STATE OF CHHATTISGARH, V. THE PRESIDENT, MANAGING COMMITTEE,

WA/194/2021

AI Insights

The case involves a series of writ appeals filed by the State of Chhattisgarh against the judgment of the learned Single Judge, which had favored the private aided educational institutions regarding the payment of gratuity to teachers. The core issue was whether the State should be considered the employer of the teachers in these institutions and thus responsible for paying gratuity, and whether the cut-off date for gratuity payments set by the State was arbitrary. The High Court examined the legislative intent, the amendments to the Payment of Gratuity Act, 1972, and the financial implications of the State's policy. The court concluded that the State is not the employer and upheld the cut-off date for gratuity payments.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 725923 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 10-05-2024
• Assessment Year: misc
• Other Referred Cases: Ahmedabad Pvt. Primary Teachers' Association v. Administrative Officer and Others, St. Xavier's H.S. School v. State of Chhattisgarh and Others, Suresh Kumar Dwivedi and Others v. State of Madhya Pradesh and Others, Union of India and Others v. Tejram Parashramji Bombhate and Others, State of Maharashtra and Another v. Bhagwan and Others, State of Tripura and Others v. Smt. Anjana Bhattacharjee and Others, Krishna Gopal Tiwary and Another v. Union of and Others, Independent Schools' Federation of India (Regd.) v. Union of India and Another
• Laws Referred To: Payment of Gratuity Act, 1972, Chhattisgarh Ashashkiya Shikshan Sanstha (Anudan Ka Pradaya) Adhiniyam, 1978, Chhattisgarh Societies Registration Act, 1973, Chhattisgarh Finance Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: AMRITO DAS; MANOJ PARANJPE; SHIV SHRIVASTAVA
• Assessee Lawyers: RAHUL TAMASKAR
• Keywords: Educational Institutions; Employer-employee relationship; Gratuity; Retrospective effect; State Government
• Section: 7; 13A; 2(e); 2.1

Judgement Text

" -1- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . AFR HIGH COURT OF CHHATTISGARH, BILASPUR (Judgment reserved on : 20.03.2024) (Judgment delivered on : 10.05.2024) WRIT APPEAL NO. 194 OF 2021 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.240 of 2016) 1. State of Chhattisgarh, through the Secretary, Finance Department, Mahanadi Bhawan, Mantralaya, New Raipur, Police Station Rakhi, District Raipur, Chhattisgarh. 2. The Secretary, Government of Chhattisgarh, Department of School Education, Mahanadi Bhawan, Mantralaya, New Raipur, Police Station Rakhi, District Raipur, Chhattisgarh. 3. The District Education Officer, Koriya, District Koriya (Baikunthpur), Chhattisgarh. … Appellant(s) Versus 1. The President, Managing Committee, Lahari Multipurpose Higher Secondary School, Chirmiri, District Koriya, Chhattisgarh. 2. The Principal, Lahari Multipurpose Higher Secondary School, Chirmiri, District Koriya, Chhattisgarh. 3. The Controlling Authority, under Payment of Gratuity Act cum Labour Officer, Baikunthpur, District Koriya (Baikunthpur), Chhattisgarh. 4. L.N. Jaiswal (Died), through Lrs:- -2- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 4(A) Smt. Urmila Devi Wd/o - Late Shri L. N. Jaiswal R/o - Ward No. 28 Bada Bazar, Post Chirmiri District - Manendragarh-Chirmiri- Bharatpur, Chhattisgarh. 4(B) Sandeep Jaiswal S/o Late Shri L. N. Jaiswal R/o - Ward No. 28 Bada Bazar, Post Chirmiri District Manendragarh-Chirmiri-Bharatpur, Chhattisgarh. … Respondent(s) with WRIT APPEAL NO. 128 OF 2021 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.223 of 2017) 1. State of Chhattisgarh, through Chief Secretary, Mahanadi Bhawan, Capital Complex, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh 2. Principal Secretary, Department Of School Education, Mantralaya, Mahanadi Bhawan, Capital Complex, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh 3. Commissioner, Department of Public Instructions, Secretariat Mahanadi Bhawan, Naya Raipur, Chhattisgarh 4. District Education Officer, Ambikapur District Surguja, Chhattisgarh ...Appellant(s) Versus 1. Ambika Mission Boys Middle Shool Ambikapur Through Its Manager, Robert Tigga, S/o Abraham Tigga, Aged About 49 Years, R/o Ambika Mission Boys Middle School Ambikapur, District Surguja Chhattisgarh -3- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. Anil Kumar Tirkey, S/o Late Ausustian Tirkey, Retired Teacher, R/o Dhobipara, Fundrudehari, Ambikapur, District Surguja, Chhattisgarh ...Respondent(s) with WRIT APPEAL NO. 221 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.101 of 2019) 1. State of Chhattisgarh, through Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur (C.G.) 2. Director, Directorate of Public Instructions, Sector-19, Kotara Bhanta, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, having its Registered Office at Gudhiyari, Raipur, Thana & Post Gudhiyari, District Raipur Chhattisgarh, through its Secretary, Shri Raj Kamal Boob, S/o Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana & Post Gudhiyari, District Raipur, Chhattisgarh. 3. Shri Thomas, P.C. R/o Quarter No. J/498, Tilak Nagar, Gudhiyari, District Raipur, Chhattisgarh. ...Respondent(s) with -4- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . WRIT APPEAL NO. 228 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(S) No.5277 of 2014) 1. State of Chhattisgarh, through Secretary, Department of Finance & Planning, Mantralaya, Mahanadi Bhawan, Naya Raipur, Civil & Revenue District Raipur, Chhattisgarh. 2. The Secretary, Department of School Education, Mantralaya, Mahanadi Bhawan, Naya Raipur, Civil & Revenue District Raipur, Chhattisgarh. 3. The Secretary, Department of Scheduled Tribes & Scheduled Caste Development, Mantralaya Mahanadi Bhawan, Naya Raipur, Civil and Revenue, District Raipur, Chhattisgarh. 4. The Secretary, Department of Labour Mantralaya, Mahanadi Bhawan, Naya Raipur, Civil & Revenue District Raipur, Chhattisgarh. 5. The Director, Directorate of Public Instruction, Pension Bada, Raipur Civil & Revenue, District Raipur, Chhattisgarh. 6. The Commissioner Scheduled Tribes & Scheduled Caste Development Department, Ravishankar University Premises, Civil & Revenue District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Rashtriya Vidyalaya Samiti, Society Registered Under Society Registration Act XXI of 1860, Presently a Society Under Society Registration Act, 1973, having its Office at Bal Ashram Parisar, Kutchery Chowk, Raipur, Tahsil Revenue & Civil District Raipur, Chhattisgarh, Pin Code 492001 Through Its Treasurer Roopchand Shri Shrimal S/o Late Kundanmal Ji Aged About 62 Years, C/o Rashtriya Vidyalaya Samiti, Bal Ashram Parisar, Kutchery Chowk, Raipur Tahsil Revenue & Civil District Raipur Chhattisgarh. Pin Code 492001. ...Respondent(s) -5- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . with WRIT APPEAL NO. 233 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.228 of 2017) 1. State of Chhattisgarh, through Chief Secretary, Secretariat, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh. 2. The Principal Secretary, Department of Education, Government of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur (CG) 3. The Commissioner, Department of Public Instruction, Government of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur (CG) 4. The District Education Officer, Ambikapur, District Sarguja (C.G.) ...Appellant(s) Versus 1. Shri Ambika Mission Boys Middle School Ambikapur, Through Its Manager, Shri Robert Tigga, S/o Shri Abraham Tigga, Age 49 Years, R/o Ambika Mission Boys Middle School, Ambikapur, District Surguja, Chhattisgarh. 2. Smt. Mary Margaret Ekka W/o Late Sylvanus Ekka Retd. Teacher, R/o Village Muktipara, Fundurdehari, Ambikapur, District Surguja (CG) ...Respondent(s) with WRIT APPEAL NO. 234 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.215 of 2016) -6- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 1. State of Chhattisgarh, through the Secretary, Department of Finance and Planning, Mantralaya, Mahanadi Bhawan, Atal Nagar, Naya Raipur, Tahsil, Revenue & Civil District Raipur, Pin Code 492001, Chhattisgarh. 2. The Secretary, Department of School Education, Mantralaya, Mahanadi Bhawan, New Raipur, Tahsil Revenue And Civil District Raipur, Pin 492001 (Chhattisgarh) 3. The Secretary, Department Of Scheduled Caste And Scheduled Tribes Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil Revenue And Civil District Raipur, Pin-492001 (Chhattisgarh) 4. The Secretary, Department Of Labour, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil, Revenue And Civil District Raipur, Pin 492001 (Chhattisgarh) 5. The Director, Directorate Of Public Instruction, Indrawati Bhawan, Naya Raipur, Tahsil And District Raipur, Pin 492001 (Chhattisgarh) 6. The Commissioner, Scheduled Tribes And Scheduled Caste Development Department, 61 Jal Vihar Colony, Raipur, Tahsil And District Raipur, Pin 492001 (Chhattisgarh) ...Appellant(s) Versus 1. Xavier Institute Sarguja, Society Registered Under The Madhya Pradesh Societies, Registration Act 1959, Having Its Head Office, At St. Xaviers Higher Secondary, School, Ambikapur, Through Its Secretary Gabriel Minj, S/o Barnabas Minj, Age 54 Years, R/o St. Xavier Higher Secondary School, Ambikapur, Police Station And Post Ambikapur, District Surguja, Chhattisgarh. ...Respondent(s) with -7- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . WRIT APPEAL NO. 235 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.103 of 2019) 1. State of Chhattisgarh, Through Secretary, School Education Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur, Chhattisgarh. 2. Directorate of Public Instructions, Through Its Director, Sector 19, Kotara, Bhantha, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, Having Its Office At Gudhiyari, Raipur, Thana And Post Gudhiyari, District Raipur, Chhattisgarh, Through Its Secretary, Shri Raj Kamal Boob, S/o Late Shri Bridhi Chand Boob, Age 64 Years, Gudhiyari, Thana And Post Gudhiyari, District Raipur (Chhattisgarh) 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana And Post Gudhiyari, District Raipur, Chhattisgarh 3. Shri N.K. Dewangan, R/o B-66, Kota Housing Colony, Near Sai Darbar, Kota, Raipur District Raipur, Chhattisgarh ...Respondent(s) with WRIT APPEAL NO. 237 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.224 of 2014) 1. State of Chhattisgarh, through its Chief Secretary, Secretariat, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh -8- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. The Principal Secretary, Department of Education, Government of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh. 3. The Commissioner, Department of Public Instruction, Government of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh. 4. The District Education Officer, Ambikapur, District Ambikapur (C.G.) ...Appellant(s) Versus 1. St. Xavier H.S. School, through its Manager, Kalyanus Minj, S/o Temba Minj, R/o St. Xavier H.S. School, Ambikapur, District Surguja, Chhattisgarh. 2. Ranjit Singh, Retd. Clerk, R/o. Village Fundurdehari, Dhobipara, Ambikapur, District Surguja (Ambikapur), Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 246 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.160 of 2014) 1. State of Chhattisgarh, through Secretary, Department of School Education, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, Civil And Revenue District Raipur (Chhattisgarh). 2. The Assistant Labour Commissioner, Raipur Controlling Authority, Under Payment of Gratuity Act, 1972, Raipur, Civil and Revenue District Raipur (Chhattisgarh). 3. The Collector, Raipur, Civil and Revenue District Raipur (Chhattisgarh). -9- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 4. The Additional Tehsildar, Raipur, Civil and Revenue, District Raipur (Chhattisgarh). ...Appellant(s) Versus 1. Shiksha Pracharak Samiti, having its Office at Gandhi Chowk, Raipur, Civil Lines, Revenue District - Raipur, through its Secretary, Ajay Tiwari, S/o Late Kanhaiya Prasad Tiwari, Aged About 65 Years, C/o Shiksha Pracharak Samiti, Gandhi Chowk, Raipur, Civil Lines, Revenue District Raipur, Chhattisgarh. 2. Shri B.D. Dwivedi, S/o Late Ganga Prasad Dwivedi, aged about 75 years, R/o Saryudham, Byron Bazaar, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 250 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.99 of 2019) 1. State of Chhattisgarh, through Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur (Chhattisgarh). 2. Directorate of Public Instructions, through its Director, Sector 19 Kotara Bhantha, Atal Nagar, District - Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, Having its Registered Office at Gudhiyari, Raipur Thana and Post Gudhiyari, District Raipur, Chhattisgarh, through its Secretary, Shri Raj Kamal Boob, Son of Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana And Post Gudhiyari, District Raipur, Chhattisgarh. -10- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana & Post Gudhiyari, District Raipur, Chhattisgarh. 3. Shri Makhanpuri Goswami, S/o Shri Durgapuri Goswami, Resident of Dr. Ambedkar Nagar, Gudhiyari, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 252 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.87 of 2019) 1. State of Chhattisgarh, through Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur, Chhattisgarh. 2. Directorate of Public Instructions, through its Director, Sector 19, Kotara Bhantha, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, having its Registered Office at Gudhiyari, Raipur Thana and Post Gudhiyari, District Raipur, Chhattisgarh, through its Secretary, Shri Raj Kamal Boob, Son of Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 3. Shri S.K. Sawarkar, S/o Shri Chatur Ram Sawarkar, Resident of Raja Talab, Near Gopal Store, Sawarkar Furniture, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with -11- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . WRIT APPEAL NO. 253 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.100 of 2019) 1. State of Chhattisgarh, through Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur, Chhattisgarh. 2. Directorate of Public Instructions, through its Director, Sector 19, Kotara Bhantha, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, having its Registered Office at Gudhiyari, Raipur, Thana and Post Gudhiyari, District Raipur, Chhattisgarh, through its Secretary, Shri Raj Kamal Boob, Son of Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 3. Shri B.L. Chandel, R/o Naya Talab, Gudhiyari, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 305 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.88 of 2019) 1. State of Chhattisgarh, through: Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) -12- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Versus 1. Shri Mahabir Shiksha Prasar Samiti, a Registered Society, having its Registered Office at Gudhiyari, Raipur Thana and Post Gudhiyari, District Raipur, Chhattisgarh, through its Secretary, Shri Raj Kamal Boob, S/o Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Shiksha Prasar Samiti, a Registered Society, Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 3. Smt. Rajmani Sharma, W/o Late Shri S.P. Sharma R/o Behind Suyash Hospital Samta Colony, Raipur, District Raipur Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 404 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.174 of 2018) 1. State of Chhattisgarh, through Secretary, Department of Scheduled Caste and Scheduled Tribes Development, Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh. 2. The Secretary, Department of Finance and Planning, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh. 3. The Commissioner, Department of Scheduled Caste and Scheduled Tribes Development, Mantralaya, Indrawati Bhawan, New Raipur, District Raipur, Chhattisgarh. -13- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 4. The Controlling Authority-Cum-Labour Officer, Baikunthpur, District Korea, Chhattisgarh. ...Appellant(s) Versus 1. M. P. Vanwasi Sewa, Mandal, a Registered Society, through: its Secretary, Mandla, Kasturba Kanya Parisar, District Dindori, Madhya Pradesh. 2. Vibhag Sanyojak, Vibhag Kaaryalay, M.P. Vanwasi Sewa Mandal, Ambikapur, District Sarguja, Chhattisgarh. 3. Shri Ram Milan Tripathi, S/o Shri Ram Sunder Tripathi R/o Village Naugoi, Post Katgodi, Thana and Tahsil Sonhat, District Korba Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 408 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.94 of 2019) 1. State of Chhattisgarh, through: Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur Chhattisgarh. 2. Director, Directorate of Public Instructions, Sector 19, Kotara Bhanta, Atal Nagar, District Raipur Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, Having its Registered Office at Gudhiyari, Raipur, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School Gudhiyari, Thana and Post Gudhiyari, District Raipur, Chhattisgarh. -14- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 3. Shri Ramlal Vishwakarma (Died), through Legal Heirs:- 3a. Smt. Tijiya Bai, W/o. Late Shri Ramlal Vishwakarma, R/o. Village Methori, Mangawan, District Rewa, Madhya Pradesh. ...Respondent(s) with WRIT APPEAL NO. 418 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.224 of 2017) 1. State of Chhattisgarh, through: the Chief Secretary, Secretariat Mahanadi Bhawan, New Raipur, Chhattisgarh. 2. The Principal Secretary, Department of Education, Govt. of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh. 3. The Commissioner, Department of Public Instruction, Govt. of Chhattisgarh, Secretariat, Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh. 4. The District Education Officer, Ambikapur, District Surguja (Ambikapur), Chhattisgarh. ...Appellant(s) Versus 1. Ambika Mission Boys Middle School, Ambikapur, through its Manager, Robert Tigga S/o Abraham Tigga, aged about 49 years, R/o Ambika Mission Boys Middle School, Ambikapur, District Surguja, Chhattisgarh 2. Shri Barnabas Kujur, S/o Late Augustine Kujur, Retd. Teacher, R/o Village Fundurdehari, Beechpara, Ambikapur, District Surguja (Ambikapur ) Chhattisgarh. ...Respondent(s) with -15- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . WRIT APPEAL NO. 436 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.96 of 2019) 1. State of Chhattisgarh, through the Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh. 2. Directorate of Public Instructions, through its Director, Sector 19, Kotara Bhantha, Atal Nagar District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Parsar Samiti, A Registered Society, Having Its Registered Office At Gudhiyari, Raipur, Thana And Post Gudhiyari, District Raipur, Chhattisgarh, Through Its Secretary, Shri Raj Kamal Boob, Son Of Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari, Thana And Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana, And Post Gudhiyari District Raipur Chhattisgarh 3. Shri Vishnu Prasad, R/o Verma Flour Mill, Punjab Mill Gali, Ramsagar Para, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 446 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(S) No.500 of 2015) 1. State of Chhattisgarh, through Secretary, Department of Finance and Planning, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tehsil Revenue And Civil District Raipur Chhattisgarh Pin Code 492001. -16- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. The Secretary, Department of School Education, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil Revenue And Civil District Raipur Chhattisgarh, Pin Code 492001. 3. The Secretary, Department of Scheduled Caste And Scheduled Tribes Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil Revenue And Civil District Raipur, Chhattisgarh Pin Code 492001. 4. The Secretary, Department of Labour, Mantralaya, Mahanadi Bhawan, Naya Raipur Tehsil Revenue and Civil District Raipur Chhattisgarh Pin Code 492001. 5. The Director, Directorate Of Public Instruction, Pension Bada, Raipur Tehsil Revenue And Civil District Raipur Chhattisgarh Pin Code 492001. 6. The Commissioner Scheduled Tribes and Scheduled Caste Development Department, Ravishankar University Premises, Tahsil, Revenue And Civil District Raipur, Chhattisgarh Pin Code 492001. ...Appellant(s) Versus 1. Bagbahara Shiksha Samiti Bagbahara, Society Registered Having its Office at Mandi Road, Ward No.15, Bagbahara, Tahsil and Police Station Bagbahara, Revenue and Civil District Mahasamund, Chhattisgarh, Pin Code 493449. Through its Secretary Abdul Razzaq S/o Eshaq Chamara, aged about 79 years, C/o Bagbahara Shiksha Samiti, Mandi Road, Ward No.15, Bagbahara, Tahsil and Police Station Bagbahara, Revenue and Civil District Mahasamund, Chhattisgarh Pin Code 493449. ...Respondent(s) with -17- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . WRIT APPEAL NO. 448 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.97 of 2019) 1. State of Chhattisgarh, through the Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Parsar Samiti A Registered Society, Having Its Registered Office At Gudhiyari, Raipur, Thana And Post Gudhiyari, District - Raipur, Chhattisgarh, Through Its Secretary, Shri Raj Kumar Boob, S/o Late Shri Bridhi Chand Boob, 64 Years, Gudhiyari Thana And Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Shri Mahabir Shiksha Prasar Samiti, A Registered Society, Gudhiyari, Thana And Post Gudhiyari, District : Raipur, Chhattisgarh. 3. Shri L.M. Singh, S/o Late Shri R.K. Singh, near Naya Talab, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 450 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.95 of 2019) 1. State of Chhattisgarh, through the Secretary, Department of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur, Chhattisgarh. -18- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. Directorate of Public Instructions, through its Director, Sector 19, Kotara Bhantha, Atal Nagar, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Parsar Samiti, A Registered Society, Having Its Registered Office At Gudhiyari, Raipur Thana And Post Gudhiyari, District- Raipur, Chhattisgarh, Through Its Secretary, Shri Raj Kumar Boob, S/o Late Shri Bridhi Chand Boob, 64 Years, Dudhiyari, Thana And Post Gudhiyari, District Raipur, Chhattisgarh. 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana And Post Gudhiyari, District- Raipur, Chhattisgarh. 3. Ku. Pushplata Kaser, R/o House No.J/0495, Shiv Nagar, Near Soni Cycle Store, New Changorabhanta, Raipur, Chhattisgarh. ...Respondent(s) with WRIT APPEAL NO. 451 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(L) No.102 of 2019) 1. State of Chhattisgarh, through Secretary, School Education Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti A Registered Society Having Its Registered Office At Gudhiyari, Raipur, Thana And Post Gudhiyari, Dist. Raipur Chhattisgarh, Through Its Secretary, Shri Raj Kamal Boob, S/o Late Shri Bridhi Chand Boob, Age 62 Years, Gudhiyari Thana And Post Gudhiyari, District : Raipur, Chhattisgarh. -19- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2. Principal, Mahabir Higher Secondary School, Gudhiyari, Thana And Post Gudhiyari, District Raipur, Chhattisgarh. 3. Smt. Nirmala Chopra, W/o Shri H.L. Chopra R/o Near Kalra Nurshing Home, Dayanand Nagar, Raipur, District Raipur, Chhattisgarh. ...Respondent(s) and WRIT APPEAL NO. 461 OF 2022 (Arising out of Judgment/Order passed on 6.3.2020 by learned Single Judge in W.P.(S) No.1650 of 2017) 1. State of Chhattisgarh, through Secretary, School Education Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh 2. The Commissioner, Directorate of Public Instructions, Vivekanand Nagar, Raipur, District Raipur Chhattisgarh. 3. The Tehsildar, Raipur, District Raipur Chhattisgarh. ...Appellant(s) Versus 1. Shri Mahabir Shiksha Prasar Samiti, A Registered Society, Having Its Registered Office At Gudhiyari District Raipur, Through Its Secretary, Shri Raj Kamal Boob, S/o Late Shri Bridhi Chand Boob, Age 62 Years, Gudhiyari, Thana and Post Gudhiyari, District Raipur Chhattisgarh. 2. Shri K.C. Pandey, S/o Late Shri Keshav Pandey, R/o 50/359, Bandhwapara, Purani Basti, Raipur, District Raipur Chhattisgarh. 3. Shri R.K. Tiwari, R/o Tilak Nagar, Gudhiyari, Distt. - Raipur, Chhattisgarh. -20- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 4. Shri Sukhiram Yadav, S/o Late Shri Kanhaiyalal Yadav R/o Ganga Nagar Bhanpuri, Near Durga Mandir, Raipur, Chhattisgarh 5. Smt. B. Leela Patnaik, W/o Shri B. Ramesh, R/o D/184, Sector 1, Devendra Nagar Raipur, Chhattisgarh. ...Respondent(s) _______________________________________________________ For Appellants :- Mr. Rahul Tamaskar, [In all W.As.] Government Advocate. For Respondents/ :- Mr. Amrito Das, Educational Institutions Advocate. [In W.A. Nos.194 of 2021 and 221, 235, 250, 252 253, 305, 404, 408, 436, 448, 450, 451, 461 of 2022] For Respondents/ :- Mr. Manoj Paranjpe, Educational Institutions Advocate. [In W.A. Nos.128 of 2021 and 233, 234, 237, 418 of 2022] For Respondents/ :- Dr. Shiv Kumar, Educational Institutions Shrivastava, Advocate. [In W.A. Nos.228 & 246 of 2022] For Private Respondents :- None appeared, though [In all W.As.] served. _______________________________________________________ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal C A V Judgment -21- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Sanjay K. Agrawal, J. 1. Invoking the writ appellate jurisdiction of this Court, under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (henceforth shall be referred to as, ‘Act of 2006’), the present batch of writ appeals has been preferred by the appellants/State of Chhattisgarh, questioning the common Judgment/Order dated 6.3.2020 by which the respective writ petitions filed by the respondents/ educational institutions & schools, have been allowed by learned Single Judge quashing the Order/Memo dated 7.6.2013 issued by the State of Chhattisgarh and holding the State Government liable to make payment of gratuity to the teachers retired on or after 3.4.1997 to 31.3.2013 [Liability for payment of gratuity w.e.f. 1.4.2013 has already been taken by the State of Chhattisgarh by the said Order/Memo dated 7.6.2013] branding the said Order to be manifest arbitrary and contrary to law. -22- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Relevant facts, in brief:- 2. The respondents/educational institutions are registered under the Chhattisgarh Societies Registration Act, 1973 and are receiving cent-precent grant-in-aid from the State Government as per the provisions of the Chhattisgarh Ashashkiya Shikshan Sanstha (Anudan Ka Pradaya) Adhiniyam, 1978. On account of a legislative change in the definition of ‘employee’ defined under clause (e) of Section 2 of the Payment of Gratuity Act, 1972 (henceforth shall be referred to as, ‘Act of 1972’), it was amended by the Parliament by the Payment of Gratuity (Amendment) Act, 2009 (henceforth shall be referred to as, ‘the Amendment Act of 2009’) brought in force w.e.f. 3.4.1997 and consequently the educational institutions have been held responsible to pay gratuity w.e.f. 3.4.1997. The controlling authority, on the application of the teachers of the aided institutions, held that the educational institutions are liable to pay gratuity to the teachers retired after 3.4.1997, which was affirmed by the appellate authority in the appeal under Section 7 of the Act of 1972. -23- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 3. The respondents/educational institutions, in the batch of writ petitions (except in W.P.L. No.215/2016 out of which W.A. No.234/2022 has arisen) filed before the writ Court, questioned their liability to pay the gratuity on the ground of they being 100% aided educational institutions are not required to pay gratuity to the teachers who are under the deep and pervasive control of the State Government and further questioned the Order/Memo dated 7.6.2013 issued by the State Government fixing the cut-off date for payment of gratuity to the employees of 100% aided institutions and holding specifically that grant will be paid for the purpose of gratuity to those employees/ teachers who have retired after 1.4.2013. 4. The writ petition (W.P.L. No.227/2014) filed by St. Xavier’s H.S. School, challenging the order of the appellate authority affirming the order of the controlling authority, was dismissed and duly affirmed by Writ Appeal No.111/2016 reserving their right to file a fresh representation, which was also rejected by competent authority by order dated 2.5.2016 resulting -24- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . in filing of W.P.L. No.215/2016 by the Xavier Institute, Surguja seeking only quashment of the impugned Order/Memo dated 7.6.2013 on the ground that the State Government having provided 100% grant-in-aid to their educational institution is responsible to make payment of gratuity to the employees irrespective of their date of retirement and the fixation of cut-off date covering the liability from 1.4.2013 is arbitrary and unreasonable. This is how the batch of writ appeals are before us for consideration. Findings of the Writ Court:- 5. The learned Single Judge by impugned Judgment /Order dated 6.3.2020 allowed the said batch of writ petitions and quashed the Memo dated 7.6.2013 holding that the State Government is liable to pay gratuity to the teachers even if they had retired prior to 1.4.2013, meaning thereby the teachers who have retired after 3.4.1997 from the private aided educational institutions, the State Government is liable to pay the gratuity, and held as under:- -25- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . “35.In view of the foregoing discussion, the petitions are allowed with the following directions/observations: (i) The State would be employer within the definition of Payment of Gratuity Act, 1972 for the teachers/employees of aided educational institutions. (ii) There cannot be unjustified classification between the two classes of teachers/employees for payment of gratuity before or after the cut-off date i.e., 01.04.2013 for whom grant-in-aid is received by institutions. (iii) The judgments passed by the Controlling Authority and appellate authority whereby the institutions have been directed to pay gratuity on the basis of Letter dt. 07.06.2013 is set aside and the State is held to be liable to pay gratuity to the teachers even if they had retired prior to 01.04.2013. (iv) The payments already made by the institutions pursuant to the order of the Controlling Authority or the Appellate Authority under the Gratuity Act, 1972 shall be reimbursed or made good to the institutions within a reasonable time of 6 months.” 6. The above-stated findings have been challenged by the State of Chhattisgarh by way of these writ appeals stating the impugned Judgment/Order to be unsustainable and bad in law. -26- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Submissions advanced on behalf of the State of Chhattisgarh/Appellants:- 7. Mr. Rahul Tamaskar, learned Government Advocate, appearing for the appellants/State Government in the present batch of writ appeals, would submit that learned Single Judge is absolutely unjustified in holding that the State is the employer of the teachers working in the aided educational institutions (respondents herein) within the definition of Section 2(f)(i) of the Act of 1972 by recording a finding which is totally perverse and contrary to the well settled law in this regard. He would submit that in order to determine the existence of employer - employee relationship, the correct approach would be to consider as to whether there is complete control and supervision of the State Government, as the employees of the private educational institutions are appointed by the said educational institutions, though aided by the Government, and the salary/ remuneration are paid by these educational institutions and they have the authority to dismiss and take disciplinary action. He would further submit -27- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . that there is no deep and pervasive control and supervision of the State Government over the employees of the private educational institution, except the State is regulating the functions of the non- governmental educational institutions in light of powers conferred by Entry 25 in List III – Concurrent List of the Seventh Schedule of the Constitution of India in order to maintain a uniform standard of education throughout the State and there is no relationship of master and servant between the State and the employees of the private aided educational institutions and the regulatory control would not make the State to be employer of the employees of the private aided educational institutions. As such, the finding recorded by learned Single Judge that the State is employer of the teachers employed in private aided educational institutions is contrary to the material available on record and there is no pleading at all in the writ petitions that the State Government is employer of the teachers working in the aided educational institutions and therefore the impugned Judgment/ Order is liable to be set-aside. -28- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 8. Mr. Tamaskar, learned State Counsel, would further submit that by Memo dated 7.6.2013 the State has taken a considered policy decision to pay the amount of gratuity to the teachers who have retired after 1.4.2013 and the State has volunteered to pay gratuity in shape of grant to the employees who have retired after 1.4.2013. He would likewise submit that liability to pay gratuity from 3.4.1997 upto 31.3.2013 is the liability of the private aided educational institutions and this Court in the matter of St. Xavier’s H.S. School v. State of Chhattisgarh and Others1 (authored by one of us, Sanjay K. Agrawal, J.) has already held that in view of the Memo dated 7.6.2013, the State Government would be liable to pay gratuity in shape of grant-in-aid only w.e.f. 1.4.2013, even though the teachers have retired w.e.f. 3.4.1997. 9. Mr. Tamaskar, learned State Counsel, would also submit that similar issue pertaining to payment of gratuity to the teachers of the aided institutions and others has already been considered by the Division Bench of the Madhya Pradesh High Court in the 1 (2015) SCC Online Chh 1491 -29- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . matter of Suresh Kumar Dwivedi and Others v. State of Madhya Pradesh and Others2 which is binding to this Court being rendered prior to 1.11.2020, as it involves policy matter having huge financial burden and therefore no direction can be issued to make payment in the light of policy decisions which involve financial crunch. To support his contentions, Mr. Tamaskar, learned State Counsel, would also rely upon the judgments of the Supreme Court rendered in the matter of Union of India and Others v. Tejram Parashramji Bombhate and Others 3, State of Maharashtra and Another v. Bhagwan and Others4, State of Tripura and Others v. Smt. Anjana Bhattacharjee and Others5, Krishna Gopal Tiwary and Another v. Union of and Others 6. He would finally submit, in view of his submissions made herein above, that the impugned Order passed by learned Single Judge be set-aside allowing the present batch of writ appeals and dismissing the writ petitions of the private aided educational institutions. 2 1993 SCC OnLine MP 48 3 (1991) 3 SCC 11 4 (2022) 4 SCC 193 5 2022 SCC OnLine SC 1071 6 2021 SCC OnLine SC 581 -30- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Submissions made on behalf of the Respondent Educational Institutions:- 10. Mr. Manoj Paranjpe, Mr. Amrito Das, and Dr. Shiv Kumar Shrivastava, learned counsel appearing for the concerned respondents herein/private aided educational institutions, would support the impugned Order and jointly submit that learned Single Judge is absolutely justified in granting relief to the private aided educational institutions as they are getting 100% grant-in-aid by the State Government and they are fully controlled by the State Government in the matters of appointment, dismissal and disciplinary action by the Acts and Rules enacted by the State Government and, therefore, the learned Single Judge is absolutely justified in holding the State Government to be employer for the purpose of Section 2(f) of the Act of 1972. It was further submitted that the private aided educational institutions have no source of revenue to pay the amount of gratuity and the State exercises full control over these aided educational institutions in all aspects as it has already undertaken the decision to pay the amount of gratuity, though in -31- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . shape of grant. Therefore, learned Single Judge is absolutely justified in quashing the impugned Memo dated 7.6.2013 and in holding the State liable to pay the amount of gratuity w.e.f. 3.4.1997 and the present writ appeals as such are liable to be dismissed. Learned counsel for the respondents, in support of their contentions, would rely upon the judgments of the Supreme Court rendered in the matter of Yashwant Gramin Shikshan Sanstha v. Assistant Provident Fund, Commissioner and Others7, All Manipur Pensioners Association by its Secretary v. State of Manipur and Others8, Maharashtra State Financial Corporation Ex-Employees Association and Other v. State of Maharashtra and Others 9 and Ashok Kumar v. Ved Prakash and Others 10. 11. The private respondents herein have been served with notice in these appeals, but none of them has chosen to appear and as such they remained unrepresented in this batch of writ appeals. 7 (2017) 5 SCC 579 8 (2020) 14 SCC 625 9 2023 SCC OnLine SC 100 10 (2010) 2 SCC 264 -32- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also gone through the record of the case with utmost circumspection. Questions involved for determination in this batch of writ appeals:- 13. Having considered the submissions advanced on behalf of the parties and also considering the impugned Order passed by learned Single Judge, the following questions of law emanates for our consideration in the present batch of writ appeals:- (1) Whether the learned Single Judge is justified in holding that the State of Chhattisgarh is employer within the meaning of Section 2(f)(i) of the Act of 1972 of the teachers employed by the aided private educational institutions i.e. respondents herein? (2) Whether the learned Single Judge is justified in quashing/setting aside the Memo dated 7.6.2013 by which the State of Chhattisgarh has taken a policy decision to pay the amount of gratuity in shape of grant to the teachers retired from aided educational institutions after 1.4.2013? -33- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Scope of interference in writ appeal:- 14. In order to decide the first plea raised at the bar by the appellants–State Government, it would be appropriate to consider the scope of writ appeal under sub-section (1) of Section 2 of the Act of 2006 which provides for as under:- \"2. Appeal to the Division Bench of the High Court from a judgment or order of one judge of the High Court made in exercise of original jurisdiction.- (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.\" 15. A studied perusal of sub-section (1) of Section 2 of the Act of 2006 would show that it provides for an intra-court appeal before the Bench of two or more judges of the High Court against the order of Single Judge and intra-court appeal is continuation of original proceeding and appellate court sitting in appeal as court of correction can correct its own order -34- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . in exercise of same jurisdiction which was vested in learned Single Judge or writ Court which is a Court of judicial review. However, the scope of intra-court appeal by a Division Bench against the order of a Sin- gle Judge has been considered from time to time by their Lordships of the Supreme Court in umpteen number of judgments, few of them may be noticed profitably and gainfully herein as under:- 15.1. Way back, in the year 1974, in the matter of Smt. Asha Devi v . Dukhi Sao and Another 11, the Supreme Court has held as under:- \"But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact.\" 15.2. Similarly, in the matter of Baddula Lakshmaiah and O thers v. Sri Anjaneya Swami Temple and O thers 12, the Supreme Court has again defined the nature and scope of power of a Letters Patent Bench hearing an appeal against the decision of learned Single Judge and held as under: 11 (1974) 2 SCC 492 12 (1996) 3 SCC 52 -35- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . \"2. …Against the orders of the trial court, first appeal lay before the High Court, both on facts as well as law. It is the internal working of the High Court which splits it into different 'Benches' and yet the court remains one. A Letters Patent appeal, as permitted under the Letters Patent, is normally an intra-court ap- peal whereunder the Letters Patent Bench, sit- ting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. So understood, the appellate power under the Letters Patent is quite district, in contrast to what is ordinarily understood is procedural language…\" 15.3. Likewise, in the matter of B. Venkatamuni v. C.J. Ayodhya Ram Singh and O thers 13, the Supreme Court has held that entertainment of a Letters Patent Appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. It was observed as under:- \"11. In an intra-court appeal, the Division Bench undoubtedly may be entitled to reapprise both questions of fact and law, but the following dicta of this Court in Umabai & Anr. v. Nilkanth Dhondiba Chavan (Dead) By LRs. & Anr. (2005) 6 SCC 243, could not have been ignored by it, whereupon the learned counsel for Respondents relied: 13 (2006) 13 SCC 449 -36- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . \"52. It may be, as has been held in Asha Devi v. Dukhi Sao (1974) 2 SCC 492 that the power of the appellate court in intra-court appeal is not exactly the same as contained in Section 100 of the Code of Civil Procedure but it is also well known that entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the learned Single Judge. Even as noticed hereinbefore, a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint.\"” 15.4. Further, the Supreme Court, in the matter of Commissioner of Income Tax and A nother v. Karnataka Planters Coffee Curing Work Private Limited14, has held that jurisdiction of Division Bench in a writ appeal is primarily one of adjudication of questions of law. Therefore, finding of fact recorded concurrently by the authorities and upheld by learned Single Bench are not to be lightly disturbed in intra- court appeal. It was observed succinctly as under:- \"3. …The jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed.\" 14 (2016) 9 SCC 538 -37- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . As such, in view of the principles of law laid down by their Lordships of the Supreme Court in above stated judgments, the jurisdiction of this Court in writ appeal/intra court appeal is principally one of adjudication of questions of law. Legislative history leading to amendment in definition of “employee” under Section 2(e) of the Act of 1972:- 16. By Notification dated 3.4.1997 issued by the Ministry of Labour and Employment, Government of India, clause (b) of sub-section (3) of Section 1 of the Act of 1972 was made applicable to the educational institutions with ten or more employees and by which the educational institutions in which ten or more employees are employed became liable to pay gratuity to their employees as per the Act of 1972. The amended definition of employee under clause (e) of Section 2 of the Act of 1972 came into effect w.e.f. 3.4.1997 by the Amendment Act of 2009. The contention that teachers do not fulfill the description of employee who are skilled, semi-skilled or skilled persons employed on wages was accepted by the Full -38- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Bench of the High Court of Gujarat by its judgment dated 4.5.2001 passed in Special Civil Application No. 5272 of 1987 thereby teachers were denied the benefit of gratuity but employees of the private schools were held entitled to the benefit of gratuity. The said Full Bench decision of the Gujarat High Court was subjected to challenge before the Supreme Court in the matter of Ahmedabad Pvt. Primary Teachers’ Association v. Administrative Officer and O thers 15 in which their Lordships of the Supreme Court held that the expression ‘employee’ as defined under clause (e) of Section 2 of the Act of 1972 is restrictive and not expansive and accordingly held that the teachers who imparts education to the students were not to be employee under Section 2(e) of the said Act as they do not perform any kind of skilled, semi-skilled or unskilled, manual, supervisor, managerial, administrative, technical or clerical work. In paragraphs 25 & 26 it was held by their Lordships as under:- 15 (2004) 1 SCC 755 -39- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . “25. The Legislature was alive to various kinds of definitions of word 'employee' contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of 'employee' all kinds of employees, it could have as well used such wide language as is contained in section 2(f) of the Employees' Provident Funds Act, 1952 which defines 'employee’ to mean 'any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of [an establishment …”. Non-use of such wide language in definition of 'employee' in Section 2(e) of the Act of l972 reinforces our conclusion that teachers are clearly not covered in the definition. 26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide.” 17. The Indian Parliament took cognizance of the above-stated binding observation/judgment of the Supreme Court rendered in Ahmedabad Pvt. Primary Teachers’ Association (supra), particularly its -40- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . paragraph 26, and the Amendment Act of 2009 was introduced to widen the definition of ‘employee’ and to extend the benefit of gratuity to the teachers. Statement of objects and reasons of the Amendment Act of 2009 states as under:- \"Statement of Objects and Reasons.- The Payment of Gratuity Act, 1972 provides for payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishment and for matters connected therewith or incidental thereto. Clause (c) of sub-section (3) of section 1 of the said Act empowers the Central Government to apply the provisions of the said Act by notification in the Official Gazette to such other establishments or class of establishments in which ten or more employees are employed, or were employed, on any day preceding twelve months. Accordingly, the Central Government had extended the provisions of the said Act to the educational institutions employing ten or more persons by notification of the Government of India in the Ministry of Labour and Employment vide number S.O.1080, dated the 3rd April, 1997. 2. The Hon'ble Supreme Court in its judgment in Civil Appeal No.6369 of 2001, dated the 13th January, 2004, in Ahmedabad Private Primary Teachers' Association vs. Administrative Officer and others [AIR 2004 Supreme Court 1426] had held that if it was extended to cover in the definition of 'employee', all kind of employees, it could have as well used such wide language as is contained in clause (f) of section 2 of the -41- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Employees' Provident Funds and Miscellaneous Provisions Act, 1952 which defines 'employee' to mean any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment. It had been held that non-use of such wide language in the definition of 'employee' under clause (e) of section 2 of the Payment of Gratuity Act, 1972 reinforces the conclusion that teachers are clearly not covered in the said definition. 3. Keeping in view the observations of the Hon'ble Supreme Court, it is proposed to widen the definition of 'employee' under the said Act in order to extend the benefit of gratuity to the teachers. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha on the 26th November, 2007 and same was referred to the Standing Committee on Labour which made certain recommendations. After examining those recommendations, it was decided to give effect to the amendment retrospectively with effect from the 3rd April, 1997, the date on which the provisions of the said Act were made applicable to educational institutions. 4. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was withdrawn and a new Bill, namely, this Payment of Gratuity (Amendment) Bill, 2009 having retrospective effect was introduced in the Lok Sabha on 24 the February, 2009. However, due to dissolution of the Fourteenth Lok Sabha, the said Bill lapsed. In view of the above, it is considered necessary to bring the present Bill. 5. The Bill seeks to achieve the above objectives.\" -42- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 18. The Amendment Act of 2009, amending the Act of 1972, bringing the \"teacher\" within the definition of \"employee\" of the Act of 1972 was brought into force w.e.f. 3.4.1997. The amended definition of 'employee' under clause (e) of Section 2 of the said Act states as under:- \"(e) \"employee\" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by the any other Act or by any rules providing for payment of gratuity;\" 19. Section 13A was also inserted by the Amendment Act of 2009 which states about the validation of the Payment of Gratuity Act by stating as under:- 3. Insertion of new section 13A. After section 13 of the principal Act, the following section shall be inserted, namely:- \"13A. Validation of payment of gratuity.- Notwithstanding anything contained in any judgment, decree or order of any court, for the period commencing on or from the 3 rd day of April, 1997 and ending on the day on -43- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . which the payment of Gratuity (Amendment) Act, 2009, receives the assent of the President, the gratuity shall be payable to an employee in pursuance of the notification of the Government of India in the Ministry of Labour and Employment vide number S.O.1080, dated the 3rd day of April, 1997 and the said notification shall be valid and shall be deemed always to have been valid as if the Payment of Gratuity (Amendment) Act, 2009 had been in force at all material times and the gratuity shall be payable accordingly: Provided that nothing contained in this section shall extend, or be construed to extend, to affect any person with any punishment or penalty whatsoever by reason of the non payment by him of the gratuity during the period specified in this section which shall become due in pursuance of the said notification.\" 20. Thus, the Legislature has taken cognizance of the binding observations made by their Lordships of the Supreme Court in paragraph 25 of Ahmedabad Pvt. Primary Teacher's Ass ociation case (supra) in which it has been held that definition of \"employee\" under Section 2(e) of the Act of 1972 has to be couched in the wide language as is contained in the definition of \"employee' under Section 2(f) of the Employees' Provident Funds Act, 1952 so as to include a teacher -44- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . within the meaning of \"employee\" under Section 2(e) of the Act of 1972. Thus, taking a note of such observation, the Legislature has amended the definition of \"employee\" under Section 2(e) of the said Act with retrospective effect from 3.4.1997. The objects and reasons of such amendment makes the intention of the Legislature very loud and clear to apply the provisions of the Act of 1972 to the teachers working therein also. The amended definition is wide enough to cover the category of \"teacher\" for the purpose of applicability of the Act of 1972. There is no escape but to hold that teacher is an \"employee\" within the meaning of Section 2(e) of the Act of 1972 and hence, the provisions of the said Act are applicable. The said amendment has brought in force w.e.f. 3.4.1997 by virtue of Section 13-A of the Amendment Act of 2009 and as such the benefit of gratuity was thus extended to the teachers from 3.4.1997. [See: B irla Institute of Technology v. State of Jharkhand16] (St. Xavier’s H.S. School (supra)] 16 (2019) 4 SCC 513 -45- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Challenge to the constitutional validity of Section 2(e) of the Act of 1972 and its outcome:- 21. Challenge to the constitutional validity of amendment to Section 2(e) and the insertion of Section 13A of the Act of 1972 with retrospective effect from 3.4.1997 by the Amendment Act of 2009 was made by the educational institutions by filing writ petitions before seven High Courts, which were ultimately dismissed, and finally the correctness of the judgments rendered by the seven High Courts was considered by their Lordships of the Supreme Court in the matter of Independent Schools’ Federation of India (Regd.) v. Union of India and Another 17. The challenge was made before the Supreme Court on two counts; firstly, that the impugned legislation enacted by the Amendment Act of 2009 overrules the judicial decision in Ahmedabad Pvt. Primary Teachers’ Association (supra) and violates the doctrine of separation of powers and, secondly, the retrospective amendments are unreasonable, excessive and harsh, and therefore, unconstitutional. Their Lordships of the 17 2022 SCC OnLine SC 1113 -46- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Supreme Court considered the batch of writ petitions and ultimately dismissed all appeals/transfer case/ writ petitions holding the Amendment Act of 2009 to be constitutional and directing the private schools to make payment to the employees/teachers along with the interest in accordance with the provisions of the Act of 1972 within a period of six weeks and in case of default, the employees/teachers may move the appropriate forum to enforce payment in accordance with the provisions of the said Act. In view of the above-stated background and legislative change noticed herein above, we proceed to answer the two questions formulated herein above which arises for determination in this batch of writ appeals. Answer to Question No.1:- [Whether the learned Single Judge is justified in holding that the State of Chhattisgarh is employer within the meaning of Section 2(f)(i) of the Act of 1972 for the teachers employed by the private aided educational institutions i.e. respondents herein?] 22. Learned Single Judge by the impugned Order dated 6.3.2020, while granting the batch of writ petitions, has held that the appellant – State of Chhattisgarh would be employer within the definition -47- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . of “Section 2(f)(i)” of the Act of 1972 for the teachers/ employees of the private aided educational institutions and there being a employer-employee relationship between them, the State would be liable to pay gratuity even to the teachers who have retired prior to 1.4.2013 from the private aided educational institutions. 23. In order to decide the correctness of the finding so recorded by learned Single Judge, it would be appropriate to revert back to the pleadings made by the educational institutions herein in their respective writ petitions. Out of 22 writ petitions, except W.P.(L) No.215/2016 from which W.A. No.234/2022 has arisen, all the remaining 21 writ petitions have arisen out of the order passed by the appellate authority affirming the order of the controlling authority under the Act of 1972. Therefore, the pleadings of 21 writ petitions which have arisen out of the order of the controlling authority affirmed by the appellate authority and the one that of W.P.(L) No.215/2016 (W.A. No.234/2022), have to be looked into separately. -48- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . For sake of convenience, the pleadings of one of the 21 writ petitions, i.e., W.P.(L) No.223/2017 (W.A. No.128/2021 - State of Chhattisgarh Vs. Ambika Mission Boys Middle School, Ambikapur and Others) are being referred to herein. 24. A careful perusal of the averments of writ petition would show that principle averment pleaded on behalf of writ petitioner/educational institution is that the educational institution/writ petitioner is fully aided by the State Government for salary, increment, PF, DA etc., and getting 100% grant for all purposes from the State Government. It has further been pleaded that writ petitioner/educational institution is not charging any fee from the students and the institution has no source of income and the State Government has already taken a policy decision to grant for payment of gratuity to the teachers retired after 1.4.2013 by circular dated 7.6.2013 and as such the sole grievance of the educational institution/writ petitioner is that the State Government is also liable to make payment of gratuity even to the teachers who have retired after -49- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 3.4.1997 and prior to 1.4.2013 by setting aside the circular dated 7.6.2013 partly. The grounds no.16, 17, 19, 20, 21, 22 would show that prescription of cut-off date by circular dated 7.6.2013 was the crux of challenge made in the writ petition, which state as under:- “9] Grounds:- 16] That, the impugned circular dated 07th June 2013 so far as it provides for a cutoff date i.e. 01.04.2013 is bad in law contrary to the provisions contained Act of 1978, Rules of 1979, Act of 1972 and Amendment Act of 2009. 17] That, the state government once accepts the liability for providing grant in aid to the educational institutions for payment of gratuity, it cannot put a cutoff date making it applicable for only those employees who are being retired after 01.04.2013. 19] That, Act of 1972 and Amendment Act of 2009 are central legislation and the provisions of these legislation are binding on the respondent state government. It is humbly submitted that Section 13A the gratuity would be payable to the employees with effect from 3rd April 1997, therefore, the respondent No.1 cannot put a cutoff date of 1st April 2013, for providing grant in aid for only those employees who are being retired after 1st April 2013 and not prior to. -50- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 20] That, the state government in its various circulars has accepted that the salary and allowances and other benefits of the employees of the 100% grant in aid educational institutions would be similar to be employees of the educational institutions of the state government. Therefore, the respondent state government cannot put a rider by fixing a cutoff date for grant in aid for payment of gratuity. 21] That, the impugned circular so far as its provides for a cutoff date his in violation of Article 16 of the Constitution of India. 22] That, the gratuity payable to the employees of the educational institutions of the state government is being paid by state government it respective of the retirement date of the employee. Therefore, the state government cannot put a restriction putting a cutoff date for providing grant in aid for the gratuity payable to be employees of 100% grant in aid non-government educational institutions. 25. Similarly, the relief clause would show that the writ petitioner/educational institution principally sought quashment of circular dated 7.6.2013 fixing cut-off date 1.4.2013 for payment of gratuity by the State Government, which state as under:- 10] Relief Sought: The petitioner most humbly begs to pray before this Hon'ble Court: -51- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 1] That, this Hon'ble Court may kindly be pleased to issue writ/writs, direction/ directions, order/orders quashing impugned order dated 14.9.2017 (Annex.P/1) passed by the appellate authority under the payment of gratuity act, 1972 and deputy Commissioner, office of Commissioner Chhattisgarh and the State Government may kindly be held liable for the payment of amount of gratuity to the retired employees of the petitioner's institution, even before 07.06.2013. 2] That this Hon'ble Court may be kind enough to appropriate writ/order/ direction including the writ of certiorari quashing the impugned circular dated 7th June 2013 so far as it put a cutoff date of 01.04.2013 in the interest of justice. 3] That this Hon'ble Court may be kind enough to issue appropriate writ/order/ direction including the writ of mandamus directing the respondents particularly respondent No. 1 to provide grant in aid to the institution of the petitioner society for payment of gratuity to its employees in respective of the date of retirement. 4] That, this Hon'ble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case.” 26. However, a careful perusal of the order of the controlling authority passed on 19.3.2015 filed along with the writ petition would reveal that four issues were framed of which issue no.2 was, as to whether the State Government is employer of the teachers -52- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . working in the aided educational institutes. It was answered by the controlling authority holding that the educational institutions have not produced any material whatsoever to establish the said issue nor any circular/notification has been brought on record declaring the aided educational institutions as government institutions and therefore the State Government is not employer for the purpose of gratuity. 27. It is pertinent to mention here that before the controlling authority under the Act of 1972, the State Government was not the party and only the educational institutions were the party respondents therein. However, in the appeal preferred before the appellate authority impleading the State Government as a party respondent, the only ground that was taken by the educational institutions (in that case, it was Ambika Mission Boys Middle School, Ambikapur) was with regard to the amount of payment of gratuity even if the teachers have retired prior to 1.4.2013 and after 3.4.1997, the liability should have been imposed on -53- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . the State Government and the fixation of the cut-off date by circular dated 7.6.2013 is arbitrary and illogical. For sake of convenience, the plea raised on behalf of the educational institution in the appeal before the appellate authority are as under:- “6. अपीलार्थी पक्ष द्वारा दिनांक 25.05.2017 को प्रस्तुत अपने लिखित r र ्क में अपील आवेदन में अभिकथित तथ्यों को ही दोहराते हुए नियंत्रण प्राधिकारी द्वारा पारित आदेश को निरस्त किये जाने की प्रार्थना की गयी। अपीलार्थी स्कूल जेवियर इंस्टीट्युट सरगुजा जो कि छत्तीसगढ़ फार्मस एण्ड सोसायटी अधिनियम क े अंतर्गत पंजीक ृत है क े द्वारा संचालित किया जा रहा है। संस्था द्वारा मानव मुल्यों का संवर्धन, संरक्षण व प्रोत्साहन करते हुए देश क े गरीब, निःसहाय, महिलाओं एवं बच्चों क े शैक्षणिक सामाजिक आर्थिक व सांस्क ृतिक उत्थान क े लिये कार्यरत है। अपीलार्थी स्कूल किसी भी तरह से कोई मुनाफा नहीं कमाती है। वह निस्वार्थ सेवाएं दे रही है। उसक े पास किसी तरह की वित्तीय व्यवस्था भी नहीं है। यही कारण है कि शासन द्वारा 100 प्रतिशत अनुदान प्रदाय की जाती है। उपादान भुगतान संशोधन अधिनियम, 2009 क े परिप्रेक्ष्य में स्कूल क े शिक्षकों एवं अन्य कर्मचारियों को दिनांक 03.04.1997 से आती है जबकि नियंत्रण प्राधिकारी द्वारा उत्तरवादी कर्मचारी क े उपादान की गणना दिनांक 03.04.1997 क े पूर्व से की गयी है। इस संशोधन क े परिणामस्वरूप उत्तरवादी कर्मचारी दिनांक 03.04.1997 से उसकी सेवा निवृत्ति दिनांक तक की अवधि क े लिये ही उपादान पाने की पात्रता रखता है। उपादान भुगतान अधिनियम, 1972 दिनांक 16.09.1972 से प्रभावशील किया गया है। उक्त स्थिति में किसी भी कर्मचारी को दिनांक 16.09.1972 क े पूर्व की अवधि क े लिये उपादान पाने की पात्रता नहीं बनती है। छत्तीसगढ़ शासन वित्त एवं योजना विभाग मंत्रालय महानदी भवन, नया रायपुर क े पत्र क्रमांक 183/ एफ-1005172/ वित्त/ नियम/ चार/ 2013 रायपुर दिनांक 07.06.2013 अवैधानिक, मनमाना एवं छत्तीसगढ़ अशासकीय शिक्षण संस्था (अनुदान का प्रदाय) अधिनियम, 1978 क े विपरीत है। सरकार -54- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . कर्मचारियों को उपादान भुगतान हेतु कट ऑफ डेट का निर्धारण नहीं कर सकता है। उक्त परिपत्र में राज्य सरकार दिनांक 01.04.2013 क े पूर्व सेवा निवृत्त शिक्षकों व अन्य कर्मचारियों को देय उपादान प्रदाय करने की अपनी जवाबदारी से मुक्त नहीं हो सकती है। अतः उपादान भुगतान हेतु अनुदान दिया जाना शासन का दायित्व बनता है, जिसे नियंत्रण प्राधिकारी ने ध्यान न देकर गलत व त्रुटिपूर्ण आदेश पारित कर महती वैधानिक भूल की है जो निरस्त किये जाने योग्य है।\" 28. Thereafter, the appellate authority relying on the decision of the Supreme Court rendered in the matter of Rajasthan Welfare Society v. State of Rajasthan 18 dismissed the statutory appeal holding the educational institutions liable to pay the amount of gratuity in light of the decision given by this Court in the matter of St. Xavier’s H.S. School (supra). 29. Thus, from the grounds pleaded before the controlling authority, appellate authority and the writ Court and the relief(s) claimed, the following facts are quite clear:- (1) That, before the controlling authority, the educational institution (Ambika Mission Boys Middle School, Ambikapur) though raised a half- hearted plea that the State Government is employer of the teachers, but did not substantiate 18 (2005) 5 SCC 275 -55- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . the said plea and the controlling authority recorded a finding that no material was brought on record to substantiate the said plea raised by the educational institution therein and the fastened the liability upon the educational institution therein. (2) In the appeal preferred by educational institution before the appellate authority, the educational institution has only raised a specific plea that the circular dated 7.6.2013 prescribing the cut-off date and accepting the liability to pay the amount of gratuity w.e.f. 1.4.2013 in shape of grant is arbitrary and therefore the State Government is liable to pay the amount of gratuity even to the teachers who have retired prior to 1.4.2013. (3) In the writ petition filed against the order of the appellate authority affirming the order of the gratuity, from the grounds raised and relief(s) claimed only and only challenge was to the cut-off date i.e. 1.4.2013 whereby the State Government -56- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . has undertaken to provide grant to pay gratuity to the teachers/employees who have retired after 1.4.2013 and not prior to that and there is no stretch of plea in shape of pleadings, grounds or relief(s) sought that the State Government is employer for the purpose of gratuity to the teachers working in the educational institution irrespective of their date of retirement either after 3.4.1997 or prior to 31.3.2013. (4) For the first time, at the time of argument before the writ Court, with reference to Section 2(f)(iii) of the Act of 1972, the submissions were made on behalf of the educational institution(s) that the State Government has deep and pervasive control over the educational institutions and thus for all the teachers working in the aided educational institutions, the State Government would be employer, which the learned Single Judge has also entertained and finally accepted. -57- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 30. Now, as regards W.P.(L) No.215/2016, it was directly filed by the educational institution i.e., Xavier Institute, Sarguja, challenging the circular dated 7.6.2013 prescribing the cut-off date 1.4.2013 after dismissal of their writ petition/writ appeal by this Court. As the controlling authority by order dated 23.3.2013 had directed the said institution to pay the amount of gratuity and the appeal has also been dismissed by the appellate authority, against which W.P.(L) No.227/2014 (St. Xavier’s H.S. School, Ambikapur Vs. State of Chhattisgarh & Others) was filed which was dismissed by the writ Court by order dated 11.12.2015 finding no merit, assailing which W.A. No.111/2016 was taken which was withdrawn to pursue the representation before the authorities and the representation also stood dismissed by order dated 2.5.2016. Consequently, a fresh writ petition [W.P.(L.) No.215/2016] was filed by the said institution challenging the notification dated 7.6.2013 in which also though pleadings in shape of paragraphs 9, 10 and 11 were made to demonstrate that they are -58- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . receiving 100% grant-in-aid since 1978; they have no source of income; no fee are being charged from the students and the institution is running in 100% grant- in-aid. There was no whisper in the entire writ petition that the State Government is employer for the teachers employed in their aided private educational institution in Grounds No. 8, 9 & 10 and Relief(s) No.2 & 3. The writ petition was filed only to direct the State Government to pay the amount of gratuity by quashing the circular dated 7.6.2013 fixing the cut-off date from 1.4.2013. Neither any pleading was made nor any declaration was sought that the State Government be declared as deemed employer within the meaning of Section 2(f)(iii) of the Act of 1972. 31. Returning to the facts of the case, it is quite vivid that similar pleadings have been made in all the other writ petitions. It is as such quite established that all the petitions filed before the controlling authority, though pleading was made before the controlling authority but no evidence was produced. In the writ petitions filed thereafter also no pleading was made at -59- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . all, neither any ground has been raised to hold that the State Government is employer of the teachers retired or working in the aided educational institutions and no relief was sought seeking declaration that the State Government be declared the employer for the purpose of gratuity to the teachers working in these educational institutions which are fully aided by the State Government. Even in W.P.(L) No.215/2016 directly filed questioning the circular dated 7.6.2013, though it was the second round of litigation by the said institution, but except seeking for quashing of the circular dated 7.6.2013, neither any pleading was made nor any relief was sought that since the State Government has deep and pervasive control over the aided private educational institution, the State Government be declared employer within the meaning of Section 2(f)(iii) of the Act of 1972 to the teachers working therein. In that view of the matter, the State Government did not have any opportunity at all to meet such a plea raised for the first time at the time of argument before the learned Single Judge, otherwise it -60- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . was open for the State Government to make an appropriate/specific plea demonstrating that the nature and the extent of control being exercised by the State Government over the educational institution being exercised over the aided private educational institution stating that their control is only regulatory in nature, which the State Government is deprived on account of a specific plea having not been raised by the educational institutions in all the writ petitions directly filed and even before the appellate authority, as notice herein above, no specific plea was raised by these educational institutions stating that the State Government is employer of the teachers working in the aided private educational institutions, therefore, such a plea could not have been permitted to be raised by learned Single Judge at the time of final hearing of the writ petition. 32. The Constitution Bench of the Supreme Court in the matter of Pandit M.S.M. Sharma Vs. Shri Sri Krishna Sinha and Others19, has held that plea not 19 AIR 1959 SC 395 -61- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . raised in the writ petition cannot be allowed to be raised in the rejoinder by the petitioner, by observing as under:- “The case of bias of the Chief Minister (respondent 2) has not been made anywhere in the petition and we do not think it would be right to permit the petitioner to raise this question, for it depends on facts which were not mentioned in the petition but were put forward in a rejoinder to which the respondents had no opportunity to reply.” 33. In the matter of B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. and others20, the Supreme Court held that plea not raised in writ petition cannot be raised during hearing and observed as under:- “Before we embark upon the respective contentions made before us on the said issue, we may notice that although the point was urged during hearing before the High Court, the first respondent in its writ application did not raise any plea in that behalf. The High Court was not correct in allowing the first respondent to raise the said contention. (See Chimajirao Kanhojirao Shirke Vs. Oriental Fire & General Insurance Co. Ltd., (2000) 6 SCC 622, SCC at p. 625.)” 34. In the matter of The tropical Insurance Co. Ltd. and Others Vs. Union of India and Another 21 also the Constitution Bench of the Supreme Court has held 20 (2006) 11 SCC 548 21 AIR 1955 SC 789 -62- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . that the petitioner cannot be allowed to urge the grounds which he had not taken in the petition. It was observed by their Lordships as under:- “3. As to the first two contentions, they were urged in Petitions Nos. 94 of 1934 and 183 of 1954, but were not allowed to be put forward by this Court as these questions had not been specifically raised in the petitions under Article 32 of the Constitution of India and they were accordingly dismissed. The position is similar in this respect so far as the present applications are concerned and consequently it must be held that the petitioners cannot be allowed now to urge grounds which they had not taken in their petitions.” 35. Similarly, in the matter of S.S. Sharma and Others Vs. Union of India and Others 22, the Supreme Court highlighted the importance of pleading as under:- “6. ...We are of opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well- known process of formally applying for amendment. We do not mean that justice should be available to only those who approach the court confined in a strait- jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking 22 AIR 1981 SC 588 -63- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . amendment of the pleadings. If undue laxity and a too easy informality is permitted to enter the proceedings of a court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness. Like every public institution, the courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails. Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response.” 36. Likewise, in the matter of Arun Kumar Sinha Vs. The State of West Bengal23, the Supreme Court observed as under:- “5. The second ground was that a First Information Report was lodged in respect of incidents set out in the grounds for the purpose of initiating a prosecuting against those responsible for them and yet that documents did not contain the petitioner's name. This ground, however, was not taken by the petitioner in the petition with the result that the respondent State had no opportunity or occasion to deal with it. That being so, it is not possible, in the absence of any materials before us, to deal with such a contention urged for the first time in the course of arguments.” 23 (1973) 4 SCC 54 -64- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 37. The Constitution Bench of the Supreme Court in the matter of Kavalappara Kottarathil Kochuni @ Moopil Nayar Vs. The State of Madras and Others 24 has held that plaint not raised in pleading cannot be permitted to be raised during the time of arguments:- “14. ...But that in itself does not conclude the matter. Ordinarily, when a question raised depends upon elucidation of further facts not disclosed in the statements already filed, we would be very reluctant to allow a party to raise such a plea at the time of arguments…” 38. In the matter of Union of India (UOI) and Others Vs. Devjee Mishra 25 ,the Supreme Court observed as under:- “15. ...Notably such case we not made out even in the original writ petition for reasons best known to the Respondent. Obviously, taking that plea in the rejoinder affidavit for the first time was with a view to confuse the issue, so as to resile from the voluntary confession already given in the Court Martial Proceedings. That cannot be countenanced. For, such a belated plea ought not to be entertained by the High Court, that too in a casual manner; and especially when the Appellants in further affidavit had mentioned the circumstances in support of the ascertain that the document relied by the 24 AIR 1960 SC 1080 25 (2016) 10 SCC 445 -65- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Respondent is a forged document... The High Court should not have entertained the plea of the Respondent that he was pressurized to give confession, in absence of disclosure of names of those officials and who had no opportunity to counter the allegations made against them. Hence, this reason weighed with the High Court must also fail.” 39. Further, in the matter of Ashok Lanka Vs. Rishi Dikshit and Others26, the Supreme Court observed as under:- “43. In the writ petition, the writ petitioners have not disclosed as to how each one of the licensees who had appeared as respondents therein were ineligible or otherwise disqualified and/or did not fulfill the conditions therefor. Had such opportunities been given, the State as also the said respondents could have met the said allegations. Such allegations were made only in the rejoinder. Now new plea ordinarily could have been permitted in the rejoinder without the leave of the Court. We would not have commented upon this as the High Court does not appear to have placed reliance upon the additional affidavit filed by the State, inter alia, on the ground that the same being surrejoinder could not have been filed. The High Court's attention was evidently not drawn to the fact that writ petitioners brought on record new facts for the first time in the rejoinder and, thus, the State was entitled to file a surrejoinder controverting the allegations made therein.” 26 (2006) 9 SCC 90 -66- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 40. In view of the legal positions having been aptly crystallized by the decisions of their Lordships of the Supreme Court, it is apparently clear that the educational institutions were required to set out such a ground in their writ petitions filed clearly stating that the State Government is employer for the purpose of teachers working in their private aided educational institutions in view of the definition contained in Section 2(f)(iii) of the Act of 1972 and in that case the State Government would have an opportunity to rebut it by filing reply, which the educational institutions/writ petitions utterly failed to set out in their pleadings and grounds and in seeking relief to the extent that the State Government is employer of the teachers working in the aided educational institutions on account of deep and pervasive control over the aided educational institutions and more particularly the controlling authority had already observed that no material has been placed on record by the educational institutions & before the appellate authority no such ground was even faintly raised. In -67- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . that view of the matter, the finding recorded by learned Single Judge that the State Government is employer for the purpose of gratuity to the teachers working in the aided educational institutions and allowing the educational institutions to raise such a plea for the first time, runs contrary to the settled law noticed herein-above by their Lordships of the Supreme Court in the aforementioned judgments (supra). Even otherwise, no material has been brought on record to establish the said fact. In that view of the matter, the educational institutions have failed to plead and establish that the State is employer within the definition of the Act of 1972 for the teachers of aided educational institutions. Accordingly, the finding recorded by learned Single Judge in this regard deserves to be and is hereby set-aside. Answer to Question No.2:- [Whether the learned Single Judge is justified in quashing/setting aside the Memo dated 7.6.2013 by which the State of Chhattisgarh has taken a policy decision to pay the amount of gratuity in shape of grant to the teachers retired from aided educational institutions after 1.4.2013?] -68- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 41. In order to decide the correctness of the finding recorded by learned Single Judge with regard to Question No.2, it would be appropriate to notice the Memo dated 7.6.2013, which has been quashed by learned Single Judge, as under:- NRrhlx<+ ‘kklu foRr ,oa ;kstuk foHkkx ea=ky; egkunh Hkou] u;k jk;iqj dzekad 183@,Q&1005172 foRr@fu;e@pkj@2013 u;k jk;iqj] fnukad 7 twu 2013 izfr] 1- lfpo NRrhlx<+ ‘kklu Ldwy f’k{kk foHkkx ea=ky;] u;k jk;iqj ¼N0x0½ 2- lfpo NRrhlx<+ ‘kklu vuqlwfpr tkfr ,oa tutkfr foHkkx ea=ky;] u;k jk;iqj ¼N0x0½ fo”k;%&100 izfr’kr vuqnku izkIr f’k{k.k laLFkkvksa f’k{kd ,oa vU; deZpkfj;ksa dks miknku ¼Gratuity½ gsrq vuqnkuA jkT; ‘kklu }kjk fu.kZ; fy;k x;k gS fd jkT; ‘kklu ds ‘kr~ izfr’kr~ vuqnku izkIr f’k{k.k laLFkk,a tks Ldwy f’k{kk ,oa vkfne tkfr dY;k.k foHkkx ds varxZr lapkfyr gSa ftuesa minku vf/kfu;e 1972 ds varxrZ fu/kkZfjr lhek ls vf/kd deZpkjh dk;Zjr gSa] ds deZpkfj;ksa dks minku vf/kfu;e ds izko/kkuksa ds vuq:i minku Hkqxrku gsrq jkT; ‘kklu }kjk vuqnku fn;k tk,xkA -69- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 2@ ;g vuqnku fnukad 1-4-2013 ds i'pkr~ lsokfuo`Rr deZpkfj;ksa gsrq fn;k tk,xkA lgh@& ¼vkyksd dqekj jk;½ fo’ks”k dRrZO;LFk vf/kdkjh NRrhlx<+ ‘kklu foRr foHkkx 42. As already noticed, in consonance with the judgments of the Supreme Court in Ahmedabad Pvt. Primary Teachers’ Association (supra), the Amendment Act of 2009 brought with retrospective effect from 3.4.1997 and the definition of ‘employee’ was amended to cover up the teachers also. The teachers retired on or after 3.4.1997 as such became entitled for payment of gratuity in accordance with Section 7 of the Act of 1972, which led to filing of the application against the private educational institutions before the controlling authority under the Act of 1972 who on such application ordered for payment of gratuity to the employees, which was affirmed by the appellate authority in the appeal under Section 7 of the said Act and thereafter the Finance Department, Government of Chhattisgarh has taken a considered policy decision to make payment of gratuity in shape -70- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . of grant to the employees who have superannuated after 1.4.2013. Thus, the State of Chhattisgarh, by Memo dated 7.6.2013, as a matter of policy, took a decision and volunteered to pay grant which will be utilized for the purpose of gratuity to the employees/teachers who have retired after 1.4.2013, meaning thereby the gratuity for the period from 3.4.1997 to 31.3.2013 will be payable by the private unaided educational institutions from their own funds. 43. As noticed herein above, the amended definition of Section 2(e) of the Act of 1972 read with Section 13A of the Amendment Act of 2009 was sought to be challenged by the private educational institutions unsuccessfully before the High Courts and thereafter before the Supreme Court in the matter of Independent Schools’ Federation of India (Regd.) (supra) wherein their Lordships of the Supreme Court considered the issue and dismissed the challenge so made and held that the Amendment Act of 2009 amending the definition of Section 2(e) of the Act of -71- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 1972 is a valid piece of legislation and its application with retrospective date, that is, w.e.f. 3.4.1997, was also not accepted by their Lordships as unconstitutional. It was held by their Lordships that the marginal inconvenience in the form of financial outgo or difficulty is of little weight, when curing of an inadvertent defect is made retrospectively in greater public interest, which consideration will overrule the interest of one or some institutions. Their Lordships found little merit in the challenge also for the reason that the observations made in Ahmedabad Private Primary Teachers’ Association (supra) in paragraph 26 were sufficient to indicate that a legislation should intervene to grant the benefit of gratuity to teachers. It was further held by their Lordships that the contention that the private schools were sure to succeed as to deny the teachers the benefit of the Notification No. S-42013/1/95-SS.(II), dated 3.4.1997, is questionable and far-fetched to be accepted. The law is subject to uncertainty ex-ante when two or more views are possible, but there may be certainty ex-post -72- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . litigation in view of the law of precedents, which reduces uncertainty. It was further held that a secondary argument on behalf of the private educational institutions that they would be liable to pay gratuity for a period of service prior to 3.4.1997, and, therefore, the amendments are unconscionable and tyrannous, is equally fallacious for several reasons. That the argument of unreasonableness and that the amendment is financially confiscatory, predicated on past liability, which may predate the notification effective from 3.4.1997, apart from the other reasons, is to be rejected as there are upper-cap limits on payment of gratuity. Therefore, though gratuity is computed with reference to the years of service, in view of the upper-cap limit, the payment towards gratuity cannot exceed the specified amount, even if the employee would be entitled to higher amount in view of the years of the service rendered to the employer. Further, highlighting the object of the Amendment Act of 2009, their Lordships held that in the present case, the notification No. S42013/1/95- -73- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . SS.(II) dated 3.4.1997 had ensured that the benevolent provisions requiring payment of gratuity should be extended to the “employees” of the educational institutions. The amendment with retrospective effect is to make the benevolent provisions equally applicable to teachers. The amendment seeks to bring equality and give fair treatment to the teachers. It can hardly be categorised as an arbitrary and highhanded exercise. Finally, their Lordships held and directed that the private schools to make payment to the employees/teachers along with the interest in accordance with the provisions of the Act of 1972 within a period of six weeks and in case of default, the employees/teachers may move the appropriate forum to enforce payment in accordance with the provisions of the said Act. 44. Thus, as per the judgment rendered by the Supreme Court in the matter Independent Schools’ Federation of India (Regd.) (supra), the liability to pay gratuity is primarily on the educational institutions. However, the State of Chhattisgarh has -74- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . also taken a policy decision and volunteered to pay gratuity to the employees who have retired after 1.4.2013 and the same cannot be questioned and branded as arbitrary as it has huge financial implication and repercussion. The Supreme Court in the matter of Tejram Parashramji Bombhate and Others (supra) had also held that no Court or Tribunal can compel the Government to change its policy involving expenditure. Similarly, in the recent decision of Bhagwan and Others (supra), the question before their Lordships of the Supreme Court was whether the employees of Water and Land Management Institute (WALMI), which is an independent autonomous entity registered under the Societies Registration Act, are entitled to the pensionary benefits on par with the State Government employees particularly when the institute was receiving 100% grant-in-aid right from its inception and the primary function of the said institute was educational. Their Lordships considered the said question relying upon its decision rendered in the -75- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . matter of T.M. Sampath and Others v. Secretary, Ministry of Water Resources and Others27 and Punjab State Cooperative Milk Producers Federation Limited and Another v. Balbir Kumar Walia and Others28 and held that interfering with the policy decision might have a cascading effect and having financial implications and their Lordships held as under:- “10.4 As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences. 10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has 21 2022 LIVELAW (SC) 28 been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has 27 (2015) 5 SCC 333 28 (2021) 8 SCC 784 -76- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.” 45. Similarly, in the matter of Smt. Anjana Bhattacharjee and Others (supra), their Lordships of the Supreme Court, have relied upon its earlier decision rendered in State of Punjab and Others v. Amar Nath Goyal and Others29, wherein it has been held that financial burden and constraint can be a valid ground for fixation of cut-off date for grant of benefit of increased quantum of death cum retirement gratuity and observed as under:- “32. The importance of considering financial implications, while providing benefits for employees, has been noted by this Court in numerous judgments including the following two cases. In State of Rajasthan v. Amrit Lal Gandhi [(1997) 2 SCC 342 : 1997 SCC (L&S) 512 : AIR 1997 SC 782] this Court went so as far as to note that: 29 (2005) 6 SCC 754 -77- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . “Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cutoff date. In our opinion, it cannot be said that this cutoff date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 11 1986 for 111990.” [Ibid., at AIR p. 784, para 17 : SCC p. 348, para 17 (emphasis supplied).] 33. More recently, in Veerasamy [(1999) 3 SCC 414 :1999 SCC (L&S) 717] this Court ob- served that, financial constraints could be a valid ground for introducing a cutoff date while implementing a pension scheme on a re- vised basis [ Supra fn 2 SCC at p. 421 (para 15).] . In that case, the pension scheme ap- plied differently to persons who had retired from service before 171986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.” 46. Likewise, in the matter of Krishna Gopal Tiwary and Another (supra), relating to payment of increased quantum of death-cum-retirement gratuity, it was held by their Lordship of the Supreme Court that the cut-off date cannot be said to be arbitrary which was fixed keeping in view financial constraints and pertinently observed in paragraphs 16 & 18 as under:- -78- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . “16. In a recent judgment reported as Himachal Road Transport Corporation & Anr. v. Himachal Road Transport Corporation Retired Employees Union, 2021 (4) SCC 502, in the case of payment of increased quantum of death-cum-retirement gratuity, it was held that the cutoff date cannot be said to be arbitrary which was fixed keeping in view financial constraints. This Court held as under: “18. Though there are long line of cases, where validity of fixation of cut- off date is considered by this Court, we confine and refer to the case law which is relevant to the facts of the case on hand. In State of Punjab v. Amar Nath Goyal [State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 : 2005 SCC (L&S) 910] , while examining the validity of cut-off date fixed for grant of benefit of increased quantum of death-cum-retirement gratuity, this Court has held that the financial constraint pleaded by the Government, was a valid ground for fixation of cut-off date and such fixation was not arbitrary, irrational or violative of Article 14 of the Constitution…….” 18. Consequently, we do not find any error in the order passed by the High Court. The appeal is dismissed.” 47. The Division Bench of the Madhya Pradesh High Court also in the matter of Suresh Kumar Dwivedi and Others (supra), which was rendered by the High Court of Madhya Pradesh prior to the formation of the State of Chhattisgarh w.e.f. 1.11.2000, held in respect -79- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . of the claims of pension, gratuity, medical allowance and C.C.A., no direction can be issued to the State Government in respect of the aforesaid claims, as it cannot be disputed that implementation of the aforesaid claims is a policy matter involving financial burden and that there is no relationship of master and servant between the State Government and the teachers. It was pertinently observed in paragraphs 16 & 17 as under:- “16. Coming to the claim of pension, gratuity, medical allowance and C.C.A., learned counsel for the petitioners, placing reliance on a decision of the Supreme Court in AIR 1983 SC 130, D. S. Nakara v. Union of India, contended that with the expanding horizons of socio-economic justice, the Socialist Republic and Welfare State which the country endeavours to set up and the fact that the old men who retired when emoluments were comparatively low, are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, therefore, in view of Articles 39(e) and 41, and as the basic framework of Socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave, the State Government is bound to make provisions for the teachers of the aided institutions for payment of benefits of the medical allowance, C.C.A., pension and gratuity at the time of retirement. To support, learned counsel also placed reliance on two cases of teachers of -80- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Government aided institutions of Haryana State, Haryana State Adhyapak Sangh v. State of Haryana, 1990 (Supp) SCC 306, and Haryana State Adhyapak Sangh v. State of Haryana, AIR 1988 SC 1663. 17. In our opinion, no direction can be issued to the State Government in respect of the aforesaid claims, as it cannot be disputed that implementation of the aforesaid claims is a policy matter involving heavy financial bur- den. The teachers of the aided institutions are not appointed under the State Government. There is no relationship of master and servant between the State Government and the teach- ers. There is no provision in the Act or the rules applicable to such teachers or employees for payment of the aforesaid benefits. It is not clear how the State Government is account- able for extending such benefits and facilities. Since it is a policy matter involving financial burden, it is not the function of this Court to compel the Government to accord sanction, as the Court does not substitute its judgment for that of the legislature or its agents as to mat- ters within the province of either. See Union of India v. Tejram Parashramji Bombhate, (1991) 3 SCC 11. The Haryana Teachers' cases relied by petitioners are of no help, as they relate to parity in pay scales only, which was recom- mended by the expert body, like Kothari Com- mission, and the Haryana Government after the report of the Pay Commission, expressed its readiness and willingness to implement the same at par so far as the salaries and addi- tional dearness allowance, etc. were con- cerned. There too, the benefits of C.C.A., medi- cal allowance, pension and gratuity were not extended.” -81- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 48. In Anandi Mukta Sadguru Mukta Jeevandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani30, it has been held by their Lordships of the Supreme Court that under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. 49. Their Lordships of the Supreme Court in the matter of Rajasthan Welfare Society (supra) have considered the question whether the amount of gratuity payable to the employees of aided educational institutions has to be taken into consideration or not for determining the amount of grant-in-aid. Such a question was posed for consideration with reference to Rajasthan Non-Government Educational Institutions Act, 1989 and their Lordship held in light of Section 7 of the said Act that no aid can be claimed as a matter of right and the gratuity cannot be termed to be an emolument for the time being payable to the 30 (1989) 2 SCC 691 -82- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . employees so as to come within the definition of salary defined in Section 2(r) of the said Act, and observed in paragraphs 15 & 16 as under:- “15. Further, gratuity cannot be included in the approved expenditure as under Rule 9 the State Government can sanction the grants under four Heads provided therein and gratuity does not fall under any one of them. It is not claimed that the gratuity falls under Heads 2 to 4. The Head No.1 is “maintenance or recurring grant”. Admittedly a gratuity cannot come under the category of maintenance. It is also not a recurring grant as already noticed hereinbefore. It is, thus, clear that payment of gratuity cannot come under any of the four categories mentioned in Rule 9. 16. In view of the aforesaid, the gratuity within the meaning of the Act and the Rules cannot form part of recurring grant. It is not includable as part of approved expenditure for the purposes of computing the amount of grant payable to the appellant. In this view, communication dated 26th May, 1994 of Government of Rajasthan to the effect that the Rules do not provide for grant-in-aid on amount of gratuity, the same being not included in the approved expenditures, cannot be held to be illegal. This will, however, not affect the rights of the employees to get the gratuity from the concerned institution.” 50. The principle of law laid down in the matter of Rajasthan Welfare Society (supra) aptly applies to the present case as per the Revised Rules for Grant-in- -83- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Aid to Non-Government Educational Institutions, 1979. Rule 5 of the said Rules, provides that no grant can be claimed by any institution as a matter of right and maintenance of grant is a recurring grant sanctioned for running and maintaining an educational institution. 51. Thus, it is quite established that their Lordships of the Supreme Court in the matter of Independent Schools’ Federation of India (Regd.) (supra) have clearly held that liability for payment of gratuity w.e.f. 3.4.1997 is of the educational institutions while upholding the constitutional validity of Section 2(e) amended by the Amendment Act of 2009 brought into force w.e.f. 3.4.1997. However, the State of Chhattisgarh has volunteered to pay gratuity in shape of grant to the employees who have retired after 1.4.2013, which in the larger public interest involving huge financial implication cannot be questioned as arbitrary and discriminatory and even the decision rendered by the Madhya Pradesh High Court in Suresh Kumar Dwivedi and Others (supra) holds the -84- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . field, decided prior to 1.11.2000 i.e. before formation of the State of Chhattisgarh, and has a binding force on this Court on the principle of comity. Consequently, the impugned Order passed by learned Single Judge quashing the Order/Memo dated 7.6.2013 to the extent of holding that the State would be liable to pay gratuity to the teachers even after 3.4.1997 to 30.3.2013, deserves to be and is accordingly set-aside. It is clarified that the State would be liable to pay gratuity in shape of grant w.e.f. 1.4.2013 as per the Order/Memo dated 7.6.2013 and it is held so accordingly. 52. So far as the judgments cited by learned counsel appearing for the respondent educational institutions are concerned, those judgments are distinguishable on their own facts. Therefore, the law laid down in those judgments would not come to the aid of the respondent educational institutions in the given facts and circumstances of the present case. -85- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . Conclusion & Result:- 53. In light of the aforesaid discussion and finding arrived at, it is held :- (1) That, the State of Chhattisgarh is not the employer of the teachers working in the private unaided educational institutions within the meaning of Section 2(f) of the Act of 1972 and they have failed to plead and establish the said fact. (2) That, the circular of the State Government, dated 7.6.2013, prescribing a cut-off date for providing grant to pay gratuity to the teachers of aided private educational institutions retired after 1.4.2013 is valid classification and the same is in accordance with law. 54. Resultantly, all the writ appeals are allowed. The impugned judgment/order dated 6.3.2020 passed by learned Single Judge is set-aside and consequently all the writ petitions filed by the private educational institutions also stand dismissed. The private educational institutions herein are directed to pay the amount of gratuity to the teachers/private respondents herein retired after 3.4.1997 till 31.3.2013, as directed by the two authorities under the Act of 1972, within a period of six weeks from the date of receipt of certified copy of this judgment. -86- (W.A. Nos. 194 & 198/ 2021 and 221, 228, 233, 234, 235, 237, 246, 250, 252, 253, 305, 404, 408, 418, 436, 446, 448, 450, 451 & 461/ 2022) . 55. There shall be no order as to cost(s). Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) sharad Judge Judge "