CW 1420/05 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1420/2005 Managing Committee, SS Jain Subodh Shiksha Samiti Jaipur & Anr. Versus Non-Govt. Edu. Inst. Tribunal, Gopal Krishan Nagar & Ors. Date of Order ::: 17/01/09 Hon'ble Mr. Justice Ajay Rastogi Mrs Naina Saraf, for petitioner Institution. Mr. JK Agrawal, Addl. Govt. Counsel, for State-respondents Mr. CL Saini,for respondent (Teacher) At request, instant petition was heard and is being disposed of at admission stage. Instant petition has been filed by Managing Committee SS Jain Subodh Shiksha Samiti Jaipur duly 80% aided by State Government, assailing common order dt.10/11/04 (Ann.2) passed by Rajasthan Non-Govt. Educational Institutions Tribunal Jaipur (“Tribunal”), whereby application (No.222/01) filed by respondent NO.3 (Gopal Krishan Nagar) U/s 21 of Rajasthan Non-Govt. Educational Institutions Act, 1989 (“Act, 1989”) for grant of payment of gratuity & selection scale were accepted and petitioner-Institution has been directed to make payment of gratuity alongwith interest @ 9% per annum from the date the applicants employees stood retired from service & difference of pay as a consequence upon selection scale pursuant to Govt. order dt.25/01/92. CW 1420/05 //2// Respondent No.3 (Teacher) after having served in petitioner-institution stood retired from service and his gratuity despite being due and payable to him and so also benefit of selection scale pursuant to Govt. order dt. 25/01/92 were denied by petitioner-institution, hence he approached the Tribunal by way of application U/s 21 of the Act, 1989, wherein State Government was also party-respondent duly represented by their Counsel. However, claims of respondent NO.3 (Teacher) were seriously disputed by petitioner institution as well as State Government but after examining inter-se disputes, learned tribunal finally allowed Teacher's application vide order dt.10/11/04 (Ann.2) directing petitioner-institution to make payment of gratuity with interest @ 9% per annum and so also for release of difference of pay consequent upon entitlement of selection scale in terms of Govt. order dt.25/01/92. Counsel for Institution has fairly conceded that in the light of Full Bench decision of this Court in Sr. Hr. Secondary School Vs. Rajasthan Non-Govt. Edu. Inst. Tribunal, Jaipur (2002(3) WLC (Raj.) 586), question of entitlement of terminal benefits CW 1420/05 //3// (including payment of gratuity) for respective employees does not hold further consideration; and the issue with regard to the benefit of selection scale, encashment of leave & payment of gratuity has been finally upheld by Apex Court in State of Rajasthan Vs. Sr. Higher Secondary School, Laxmangarh (2005(10) SCC 346); and accordingly Counsel has confined her contention only to the extent that once the institution is 80% government aided and payment of encashment of leave admissible at the time of retirement and selection scale are part of salary and being approved expenditure, State Government is under obligation to pay 80% whereof being its contribution in proportion to grant-in-aid sanctioned by State Government in favour of petitioner-institutions. Counsel further submits that the issue with regard to liability to the extent of contribution as per grant-in-aid sanctioned by State Government, has also been considered by this Court in DAV College N.Delhi Vs. Dr. Anil Kr. Bhardwaj (CWP-7439/06 & 11 cognate petitions decided vide common order dt.16/03/07) holding it being obligation of State Government, which was also upheld by Division Bench of this Court in State of Rajasthan Vs. DAV College Managing CW 1420/05 //4// Committee (Special Appeal (Writ)-440/08 and 7 cognate petitions decided vide common order dt. 10/09/08). Counsel for respondent NO.3 (Teacher) submits that once entitlement of his claim as observed by learned Tribunal under its order impugned has not been assailed by institution, at least he cannot be deprived of his legitimate right as regards payment of gratuity or benefit of selection, which has not been released despite order of the Tribunal in his favour. Government Counsel while opposing the contentions advanced by petitioners' Counsel submits that merely because petitioner- institution being Govt. aided, grant in-aid cannot be claimed as a matter of right and that apart, in absence of the same being first paid by institution it cannot be claimed from State Government. Government Counsel further submits that there is no direction of learned Tribunal to the State Government; as such no relief can be claimed by petitioner institution against them in instant petition while assailing the order of learned Tribunal. I have considered contentions of parties and with their assistance, examined material on CW 1420/05 //5// record. Entitlement of claim with regard to payment of gratuity or for selection scale has not been disputed by petitioner-institution; as such the issue raised herein is not required to be examined by this Court in instant petition. Only question remained for consideration herein before this Court is as to whether petitioner-institution is entitled for 80% grant-in-aid to the extent of contribution of State Government in respect of claims of respondent nO.3 (Teacher) allowed by learned Tribunal for payment of gratuity and selection scale. A co-ordinate bench of this Court at principal Bench Jodhpur in Mahila Mandal Vs. State in CWP-2473/06 (supra) while examining the issue as regards payment towards encashment of privilege leave, & of selection scale and taking note of grant-in-aid concerned to institution finally in its judgment dt.25/10/07 held that both being a part of salary, the institution is entitled to claim grant-in-aid from the Government, as has also been observed by Full Bench of this Court in S.R. Hr. Secondary School Vs. Rajasthan Non-Govt. Edu. Inst. Trib. Jaipur (supra), observed for selection of scale ad infra : CW 1420/05 //6// “20.. . The selection scale given to the teacher shall certainly fall within four corners of the definition of “salary”. Although, S.7 of the Act provides that no aid shall be claimed by an institution as a matter of right, once it is decided to grant-aid under S.7(3) of the Act, the sanctioning authority is to sanction and distribute to a recognised institution aid from time to time in accordance with the procedure as may be prescribed. S.7 (4) of the Act provides that the aid may cover such part of the expenditure of the institution as may be prescribed. S.7(3) read with S.7(4) makes it clear that the aid which has to be granted to a recognised institution shall cover the estimated expenditure of the current year and the approved expenditure as provided under R.14 of the Rules. Once it is decided by the Government to provide grant-in-aid in accordance with Ss.7(3) and 7(4) of the Act it leaves no room for the sanctioning authority to exercise its discretion to grant or not to grant the aid in regard to the items covered under Ss.7(3) and 7(4) of the Act. Selection scale being salary, once the State Government has decided to grant aid to an NGEI, it will form the part of grant-in- aid and thus the State Government in the eventuality of sanctioning the grant, will pay for the same in accordance with the percentage prescribed to the category in which the NGEIs is placed.” CW 1420/05 //7// For encashment of leave, the Court observed ad infra: “21. ....Thus, there is a provision for accumulation of privilege leaves. Admittedly, the teachers working in Government educational institutions are entitled for encashment of privilege leave on their retirement. By virtue of S.29 of the Act, the teachers of NGEIs are entitled for the similar scale of pay and allowances except compensatory allowance, it being the part of grant-in- aid, therefore, whatever allowances the teachers of Government educational institutions are entitled to, would also be available to the teachers of NGEIs. Leave encashment is an allowance and the teachers in the NGEIs would have the right to claim this allowance.” In the light of what has been observed (supra), such an issue raised in instant petitions is no longer res integra. Thus once it is held that selection scales and encashment of PL are part of salary and petitioner-institution being 80% Govt. aided, State Government cannot absolve from its liability in parting with its share in terms of grant in-aid duly sanctioned to petitioner institution. Consequently, this writ petition is partly allowed and while upholding the impugned order dt.10/11/04 (Ann.2) (In Appl.222/01) of the Tribunal petitioner Institution is directed CW 1420/05 //8// to comply with order (Ann.2) of the Tribunal within three months and at the same time, State Government is also directed to part with its contribution/share of 80% grant-in-aid in favour of petitioner-Institution for the claims of respondent NO.3 (Teacher) herein with regard to encashment of privilege leave & selection scale. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.8/1420CW05-17Jn-EdTri.doc