Dr. Gianvati v. To be referred to reporters or not?

Judgment

1. Petitioner, who retired as Principal of BPSM Girls College, Khanpur Kalan, Sonepat on 31.12.2002, was released all her retiral benefits like pension, gratuity, provident fund etc. but was not given the benefit of leave encashment. Her representation in this regard was rejected by the respondents vide order dated 25.2.2011 (Annexure P-1). The aforesaid order is under challenge in this writ petition, with a further prayer, directing the respondents to grant the payment of leave encashment to the petitioner along with interest. CWP No.5439 of 2011 2

2. In support of her case for entitlement of leave encashment, petitioner has relied upon a judgment of this Court in the case of Dr. Karan Singh Rathee & ors. v. State of Haryana & ors. CWP No.3732 of 2001 decided on 20.8.2007 (Annexure P-2), wherein it was held that such a privately managed Government aided college is entitled to the benefit of leave encashment. Petitioner has further relied upon a Division

Bench judgment of this Court in the case of Chand Ram Dahiya v. BPS Mahila Vishwa Vidayalaya CWP No.7343 of 2007 decided on 11.8.2008 (Annexure P-3), which reads thus:- “This petition was filed for giving retiral benefits. It is not disputed that retiral benefits have been given except leave encashment. Counsel for the petitioner relies upon judgment of this Court dated 20.8.2007 in CWP No.3732 of 2001 titled as Dr. Karan Singh Rathee and others vs. State of Haryana and others. Inspite of opportunity being given, counsel for the respondent has not been able to distinguish the said judgment. Accordingly, we direct that leave encashment be given in accordance with the judgment relied upon, within three months from the date of receipt of a copy of this order. The petition is disposed of. Sd/- Adarsh Kumar Goel Judge Sd/- Rakesh Kumar Garg Judge

11.8.2008” CWP No.5439 of 2011 3

3. Petitioner has also placed reliance upon judgment of this Court dated 11.5.1998 passed in CWP No.16997 of 1997 titled as Jagdev Singh Dalal v. State of Haryana in support of her claim.

4. On the other hand, claim of the petitioner is being contested by the respondent-State on the ground that in view of Special Pension Scheme, as introduced vide notification dated

31.5.1999 and as amended on 24.1.2001, which was made effective w.e.f. 11.5.2008, the same is specifically applicable to the employees of the aided non-Government colleges and was not comparable to pension rules and policies governing the Government employees and the said Scheme specifically excludes benefits of leave encashment and commutation of pension.

5. Learned State counsel has further placed reliance on judgment of this Court dated 29.2.2012 passed in RSA No.3729 of 2001 titled as State of Haryana & anr. v. Balbir Singh and a Division Bench judgment of this Court in the case of Shiv Niwas Tiwari & ors. v. State of Haryana & ors. 2007(1) SCT 695 to contend that in view of provisions of the Scheme, the benefits such as leave encashment have to be granted by the management of the college/institution itself and cannot be CWP No.5439 of 2011 4 claimed in grant-in-aid Scheme from the respondent-State of Haryana.

6. Learned counsel appearing on behalf of the respondents No.2 and 3-Management of private Government aided institution has resisted the claim of the petitioner on the ground that in view of provisions of the Scheme, the claim of the petitioner is not legally sustainable. The Division Bench judgment of this Court in the case of Chand Ram Dahiya (supra) cannot be pressed into service for allowing the claim of the petitioner, as the same was passed in ignorance of the aforesaid Scheme.

7. I have heard learned counsel for the parties and perused the pleadings as well as the judgments, as cited.

8. The only objection taken on behalf of the respondent- State is that the State cannot be made to pay the claim of leave encashment to the petitioner, as it is for the respondent- management to pay such benefits and the liability cannot be fastened upon the Government.

9. It may further be seen that respondents No.2 and 3 could not dispute the fact that such a claim for leave encashment has been allowed against them by a Division Bench judgment of this Court vide Annexure P-3. The objection taken by the learned senior counsel, appearing on behalf of the respondent-University, is not tenable in view of the fact that a perusal of the aforesaid judgment would show that inspite of the opportunity granted, CWP No.5439 of 2011 5 counsel for the respondent-University failed to contest the claim and distinguish the judgment in the case of Dr. Karan Singh Rathee & ors. (supra). Moreover, no material has been placed on record to show that the judgment in Chand Ram Dahiya (supra) has been challenged by the said respondents. In view of the said fact, the respondent-Management is estopped to challenge the correctness of the judgment and entitlement of other employees, such as the petitioner, to claim the similar benefit. Even before this Court, except for raising the argument, it has not been shown as to how the interpretation in Dr. Karan Singh Rathee (supra) is bad and the Scheme is not applicable in the instant case. At this stage, it may also be noticed that in para 4 of the writ petition, petitioner has specifically averred that Shobha Ram, an employee of the respondent-Management, was given the benefit of leave encashment. This fact is not denied. It may further be noticed that while allowing the claim of the petitioner in Dr. Karan Singh Rathee’s case (supra), this Court has relied upon judgments of this Court passed in CWP No.14188 of 1999 and 3096 of 2001. The respondents have made no effort to distinguish the said two judgments before this Court. In Jagdev Singh Dalal’s case (supra) also, this Court has relied upon a judgment dated

19.1.1995 in CWP No.8580 of 1994 Smt. Prem Lata v. The Director, Technical Education, Haryana and nothing has been said about the said judgments. CWP No.5439 of 2011 6

10. At this stage, it is also useful to refer to the observations of the Hon’ble Supreme Court in State of Rajasthan & anr. v. S.R. Higher Secondary School, Lachhmangarh & ors., Civil Appeal No.9166 of 2003, as under:- “While constructing the provision under consideration, it is to be borne in mind that interpretation of welfare legislation should be to promote education. The service conditions of the employees of the aided institutions are sought to be improved and brought at par with those in government educational institutions to maintain educational standards. It has also to be borne in mind that our Constitution makers have placed the field of education at higher pedestal and granted it a special status. Various provisions of the Constitution deal with the aspect of advancement of education. The primary education has been held to be a fundamental right in decision of this Court in UNNI KRISHANAN, U.P. & ORS. VERSUS STATE OF ANDHRA PRADESH 1993(1) SCC 645 and this aspect still holds the field despite the decision having been over-ruled on some other aspect in T.M.A. Pai Foundation & Ors. Versus State of Karnataka & ors. (2002 (8) SCC 481). To improve education, various State Governments grant aid to educational institutions to extent possible. The provisions of these acts deserve to be liberally interpreted in favour of the teaching class except where statute compel otherwise. A statute of no other State has been brought to our notice where similar benefit has been CWP No.5439 of 2011 7 denied to the teachers of the aided institutions to improve education. The service conditions of teachers also deserve to be improved. Article 21-A added to the Constitution makes education as fundamental. Having regard to the aforesaid, we find it difficult to hold that the High Court has committed any error in coming to the conclusion that the employees of the aided private educational institutions in question are entitled to the benefit of leave encashment at par with employees of Government Institutions.”

11. Faced with this situation, learned senior counsel appearing on behalf of the respondents No.2 and 3 has stated that the respondent/University is 100% funded by the Government and thus, instead of University, the liability should be fastened upon the Government.

12. Be that as it may. Keeping in view the Division Bench judgments of this Court as well as other judgments pressed into service by the respondent-State, this writ petition is allowed and respondents No.2 and 3 are directed to grant the benefit of leave encashment to the petitioner along with interest @ 6% per annum from the date of retirement of the petitioner till its realization, within two months from the date of receipt of a certified copy of this judgment.

13. It is for the respondents No.2 and 3 to claim reimbursement of the aforesaid amount of leave encashment from the Government, if admissible in law. CWP No.5439 of 2011 8 October 19, 2012 ( RAKESH KUMAR GARG ) JUDGE