MOHAMMAD RAFIQ,J. - (1.) All these appeals are directed against the common judgment dated 18.01.2019 passed by the learned Single Judge of this Court, whereby applications filed by the appellants for recall of the orders dated 12.01.2018 and 07.08.2018 passed by the learned Single Judge, have been dismissed. Also under challenge are the aforesaid orders dated 12.01.2018 and 07.08.2018 passed by the learned Single Bench of this Court. Learned Single Judge vide order dated 12.01.2018, which was based on consent of the parties, directed the appellant-Managing Committee to pay full amount of gratuity along with interest @ 6% p.a. till it is actually paid to the employees concerned and further 20% share of the management in respect of other arrears of the employees was also ordered to be released. Vide order dated 07.08.2018, time to comply with the aforesaid order dated 12.01.2018 was extended by further two months on the applications filed by the appellants.
(2.) Mr. Vivek Dangi, learned counsel for the appellants submitted that the learned Single Judge has erred in law in directing payment of gratuity and leave encashment to the respondents much prior to their retirement/ superannuation/ termination of their services. Even though the appellants have paid their share of arrears of 6 th Pay Commission, senior and selection scale and full amount of leave encashment, but the respondents would not be entitled to gratuity and encashment of privilege leaves at this stage as the same is considered as retiral benefits. The respondents are still in service and have yet not retired. Learned counsel referred to Rule 82(1) of the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in- aid and Service conditions etc.) Rules, 1993 (for short 'the Rules of 1993') and argued that the employees of the aided educational institutions shall be entitled to gratuity as admissible under the Payment of Gratuity Act , 1972 (for short 'the Act of 1972'), as amended from time to time. Section 4 of the Act of 1972 provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, (a) on his superannuation or; (b) on his retirement or resignation; and (c) on his death or disablement due to accident or disease. The respondents in the present matters, have neither attained the age of superannuation, nor have retired or resigned from service and not even become incapable to work on account of death or accident or incurable disease. They have rather been absorbed in the services of the State Government under the Rajasthan Voluntary Rural Education Service Rules, 2010 (for short 'the Rules of 2010') and therefore they continue to be in service. The respondents cannot claim payment of gratuity at premature stage.
(3.) Mr. Vivek Dangi, learned counsel argued that as per Rule 47 of the Rules of 1993 read with Rule 91B of the Rajasthan Service Rules, 1951 (for short 'the Rules of 1951'), the benefit of encashment of privilege leaves is also admissible only on retirement of the employee whereas the respondents are still in service. Reliance is placed on judgment dated 07.03.2018 rendered by Division Bench of this Court in Managing Committee, Shri Raghunath Higher Secondary School, Laxmangarh (Sikar) and Another Vs. Mahesh Kumar Sharma and Another (D.B. Special Appeal Writ No. 1758/2017 along with other connected appeals) wherein the appellant-Managing Committee was directed to pay to the State the amount of gratuity and leave encashment. Learned counsel submitted that despite submission of the due drawn statements of the respondents-employees along with original service books/records, the State Government has failed to verify the same and make re- fixation of salary and other emoluments of the respondents as per recommendations of the 6th Pay Commission for the period from 2006 to 2011. In these circumstances, it is not possible for the appellants to even finally ascertain the amount of gratuity or leave encashment payable to the respondents. Reliance is placed on notification issued by the State Government bearing No. F.12(8)FD/Rules/2008 Pt.I dated 06.12.2017, according to which the employees like the respondents, who have joined government service under the Rules of 2010, become entitled to payment of gratuity after completing five years of continuous service. It is argued that on true interpretation of Section 4(3) of the Act of 1972 read with Rule 55(1) of the Rajasthan Pension Rules, 1996 (for short 'the Rules of 1996'), the amount of gratuity payable to the respondents-employees in toto (i.e. total service in non- government institution plus total service in government institutions) shall not exceed Rs. 10 Lacs. However by subsequent amendment, this amount has been enhanced to Rs. 20 Lacs w.e.f. 29.03.2018 or one fourth of their emoluments for each completed six monthly period of qualifying service, subject to a maximum of 16.5 times the emoluments, whichever is less. Similarly, as per Rule 91B of the Rules of 1951, the respondents on superannuation would be entitled for leave encashment of unutilised privilege leaves, but not exceeding 300 days, for the entire period of service in non-government institution plus total service in government. Learned counsel therefore argued that the liability to pay the gratuity and leave encashment cannot be fastened upon the appellants or else there may arise an anomalous situation wherein the employees like the respondents, who have rendered services under both non-government as well as government institutions, would become entitled to gratuity much more than the permissible statutory limit.;