1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.4478/02 Seth Ramji Das Modi Vidya Niketan Society & Anr. vs. The Rajasthan Non-Government Educational Institutions Tribunal, Rajasthan & Ors. 2. S.B. CIVIL WRIT PETITION NO.3628/02 Seth Ramji Das Modi Vidya Niketan Society & Anr. vs. The Rajasthan Non-Government Educational Institutions Tribunal, Rajasthan & Ors. 3. S.B. CIVIL WRIT PETITION NO.3631/02 Seth Ramji Das Modi Vidya Niketan Society & Anr. vs. The Rajasthan Non-Government Educational Institutions Tribunal, Rajasthan & Ors. 4. S.B. CIVIL WRIT PETITION NO.4507/02 Seth Ramji Das Modi Vidya Niketan Society & Anr. vs. The Rajasthan Non-Government Educational Institutions Tribunal, Rajasthan & Ors. Date of order : 29/1/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Anurag Agarwal for the petitioner. Shri Zakir Hussain, Addl. Govt. Counsel for State. Shri R.C. Joshi for the respondent. ****** Heard learned counsel for the parties. These writ petitions have been filed by the petitioner Seth Ramji Das Modi Vidya Niketan Society and its Principal challenging the judgement passed by the Rajasthan Non-Government Educational Institutions Tribunal whereby the applications filed by the respondents under Section 21 have been allowed and the 2 petitioner institution has been directed to pay to each of the respondents salary and dearness allowance at the same rate at which that was being paid to them with effect from November, 1996 with an additional direction to pay the arrears of salary within three months. Since common questions of fact and law are involved and therefore all these petitions were heard together and are being decided by this common judgement. For the purpose of convenience, however, the facts of only S.B. Civil Writ Petition No.4478/02 are being taken as the basis for deciding these petitions, which is taken as a leading case. The respondent was appointed by the petitioner society on the post of Lecturer in Hindi on temporary basis in the U.G.C. scale of Rs.2200-4000 vide order dated 22.7.1995 upto 30.4.1996 or till commencement of the summer vacation and such similar orders of appointments were passed in the case of Smt. Preeti Malviya and Smt. Kirti Goplani and Dr. Manju Sharma. The respondents were later confirmed and made 3 permanent by the petitioner institute by different orders. In all these appointment orders, condition no.2 was inserted by the petitioner-society to the effect that DA and other allowances shall be payable only on receiving regular aid from the Government. It is not in dispute that at the time of appointment of respondent, petitioner institute was in receipt of aid of 90% from the State Government. The dispute arose when the petitioner-society stopped making payment of D.A. and other allowances and started making payment of their salary at the basic pay of the U.G.C. pay scale. It was at that juncture that the respondent approached the Tribunal by filing the application under section 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short-`the Act'). The Tribunal by the impugned order directed the petitioner institution to pay to the respondents regular salary exclusive of dearness and other allowances which were being paid to them till October, 1996 and further directed that such payment should 4 start to be paid to them from November, 1996. It was directed that the respondents be paid the annual grade increments but they would not be entitled to three advanced grade increments and payment of dearness allowance and other allowances from 31.12.1995 as demanded. Shri Anurag Agarwal, learned counsel for the petitioner has argued that the application before the Tribunal was not maintainable as Section 21 applies only to aided institutions. In the present case the respondent-State stopped making payment of grant-in-aid from the month of November, 1997 onwards. It was argued that the condition of appointment of each of respondents clearly indicates that they would be paid dearness allowance and other allowances only on receipt of regular aid from the Government. Once it is said that the Government has stopped making payment of grant-in-aid, these benefits cannot be claimed by the respondent as a matter of right. This tantamount to changing conditions of their service, has been erroneously held by the Tribunal. It was 5 argued that the view taken by the Tribunal is erroneous because mere non payment of dearness allowance and other allowances to the respondent may not amount to reduction in rank, therefore, it was not necessary to follow the procedure for awarding penalty would be penal in nature requiring adherence to the procedure provided therefor and compliance of the principles of natural justice. Such a view is wholly erroneous because payment of dearness allowance and other allowances was stopped only because the government stopped making payment of aid to the petitioner institution. Learned counsel in support of his arguments has relied on the Supreme Court judgement in Sushmita Basu & Ors. vs. Ballygunge Siksha Samity & Ors.-(2006) 7 SCC 680 and judgement of this Court dated 22.3.05 in Man Singh vs. Adarsh Shiksha Parishad Samiti, (2005) WLC UC page 670. Per contra, Shri R.C. Joshi, learned counsel for the respondents argued that the payment of grant-in-aid was not stopped by the Government on its own, but it was only because the petitioner institution was 6 continuously violating the rules, therefore, it was stopped. He cited the letter of the Shri R.N. Modi, Chairman, Seth Ramji Das Modi Vidhya Niketan Society, Kota dated 12.10.1997 addressed to Director, College Education. It is stated in that letter that the petitioner-institution insisted that either Government should pay grant-in-aid to the extent of 90% against all the faculties and for all the members of the staff or in the event of its failure to do so, the petitioner-institution would pray for stopping payment of grant-in-aid in the month of November, 1997. It was submitted that Tribunal has rightly held that once the respondents were appointed in a particular pay scale with benefits of D.A. and other allowances as per U.G.C pay scale, the non stop payment of dearness allowance and other allowances would tantamount to reduction of rank attracting Section 18 of the Act. Learned counsel argued that division bench of this Court in D.B. Special Appeal Writ No.46/02 decided on 22.4.02 upheld the view taken by the learned Single Judge of this Court in S.B. Civil Writ Petition 7 No.6559/97, Yashpal Sharma vs. Rajasthan Non-Government Educational Tribunal, Jaipur wherein it was held that the writ petitioners, who were teachers in such unaided institutions, should be paid salary as per the norms fixed by the Government in the institutions run by the Government or in aided private institutions. The division bench held that there is no reason to interfere with the order passed. Learned counsel also relied on the judgement of learned single Judge which was upheld by the aforesaid division bench judgement and also another judgement passed in Adarsh Viday Mandir Samiti & Anr. vs. Raju Lal & Ors.- S.B. Civil Writ Petition No.3414/04 decided on 31.5.04 to the same effect. Learned counsel also relied on the judgement of division bench passed in D.B. Civil Review Petition No.95/02, Management Committee, Tagore Vidhya Bhawan, Bank Park, Jaipur vs. State & Ors. decided on 22.11.06 holding that the total salary drawn and paid to the employees cannot be reduced by an institute on its own even when the Government has suspended the aid. It was therefore prayed 8 that the writ petition be dismissed. Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that the Government did not on its own stop making payment of grant-in-aid to the petitioner institute. It was owing to the fact that the petitioner society was not able to get approval of appointment of any one of its employees from the Directorate of College Education and that it was continuously violating the statutory Rules. It was stated that the name of the petitioner society has not been deleted from the list of grant-in-aid institutions till 6.11.2000, but the same was still pending. He in this respect referred to the pleadings of the State in para 3 of the reply. It was therefore prayed that the writ petition be dismissed. Shri Anurag Agarwal, learned counsel for the petitioner has rejoined and submitted with reference to the division bench judgements relied by the learned counsel for the respondents that the norms fixed by the Government in its institutions and the instructions issued by the Government to the 9 U.G.C. are not referred to therein and therefore those judgements cannot be applied to the case of the petitioner. Having heard the learned counsel for the parties and perused the material on record, I find that the fact that originally when the respondents were appointed in the scale of U.G.C. with D.A. and other usual allowances and they were made permanent in service of the petitioner society all those benefits. It is true that condition no.2 of the appointment order states that DA and other allowances shall be payable only on receipt of regular aid from the Government but that was owing to the fact that petitioner society was receiving grant-in- aid on post to post basis and the approval of each appointment made against a vacant post was required to be obtained by Government. It is not even case of the petitioner that the appointment of the respondents was not approved by the Government and that the Government did not make payment of grant-in-aid against their post for some time. It is also not the case that till October, 1997, the respondents 10 were not being paid dearness allowance and other allowances in view of their salary in the U.G.C. scale. The Tribunal has held that once the respondents started getting their salary with D.A. and other allowances, the payment thereof could not be stopped as the same would amount to reduction in rank. Merely because it is stated in the appointment orders of the respondents that they would be paid dearness allowance and other allowances on receipt of grant-in-aid from the Government, it cannot be said that the respondents were in any way responsible for the stoppage of payment of grant-in-aid. The material on record clearly show that the payment of grant-in-aid was stopped owning to the own inaction of the petitioner who insisted for grant-in-aid being paid against all their faculties and towards the salary of all its employees and on this condition, however, insisted that if the Government was unable to make payment of such grant-in-aid then it should stop make payment from the month of November, 1997. Apart from this, while the petitioner wanted grant-in-aid being paid against salary of all its 11 employees but the stand of the Government is that the petitioner society was not prepared to get approval of the appointment of anyone of its employees from the college education department which amounted to violation of statutory rules. When the petitioner institution wanted payment of grant-in-aid, it was under an obligation to abide by the statutory rules because such payment would obviously depend upon the fulfillment of the conditions contained in the Rules. It is thus clear that stoppage of payment of the grant by the Government to the petitioner society was result of petitioner's own inaction and this situation thus obviously was due to petitioner's own mistake. The stoppage of payment of grant-in-aid, therefore cannot be attributed to the respondents. At the same time, however, it is clear that non payment of dearness allowance and other allowances was from the month of November, 1997 whereas such payment be made to the respondents by the petitioner society since their initial appointment, which would clearly tantamount to changing their conditions of service. Conditions of 12 their service of employee could not be changed, unilaterally by the petitioner institution, more particularly when the respondents cannot be blamed for stoppage of grant-in-aid. This Court in its judgment although in the context of Government Circulars held that whatever salary the employees of aided institution were getting could not be reduced by the institution on the ground that the government has suspended aid and division bench in Management Committee Hahaiya Kshatriya Shiksha Samiti, supra also upheld the view taken by the learned Single Judge who held that the teachers in unaided institutions should be paid salary as per the norms fixed by the Government in the institutions run by the Government or in the aided private institutions. But I need not go into those questions because my conclusion is based on the uncommon and peculiar facts of the present case. The judgement on which reliance has been placed by the petitioner in the case of Sushmita Basu & Ors., supra is distinguishable on facts and cannot be applied to the present case. 13 In view of the above discussion, the writ petitions are dismissed with no order as to costs. (MOHAMMAD RAFIQ), J. RS/