation and for which they had put certain conditions to maintain the quality of education and also to see that the staff employed by the school is not exploited. He further submitted that the bye-laws clearly provide that benefits have to be equivalent to what is paid to the government employees and the leave encashment is admittedly available to a government employee. He further submitted that the argument regarding Haryana School Education Act, 1995 was never raised before the courts below, as all what was stated was that the respondent was a vacational or non-vacational staff. Heard learned counsel for the parties and perused the paper book. For the purpose of appreciation of the contentions raised by the R.S.A. No. 3326 of 2008 [ 3] parties, it would be appropriate to refer to various bye-laws and the rules relied upon. It is in the fact situation where the appellant admitted that prior to the enactment of Haryana School Education Act, 1995, there were no rules governing the conditions of service of privately unaided schools. Bye-law 16(6) of Chapter IV, one of the pre-condition for permanent affiliation and bye-law 41 providing for leave of of the staff, framed by CBSE, are extracted below: “ CHAPTER-IV 16. Norms for Permanent Affiliation xx xx xx xx (6) The school should have service conditions for the employees as per Board's norms/as per norms of State/ U.T. Government if the Education Act of the State/ U.T. So provides and should pay salaries including allowances at least at par with the corresponding categories of employees in the State Government's schools. It should have C.P.F./Pension and other retirement benefits for the staff. Medical benefits, LTC and other benefits at par with Government Schools should be available to the staff. xx xx xx 41. Leave (1) Every employee shall be entitled to such leave as are admissible to the employee of a corresponding status in Government schools. (2) Encashment/accumulation of leave shall also be allowed as per Govt. rules.” Rules 1.2 and 1.4 of the Punjab Civil Services Rules, Volume-I, Part- I (as applicable to the State of Haryana) are also extracted below: “1.2 Except as otherwise provided in rule 1.4 infra or in any other rule or rules, these rules shall apply to all Government employees belonging to the categories mentioned below, who are under the administrative control of the Haryana Government and whose pay is debitable to the Consolidated Fund of the State of Haryana. (1) Members of State Services, Classes I and II (2) Members of State Services, Class III; (3) Members of State Services, Class IV; (4) Holders of special posts; and (5) any other Government employee or class of Government employees to whom the competent authority may, by general or special order, make them applicable. R.S.A. No. 3326 of 2008 [ 4] 1.4 These rules shall not apply to: (i) any Government employee between whom and the Government, a specific contract or agreement subsists in respect of any matter dealt with herein to the extent up to which specific provision is made in the contract or agreement. (ii) any person for whose appointment and conditions of service special provision is made by or under any law for the time being in force; and (iii) any Government employee or class of Government employees to whom the competent authority may, by general or special order, direct that they shall not apply in whole or in part. One of such classes of Government employees is that employed only occasionally or which is subject to discharge at one month's notice or less. A list of such Government employees is given in Appendix-2.” A perusal of the affiliation bye-laws, framed by CBSE, shows that every employee was held to be entitled to leave as was admissible to the employees of a corresponding status in government schools and encashment/accumulation of leave was also allowed as per government rules and their salaries and other allowances and retiral benefits have to be at par with the government schools. It is on undertaking to comply with these conditions that the school was affiliated with the CBSE for the purpose of conduct of examinations. Now, it would be totally inequitable to permit the appellant to raise a plea that such rules are not applicable and even if there is violation of the rules, CBSE may take appropriate action for the same. As far as the contention of learned counsel for the appellant that Punjab Civil Services Rules would not be applicable as they govern only the government employees who are paid salary from the consolidated fund of the State also has no legs to stand. It is not that Civil Services Rules are being applied to the respondent-plaintiff. All what is being claimed and granted is salary and allowances equivalent to what is being paid to the teachers working in government schools. As far as the argument regarding application of the provisions of Haryana School Education Act, 1995, which came into force in the year 1999, is concerned, the application of Act is not retrospective. The respondent-plaintiff had joined service in the year 1974 and as per the condition, referred to above, she is entitled to leave encashment as is payable to the teachers working in government R.S.A. No. 3326 of 2008 [ 5] schools. Even otherwise, this plea was never raised before the courts below. The judgments in Om Parkash Kaushal's case (supra) and Shiv Niwas Tiwari's case (supra), relied upon by learned counsel for the appellant, are also not applicable in the facts and circumstances of the present case. In Om Parkash Kaushal's case (supra), the claim was parity in the pay and allowances on the basis of “equal pay for equal work” which is not there in the present case. In Shiv Niwas Tiwari's case (supra), the issue before this Court was interpretation of Rule 91(5) of the Haryana School Educational Rules, 2003, with reference to release of grant in aid on account of certain benefits being claimed by the teachers/Science Masters in privately managed schools. In view of the aforesaid discussion, I do not find any substantial question of law arises in the present appeal. Accordingly, the same is dismissed. (Rajesh Bindal) Judge 2.12.2008 mk