IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8686/2008. Reserved on: 4.6.2010. Decided on:15.6. 2010 ______________________________________________ Udham Singh Chaudhary. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Rajnish Maniktala, Advocate. For the respondents : Mr. Rajinder Dogra. Addl. Advocate General for respondents No.1 and 2. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Lecturer in the subject of History on temporary basis with effect from 1.9.1986. He was regularized vide order dated 9.8.1990 with effect from 1.9.1986. Petitioner was superannuated vide Annexure A-1 dated 6.9.2005 with effect from 31.3.2005. Respondent No.5-College was taken over by the State Government vide notification dated 9.11.2005. The case of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 the petitioner, in a nutshell, is that as per rule 12 of Appendix-A, i.e. rule relating to Teachers of Non-Government Affiliated Colleges, he was to be permitted to work till the age of 60 years. According to him, he has attained the age of 60 years on 15.1.2006. His salary with effect from 1.4.2005 to 9.11.2005 has not been paid by the College nor he has been released the gratuity as per rule 12-A and he has also not been given the arrears of selection grade with effect from 27.7.1998 to 25.9.2002 despite order dated 25.9.2002. He has also not been given the benefit of leave encashment. Precise case of the respondent-State is that it was for the management of respondent No.5- College to redress the grievance of the petitioner and the State in no manner is responsible for the superannuation of the petitioner as per Annexure A-1. Mr. Rajnish Maniktala has vehemently argued that as per Ordinances of the Himachal Pradesh University, 1973, his client was to be permitted to work upto the age of 60 years. He then contended that his client is entitled to gratuity as per rule 12-A and is also entitled to arrears of salary with effect from 1.4.2005 to 9.11.2005. He further contended that the action of the respondents not to release arrears of selection grade by the respondents with effect from 27.7.1998 to 25.9.2002 is bad in law. He also prayed for the release of benefit of leave encashment. 3 Mr. Rajinder Dogra, learned Deputy Advocate General has strenuously argued that the College has only been taken over by the Government with effect from 9.11.2005 and the respondent-State in no manner is responsible for the redressal of the grievance of the petitioner. In other words, the grievance, if any, is against respondent No.5-College. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioner was appointed as a Lecturer in the subject of History by respondent No.5 – M.S.C. Memorial Degree College, Thural on 1.9.1986 on temporary basis. He has been regularized with effect from 1.9.1986 vide order dated 9.8.1990. The College has been taken over by the Government on 9.11.2005. The conditions of service of the petitioner at the time of his superannuation, i.e. 6.9.2005 were regulated under the First Ordinances of the Himachal Pradesh University, 1973 as amended from time to time. Para 38.5 (B) (d) of the First Ordinances of Himachal Pradesh University, 1973 (hereinafter referred to as ‘the Ordinances’ for convenience sake) provides that the Principal/Teachers of the college or institution shall be appointed in the manner and on the terms and conditions of service as laid down in the rules in Appendix ‘A’ to the Chapter, i.e. Chapter-XXXVIII. Rule 12 and 12-A of the Appendix-A deals with the age of retirement and gratuity. Rule 12 and 12-A read thus: 4 “12. Every teacher shall retire at the age of 60 years. However, a teacher shall be allowed to continue in service till the end of the semester or the academic session even though he may have attained the age of 60 years. 12-A. Gratuity – In addition to the benefits of Provident Fund, the Governing Body of the College shall grant to every teacher, at the time of retirement or death, whichever is earlier, for efficient and faithful service rendered, a gratuity of a sum calculated at a rate of half month’s pay last drawn for each complete year of service, provided that: i) no one shall be allowed gratuity unless he/she has completed at least fifteen years of continues service in the institution or institutions run by the same Management; ii) no gratuity shall accrue for any service exceeding thirty years; (iii) in case of a teacher who dies before completing fifteen years of service or who joins service at an age when he cannot upon the age of retirement, complete fifteen years of service, the Governing Body may grant such gratuity as it deems fit under the circumstances.” The respondent-State has also framed the Himachal Pradesh Aided Colleges (Security of Service of Employees) Act, 1994. Rule 6 of these rules provides that the scales of pay and other allowances and privileges of the employees of a College shall be such as may, from time to time, be specified by the State Government. The State has also framed the rules known as “the Himachal Pradesh Non-Government Affiliated 5 Colleges Grant-in-Aid Rules, 1994 duly notified on 6th May, 1994. Rule 8 thereof reads thus: “Quantum of the Grant-in-aid.- (a) The amount of grant-in-aid to be released to a College shall be limited to 95% of the deficit of the estimated income (as detailed under) and the expenditure likely to be incurred on payment of the salary of the approved staff (Teaching and nonteaching) during one financial year subject to adjustments of over and under payments, in accordance with the norms at which the salary is being paid to the staff in Government Colleges. The requirements of Grant-in-aid in respect of the Colleges for the ensuing year shall be submitted by each College in the form of budget to the Director of Education by 31st October (on a date notified by the Director) of each year, stating numbers of post of Principal, Lecturers (subject-wise), Superintendent, Assistant, Clerks and others and financial implications along with similar statistical data for at least two previous years with reasons to justify each increase and decrease.” Mr. Rajnish Maniktala has submitted that his client was required to be permitted to discharge his duties upto 15.1.2006 or till the College was taken over, i.e. on 9.11.2005 on the basis of rule 12 as extracted hereinabove. It is evident from the language employed in Rule 12 that the retirement age of the teachers working in the private Colleges is 60 years. Petitioner was to attain the age of 60 years on 15.1.2006, however, in the meantime, the College was taken 6 over on 9.11.2005. The fact of the matter is that petitioner has been superannuated vide Annexure A-1 dated 6.9.2005 with effect from 31.3.2005. The Court is of the considered view that the petitioner in the peculiar facts and circumstances was required to be permitted to work till the College was taken over, i.e. 9.11.2005. Mr. Rajnish Maniktala, Advocate has also contended that his client is entitled to gratuity on the basis of Rule 12-A of the Appendix-A. This rule has already been reproduced hereinabove. It is evident from the language employed in rule 12-A of Appendix -A of the Ordinances that the petitioner is entitled to get gratuity as per the norms prescribed therein. The conditions of service of the petitioner are regulated under the Ordinances framed by the Himachal Pradesh University. These are to be read with the Himachal Pradesh Aided Colleges (Security of Service of Employees) Act, 1994. The scales of pay and other allowances and privileges of the employees of the college are to be such as may, from time to time, are specified by the State Government. The State Government, as noticed above, has also framed the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994. Rule 8 thereof provides that the amount of grant- in-aid to be released to the colleges is limited to 95% of the deficit of the income and the expenditure likely to be incurred on payment of the salary of the approved staff during one 7 financial year subject to adjustments of over and under payments in accordance with the norms at which the salary is being paid to the staff in Government Colleges. Rule 12-A specifically provides that the teachers serving in private affiliated colleges are to be paid the gratuity. The petitioner was also serving in a private affiliated college. The college has been taken over by the State Government on 9.11.2005. This Court in Jagdev Katoch versus State of Himachal Pradesh and others, CWP No. 60 of 2006 decided on 20.6.2006 has held that the teachers working in private colleges are entitled to get gratuity. The Court while coming to conclusion has referred to letter dated 4.6.1994. The Court has held as under: “Rule 12-A specifically proves that the teachers serving in private affiliated colleges are to be paid gratuity. The petitioner was also serving n a private affiliated college. The college has been taken over by the State Government in the year 2007 vide notification dated 4th January, 2007. Respondent No.2 had also sent a communication dated 4th June, 1994 to the Principal, DAV College, Kangra under the subject “Gratuity Position of Private Colleges.” The text of letter dated 4th June, 1994 reads thus: “It is intimated that in the event of retirement or death, gratuity of sum calculated at the rate of half month’s pay last drawn for each completed year of service is allowed to regular grantee regular private college lecturers/nonteaching members of staff, provided that:- 8 a) One has completed at least 15 years continuous service in the institution or institutions run by same management. b) No gratuity shall accrue for any service excluding 30 years. c) In case of an employee dies before completing 15 years of service or who joins service at an age when he cannot up to the age of retirement complete 15 years of service, the governing body may grant such gratuity as it deems fit under the circumstances. The Government will reimburse 95% of total amount of gratuity as its share but the claim(s) shall be entertained after the retirement or death.” The Hon’ble Supreme Court on the basis of Rule 12 has held that Mr. O.P. Kaushal was entitled to continue till the end of Academic Session a fortiori the petitioner will also be entitled to gratuity on the basis of Rule 12-A of the Appendix-A. It is evident from the phraseology employed in letter dated 4th June, 1994 that the Lecturer/non-teaching members of the staff serving in private aided colleges will also be held entitled to the gratuity as per the norms laid therein. Now, the question which arises for consideration is: by whom the gratuity in the present case is to be paid? The amount of gratuity is to be calculated from 1.9.1986 to 9.11.2005. The management of the college was dependent to the extent of 95% aid to be released under the rules framed by the State. The management had to defray the expenses to the 9 extent of 5% only. The management as per rule 12-A, as noticed above, was bound to pay the gratuity to the petitioner and the State had to bear this expenditure to the extent of 95%. Consequently, it is held that the State Government will pay 95% amount of the gratuity to the petitioner and the remaining 5% has to be paid by respondent No.5-society. The next question which fell for consideration is: whether the petitioner is entitled to leave encashment or not? The case of the petitioner has been turned down by merely stating that there is no provision for the grant of leave encashment to the petitioner. The leave encashment is a part of “salary” and the same could not be denied to the petitioner. Their Lordships of the Hon’ble Supreme Court in State of Rajasthan and another versus Senior Higher Secondary School, Lachhmangarh and others, (2005) 10 SCC 346 have held as under: “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. 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 10 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. As we have held above the expression 'pay and allowances in Section 29 read with wider definition of the word 'salary' in Section 2(r) of the Act has a very vide 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. 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 of kind a 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.” It is evident from rule 8 of the Himachal Pradesh Non-Government Affiliated Colleges Grant-in-Aid Rules, 1994 that the petitioner is also 11 entitled to the same salary which is being paid to his counter-part teaching in the Government Colleges. In view of the definitive law laid down by the Hon’ble Supreme Court, the word ‘leave encashment’ is to be treated as integral part of the ‘salary’ and the petitioner is entitled to the same. Accordingly, the respondents will also release the payment of leave encashment in the same ratio as laid down for the payment of the gratuity in earlier part of the judgment i.e. 95% by the State and 5% by the respondent No.7-society.” It is evident from rule 8 of the Himachal Pradesh Non- Government Affiliated Colleges Grant-in-Aid Rules, 1994 that the petitioner is also entitled to the same salary which is being paid to his counter-parts teaching in the Government Colleges. In view of the definitive law laid down by the Hon’ble Supreme Court, the word ‘leave encashment’ is to be treated as integral part of the ‘salary’ and the petitioner is entitled to the same. Accordingly, the respondents will also release the amount of leave encashment in the same ratio as laid down for the payment of the gratuity in earlier part of the judgment i.e. 95% by the State and 5% by the respondent No.5-college. Respondent-State has tried to explain that the college has already released a sum of Rs. 8,59,300/- upto 8.11.2005 by way of grant-in-aid. It is also the case of the respondent- State in the reply that the grant-in-aid was to be released 12 proportionately and the same was frozen to Rs. 7.10 crore. However, the fact of the matter is that petitioner has to be paid his dues. Petitioner has not been paid salary with effect from 1.4.2005 to 9.11.2005. Salary is a property within the meaning of Article 300-A of the Constitution of India. It cannot be withheld by the respondents without any authority of law. The action of respondents of withholding the salary of the petitioner with effect from 1.4.2005 to 9.11.2005 is declared bad in law. Similarly, petitioner has been released selection grade vide order dated 25.9.2002. However, the arrears with effect from 27.7.1998 to 25.9.2002 have not been paid. It is held that the petitioner is entitled for arrears with effect from 27.7.1998 to 25.9.2002 and there is no explanation given by the respondent why the same has not been released. Accordingly, in view of the observations made hereinabove, the petition is allowed. Petitioner shall be deemed to have retired from service on 9.11.2005 with all the consequential benefits, viz. arrears of salary etc. Respondents are further directed to release salary of the petitioner with effect from 1.4.2005 to 9.11.2005 and arrears of selection grade with effect from27.7.1998 to 25.9.2002. Respondents are also directed to release the gratuity of the petitioner and leave encashment. Needful be done within a period of eight weeks from today. The amounts to be 13 released to the petitioner shall carry interest @ 6% per annum. No costs. (Rajiv Sharma), Judge 15.6. 2010 *awasthi*