1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.4952/2007. : : The Managing Committee, Shri Gandhi Shikshan Samiti Vs. Shri Dhanraj Gadia & Ors. : : Date of Order 23.3.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Prahlad Singh for the petitioner. Dr. V. S. Nain for the respondent (s). Heard learned counsel for the parties. 2. This writ petition has been filed by Managing Committee, Shri Gandhi Shikshan Samiti, Gulabpura, District Bhilwara challenging the order dated 28.2.2007 passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur, by which petitioner was directed to pay to respondent No.1 benefits of selection scale as per Government Circular dated 25.1.1992 with interest @ 9% per annum and fixation as per Revised Pay Scale Rules, 1998 and pay its arrears together with interest @ 9% per annum and accordingly calculate his gratuity and pay the same also with interest @ 9% per annum. Compliance of judgment was ordered to be made within a period of three months. 2 3. Learned counsel for the respondent has submitted that controversy raised in this writ petition is squarely covered by Full Bench of this Court in S. R. Higher Secondary School & Anr. Vs. Rajasthan Non-Government Educational Institutions Trbiunal, Jaipur & 23 others : WLC (Raj.) 2002 (3), 586 and subsequently this judgment has been upheld by Supreme Court in Rajasthan Welfare Society Vs. State of Rajasthan : 2005 (2) RLW (SC), 219. 4. Learned counsel for the petitioner however submitted that Government referred the dispute to a Committee constituted for determination of the payment of grant-in-aid for selection grade to the Institutions on 30.4.2005 and consequential order was passed by the Government on 5.4.2007 providing that benefits of selection scale shall be paid on notional basis w.e.f. 28.5.2002 and actual benefits would be payable only from 19.12.2005. This is subsequent development and, therefore, if the Government has directed for giving notional benefits for the earlier period, respondent No.1 could not be given actual benefits because the petitioner is not receiving grant-in-aid from the Government. Learned counsel submitted that direction of the Tribunal for making payment of interest @ 9% per annum 3 also cannot be justified because even though the respondent No.1 was retired on 31.3.2002, but he had approached the Tribunal belatedly on 23.3.2005 i.e. three years after the date of his retirement. Learned counsel submitted that in view of judgment of Full Bench of this Court in S.R. Higher Secondary School (supra), payment of selection scale has been held to be part of salary and it has been directed that State Government would be bound to accordingly grant aid to the Non-Government Educational Institutions in accordance with percentage prescribed in the category which has been placed. Learned counsel submitted that special leave to appeal filed by the State Government against the aforesaid judgment of S.R. Higher Secondary School (supra), was also dismissed by the Supreme Court. 5. Having regard to the facts of the case and especially considering the fact that Full Bench of this Court despite instructions issued by State Government vide order dated 27.11.1997 held that employees of Non-Government Aided Educational Institutions entitled to benefit of selection scale and gratuity. I do not find any reason to take any other view of the matter. However, in view of the fact that respondent-employee himself had approached the Tribunal 4 with delay of three years from the date of retirement, the benefit of interest deserves to be confined only from the period he filed the application before the Tribunal on 23.3.2005 and onwards. In so far as the payment of gratuity concerned, the controversy in the matter is squarely covered by judgment of Supreme Court in Rajasthan Welfare Society (supra) wherein it has been held that Non-Government Educational Institutions would be bound to pay gratuity to its employee and the Government cannot be required to pay aid to such institution against the payment of gratuity. In para 17 of the judgment, it has been observed that concerned institutions would be at liberty to make a representation to the Government which it shall consider and decide in accordance with law. However, as regards the benefit of grant-in-aid, it appears that controversy raised in the present matter is squarely covered by judgment of S. R. Higher Secondary (supra) wherein it has been held that though private educational institutions cannot claim grant-in-aid from the Government as a matter of right, but at the same time the Government cannot refuse such claim arbitrarily and without there being any justifiable reason. The appropriate Government by exercising its discretion as provided under 5 sub-sections (3) & (4) of Section 7 of Rajasthan Non- Government Educational Institutions Act, 1989, has the power to fix the extent of grant, but it cannot decline to pay the same. The Full Bench of this Court in S.R. Higher Secondary (supra) specifically held that the selection scale to be part of salary and it has been directed that State Government would be bound to accordingly grant-in-aid to the Non-Government Educational Institutions in accordance with percentage prescribed in the category which has been placed. In the result, this writ petition is allowed in part. The judgment of Rajasthan Non-Government Educational Institutions Tribunal, Jaipur dated 28.2.2007 is upheld with slight modification in regard to interest, which the petitioner shall now pay to the respondent No.1 from the date of filing the application dated 23.3.2005 instead of being paid from the date of retirement, till its actual payment to respondent- employee. The State Government is directed to pay to the petitioner proportionate grant to petitioner-institution in terms of law laid down by Full Bench in the case of S. R. Higher Secondary (supra). As regards the gratuity, the petitioner would be at liberty to make representation to the Government in terms of observation made in para No.17 of 6 Rajasthan Welfare Society (supra). The direction of this Court to the State Government to pay to the petitioner proportionate grant of payment of selection scale to the petitioner would not furnish a reason to the petitioner to avoid or delay compliance of the judgment of Tribunal, which compliance the petitioner would be required to make as originally directed by the Tribunal. Compliance of judgment be made within a period of four months from today. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.21.