IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.306 of 2004 Alongwith CWP No.52 of 2008 Judgment reserved on: 30.5.2011. Date of decision: 13.6.2011. CWP No.306 of 2004: Devki Nandan Pandey …Petitioner Versus State of H.P. and others …Respondents CWP No.52 of 2008: Mohan Middle School and another …Petitioners Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Petitioner : Mr.S.R.Sharma, vice counsel for the Petitioner in CWP No.306 of 2004. Mr.K.D.Sood, counsel for the petitioners in CWP No.52 of 2008. For the Respondents : Mr.Vivek Singh Thakur, Addl.A.G. for Respondents-State. Mr.K.D.Sood, counsel for Mohan Middle School/Managing Committee. Deepak Gupta, J. 1. These two petitions are being disposed of by a common judgment since common Whether reporters of the local papers may be allowed to see the judgment? Yes 2 questions of law and fact are involved in the same. 2. The undisputed facts are that Mohan Middle School (now Mohan Primary School) was being run since 1936 in the premises of Solan Brewery. The School at one time was being run as a High School but some time in the year 1978 the school was reduced to the Middle level. Funds for running the school used to be arranged from the Kapil Mohan Education Foundation Trust and from other sources. However, the school due to financial burden could not even run as a Middle school and was lowered to the primary level. According to the Management, it is not in a position to run the school since no fee is charged from the students and the school is totally run from the aid provided by the aforesaid Trust. 3. It is not disputed that the School is one of the 144 non-Government aided schools. A writ petition was filed in the High Court wherein it was prayed that the Government 3 should give 95% grant-in-aid to these schools. The matter went up to the Supreme Court which in the case of State of H.P. vs. H.P. State Recognized and Aided Schools Managing Committees and others, (1995) 4 SCC 507, directed the State to grant 95% grant-in-aid to these Schools. 4. The Government did not release this amount to the School and thereafter the School alongwith some teachers filed CWP No.241/1999 which was decided on 23.9.2003 with a direction to the State of Himachal Pradesh to consider the claim of the petitioner School with regard to grant-in- aid and to take a decision thereon within 8 weeks. It was further directed that in case grant-in-aid was allowed the entire arrear for such period shall be paid within three months thereafter to the teachers. 5. The Principal Secretary decided the representation and came to the conclusion that the Institution in question had sufficient 4 funds to pay the salary to the staff at Government rates and therefore no grant should be made to the school since the income derived by the school fees and endowments is sufficient to maintain it. The Secretary appears to have been swayed by the fact that the total salary paid by the School is virtually equal to the total income received by it. He lost sight of the fact that these calculations have been arrived at by taking the salary being paid to the teachers not at the Government level but at a lower level. Now the school has approached this Court by way of CWP No.52 of 2008 with a prayer that the State be directed to complete 95% grant-in-aid on the basis of Government Schools and CWP No.306 of 2004 has been filed by Devki Nandan Pandey a tenant in the school praying that the Government scales be granted to the petitioners like they were being paid to their counterparts in the Government Schools. 5 6. During the pendency of the petition, a sum of Rs.25,27,366/- has been released as grant-in-aid to the petitioner School w.e.f. 2002 to 2006. The dispute is also how this amount is to be disbursed. In the meantime, the School has now been totally shut down and is not functioning. 7. The Apex Court in H.P. State Recognized and Aided Schools’ (supra) directed that the enhanced grant-in-aid be paid to the schools w.e.f. 1.4.1993 meaning thereby w.e.f. the said date all the employees in the 144 schools were to be paid salary as per Government scales and was to be calculated by taking the salary of the employees at Government scales. 8. It is however true that if a school is raising funds from endowments or from fees being charged from the students the Management of the School cannot pocket this portion of the amount. This amount will have to be taken into consideration while calculating the grant-in-aid. The grant-in-aid in such a 6 situation can obviously be less than 95%. To give an example, if the annual salaries payable by the school is Rs.one lakh and the school can generate funds of Rs.50,000/- from whatever sources then the Government shall only be liable to pay the balance amount of Rs.50,000/- and not Rs.95,000/-. However, the calculations have to be done by taking into consideration the right of the employees to get salary at Government scales. To give another example. If a school could raise funds of Rs.one lakh per annum and had structured the salary of its employees in such a way that only Rs.one lakh was being paid as a salary, this should not mean that the Government would not have to pay any amount. Supposing, if the Government scales were applied the salary payable would be Rs.3 lakhs per annum then the State would be liable to pay the balance amount of Rs.2 lakhs. 9. In view of the aforesaid discussion, both the writ petitions are disposed of with a direction 7 to the respondents to re-calculate the amount payable as salaries to the employees from time to time in accordance with the judgment of the Apex Court. Thereafter, the amount raised by the school from endowments or any other sources shall be deducted and the balance amount not exceeding 95% of the total expenditure shall be paid as grant-in-aid to the School. While doing so the State shall be entitled to ensure that the employees for whom such scales are granted fulfil the necessary qualifications and have been appointed in accordance with the Rules. 10. Therefore, the writ petitions are disposed of with a direction to the respondents to reconsider the entire matter and to release the grant-in-aid in line of the observations made hereinabove. The needful be done latest by 31st October, 2011.Since the School has been closed down the amount shall not be paid to the school. The amount of Rs.25,27,366/- already paid to the school 8 and further amount payable shall be directly paid to the employees of the school who are entitled to arrears in view of the observations made hereinabove. The arrears be paid to the employees latest by 31st December, 2011 failing which the State shall be liable to pay interest @ 9% p.a. from the date the amount fell due till payment of the amounts. No costs. June 13, 2011 ( Deepak Gupta ), PV Judge