State Of M.P.& Ors vs V.V.Ashthana & Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A.NO.4 OF 2008

IN

Special Leave Petition No. 19188 of 2008

State of M.P. & Ors. ....Petitioners

Versus

V.V. Ashthana & Ors. .... Respondents

ORDER

1. State of Madhya Pradesh, the original petitioner in the Special

Leave Petition, has renewed its prayer for Stay. In the above said

Special Leave Petition, a notice is already issued on the limited point as

to whether any direction can be issued in a proceeding arising out of

contempt. The impugned order in the Special Leave Petition is passed

by the Learned Single Judge of the High Court in the contempt

jurisdiction on a petition having been filed before him by the 30 school

teachers complaining of the non-compliance of Order dated 29.1.2003

passed by the High Court in Writ Petition No. 2029 of 2000. The Learned

Single Judge, while disposing of the said Writ Petition No. 2029 of 2000

had observed as under:-

2

"Considering the totality of the facts and circumstances and the legal position that emerges from the series of judgments referred to hereinbefore, there cannot be any doubt that in the present case also, the petitioners are entitled to benefit of revised pay scales as is being granted to other similarly situated teachers, who are employed in the Govt. Institute. The respondents cannot deny the aforesaid benefit to the teachers working in the institute receiving grant-in-aid. As has been considered in the cases referred to hereinabove and in particular in the case of Ashok Kumar Gupta (supra), wherein Rule 33(1) of the Adhiniyam of 1978 was considered in view of the aforesaid position and the direction given by this Court in various cases, the present petition is also allowed.

The respondent/State is directed to extend the same benefit to the petitioners also in the present case and grant benefit of revision of pay scale to the extent as has been directed by the Division Bench of this Court in the case of Suresh Kumar Vs. State of M.P. and others. Needless to emphasize that grant of aforesaid benefit shall always be subject to statutory rules as is applicable from time to time in this regard.

Accordingly, the petition is allowed. Respondents are directed to make the payment in accordance with the aforesaid direction."

The teachers complained that in spite of this order, the payments

were not being made in the revised pay scales (which were revised as

per the Vth Pay Commission and which pay scales were been paid to the

teachers employed in the Government Institutes). It was an admitted

position that in Writ Petition No. 2029 of 2000, that Court relying on some

other decisions, clearly held that the teachers, who were employed in the

private aided schools, also were entitled to the benefits of the revised pay

scales. It was on that basis that the contempt application was moved,

since those benefits were not being passed to the teachers of the private

schools, aided by the Government. The Learned Judge in the contempt

petition also noted that the entitlement, as was found by the Learned 3 Single Judge in the Writ Petition was challenged before the Division

Bench in Letters Patent Appeal (LPA) No. 48 of 2003, however, the

Division Bench had also dismissed the said Letters Patent Appeal (LPA),

thereby confirming the judgment of the Learned Single Judge. The

matters did not stop here and the Learned Judge had further noted that

the State had challenged the judgment passed in the LPA before this

Court in SLP(C) No. 1085 of 2004 and had also prayed for staying the

order of the Learned Single Judge, however, this Court did not grant the

stay, though the leave was granted (now, C.A. No. 6399 of 2004). The

Learned Judge also noted the intervention of an Act called M.P.

Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyaon

Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter called `Adhiniyam'

for short), under which the State Government had issued an order dated

21.1.2000, directing that after 1.4.2000, the grant-in-aid, which was

granted to the private institutions, would be reduced every year by 20%

and thus, after five years, the aforesaid amount would be entirely

stopped. The constitutional validity of the amending Act 26 of 2000 to

this Adhiniyam was challenged in various petitions before this Court. The

Division Bench had declared the said Amendment Act No. 26 of 2000 as

ultra vires and constitutional invalid, having been hit by Article 14 and 21

of the Constitution of India, and further that this judgment was challenged

before this Court, where this Court had passed an order dated 6.5.2002

in SLP(C) No. 8534 of 2002, issuing notice and staying the operation of

the judgment. However, a condition was imposed that the State shall 4 continue to give grant-in-aid at the rate of 50% for the year 2002-03 to the

respondent educational institutions. This Court then, in the same matter,

passed an order on 23.1.2004, whereby, petitioner-State was directed to

pay the entire arrears of salary, as per the orders of the Court to the

respondent teachers within a period of four weeks.

2. It appears that these arrears were paid. The State Government

paid all its liabilities even as per the Vth Pay Commission, starting from

1.1.1996 to 31.3.2000, however, thereafter, the State Government did not

pay as per the Vth Pay Commission, and the teachers of the private-

aided institutions got their old pay only, that too at the rate of 50% as

ordered by this Court in SLP(C) No. 8534 of 2002. After considering in

details the subsequent orders passed by the Madhya Pradesh High Court

in Division Bench, which had attained finality by the orders dated

27.1.2006 and 9.2.2007 passed by this Court, the Learned Judge came

to the conclusion that the teachers were entitled to get the benefits of the

Vth Pay Commission since the question of benefits of Vth Pay

Commission had attained the finality before this Court. The Learned

Judge, dealing with the contempt matter, therefore, ordered to make

payment of the 50% of the amount calculated on the grant-in-aid after

extending the benefit of the Vth Pay Commission.

3. Dr. Rajeev Dhawan, Learned Senior Counsel, appearing on behalf

of the respondents, pointed out that the question of non-entitlement of the

Vth Pay Commission benefits on the part of the teachers, could not have

been wrecked up by the State, particularly, in the wake of the fact that the 5 Writ Petition in their behalf was allowed, and the said judgment was

confirmed in the LPA, and the stay was refused by this Court. Dr.

Dhawan pointed out that even otherwise, it would be unfair to deprive the

teachers of the benefits of the Vth Pay Commission, particularly, in the

wake of the fact that they were being paid only 50% of the amount, in

view of the orders passed by this Court in SLP(C) No. 8534 of 2002

State of Madhya Pradesh & Ors. Vs. Sharique Ali & Ors., wherein the

judgment passed by the Madhya Pradesh High Court, holding the

Adhiniyams to be constitutional invalid, was pending.

4. Shri U.U. Lalit, Learned Senior Counsel appearing on behalf of the

State Government, however, pointed out that whole policy of the state

Government had been changed and the State Government had decided

to withdraw the grants in a phased manner in five years' time and pour all

the funds, so saved by withdrawal of the grants, for the cause of primary

education. The Learned Counsel further pointed out that the basic

question of the payment of grants, itself was not finally decided before

this Court and was pending, therefore, under such circumstances, the

State Government could not be compelled to take up the additional

burden, created by the Vth Pay Commission. The Learned Counsel

pointed out that if ultimately this Court holds the Adhiniyam to be valid,

then apart from the 50% of the grants, which have been ordered to be

paid by this Court, even the additional amounts required for payments as

per the Vth Pay Commission, would be a total waste and the whole

amount will go into the drain, and thereby, the State Government would 6 suffer a serious financial debacle. The Learned Counsel, therefore, said

that the direction given by the Learned Judge in the contempt

proceedings, is liable to be stayed.

5. We will not go into the depth of the matter at this stage, however, it

will be better if the teachers are paid the benefits of the Vth Pay

Commission upto 31.3.2009. The matter shall be heard in the first week

of April, 2009 peremptorily. We further clarify that this payment of

additional benefit as per the Vth Pay Commission, will of course be

subject to the judgment in this case, as also in the main matter of State

of Madhya Pradesh & Ors. Vs. Sharique Ali & Ors. (cited supra),

where the question of constitutionality of Adhiniyams is pending. The

parties are agreed that both the matters should be tagged together, and

even that matter should be heard in the first week of April, 2009. We

accordingly dispose of this stay application in the light of observations

made above.

...................................J. (Tarun Chatterjee)

......................................J. (V.S. Sirpurkar)

New Delhi;

December 18, 2008 7