Delhi High Court
Dinesh Chand Sharma vs Rukmani Devi Jaipuria Public School & … on 18 September, 2024
Author: Jyoti Singh
Bench: Jyoti Singh
$~107
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18th September, 2024
+ W.P.(C) 682/2022 and CM APPL. 1952/2022
DINESH CHAND SHARMA .....Petitioner
Through: Mr. Anuj Aggarwal, Ms. Divya
Aggarwal, Mr. Pradeep Kumar and Mr. Avinash
Kumar, Advocates.
versus
RUKMANI DEVI JAIPURIA PUBLIC SCHOOL
& ANR. .....Respondents
Through: Dr. M.Y. Khan, Advocate with
Mr.Rohit Chopra, Manager, for Respondent No.1.
Mr. Yeeshu Jain, ASC with Ms. Jyoti Tyagi,
Ms.Sonu, Mr. Hitanshu Mishra and Mr.Akshun
Thakur, Advocates for Respondent No.2/DoE.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGMENT
JYOTI SINGH, J. (ORAL)
1. This writ petition has been preferred on behalf of the Petitioner under
Article 226 of the Constitution of India seeking release of Gratuity and
Leave Encashment with interest @ 18% per annum till actual payment.
2. Factual matrix to the extent necessary is that Petitioner was appointed
as PTI by Respondent No.1/Rukmani Devi Jaipuria Public School
(hereinafter referred to as the ‘School’) on 16.07.1990. Petitioner preferred a
writ petition being W.P.(C) No.19668/2005 before this Court seeking pay
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revision under 5th CPC which was allowed vide order dated 11.01.2010
directing the School to re-fix the salary of the Petitioner giving benefit of 5th
CPC recommendations with arrears. LPA bearing No.308/2010 filed by the
School against the said order was dismissed by the Division Bench on
11.05.2012.
3. It is averred in the petition that in order to victimize the Petitioner for
filing the writ petition, an inquiry was initiated against him which
culminated into penalty of compulsory retirement vide order dated
30.07.2012. Petitioner challenged the penalty before the Delhi School
Tribunal (‘Tribunal’) in Appeal No.40/2012 and vide order dated
19.04.2016, Tribunal set aside the penalty order and directed reinstatement
with consequential benefits. With respect to back wages, Tribunal directed
the Petitioner to make exhaustive representation to the School within four
weeks under Rule 121 of Delhi School Education Act and Rules, 1973
(‘DSEAR’). The School challenged the order of the Tribunal by filing a
writ petition in this Court being W.P.(C) No.6513/2016, however, writ
petition was dismissed vide judgment dated 05.03.2018 albeit granting
liberty to the School to conduct de novo inquiry within 16 weeks, failing
which Petitioner was to be reinstated with back wages. Petitioner challenged
the judgment dated 05.03.2018 before the Division Bench in LPA
No.210/2018 to the extent liberty was granted to the School to hold a
de novo inquiry. The Division Bench upheld the order of the Tribunal
reinstating the Petitioner with back wages and directed the School to
forthwith appoint him with consequential benefits. School challenged the
order before the Supreme Court in SLP(C) No.10685-10686/2019, which
was dismissed vide order dated 06.05.2019.
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4. It is further averred that Petitioner was reinstated in service on
09.05.2019 but he later tendered his resignation on 13.11.2019, which was
accepted by the School on the same day. Being aggrieved by the action of
the School in not paying gratuity and leave encashment, Petitioner sent a
legal notice dated 14.08.2021 to the School, but getting no response, he filed
the present petition.
5. Mr. Anuj Aggarwal, learned counsel for the Petitioner submits that
leave encashment has been illegally denied to the Petitioner on a frivolous
ground that the School being an unaided school has its own rules and
teachers are well-aware that earned leave is not encashable as teachers are
required to avail the same during the service period. Similar contention
raised by the same school has been negated by this Court in the case of
Sadhna Payal v. Rukmani Devi Jaipuria Public School & Another, 2024
SCC OnLine Del 6326, wherein interpreting the provisions of Section 10(1)
and Rule 111 of DSEAR, this Court has held that all private recognised
schools are bound to follow the mandate of Section 10(1) of DSEAR and
corollary to this is that all benefits that an employee of a government school
with corresponding status is entitled, will have to be given to the employees
of an unaided school, which will include the present school, without any
exception and therefore, leave encashment cannot be denied. In this context,
learned counsel also relies on two judgments of this Court in Smt. Malti
Dhawan v. Directorate of Education & Ors., 2017 SCC OnLine Del 6830
and Amar Jyoti Brahmachari v. Convent of Jesus & Mary School & Anr.,
2023 SCC OnLine Del 6902.
6. Insofar as gratuity is concerned, learned counsel does not dispute that
an amount of Rs.8,07,539/- has been received towards gratuity but submits
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that the School is liable to pay a sum of Rs.20 lacs in view of amendment to
Payment of Gratuity Act, 1972 (‘Gratuity Act’) on 29.03.2018 and therefore,
direction be issued to the School to release the balance amount.
7. Learned counsel for Respondent School fairly and candidly submits
that insofar as the claim of the Petitioner towards leave encashment is
concerned, the same is squarely covered by the judgment of this Court in
Sadhna Payal (supra) and as far as gratuity is concerned, a sum of
Rs.8,07,539/-, has been paid and no further amount is due. However, in case
Petitioner has any surviving grievance he may take recourse to appropriate
remedies in accordance with the Gratuity Act.
8. Mr. Yeeshu Jain, learned ASC appearing on behalf of Directorate of
Education (‘DoE’) submits that the School is an unaided private school
recognised by DoE under provisions of DSEAR. DoE grants recognition to
schools only when they fulfil the requirements of provisions under the said
Act. Under Rule 59 of DSEAR, Managing Committee is entrusted with the
management of any recognised private school and is bound to follow the
provisions of DSEAR while managing the affairs of the school and it is the
statutory liability of the school to pay allowances, retiral benefits and other
facilities at par with the employees of schools of the Delhi Government as
mandated under Section 10(1) of DSEAR. As a matter of record, vide order
dated 25.08.2017, DoE in exercise of powers conferred under Clause
9(xviii) of Rule 50 DSEAR, has directed Managing Committees of all
private unaided recognized schools to implement CCS (Revised Pay) Rules,
2016. Insofar as Leave Encashment is concerned, School cannot absolve
itself from the liability to pay Leave Encashment as this issue is no longer
res integra and has been decided by this Court in the judgments relied
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upon by the Petitioner. Further, Rule 111 of DSEAR stipulates that ‘Every
employee of a recognized private school, whether aided or not, shall be
entitled to such leave as are admissible to employees of a corresponding
status in government schools’ and therefore, if as per the leave record of the
Petitioner, he is entitled to Leave Encashment, the same cannot be denied to
him on the frivolous ground that the School has its own rules and
regulations, which is also factually incorrect as there are no separate rules
governing leave encashment.
9. Heard learned counsels for the parties and examined their rival
submissions.
10. There is no dispute between the parties that the School is an unaided
private school recognized by the DoE and governed by the provisions of
DSEAR. Rule 59 of DSEAR entrusts the Managing Committee of the
School the responsibility to manage the School in accordance with the
provisions of DSEAR. Section 10(1) of DSEAR is a statutory provision and
provides that scales of pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees of a
‘recognised private school’ shall not be less than those of the employees of
the corresponding status in a school run by the Delhi Government. It is a
settled position of law that provisions of Section 10(1) of DSEAR will apply
even to unaided schools including unaided minority schools and in this
context, I may refer to some passages from the judgment of this Court in
Kuttamparampath Sudha Nair v. Managing Committee Sri Sathya Sai
Vidya Vihar and Another, 2021 SCC OnLine Del 2511, as follows:-
“19. In order to decide the vexed question arising before this Court as
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recognized unaided schools, provisions of Section 10 need to be examined
and the same is extracted hereunder for ready reference:–
“10. Salaries of employees.–(1) The scales of pay and allowances,
medical facilities, pension, gratuity, provident fund and other
prescribed benefits of the employees of a recognised private school
shall not be less than those of the employees of the corresponding
status in schools run by the appropriate authority:
Provided that where the scales of pay and allowances, medical
facilities, pension, gratuity, provident fund and other prescribed
benefits of the employees of any recognised private school are less
than those of the employees of the corresponding status in the schools
run by the appropriate authority, the appropriate authority shall
direct, in writing, the managing committee of such school to bring the
same up to the level of those of the employees of the corresponding
status in schools run by the appropriate authority:
Provided further that the failure to comply with such direction
shall be deemed to be non-compliance with the conditions for
continuing recognition of an existing school and the provisions of
section 4 shall apply accordingly.”
20. The issue of applicability of Section 10(1) and other provisions of
Chapter IV of the DSEA&R to unaided minority schools came up for
consideration before the Supreme Court in Frank Anthony (supra) and the
Supreme Court set aside the pre-existing Section 12, which had excluded
the application of Section 10(1) and other provisions to the unaided
minority schools. The Supreme Court also considered whether applying
Section 10(1) would have the impact of eroding the minority character of
the schools which entitles them to a Constitutional protection under
Article 30(1) and held that it did not. The Supreme Court had observed
that excellence of every school, aided or unaided, would depend upon the
quality of its teachers and therefore, provisions like Section 10(1)
mandating payment of salary and allowances cannot be characterized as
unreasonable even in respect unaided minority institutions.
21. The judgment was followed in several cases and was also relied
upon by the eleven-Judge Bench of the Supreme Court in T.M.A. Pai
(supra). Relevant paras of the judgment in Frank Anthony (supra) are as
follows:–
“20. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon
any right of minorities to administer their educational institutions.
Section 8(2), however, must, in view of the authorities, be held to
interfere with such right and, therefore, inapplicable to minority
institutions. Section 9 is again innocuous since Section 14 which
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Section 9. We have already considered Section 11 while dealing with
Section 8(3). We must, therefore, hold that Section 12 which makes the
provisions of Chapter IV inapplicable to unaided minority schools is
discriminatory not only because it makes Section 10 inapplicable to
minority institutions, but also because it makes sections 8(1), 8(3),
8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That
the Parliament did not understand Sections 8 to 11 as offending the
fundamental right guaranteed to the minorities under Article 30(1) is
evident from the fact that Chapter IV applies to aided minority
institutions and it cannot for a moment be suggested that surrender of
the right under Article 30(1) is the price which the aided minority
institutions have to pay to obtain aid from the government.”
21. The result of our discussion is that Section 12 of the Delhi School
Education Act which makes the provisions of Chapter IV inapplicable
to unaided minority institutions is discriminatory and void except to
the extent that it makes Section 8(2) inapplicable to unaided minority
institutions. We, therefore, grant a declaration to that effect and direct
the Union of India and the Delhi Administration and its officers, to
enforce the provisions of Chapter IV [except Section 8(2)] in the
manner provided in the chapter in the case of the Frank Anthony
Public School. The management of the school is directed not to give
effect to the orders of suspension passed against the members of the
staff.
xxx xxx xxx
23. We must refer to the submissions of Mr. Frank Anthony regarding
the excellence of the institution and the fear that the institution may
have to close down if they have to pay higher scales of salary and
allowances to the members of the staff. As we said earlier the
excellence of the institution is largely dependent on the excellence of
the teachers and it is no answer to the demand of the teachers for
higher salaries to say that in view of the high reputation enjoyed by
the institution for its excellence, it is unnecessary to seek to apply
provisions like Section 10 of the Delhi School Education Act to the
Frank Anthony Public School. On the other hand, we should think that
the very contribution made by the teachers to earn for the institution
the high reputation that it enjoys should spur the management to
adopt at least the same scales of pay as the other institutions to which
Section 10 applies. Regarding the fear expressed by Shri Frank
Anthony that the institution may have to close down we can only hope
that the management will do nothing to the nose to spite the face,
merely to “put the teachers in their proper place”. The fear expressed
by the management here has the same ring as the fear expressed
invariably by the management of every industry that disastrous results
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would follow which may even lead to the closing down of the industry
if wage scales are revised.”
22. Relevant paras of the judgment in T.M.A. Pai (supra) are as
follows:–
“124. In Lily Kurian v. Sr. Lewina [(1979) 2 SCC 124 : (1979) 1 SCR
820] this Court struck down the power of the Vice-Chancellor to veto
the decision of the management to impose a penalty on a teacher. It
was held that the power of the Vice-Chancellor, while hearing an
appeal against the imposition of the penalty, was uncanalized and
unguided. In Christian Medical College Hospital Employees’ Union v.
Christian Medical College Vellore Assn. (1987) 4 SCC 691 this Court
upheld the application of industrial law to minority colleges, and it
was held that providing a remedy against unfair dismissals would not
infringe Article 30. In Gandhi Faiz-e-am College v. University of Agra
(1975) 2 SCC 283 a law which sought to regulate the working of
minority institutions by providing that a broad-based management
committee could be reconstituted by including therein the Principal
and the seniormost teacher, was valid and not violative of the right
under Article 30(1) of the Constitution. In All Saints High School v.
Govt. of A.P. (1980) 2 SCC 478 a regulation providing that no teacher
would be dismissed, removed or reduced in rank, or terminated
otherwise except with the prior approval of the competent authority,
was held to be invalid, as it sought to confer an unqualified power
upon the competent authority. In Frank Anthony Public School
Employees’ Assn. v. Union of India (1986) 4 SCC 707 the regulation
providing for prior approval for dismissal was held to be invalid,
while the provision for an appeal against the order of dismissal by an
employee to a tribunal was upheld. The regulation requiring prior
approval before suspending an employee was held to be valid, but the
provision, which exempted unaided minority schools from the
regulation that equated the pay and other benefits of employees of
recognized schools with those in schools run by the authority, was
held to be invalid and violative of the equality clause. It was held by
this Court that the regulations regarding pay and allowances for
teachers and staff would not violate Article 30.”
(emphasis supplied)
23. The issue again came up before the Supreme Court in Raj Soni v.
Air Officer Incharge (Administration), (1990) 3 SCC 261 where the
Supreme Court reiterated and re-affirmed the inflexible nature of the
liability that was binding on a recognized school under the provisions of
the DSEA&R and significant would it be to note that the Supreme Court
categorically held that recognized private schools in Delhi, whether aided
or otherwise, are governed by the provisions of DSEA&R. Relevant para
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of the judgment is as under:–
“11. The recognized private schools in Delhi whether aided or
otherwise are governed by the provisions of the Act and the Rules. The
respondent-management is under a statutory obligation to uniformly
apply the provisions of the Act and the Rules to the teachers employed
in the school. When an authority is required to act in a particular
manner under a statute it has no option but to follow the statute. The
authority cannot defy the statute on the pretext that it is neither a State
nor an “authority” under Article 12 of the Constitution of India.”
24. In P.M. Lalitha Lekha v. Lt. Governor in W.P. (C) No. 5435/2008
decided on 02.02.2011 although the question involved was counting of
service of the Petitioner therein for computing her pension and in that
context was different on facts, but the point of law was the same as the one
arising in the present petition. Co-ordinate Bench of this Court examined
the provisions of Section 10(1) of the DSEA&R and observed that the first
proviso to Section 10(1) clearly obliges the DOE to direct the management
of all recognized private schools to bring all benefits, including inter-alia
pensionary benefits, to the same level as that of the employees of
corresponding status of the schools run by the Director of Education. The
second proviso enables the DOE to withdraw the recognition of the school
under Section 4 of the DSEA&R in case the management fails to comply
with the directions and serves a salutary purpose and empowers the DOE
to issue directions aimed at fulfilling the object of Section 10(1) of the
DSEA&R. It was also held that the mandate of Section 10(1) is
unambiguous, regardless of whether the school receives grant-in-aid or
not. It was also held that it must be kept in mind that the Delhi School
Education Act contemplates unaided private schools also, as they are also
granted recognition and therefore the mandate of Section 10(1) would
apply to them with full rigour. Relevant paras of the judgment are as
under:–
“11. The first proviso to Section 10 of the Delhi School Education Act,
1973 clearly obliges the Director of Education to direct the
management of all recognized private schools to rectify any deficiency
and to bring all benefits, including, inter alia, pensionary benefits up
to the same level as those of employees of corresponding status of the
schools run by the Director of Education. The second proviso further
provides that in case the management of the school fails to comply
with such directions, recognition of the school can be withdrawn
under the powers given in S.4 of the Delhi School Education Act,
1973. This serves a salutary purpose and further empowers the
Director of Education to issue appropriate directions aimed at
fulfilling the object of Section 10(1) of the Act.
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12. The school has been given certain privileges, including
recognition, on condition, inter alia, that it complies with Section
10(1). Due to the non-compliance of the conditions by the respondent
school the petitioner cannot be made to suffer. If the respondent
school does not come forward to honor its employees’ entitlement in
this behalf, then, steps need to be taken by the appropriate authority to
ensure compliance.
13. The payment of pension for the period before the grant-inaid came
into the picture has to be rendered by the school, but post such grant,
the liability shifts to the respondent. This is because the mandate of
Section 10(1) is unambiguous. Regardless of whether it receives
grant-in-aid or not. So long as it is a recognized private school,
pension and other benefits of its employees must be the same as those
admissible to employees of the Authority’s schools. Under the first
proviso, it is the respondent’s duty to ensure that such payment is
made. Under the Second proviso the respondent can take action if
those directions are not followed. The respondents in no circumstance
can be absolved from their duty.
xxx xxx xxx
15. In this context, it must be kept in mind that the Delhi School
Education Act contemplates unaided private schools also. Even such
schools are granted recognition. The mandate of Section 10(1)
applies with full rigour to them also.”
(emphasis supplied)
25. Recently, a Division Bench of this Court in Dhanwant Kaur
Butalia v. Guru Nank Public School in LPA 499/2013 decided on
14.01.2016 reiterated and re-enforced that Section 10(1) with its
consequential resultant mandate that scales of pay, allowances, medical
facilities, gratuity, etc., paid to the Government schools should be paid to
employees of corresponding status in private recognized schools, would
apply to all unaided schools. Section 10(1) is a statutory purity and also a
minimum standard which all recognized schools have to adhere to.
26. In the appeal before the Division Bench, the Appellant was
aggrieved by an order of the learned Single Judge whereby her claim for
increase of salary, consequent to implementation of 6th CPC
recommendation, was rejected. The Appellant invoked provisions of
Section 10(1) of DSEA&R and also relied on earlier judgments of this
Court wherein it was consistently ruled that unaided schools have an
obligation to ensure that emoluments of teachers and other employees are
at par with those in the schools established and maintained by the
appropriate Government. Judgments of this Court in Gurvinder Singh
Saini v. Guru Harkishan Public School in W.P. (C) 12372/2009 decided
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on 02.09.2011, Deepika Jain v. Rukmini Devi Public School in W.P.(C)
237/2013 decided on 23.09.2013 and the judgment of Division Bench in
Guru Harkishan Public School v. Gurvinder Singh Saini in LPA 58/2012
decided on 05.09.2012, were cited by the Appellant and taken note of by
the Division Bench.
27. As the issue before the Division Bench concerned benefits under
6th CPC, reliance was placed on the CCS (Revised Pay) Rules, 2008 and
Office Memorandum dated 30.08.2008 referring to the said Rules. Based
on this, a Circular was issued by the Competent Authority under the DOE
on 15.10.2008, directing the managements of all private recognized (aided
as well as unaided) schools to implement 6th CPC recommendations. After
a conjoint reading of the circulars and the Pay Rules, the Division Bench
held as follows:–
“6. The Court also notices that the pre-existing Section 12 which had
excluded the application of Section 10 and other provisions of the
Chapter, to unaided minority schools was set aside by the Supreme
Court in Frank Anthony School Employees Association v. Union of
India (1986) 4 SCC 707 : AIR 1987 SC 311. The Supreme Court
expressly considered the impact of Section 10 and whether it had the
effect of eroding the minority character of schools entitled to
protection under Article 30 and concluded that it did not. The said
judgment has been constantly followed and it was not overruled but
was approved in TMA Pai Foundation’s case (supra). Section 10 with
its consequential resultant mandate is that scales of pay, allowances,
medical facilities, gratuity, provident fund “and other prescribed
benefits” which employees of “corresponding status” in schools of the
appropriate government are to be granted to employees of all unaided
schools.
7. This ipso facto ought to clinch the case in favour of the present
appellant. Section 10 is a statutory purity and also a minimum
standard which all recognized schools have to adhere to.
xxx xxx xxx
10. The said office memorandum of 30.08.2008 also referred to the
Central Civil Service Revised Pay Rules, 2008. The effect of all these
office memoranda (dated 11.09.2008, 22.09.2008 and 15.10.2008) is
that the managements of all private recognized schools aided as well
as unaided had to implement the 6PC Recommendations, in the
manner stipulated by Section 10 of Delhi Education Act. Circular
dated 15.10.2008 was categorical in this regard. It reads as under:
“Section 10(1) of Delhi School Education Act 1973 provides that:
“The scales of pay and allowances, medical facilities,
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pension, gratuity, provident fund and other prescribed benefits of
the employees of a recognized private school shall not be less than
those of the employees of the corresponding status in school run by
the appropriate authority.”
Therefore, the Management of all private recognized, (Aided as well
as unaided) schools are directed to implement the Sixth Pay
Commission recommendations – fixation of pay and payment of
arrears in accordance with circular no. 30-3(17)/Cood/Cir/2008
dated 22.09.2008 vide which it has been implemented in r/o employees
of Government Schools. This issue with prior approval of competent
Authority.”
11. A co-joint reading of all circulars would immediately reveal that
the 6PC recommendations were accepted and the Central Government
formulated the revised pay rules with effect from 01.01.2006. The
rules were published in 2008. Nevertheless, the entitlement following
from it accrued to all with effect from 01.01.2006. The only exception
was that certain types of allowances i.e. HRA, children’s education
allowance, special compensatory allowance etc. were to be paid
prospectively with effect from 01.09.2008 (refer para 3 of OM dated
30.08.2008). In all other respects, the pay parity mandated for
government of NCT teachers was to apply to teachers and staff
members of unaided schools – minority and non-minority schools.
xxx xxx xxx
13. In the present case, Section 10 remains on the statute book; it was
declared to be applicable to all unaided schools including minority
schools, from 1986 onwards i.e. with the declaration of the law in
Frank Anthony School Employees Association’s case (supra). There is
no dispute that the 6PC recommendations were to be implemented
from the date the Government of NCT implemented it. Such being the
case, the respondent school in the present case could not have claimed
ignorance of application of Section 10 and stated that it was obliged
to pay arrears or implement the 6PC recommendations with effect
from the date later than that applicable in the case of Government of
NCT teachers and teaching staff in its schools.
14. As a consequence and in the light of the previous order of this
court in Gurvinder Singh Saini’s case (supra) and Uma Walia’s case
(supra) the impugned order and judgment of learned Single Judge is
hereby set aside. The respondent is directed to disburse all the arrears
of salary and allowances payable pursuant to 6PC recommendations –
to the appellant except those expressly denied by virtue of the Central
Government’s Office Memorandum dated 30.08.2008, within six weeks
from today.”
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28. Contention of learned counsel for the School that Section 10(1)
does not specifically include unaided private schools may seem attractive
at the first blush, if one was to superficially look at the provisions of the
Section, where the words used are ‘recognized private school’. However,
the contention cannot be accepted in view of the various judicial
pronouncements where the provision of Section 10(1) has been interpreted
to include both aided and unaided schools. The Division Bench in
Dhanwant Kaur (supra) has clearly held that the mandate of Section 10(1)
would apply to all unaided schools as the minimum standard that the
provision ensures must be adhered to by all recognized schools.
29. In Dev Dutt Sharma v. Managing Society National Public School
in W.P. (C) 11563/2009 decided on 02.07.2010, a Co-ordinate Bench of
this Court pronounced that the mandate of Section 10(1) is unambiguous,
regardless of whether the institution receives grant-in-aid or not. Since the
Act itself contemplates unaided private schools for recognition, mandate
will apply with full rigour to them. The Supreme Court in Frank Anthony
(supra) held that impact of Section 10(1) would not have the effect of
eroding the minority character of the Minority Institutions, who are
entitled to protection under Article 30(1) of the Constitution of India.
30. Additionally, it may be noted that this is also the understanding of
the DOE which is implicit in the various Circulars issued by them from
time to time in this regard. Vide order dated 19.08.2016, DOE, in exercise
of powers conferred under Sections 17(3), 24(3) and 18 of the Delhi
School Education Act, 1973 read with Rules 50, 177 and 180 of the Delhi
School Education Rules, 1973 adopted the CCS (Revised Pay) Rules,
2016, under which benefits of 7th Pay Commission are paid to the
Government employees. Directions were accordingly issued by the DOE,
vide Circular dated 17.10.2017 to all the unaided private recognized
schools to extend the benefits of 7th CPC to its employees in accordance
with Section 10(1) at par with the Government employees. By another
order dated 09.10.2019, the DOE reiterated its directions to the unaided
schools to comply with the mandate of Section 10(1), failing which
necessary action shall be taken as per provisions of DSEA&R against the
defaulting Schools. Relevant paras of the order dated 17.10.2017 are as
under:–
“In continuation of this Directorate’s Order No.
DE.15(318)/PSB/2016/18117 dated 25/08/2017 and In exercise of the
powers conferred under action 17(3) and section 24(3), of the Delhi
School Education Act, 1973 read with sub sections 3, 4 and 5 of
Section 18 of the Delhi School Education Act, 1973 and with rules 50,
177 and 180 of the Delhi School Education Rules, 1973 and in
continuation of the previous ordersNo.DE. 15/Act/Duggal.
Com/203/99/23039-23988 dated 15.12.1999, F.DE 15/Act/2K/243/
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KKK/883-1982 dated 10.02.2005, E.15/Act/2006/738-798 dated
02.02.2006, relevant paras of F.DE/15 (56)/Act/2009/778 dated
11.02.2009, F.DE-15/ACT-I/WPC-4109/13/6750 dated 19.02.2016,
F.DE-15/ACT-I/WPC-4109/PART/13/7905-7913 dated 16.04.2016 &
F.DE/PSB/2017/16604 dated 03/07/2017, I, Saumya Gupta, Director
of Education, hereby issue following directions to all the Unaided
Private Recognized Schools in the National Capital Territory of Delhi
for the implementation of 7th Central Pay Commission’s
Recommendations under Central Civil Services (Revised Pay) Rules,
2016 with effect from 01.01.2016.
xxx xxx xxx
2. Period of Implementation of 7th CPC
The benefits of 7th Central Pay Commission Recommendations have
been implemented by the Govt. of India, Department of Expenditure,
Implementation Cell, Ministry of Finance in a staggered manner. As
per the notification dated 25/07/2016 issued by Govt. of India,
Ministry of Finance, basic pay of the Govt. employee has been
increased for the period 01/01/2016 to 30/06/2017 and increased
allowances have been allowed to the Govt. employees w.e.f.
01/07/2017. Thus, in accordance with sub-section (1) of Section 10 of
Delhi School Education Act, 1973, the benefits of the
recommendations of 7th CPC to the employees of Private Unaided
Recognized Schools of Delhi will also be extended in a similar
manner.”
31. Relevant paras of order dated 09.10.2019 are extracted as
under:–
“Whereas, in accordance with Section 10(1) of Delhi School
Education Act 1973, scales of pay and allowances, medical facilities,
pension gratuity, provident fund and other prescribed benefits of the
employees of a recognized private school shall not be less than those
of the employees of the corresponding status in school run by the
appropriate authority.
xxx xxx xxx
And whereas, in exercise of the powers conferred under clause (xviii)
of rule 50 of the Delhi School Education Rules, 1973, vide Competent
Authority order No. DE. 15 (318)/PDB/2016/18117, dated
25.08.2017, the managing committees of all Private Unaided
Recognised Schools have already been directed to implement Central
Civil Services (Revised Pay) Rule, 2016 in respect of the regular
employees of the corresponding status with effect from 01.01.2016
(for the purpose of pay fixation and arrears). Further,Signature Not Verified
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guidelines/detailed instructions for implementation of 7th CPC
recommendations in Private Unaided Recognized Schools of Delhi
has also been issued vide DoE order dated 17.10.2017.
xxx xxx xxx
Now, therefore, the managing committees of all Private Unaided
Schools are hereby once again directed to comply with the directions
containing in order issued vide letter No. DE. 15
(318)/PSB/2016/18117 dated 25,08.2017, within 15 days, in order to
implement Central Civil Services (Revised Pay) Rules, 2016 w.e.f.
01,01.2016 (for the purpose of pay fixation and arrears) in respect of
the regular employees of the corresponding status in their schools as
adopted by DoE for employees of government schools, failing which
necessary action shall be taken as per the provisions of DSEAR, 1973,
against the defaulting schools.”
32. In the short affidavit filed by the DOE before this Court, the same
stand has been reiterated and relevant paras from the affidavit are as
under:–
“7. That it is pertinent to mention here that vide order 25.08.2017, the
competent authority of the Answering Respondent in exercise of the
powers conferred under clause 9 (xviii) of Rule 50 DSEAR 1973, had
directed the managing committees of all the private unaided
recognized schools were directed to implement Central Civil Services
(Revised Pay) Rule, 2016 in respect of the regular employees of the
corresponding status with effect from 01.01.2016 (for the purpose of
pay fixation and arrears). It is further submitted that
guidelines/detailed instructions for the implementation of 7th CPC
recommendations in private unaided recognized schools of Delhi were
also issued by the Answering. Respondent vide order dated
17.10.2017.
xxx xxx xxx
9. That in view of the aforementioned orders dated 25.08.2017 and
09.10.2019, the Respondent School’s reply dated 11.10.2019 was not
found satisfactory by the Answering Respondent, therefore, the
Answering Respondent issued another email dated 14.10.2019 to the
Respondent No. 1 School directing it to comply with the provisions of
DSEAR 1973 and submit the report of compliance within one week.
Since no compliance report was received from the Respondent No. 1
School, the Answering Respondent sent reminder emails dated
17.10.2019, 23.10.2019, and 28.01.2020. A copy of the Answering
Respondent’s email dated 14.10.2019 by the Answering Respondent to
the Respondent No. 1 School is being annexed herewith and marked
as ANNEXURE R2/5. Copies of the reminder emails datedSignature Not Verified
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17.10.2019, 23.10.2019, and 28.01.2020 to the Respondent No. 1
School are being annexed herewith and marked as ANNEXURE R2/6
(Colly).
xxx xxx xxx
14. It is submitted that whenever the managing committee or manager
of any school neglects to perform any of the duties imposed on it by or
under DSEAR, the Answering Respondent is authorized to either
withdraw the recognition of the School or if it is expedient in the
interests of school education, to take over the management of such
school under Section 20 DSEAR. It is submitted that Section 10 of
DSEAR provides for salaries and allowances to be paid to the
employees and the consequences if the same are not being paid by the
School. It is pertinent to mention here that if the teachers are not
being paid salaries in terms of Section 10 DSEAR, the recognition of
the School granted under Section 4 of DSEAR, can be withdrawn. …..
15. That as stated hereinabove, the Respondent School is liable to pay
salary as per 7th CPC w.e.f 01.01.2016 and as per Section 10 DSEAR
and if the same is not complied the Answering Respondent will take
action against the Respondent School as per due process of law.” 33.
The Court notes that the DOE has consistently taken a stand that the
private recognized unaided schools are bound to comply with
provisions of Section 10(1) and this is discernible from Circular dated
15.10.2008 issued by the DOE after the CCS (Revised Pay) Rules,
2008 were notified, pursuant to 6th CPC. The Circular was taken note
of by the Division Bench in Dhanwant Kaur (supra) and is extracted
in the earlier part of the judgement. This obviates any doubt that
provisions of Section 10(1) of the DSEA&R shall apply to the
Respondent/School and it is under a statutory obligation to pay the
revised salaries and emoluments under 7th CPC to the Petitioners, in
accordance with the various DOE circulars and orders referred and
alluded to above.”
11. From the various judgments of the Supreme Court, referred to in the
aforesaid judgment and a plain reading of Section 10(1) of DSEAR, there
can be no doubt that all private recognized schools are bound to follow the
mandate of Section 10(1) of DSEAR and in this light, contention of the
School in the present case that it is not covered under Section 10(1) of
DSEAR only deserves to be rejected. The corollary to this is that all benefits
that an employee of a government school with corresponding status is
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entitled, will have to be given to the employees of the present school,
without any exception and this, to my mind, would also include the benefit
of Leave Encashment. Even otherwise, this issue is no longer res integra as
rightly pointed out by the counsels for the Petitioner and the DoE and I may
refer to the judgment in Amar Jyoti Brahmachari (supra), wherein this
Court inter alia dealing with the issue of Leave Encashment under Section
10(1) of DSEAR held as follows:-
“31. Now dealing with issue whether the petitioner would be entitled to
the benefit of leave encashment or not. Leave encashment refers to the
translation of leaves into money. The Encashment of Earned Leave/Half
Pay Leave standing at the credit of the retiring employee is admissible on
the date of retirement subject to a maximum of 300 days. Rule 39 of
the Central Civil Services (Leave) Rules, 1972, which deals with the Leave
Encashment, which is relevant, is extracted for perusal of this Court in this
regard-
“39. Leave/Cash payment in lieu of leave beyond the date of
retirement, compulsory retirement or quitting of service
(1) No leave shall be granted to a Government servant beyond-
(a) the date of his retirement, or
(b) the date of his final cessation of duties, or
(c) the date on which he retires by giving notice to Government or
he is retired by Government by giving him notice or pay and
allowances in lieu of such notice, in accordance with the terms and
conditions of his service, or
(d) the date of his resignation from service.
(2) (a) Where a Government servant retires on attaining the normal
age prescribed for retirement under the terms and conditions
governing his service, the authority competent to grant leave shall suo
motu issue an order granting’ cash equivalent of leave salary for
earned leave, if any, at the credit of the Government servant on the
date of his retirement, subject to a maximum of [300 days (including
the number of days for which encashment has been allowed along
with Leave Travel Concession while in service)].”
32. The aforesaid principle has been enunciated in the judgment of the
Coordinate bench of this Court in Malti Dhawan v. Directorate of
Education, 2017 SCC OnLine Del 6830 as follows:
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“3. Petitioner will also be entitled to leave encashment benefit on
account of her service with the respondent no. 2/school at the time of
retirement in view of Section 10 of the Delhi School Education Act,
1973 because employees and teachers of private schools in Delhi have
to be paid the same monetary benefits as are paid to employees and
teachers of government schools and government aided schools. In
government schools and government aided schools employees get
leave encashment benefits and hence the petitioner is thus also
entitled to leave encashment benefit from the respondent no.
2/school.”
33. In the instant petition, the petitioner submitted that as per the
record, petitioner had 288 days’ Earned Leave to his credit as on the date
of his retirement for which he is liable to be paid.
34. This Court is of the view that the Petitioner having served as an
employee in the respondent School is entitled to the retirement benefit of
leave encashment as Section 10 DSEAR, 1973 read along with Rule 39
of Central Civil Services (Leave) Rules, 1972 casts an obligation upon the
private schools to provide the same monetary benefits to their employees
as are paid by government schools. Therefore, the petitioner Teacher is
entitled to receive leave encashment for 228 days as per leave account of
the petitioner.
35. In view of the foregoing discussion, this Court is of the view that
the petitioner is entitled to grant of retiral benefits, i.e. gratuity and leave
encashments of 288 days. Accordingly, issue pertaining to retiral benefits
has been decided by this Court.”
12. Additionally, Rule 111 of DSEAR also comes to the aid of the
Petitioner and is extracted hereunder, for the ease of reference:-
“111. Leave of absence
Every employee of a recognised private school, whether aided or
nut, shall be entitled to such leave as are admissible to employees of a
corresponding status in government schools.”
13. Recently this Court in Sadhna Payal (supra), following the aforesaid
judgments has held as follows:-
“13. Plain reading of the Rule shows that every employee of a recognized
private school, even if unaided will be entitled to leave as admissible to
those of corresponding status in Government schools and there is thus no
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accumulated during his or her service and not availed, be not granted at
par with the employees of Government schools. The School has been
unable to show any statutory rule to the contrary that permits it to deny
Leave Encashment to the Petitioner. The judgment of the Jammu and
Kashmir High Court in Project Construction Corporation Workers
Association (supra) will not aid the School as the Court was not in seisin
of a provision pari materia to Section 10(1) of DSEAR, which as noted
above mandates that the scales of pay and allowances as well as other
prescribed benefits of the employees of a recognized private school shall
not be less than those of the employees of the corresponding status in the
school run by the appropriate authority and this Court in two judgments
mentioned above has already ruled that by virtue of Section 10(1), the
employees of recognized private schools shall be entitled to Leave
Encashment.
14. It is accordingly held that Petitioner will be entitled to Leave
Encashment albeit payment will be subject to her leave record. There is no
dispute per se by the School with respect to the entitlement of the
Petitioner to Gratuity and the pending issue is only respect to the
quantum, as Petitioner has admittedly received part amount.”
14. In light of Section 10(1) of DSEAR, Circulars of DoE and the
aforementioned judgments, there can be no trace of doubt that Petitioner is
entitled to leave encashment and gratuity. It is an undisputed position
between the parties that an amount of Rs.8,07,539/- has been paid to the
Petitioner towards gratuity. Therefore, the dispute that remains is with
regard to quantum of the amount payable towards leave encashment and the
balance amount of gratuity. At this stage, learned counsel for the Petitioner
submits that it would suffice if Petitioner is permitted to make a
comprehensive representation to the School seeking leave encashment and
also the remaining amount of gratuity along with detailed calculations of the
amount which are outstanding according to the Petitioner.
15. In my view, it would be the correct course of action to permit the
Petitioner to make a representation to the School seeking leave encashment
and remaining gratuity as this is a matter of calculations and the School will
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be better equipped to work out the amounts due, with the help of the
Petitioner and the School records. As and when the representation is
received by the School along with the calculations, a decision shall be taken
within six weeks of the date of receipt of the representation. Whatever
amounts are found due and payable to the Petitioner, shall be paid within
two weeks thereafter. In case of any surviving grievance, Petitioner will be
at liberty to bring the discrepancy to the notice of the School and the School
will examine the same. Needless to state that if any grievance still survives,
Petitioner will be at liberty to take recourse to legal remedies, if so advised.
16. Writ petition stands disposed of in the aforesaid terms. Pending
application also stands disposed of.
JYOTI SINGH, J
SEPTEMBER 18, 2024
B.S. Rohella/shivam
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