IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Bhopalwala Arya Higher Secondary School Managing Committee, Sriganganagar & another Vs. The Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & others. S.B. CIVIL WRIT PETITION NO.7659/2007. Date of Order :: 4th February 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Vijay Kumar Aggarwal, for the petitioner. .... BY THE COURT: The petitioners, Bhopalwala Arya Higher Secondary School Managing Committee, Sriganganagar (hereinafter referred to as 'the Institution) and its Head Master, by way of this writ petition seek to challenge the order dated 07.05.2007 (Annexure-4) made by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (‘the Tribunal’) in application No. 83/2004 holding the applicant Smt. Pushpa Mathur (said to be deceased and represented by her legal representatives, respondents Nos.3/1 and 3/2) entitled to 1 gratuity upon her reaching the age of superannuation on 31.12.1993. Briefly put, the relevant facts and aspects are that according to the petitioners, the said applicant was appointed by them as Teacher Gr.III on 17.09.1967; that she retired on 31.12.1993 and at the time of retirement, she was getting the aggregate of salary and DA at Rs.3,782/- per month. It appears from the contents of the application made to the Tribunal (Annexure-5) that the applicant-employee stated the grievance that despite her making request on 23.09.1994 and again on 10.07.1996 and on a number of other occasions, she was not paid the gratuity by the present petitioners; that she lost her vision and could not receive proper treatment for want of funds; that she again made a representation on 05.09.2003 and then served a notice on 29.09.2003 but of no avail; and even the Director, Secondary Education and the District Education Officer failed to take necessary action in the matter. It further appears from the certified copy of order-sheets (Annexure-4) that the present petitioners put appearance before the Tribunal on 13.05.2005 and for the request made on their behalf, several opportunities were extended to their counsel to file Vakalatnama and reply; and the matter was adjourned awaiting their reply and service on the Director of the Department concerned on 08.07.2005, 05.09.2005, 2 30.11.2005 and 13.02.2006. The matter was further adjourned on 08.05.2006 and on 18.05.2006. Thereafter, on 01.09.2006, the Tribunal granted last opportunity for filing of Vakalatnama and reply and the matter was adjourned to 10.11.2006. On 10.11.2006, of course a Vakalatnama on behalf of present petitioners was filed but reply was still not forthcoming and, therefore, the Tribunal proceeded to close the reply and posted the matter for hearing. Thereafter, the Tribunal heard the matter only on 26.04.2007 and then passed the impugned order on 07.05.2007. The learned Tribunal, with reference, inter alia, to: (i) the decision of the Hon'ble Supreme Court in the case of Rajasthan Welfare Society Vs. State of Rajasthan: 2005 (2) RLW 219 [=(2005) 5 SCC 275]; (ii) Section 16 of the Rajasthan Non-Government Educational Institutions Act, 1989 ('the Act of 1989'); and (iii) Rule 82 of the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in-aid and Service conditions etc.) Rules, 1993 ('the Rules of 1993') found the petitioner-Institution liable to make payment of gratuity to the applicant and directed for such payment by making calculation within three months from the date of order. Seeking to challenge the order aforesaid, the petitioners have taken the grounds in this writ petition: (a) that the impugned order dated 07.05.2007 remains contrary to law and 3 violates their legal rights; (b) that since the basic wages and DA available to the respondent-teacher at the time of her retirement were more than the maximum limit fixed by the Central Government, she was not eligible for gratuity being not falling within the definition of employee per Section 2(e) of the Payment of Gratuity Act, 1972 ('the Act of 1972'). Arguing for the petitioner, learned counsel Mr.Vijay Kumar Aggarwal strenuously contended that the Tribunal has erred in relying upon the decision of the Hon'ble Supreme Court in Rajasthan Welfare Society's case and in failing to consider that in the first place, teachers are not entitled to gratuity and in any case, even if any entitlement was to be considered under Rule 82 of the Rules of 1993, the admissibility of gratuity was required to be considered under the Act of 1972. The learned counsel emphasised that admissibility of gratuity as stated in Rule 82 refers to all the aspects of eligibility under the Act of 1972 and at the relevant time, the definition of “employee” under Section 2(e) of the Act of 1972 was covering an employee having wages not exceeding Rs.2,500/- per month and such words were omitted only by the Amendment Act No. 34 of 1994 with effect from 24.05.1994 hence, according to the learned counsel, the deceased-respondent, who retired on 31.12.1993 prior to coming into force of the said amendment and was getting 4 aggregate amount of Rs.3,782/- per month at the time of retirement, was not covered under the definition of employee. In support of these contentions reference has been made to the decision of the Hon’ble Supreme Court in the case of Secretary, O.N.G.C. Ltd. and another Vs. V.U.Warrier: (2005) 5 SCC 245. Learned counsel also submitted that otherwise the teachers are not covered under the definition of employee as held by the Hon'ble Supreme Court in the case of Ahmedabad Pvt. Primary Teachers' Association Vs. Administrative Officer & Others: JT 2004 (2)SC 27. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of V.S.Mallimath Vs. Union of India and another: (2001) 4 SCC 31. Having given a thoughtful consideration to the submissions made by learned counsel for the petitioner, this Court is satisfied that this writ petition remains bereft of substance and does not merit admission. Section 16 of the Act of 1989 prescribes the powers of the State Government to regulate the terms and conditions of employment of the persons appointed as employees of aided institutions and Rule 82 of the Rules of 1993 specifically provides for the employees of aided institutions to be entitled to gratuity as admissible under the Payment of Gratuity Act as 5 amended from time to time. Rule 82 of the Rules of 1993 reads thus: ''82. Gratuity and Insurance- (1) The employees of the Aided educational institutions shall be entitled to Gratuity as admissible under Payment of Gratuity Act, 1972 as amended from time to time. (2) The managing committee shall arrange for Group Insurance of its employees under the respective scheme of Life Insurance Corporation of India.'' The substance of the submissions of learned counsel for the petitioners is that even if Rule 82 provides for such gratuity, its admissibility has to be considered under the provisions of the Act of 1972; and the employee getting a particular amount of wages/salary only being covered under the definition of employee under the Act of 1972, the respondent who was receiving salary beyond the amount mentioned in Section 2 (e) of the Act of 1972, was not eligible to claim gratuity. In that continuity, learned counsel submits that the amount as stated in Section 2(e) of the Act of 1972 had been omitted by way of amendment made in the year 1994 and the entitlement prior to such amendment would be considered only with reference to the then existing provisions, the amendment being not retrospective in operation. The submissions as made on behalf of the petitioner proceed on the fundamental incorrect assumption as if the 6 very entitlement of the respondent-employee to gratuity came from and under the Act of 1972; and as if she was required to be covered within the definition of employee under Section 2 (e) of the Act of 1972. The submissions as sought to be made by learned counsel stand directly contrary to the dictum in the case of Rajasthan Welfare Society (supra) wherein the Hon'ble Supreme Court has said,- ''11. The entitlement of the employees of the aided educational institution to gratuity cannot be called in question in view of the provisions contained in Section 16 of the Act and Rule 82 made by the State Government in exercise of its rule-making power. The teachers may not be the employees within the meaning of the definition of employee as defined in the Payment of Gratuity Act, 1972 but that is of no relevance in view of Section 16 and Rule 82. The decision in Ahmedabad (P) Primary Teachers' Assn. v. Administrative Officer relied upon by learned counsel for the appellant for the proposition that the teachers are not covered by the definition of employees under the Gratuity Act renders no assistance in the present case to the appellant in view of benefit of the said Act having been extended to the employees of the aided educational institutions. The definition of employee under the Act includes teachers and every other employee working in a recognised institution. We are unable to accept the contention that the teachers of non-government aided educational institutions are not entitled to gratuity. The appellant's liability to pay the gratuity under Section 4 of the Gratuity Act cannot be doubted. '' (underlining supplied for emphasis) The teachers, or for that matter the employees of the aided educational institutions as such, are not stated in the definition of employee contained in Section 2(e) of the Act of 1972 but they are entitled for gratuity for being the employees 7 as contemplated by Rule 82 of the Rules of 1993. Their entitlement emanates not from the Act of 1972 but from the aforesaid Act of 1989 and the Rules of 1993; their eligibility is that envisaged by the Rules of 1993 and not as per Section 2 (e) of the Act of 1972. The submissions made on behalf of the petitioners with reference to the quantum of salary of the respondent thus remain fundamentally misplaced. Rule 82 of the Rules of 1993 that provides eligibility does not prescribe any such restriction on entitlement and eligibility for gratuity with reference to the salary received by the employee. The submission that the expression 'admissible' as used in Rule 82 makes it necessary to consider entitlement of any employee under the Payment of Gratuity Act, 1972 is, in the opinion of this Court, not the correct reading of the meaning, effect and purport of the provisions of Rule 82 of the Rules of 1993. Therein, reference to the Payment of Gratuity Act, 1972 is obviously for the purpose of determination of the amount of gratuity payable to the employee concerned and the questions incidental thereto; but not for the purpose of eligibility. The eligibility and entitlement of the employees like the respondent for gratuity comes from the Act of 1989 and the Rules of 1993; and not under or from the Act of 1972. The entire substratum of the submissions of learned counsel for the petitioner, thus, falls to the ground. 8 In view of the provisions of the Act of 1989 and the Rules of 1993 and view of the decision of the Hon’ble Supreme Court in Rajasthan Welfare Society’s case, the decision of the Hon’ble Supreme Court in the case of V.U.Warrier (supra) shall have no application to the present case. The quantum of wages/salary would have had relevance for the purpose of eligibility under the Act of 1972 but when the employee like the respondent are entitled to gratuity by virtue of Rule 82 of the Rules of 1993, the quantum of wages as mentioned in Section 2 (e) of the Act of 1972 has no bearing on the question of their entitlement. On other principles that the equitable and discretionary writ jurisdiction of this Court under Article 226 of the Constitution of India deserves to be exercised to ‘reach injustice wherever it is found’; and that under Article 226 the High Court does not act as an appellate court, the said decision in Warrier’s case rather goes against the present petition. The submission with reference to the decision in the case of Ahmedabad Pvt. Primary Teachers' Association (supra) is absolutely misplaced as already observed by the Hon'ble Supreme Court in Rajasthan Welfare Society's case. The other decision of the Hon’ble Supreme Court in the case of V.S.Mallimath (supra) has no relevance or application to the facts of the present case. 9 Having regard to the overall facts and circumstances, this court is satisfied that the impugned order passed by the learned Tribunal does not disclose any error apparent on the face of record nor results in manifest injustice. It may be pointed out that the petitioners got the matter protracted with the Tribunal while seeking number of opportunities for filing reply; and yet did not file the reply at all. There appears no reason to consider any interference in this matter at the instance of the petitioners. The petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK 10