IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 506 of 2013 With W.P.(S) No. 509 of 2013 With W.P.(S) No. 512 of 2013

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1 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 506 of 2013 With W.P.(S) No. 509 of 2013 With W.P.(S) No. 512 of 2013 MariyamTirkey Petitioner (in WPS No. 506/13) Sudarshan Khakha Petitioner (in WPS No. 509/13) Pushpa Samuel Petitioner (in WPS No. 512/13) Vs. The State of Jharkhand & Ors. Respondents (in all cases) ---- CORAM : HON BLE THE CHIEF JUSTICE HON BLE MR. JUSTICE APARESH KUMAR SINGH ---- For the Petitioners : Mr. Rahul Kumar, Advocate For the Respondents :Mr.RatnakarBhengra, G.P.-IV Mr. Abhay Kr. Mishra, S.C.-III ---- CAV on 18 th of December, 2013 Pronounced on 3 rd of January, R. Banumathi, C.J. The Petitioners seek declaration that clause 9 of the resolution issued by the Government of Bihar as contained in Letter No. 68 dated is unconstitutional as the same is in violation of Article 14 and 300A of the Constitution of India and the Petitioners also seek for a direction to the Respondents to release the leave encashment amount of the Petitioners along with the statutory and penal rate of interest and to quash the impugned orders. 2. Whether the teachers employed in Non-Government Aided/ Minority Schools can avail the benefit of leave encashment or not is the question falling for consideration in these writ petitions. 3. In C.W.J.C. No of 1999(R) (Smt. Alice Purty v. The State of Bihar and others) vide order dated , the

2 2 benefit of leave encashment was granted to the Petitioner therein who was a teacher working in Non-Government Aided Minority Middle School. In the said judgment (Annexure-4 to W.P.(S) No. 512 of 2013), the learned Single Judge held as under :- One more question was raised that whether unutilized leave encashment facility can be allowed or not to such petitioner or such teacher also. Learned counsel for the respondent argued that a regulation was made in this regard which is Annexure-7 of the petitioner s reply to the Counter affidavit which is a resolution of the Government of Bihar dated in paragraph 2 it categorically provides for extending all the additional benefits which are admissible to Government School teachers. Same issue was also raised earlier by another petitioner which ultimately led to an M.J.C. No. 243 of 1995 (Annexure-10) 4. In another writ petition W.P.(S) No. 522 of 2002 (Paul MangraKujur v. The State of Jharkhand and others) the same issue was raised by the Petitioner and in the said writ petition, the learned Single Judge considered the question of payment of retiral benefits to a Head Master employed in a Government Aided Minority School. Referring to the Resolution No. 237 dated 20 th February, 1990 the learned Single Judge held that Resolution No. 237 dated 20 th February, 1990 is related to in service benefits such as Dearness Allowance, Medical Allowance, House Rent Allowance, City Compensatory Allowance etc., but it does not include retirement benefits. Referring to the above two conflicting judgments, in W.P.(S) No. 512 of 2013, the

3 3 learned Single Judge referred the matter to the Division Bench on the following question :- Whether Resolution dated 20 th February, 1990 would be applicable to the petitioner and other similarly situated persons or not 5. The learned counsel for the Petitioner Mr. Rahul Kumar has drawn the attention of the Court to the Resolution No. 237 dated 20 th February, 1990 and submitted that the said resolution states that teaching staff of the State Recognized Non-Government Minority Primary/Middle/Secondary Schools should be given equal pay and all other benefits on par with Government schools. The learned counsel further submitted that in C.W.J.C. No of 1990 (R) same question was raised and the learned Single Judge held that the teachers employed in Government Aided Minority Schools are entitled to leave encashment. In the said case, the State of Jharkhand preferred Civil Review No. 81 of 2002 which was dismissed by the learned Single Judge vide order dated 19 th March, It was further submitted that the State of Jharkhand preferred L.P.A. No. 295 of 2004 against the order passed in Civil Review No. 81 of 2002 and L.P.A. No. 490 of 2004 against the order passed in C.W.J.C. No of 1999(R) and both the LPAs were dismissed. The SLPspreferred against the order passed in the LPAs were also dismissed by the Hon ble Supreme Court. Relying upon Para-25 of Dr. DudhNath Pandey s case reported in 2007(4)JCR 1 (Jhr)(FB), it was submitted that the leave encashment is paid on account of

4 4 unutilized leave and therefore it partakes the character of salary. Reliance was also placed upon State of Rajasthan and another v. Senior Higher Secondary School, Lachhmangarh and others reported in (2005) 10 SCC The learned counsel for the Respondents submitted that by Resolution No. 237 dated 20 th February, 1990, Pay Parity, City Compensatory Allowance and other allowances were given and the said resolution does not include the retiral benefits. Laying emphasis upon Para-9 of the letter issued by the Department of Education, Government of Bihar dated / , the learned counsel submitted that the teachers employed in Government Aided Minority Schools shall not be entitled to any other benefit other than Pension (including Family Pension), Gratuity and G.P.F. It was submitted that when Para-9 of the said resolution is categoric in excluding other benefits, the writ petitioners cannot seek for leave encashment. The learned counsel further submitted that the judgment passed in C.W.J.C. No of 1999 (R) cannot be said to be a judgment in rem but only a judgment in personam and therefore the Petitioner cannot rely upon the said judgment. 7. We have carefully considered the contentions and perused the materials on record. 8. By letter No. 68 dated (Annexure-2 to W.P.(S) No. 512 of 2013) Department of Education, State of Bihar

5 5 directed that Non-Government Aided Minority Primary/Middle Schools teachers will get the facility of General Provident Fund, Pension (including Family Pension) and Gratuity like the Government employees. In Para-9 of the said letter it was stated that such teachers of Non-Government Aided Minority Primary/Middle Schools shall not get any other retiral benefits such as Group Insurance, Leave Encashment, Grant in Aid etc. Translation of Para-1 and Para-9 of Annexure-2 reads as under :- 1. As per direction I am to say that the State Government has decided that teachers of Primary/Middle Schools run by the Minority Community and the schools, aided by the Government, should be given facility of General Provident Fund, Pension (including Family Pension) and Gratuity like the Government employees from dated instead of Trilabh scheme. Rule 58, 60 and 79 of Pension Rules shall be relaxed to this extent. 9. They shall not be entitled to any other benefit than pension (including family pension), gratuity and General Provident Fund, as payable to the Government Employees viz., Group Insurance, cash in lieu of leave, Ex-gratia etc. 9. The Human Resources Development Department of the State of Bihar passed the Resolution No. 237 dated 20 th February, 1990 (Annexure-3 to W.P.(S) No. 512 of 2013) regarding salary, allowances and other facilities to the teaching/non-teaching staffs of Non-Government Aided Minority Primary/Middle/Secondary Schools and also Recognized Sanskrit Schools and Madarsas. As per the said resolution, teaching/non-teaching staffs working in

6 6 Non-Government Aided Minority Primary/Middle/Secondary Schools shall be entitled in addition to the salary, the same allowances as House Rent Allowance, Urban Compensatory Allowance etc. as are available to the Teaching/Non-Teaching empmloyees of the Government Schools. The translated version of the said resolution reads as under :- There has been continuous demand for providing other facilities besides salary to Teacher and Non- Teaching staffs of Primary/Middle/Secondary Minority Schools, recognized Sanskrit Schools and Madarsas of the State, like Government Teachers. There is no uniformity in facilities of Dearness Allowance, Medical Allowance, House Rent Allowance, compensatory Allowance etc. in addition to salary provided to Teacher/non-Teaching staffs working in these schools and Madarsas. While Teacher/Non-Teaching staffs of Secondary Minority Schools are being granted Dearness Allowance like Government teachers, on the other hand Teacher and Non-Teaching staffs of recognized Sanskrit Schools are getting only 13(Thirteen) installments in addition to salary, and Madarsas are getting full Dearness Allowance. But House Rent Allowance, Urban Compensatory Allowance is not being provided. 2. The question of providing uniform facilities to the Teacher/Non-Teaching staffs by different Minority Schools, recognized Sanskrit Schools and recognized Madarsas was under consideration of the State Government. The Government after elaborated consideration decided that all facilities in addition to salary as available to the teacher/non-teaching staffs of Government School and those facilities provided by the State Government from time to time, should be given to teacher/non-teaching staffs of Non- Government Recognized Minority, Primary, Middle and

7 7 Secondary Schools and recognized non-government Sanskrit Schools and Madarsas of the State. 10. The Petitioners claim leave encashment on the basis of the above resolution No. 237 dated 20 th February, 1990 (Annexure-3). According to the Petitioners, since pay parity is given to teaching and non-teaching staffs of Non-Government Aided Minority Primary/Middle/Secondary Schools and all facilities are being extended to them at par with the teaching and non-teaching staffs of Government Schools, therefore Para-9 of Resolution No. 68 dated is superseded. 11. In Resolution No. 237 dated 20 th February, 1990, the teaching/non-teaching staffs working in Non-Government Recognized Minority Primary/Middle/Secondary Schools are entitled to House Rent Allowance, Urban Compensatory Allowance and such other allowances. By virtue of Resolution No. 68 dated (Annexure- 2 to W.P.(S) No. 512 of 2013) the teachers working innon-government Aided Minority Primary/Middle Schools shall be entitled to General Provident Fund, Pension (including Family Pension) and Gratuity like Government employees. In terms of Resolution No. 237 dated 20 th February, 1990 the teaching/non-teaching staffs working in Non- Government Aided Minority Primary/Middle Schools are given pay parity including Dearness Allowance, Medical Allowance, House Rent Allowance, Urban Compensatory Allowance etc.we are of the view that when the pay parity including all allowances

8 8 are given to teaching/non-teaching staff, they cannot be denied the benefit of leave encashment. 12. In W.P.(S) No. 522 of 2002, the learned Single Judge proceeded under the footing that Resolution No. 237 dated 20 th February, 1990 is related only to in service benefits but did not include retirement benefits. On that footing, the learned Single Judge held that the order or decision as circulated vide letter No. 23/B-1 42/82-Si dated 23 rd June, 1983 has not been superseded and therefore the teaching/non-teaching staffs employed in Non-Government Aided Minority Primary/Middle Schools cannot seek for leave encashment. 13. The benefit of encashment of leave is nothing but payment of salary for the leave not availed by an employee and which is to his credit. The learned Single Judge was not right in saying that leave encashment is a retiral benefit. 14. In Para-25 of Dr. DudhNath Pandey s case Full Bench of this Court held that the leave encashment is paid on account of unutilized leave and therefore, it partakes the character of salary. 15. In the case of State of Rajasthan and another [(2005) 10 SCC 346] the Hon ble Supreme Court considered the question whether the teachers of Non-Government Educational Institutions receiving aid are entitled to leave encashment benefits after retirement under the Rules framed under Rajasthan Non-

9 9 Government Educational Institutions Act, Considering Rule 51 of the said Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-Aid and Service Conditions etc.) Rules, 1993, under which the employees are entitled to leave salary for un-availed privileged leave, in Para 16 and 17 the Hon ble Supreme Court held as under :- 16. From the aforesaid Rules, regulating leave, it is clear that benefit of encashment of leave is nothing but payment of salary for the leave not availed by an employee and which is to his credit. 17. For the aforesaid additional reason, the conclusion reached by the High Court is supportable that leave encashment is part of salary and covered in the wider expression scales of pay and allowances used in Section 29 of the Act which has to be read and understood with the definition of the word salary contained in Section 2(r) of the Act. The ratio of the above decision applies to the case on hand. When pay parity including all allowances are given to the employees working in Non-Government Aided Minority Schools, the benefit of leave encashment for the un-availed leave to the credit of employee cannot be denied. 16. As submitted by learned counsel for the Petitioners, vide order dated passed in C.W.J.C. No of 1999 (R) the learned Single Judge directed to make payments of all dues including leave encashment to the petitioner thereon. As against the said order, the State of Jharkhand preferred L.P.A. No. 295 of 2004 and the same was dismissed on The State of

10 10 Jharkhand filed review in Civil Review No. 81 of 2002 which was also dismissed vide order dated The L.P.As preferred against the order of the civil review as well as writ petitionwere also dismissed. Special Leave Petitions in S.L.P. Nos. 881 of 2006 and 492 of 2007 preferred against those two L.P.As were also dismissed by the Hon ble Supreme Court. 17. The learned counsel for the respondents submitted that above said judgment is not a judgment in rem but a judgment in personam. The learned counsel submitted that mode of appointment of teaching and non-teaching employees of a Non- Government Aided Schools or Minority Primary/Middle School is entirely different and therefore, the Petitioners cannot seek parity with the teaching/non-teaching staffs working in Government Schools and therefore not entitled for leave encashment except the benefit of Pension (including Family Pension), Gratuity and Provident Fund. 18. The above contention does not merit acceptance. The appointment of teachers is governed by Chapter-5 of the Compendium of Circulars of Minority & Public High Schools. Section 2(c) of Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 provides for recognition of minority secondary schools. Under section 2(c), Minority Secondary School means a secondary school which has been established by a minority community based upon either on religion or language, and which is managed by the minority

11 11 community and has been declared and recognized as a minority school by the State Government. The State Government under section 18(2) of this Act, by a notification, grants recognition to a school as a minority secondary school which has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section and it fulfills the prescribed condition of recognition. Sub-section 3 of section 18 makes provisions for management and control of the minority secondary schools. Section 18(3)(a) prescribes that every minority secondary school shall have a managing committee registered under the Society Registration Act, 1860 and shall have written bye-laws relating to its constitution and function. Sub-section (3) clause (b) thereof provides that according to the prescribed qualification laid down by the State Government for the teachers of the nationalized secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the School Service Board constituted under Section 10 of the Act. 19. Provisions of the aforesaid Act have also been adopted and followed by the Successor State of Jharkhand after its creation on bifurcation of the parent State of Bihar. The School Service Board has not been constituted in the State. It is the Directorate of Secondary Education which is the authority which grants

12 12 approval to such appointment of teacher. Under the scheme of the Act, and the Circular issued from time to time by the State Government, the appointment of a teacher in a minority school is to be made by a Selection Committee in which the representative of the Education Department shall be there. The appointment of a teacher selected through such process, is subject to the approval of the District Superintendent of Education and also the Director of Secondary Education of the Government of Jharkhand. On the recommendation of the District Superintendent of Education, the Director, Higher Education, after scrutiny of the compliance of the necessary norms as laid down and on being satisfied, approves the preposition statement and fixation of salary of such a teacher of minority school. Only upon such approval, does the State Government grant aid for payment of salary and other service benefits to the teacher concerned. At the same time, rules relating to the service condition of the teachers of minority schools, are to be based upon the principles of natural justice and prevailing law and are also to be sent to the State Government as provided under section 18(3)(c) of the Act. In the aforesaid scheme of recognition of minority secondary school under the Act of 1981 and approval of appointment of teachers and further, fixation of their salary and grant-in-aid, object and purpose of the issuance of the Circular dated 20th February 1990, is to be appreciated.

13 Applying the ratio of Dr. DudhNath Pandey s [2007(4)JCR 1 (Jhr)(FB)] case and also State of Rajasthan and another s [(2005) 10 SCC 346] case, it is held that the Petitioners are entitled to leave encashment. It is held that the view taken by the learned Single Judge in W.P.(S) No. 522 of 2002 vide order dated is no longer a good law and the order in C.W.J.C No of 1999 (R) is a correct view made by the learned Single Judge. The Reference is answered accordingly. Respondents are directed to pay the leave encashment amount as per the entitlement of the Petitioners within a period of three months from the date of production of a copy of this order. (R. Banumathi, C.J.) Birendra/ (Aparesh Kumar Singh, J.)