Rajasthan High Court - Jaipur
Viswanath Sharma (Shri) vs State Of Rajasthan And 3 Ors. on 17 November, 2005
Equivalent citations: RLW2006(1)RAJ350
Author: S.K. Keshote
Bench: S.K. Keshote, G.S. Misra
JUDGMENT S.K. Keshote, J.
1. The learned Single Judge, under its order, dated 9.8.2000, on having found conflict in two Division Bench decisions of the Court in G.N. Tandon v. State of Rajasthan and Ors. 1996(1) RLR 538 and Dr. Kailash Chandra Mittal and 5 Ors. v. State of Rajasthan 2000 WLC (Raj.) UC 343, referred the matter to the Larger Bench and the question framed for consideration thereof is whether Ordinance 67-A of the Rajasthan University Ordinances (for short, "the Ordinances"), will prevail or the employees will be governed by the Rajasthan Non-Government Educational Institution Act, 1989 (hereinafter referred to as "the Act, 1989") and the Rajasthan Grant-in-Aid to Education and Cultural Institutions Rules, 1963 (for short, "the Rules, 1963"). Though it is not specifically stated in the question but from the facts of the case, which have come on the record, we find that the dispute relates to the age of superannuation of the teachers in the Non-Government Recognised Affiliated Aided Colleges in the State of Rajasthan.
2. For adjudication of the question referred to hereinabove the facts necessary for the decision of the case to be noticed briefly are recorded as follows:
3. Respondent No. 2, Seth Juthalal Education Society, Jhunjhunu (hereinafter referred to as 'the Society') is a Society registered under the Societies Registration Act, 1958. Seth Motilal P.G. College, Jhunjhunu (for short, 'the College') is an educational institution established and controlled by the Society and the College is a non-Government recognised and educational institution which is managed and controlled by the governing body of the Society. The annual budget of the college runs into several lacs and 90% thereof is admittedly contributed by the State of Rajasthan by way of grant-in-aid.
4. The petitioner was initially appointed as a Teacher in the Seth Motilal High School. The School attained the status of an Inter College and later it was upgraded as a P.G. College. The petitioner was appointed as a Lecturer (Commerce) in the College. At the time of entry of the petitioner in the service as Lecturer (Commerce), on 5.7.1958, he executed an agreement in favour of the College which is alleged to have been executed in pursuance of the Statute incorporated under Clause 30(iv) and Ordinance 67 of the Rajputana University Hand Book Part II, 1951 Edition. Clause 3 of the agreement aforesaid reads as under,--
That the age of superannuation will be 60 years, the actual time of retirement shall be the 30th day of June following attaining of that age.
5. The petitioner alleged that his appointment in the College as Lecturer (Commerce) vide order, dated 21.7.1958, was subjected to confirmation by the University of Rajasthan and regulated under the Rules and Regulations of he Institution. The petitioner averred that as per Clause 3 of the agreement, dated 5.7.1958, he has to remain in service of the college till he attains the age of 60 years and the actual time of retirement shall be the 30th day of June following attaining of that age and further in terms of Rule 3(16) of the Rules, 1963 the petitioner was not required to apply for extension of his period of retirement to 60 years from 58 years but since in the past, the teachers had applied for extension of their period of retirement, under misconception of law, he applied under the Rules, 1963 for extension of the period of his retirement vide application dated 7.10.1979. The Principal of the College, vide his letter, dated 9.4.1990, informed the petitioner that the governing body of the college has rejected his application aforesaid, for extension of the period of his retirement. It is stipulated in the said letter that the petitioner will retire on attaining the superannuation age of 58 years. It is further stated that since the petitioner will attain the superannuation age of 58 years on 9.4.1990, he will, therefore, be retired on 30.4.1990. The reason assigned for non- extension of the retirement age of the petitioner was that it was not considered essential in the interest of the Institution and the students to grant the extension.
6. It is not necessary to set out the facts in detail regarding the show cause notice, dated 10.11.1999 served upon the petitioner in the matter of issuance of appreciation certificate by him to one Shri C.P. Chaturvedi, working as Lecturer (Political Science) in the College as it has no bearing on the reference for determination.
7. The petitioner submits that he made an appeal/representation under Rule 4(g) of the Rules, 1963, to the Director of the College Education, Government of Rajasthan, on 6.4.1990, who, in turn, decided the same and the decision thereof has been communicated to him under the letter, dated 28.4.1990. The Director of College Education, Government of Rajasthan, has opined that as per Rule 3(16) of the Rules, 1963 the age of superannuation of the teachers and the employees of the non-Government recognised educational institutions receiving grant- in-aid is 58 years.
8. The petitioner filed this petition on 24.4.1990 praying therein for grant of following relief,
(a) The impugned orders, dated 9.4.1990 whereby the directions have been given to compulsorily retire the petitioner w.e.f. 30.4.1990 by respondent Nos. 2 and 3 be declared un- constitutional and illegal and the same may be quashed and set aside;"
(b) A declaration may be granted in favour of the petitioner that the age of superannuation is 60 years as stipulated in the service agreement dated 5.7.1958 and his premature retirement vide impugned order dated 9.4.1990 may be declared illegal, invalid and ultra vires.
(c) The petitioner be allowed by an appropriate direction to continue in service till he attains the age of 60 years.
(d) An appropriate direction may be given to the respondent No. 2 to consider the case of the petitioner for extension in service for 5 years w.e.f. the date he attains the age of 60 years.
(e) The order dated 9.4.1990 whereby it has been proposed to impose a penalty of "Censure" against the petitioner be quashed.
9. The respondent contested the writ petition and filed their separate replies thereto. They have taken manifold defences in the reply to the writ petition. The substantial defence taken by them is that the agreement entered into between the petitioner and the Society at the time of his entry as Lecturer (Commerce) in the College was not binding on the Government of Rajasthan, which gives 90% grant-in-aid to the College and further that it was not a party thereto. The age of superannuation of the employees and the teachers in the non-Government recognized affiliated aided colleges as per Clause 3(16) of the Rules, 1963, was 58 years.
10. It was submitted that the Education (Group III) Department, Government of Rajasthan, Jaipur, under the order dated 5.4.1978, made revision of pay scales with effect from 1.9.1976 of the Teachers of the non-Government recognised affiliated aided colleges. The revision of the pay scale of the teachers of the non-conditions as stated in that order. Condition No. 1(viii) of the order aforesaid provides that the age of superannuation and other conditions of service of teachers as well as Principals shall be governed by the rules relating to conditions of service of non-Government recognised affiliated aided colleges under Grant-in-Aid Rules; reference has been made to the Condition No. 4(i) which relates to the option to be given by the teachers of the non-Government recognised affiliated aided colleges for the revised pay scales and the option once exercised shall be Final. The petitioner submitted his option and chose to elect revised pay scales with effect from 1.9.1976.
11. It is urged by the respondents that the agreement aforesaid entered into between the petitioner and the society at the time of his entry in the service of the college stood superseded or the petitioner himself gave up the same by opting for the revised pay scales with effect from 1.9.1976 and his age of superannuation would be governed by Rule 3(16) of the Rules, 1963.
12. The petitioner filed rejoinder to the reply respondent No. 2.
13. The writ petition on 25.4.1990 was placed for preliminary hearing on Board. Show-cause notices were issued to the respondents. On the stay application the Court stayed the operation of the order dated 9.4.1990. It was ordered that the petitioner shall be allowed to continue to work in the College on the post he was working and that the status quo shall be maintained.
14. Later on the application having been filed by the College under Article 226 of the Constitution of India, the Court on 25.5.1990, vacated the stay order granted earlier in favour of the petitioner.
15. The learned Counsel for the petitioner submitted that the agreement is not a simple agreement entered into between the petitioner and the Society. It is a statutory agreement required to enter into by every Teacher appointed in the College in accordance with the statutory provisions, Ordinance 67 of the University of Rajas-than and it is binding on the Government also.
16. It has next been contended that merely by acceptance of the benefit of the revised pay scale with effect from 1.9.1976 the petitioner is not divested of his contractual right to continue in the service till he attained the age of 60 years, as the agreement has legal protected umbrella under a statute and the reference has been made to Section 16 of the Act, 1989 in this context.
17. Lastly, it was urged that the Rules, 1963 will not have overriding effect on Ordinance 67-A of the University of Rajasthan as the Rules aforesaid, are administrative in character and the Ordinance is a statutory one.
18. Per contra, Shri B.P. Agarwal, the learned Advocate General, contended that the view taken by the Division Bench of the Court in Dr. Kailash Chandra Mittal's case (supra) is a correct one. It is submitted that the decision of the Court aforesaid has been confirmed by the Hon'ble Supreme Court in Civil Appeal No. 902/2000, decided on 17.8.2004.
19. Otherwise also, Shri B.P. Agarwal, the learned Advocate General, submits that the State Government is providing grant-in- aid to the College to the extent of 90% by virtue of which it has power to lay down service conditions of the teachers and employees of the non-Government recognised affiliated aided colleges. In support of his contention, he made reference to Section 16 of the Act, 1989 and Rule 45 of the Rules, 1993.
20. It has next been contended that the agreement on which reliance has been placed, was entered into between the petitioner and the Society and as the State Government was not a party thereto, it is not binding upon it. Carrying this contention further Shri Agarwal, the learned Advocate General, urged that leaving apart the nature, scope and binding effect of the agreement in the matter of age of superannuation of the petitioner, after acceptance of the new revised pay scale by him with effect from 1.9.1976, he has endorsed his age of retirement as 58 years.
21. Shri Agarwal, the learned Advocate General, submits that the prescription of the age of superannuation at 58 years of the teachers and the employees of the non-Government recognised affiliated aided college under the Act, 1989 and the Rules, 1993 is not prejudicial to the petitioner as under Rule 3(16) of the Rules, 1963 the age of superannuation was also 58 years.
22. Shri Agarwal, the learned Advocate General, urged that the provisions of the Ordinance 67-A of the Ordinance is not applicable in the case at hand since the college is maintained or deemed to have been maintained for purpose of the provisions of the Act, 1989 and the Rules, 1993 by the Government of Rajasthan.
23. Lastly, Shri B.P. Agarwal, the learned Advocate General, submitted that under the Rajasthan University Act, 1946 (hereinafter referred to as 'the Act, 1946') the University of Rajasthan is not clothed with the power to fix the service conditions for the teachers of the non-Government recognized affiliated aided colleges. He refers to Statute 30 of the statutes of the Rajasthan University (hereinafter referred to as 'the Statutes'), and submitted that the emoluments and the conditions of service of the teaching staff of the non-Government recognised affiliated aided colleges, will be such; which may be approved by the University. In his submissions, though in Clause (4) of Statute 30 of the Statutes, some reference has been made of teaching staff but it nowhere contemplates, empowers and speaks for the University prescribing the service conditions for the teachers of non-Government recognized affiliated aided colleges. Shri B.P. Agarwal, the learned Advocate General, placed for our consideration Sections 22 and 29 of the Act, 1946 as well as the Ordinances and Statutes of the University of Rajasthan.
24. Learned Counsel for the parties, for perusal of the Court, submitted compilation of the Xerox copy of the following judgments of the Court:--
1. Dr. Kailash Chandra Mittal and 5 Ors. v. State of Rajasthan (supra).
2. Director, Directorate of College Education Rajasthan and Ors., J.L.N. Marg, Jaipur v. Dr. (Mrs.) Narendra Kaur and 3 Ors. 2003(2) WLC (Raj.) 149.
3. G.N. Tandon v. State of Rajasthan and Ors. D.B. Civil Writ Petition No. 4758/1995, decided on 22.10.1996 (supra)
4. M.S. Chhonkar v. The State of Rajasthan and Ors. S.B. Civil Writ Petition No. 1214/1990, decided on 10.1.1992.
5. Jagdish Prasad v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 2141/1991, decided on 5.1.1994.
6. Shri K.B.L. Mathur v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 973/1991 with two other writ petitions, decided on 13.7.1992.
7. M.S. Rikhy v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 621/1991, decided on 6.8.2002.
8. Mohan Lal Jangid v. State of Rajasthan and Ors. D.B. Civil Writ Petition No. 2244/1997, decided on 4.5.1999.
25. The learned Counsel appearing on behalf of the Society adopted the contentions advanced by Shri B.P. Agarwal, the learned Advocate General.
26. We have given our anxious and thoughtful consideration to the rival contentions advanced by the learned Counsel for the parties and carefully gone through the entire record of the writ petition.
27. In Dr. Kailash Chandra Mittal's case (supra), the Bench observed as under:
Framing of Ordinance 67-A was never authorised by the Rajasthan University Act, 1946 (for short, "the Act, 1946") to give power to the University to frame service conditions of teachers of the Non-Government Aided Private Colleges Ordinance 67-A is not an isolated Ordinance; this is one of the Ordinance in a bunch of Ordinances framed by the University. If it is to be read in isolation and singularly, then it may be that it makes provision for specific point of laying down service conditions but if all the Ordinances are concerned they are framed on a variety of subjects. That is also the situation in the Act, 1989, Rules, 1993 and the Grant-in-Aid Rules, 1963 as well. The ordinances make provisions for various aspects of aided institutions, thus it cannot be said that Ordinance 67-A has to be referred in separation to all other Ordinances.
28. The Division Bench further observed in the case aforesaid that the age of superannuation of a Teacher is a matter of the private contract in between the Teacher and the College. The petitioner on accepting new pay scales with effect from 1.9.1976 has accepted the age of retirement as 58. The University Ordinance has no role to play. In view of the exclusion of Ordinance 67 the law laid down in Mohan Lal Jangid's case (supra) will hold the field.
29. Dr. Kailash Chand Mittal & Ors. felt aggrieved of an dissatisfied with the judgment of the Court, took the matter to Hon'ble Supreme Court of India and the reference may have to the Civil Appeal No. 902/2000, Dr. Kailash Chand Mittal v. State of Rajasthan and Ors. Shri B.P. Agarwal, the learned Advocate General for the State, placed on the record the copy of the order, dated 17.8.2004, of the Hon'ble Supreme Court, which reads as under:
In view of the conclusions of the High Court with which we are in agreement, we find no merit in these appeals. The appeals are, accordingly, dismissed.
30. The judgment of the court in Dr. Kailash Chand Mittal's case (supra) thus has been affirmed by their Lordships of the Hon'ble Supreme court. The learned Counsel for the petitioner also does not dispute the factum of affirmation of the judgment of the Court in Dr. Kailash Chand Mittal's case (supra), by the Hon'ble Supreme Court of India.
31. The Court had decided the case of G.N. Tandon v. State of Rajasthan and Ors. (supra) on 22.10.1996 and the decision in Dr. Kailash Chand Mittal's case (supra) was delivered on 8.8.1999 i.e. much after the decision in G.N. Tandon's case (supra). But before the Bench, which decided the case of Dr. Kailash Chand Mittal v. State of Rajasthan and Ors. the reference was not made to the decision in the co-ordinate Benches are delivered but one of the genuine reasons for such conflict is that the earlier decision given on the similar point is not brought to the notice of the Bench before which the similar matter has come for consideration. For this, primarily the management of the system is at fault. It is unfortunately that despite the availability of advanced computer science, we are still unable to have a computer programme to apprise ourselves the latest pronouncement made on similar point by another co-ordinate Bench Be that as it may, it is not the subject matter or the point for consideration as it is a matter for consideration and decision on the administrative side of the Court.
32. Before the Bench, which decided the case of G.N. Tandon v. State of Rajasthan and Ors. the only controversy raised was whether the age of retirement of the petitioners therein was 58 or 60 years. The petitioner in G.N. Tandon's case (supra) was also a teacher (Lecturer in a Non-Government Recognised Aided Institution). The Court decided G.N. Tandon's case (supra) relying on two earlier decisions of the Single Bench in M.S. Chhonkar v. State of Rajasthan S.B. Civil Writ Petition No. 1214/1990 and K.B.L. Mathur v. State of Rajasthan S.B. Civil Writ Petition No. 973/1991.
33. In M.S. Chhonkar's case (supra), decided on 10.1.1992, a learned Single Judge of the court, after perusing the Rules, 1963 and the agreement, which was entered into between the parties thereto, held that the teachers in Non-Government recognized affiliated aided colleges are entitled to remain in service upto the age of 60 years as per the agreement.
34. K.B.L. Mathur's case (supra), was decided by another learned Single Judge relying upon the decision in M.S. Chhonkar's case (supra).
35. In G.N. Tandon's case the Bench of this Court held as under:
After hearing the learned Counsel for the parties at length, we are of the view that the writ petition is liable to succeed mainly on the ground that this Court, on earlier occasions while deciding two different bunches of the writ petitions; one in the case of M.S. Chhonkar and Others in the case of K.B.L. Mathur (supra), has already held that the lecturers of respondent No. 3 are entitled to continue at the age of 60 years. These judgments have attained finality and we find no reason to disagree with them. Apart from it, the vested right of the petitioner to superannuate at a particular age in terms of the statutory instrument dated 20.1.1966 is well protected. This vested right could not have been taken away by he Act No. 19 of 1992 and the Rules framed thereunder, inasmuch as Section 16 of the Act itself provides that the rights and benefits accruing to an employee of an existing institution under the Grant-in-Aid Rules in force at the commencement of the Act, shall not be varied to the disadvantage of such an employee.
36. In G.N. Tandon's case (supra) the Court proceeded on the ground that by virtue of the agreement entered into between the management of the college and the teacher a vested right accrued to latter to remain in service till attaining the age of 60 years and Section 16 of the Act, 1989 protected that right, as the variation thereof, would be to the disadvantage of the teacher.
37. The Bench of this Court in Mohan Lal Jangid's case (supra), proceeded that it need not go into the question whether the teacher's service conditions are governed under Rule 45(1) and (2) of the rules, 1993 or under Ordinance 67-A of the Ordinances in view of the fact that the teacher specifically entered into an agreement exercising the option that he shall retire on attaining the age of 58 years.
38. The decision in G.N. Tandon's case (supra) was cited before the Bench concerned deciding Mohan Lal Jangid's case (supra) and it was held that the same is distinguished on its own facts. We consider it appropriate to reproduce the relevant portion of the decision in Mohan Lal Jangid's case (supra) which reads as under:
The petitioner exercised the option and elected the Revised Pay Scale with effect from 1.1.1986. The petitioner having exercised its option taking the revised pay scale on the condition that his age of superannuation shall be governed by the grand-in-aid rules there is a voluntary change of contract as regards the age of superannuation and the petitioner has opted for his retirement at the age of 58 years. The petitioner cannot be permitted to blow hot and cold at the same breath. Having got the benefit of the revised pay scale now it does not lie in the mouth of the petitioner to say that his retirement shall be on attaining the age of 60 years and not 58 years which has been specifically agreed to. The judgment on which the strong reliance is placed is dated 22.10.1996 in D.B. Civil Writ Petition No. 4758 of 1995 G.N. Tandon v. State of Rajasthan and Ors. It is distinguishable on its own facts. The Ordinance 67 of the Rajasthan University Ordinances was made applicable in the absence of the statutory contract having been mutually varied which is very clear when the Court says:
...As observed earlier, in the instant case the University has not so far amended the Ordinance 67 nor the terms of the statutory contract have been mutually varied so the orders dated 4.5.1995 and 30.9.1995 become bad in law.
39. In Jagdish Prasad v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 2141/1991, decided on 5.1.1994 along with two cognate matters, the learned Single Judge held as under:
I am proceeding on the assumption that the provisions of the University of Rajasthan Act are applicable to the petitioner as this college was earlier affiliated to the University of Rajasthan. Therefore, by virtue of Ordinance 67-A the age of superannuation which has been prescribed for the affiliated colleges, is 60 years and there is a format of agreement for the affiliated colleges which has been prescribed under Ordinance 68 and in that Clause (10) says that the age of superannuation will be 60 years. But by this, it is not possible to saddle the Government with the liability to reimburse the private institutions for such candidates upto 60 years. Since, the Grant- in-Aid Rules were executive in nature but now they have become statutory with the promulgation of the Act. According to earlier Grant-in-Aid Rules the terms and conditions of the teaching staff was that the age of superannuation of the candidates was 58 years. By virtue of Ordinances 67-A and 68 the government of Rajasthan cannot be bound to automatically extend the age of retirement of such affiliated colleges upto 60 years. This is a statutory agreement which has been entered into between the petitioner and the institution and it cannot be enforced against the State. No mandamus can be issued against the State of Rajasthan that these candidates should be allowed to continue upto the age of 60 years since these colleges are affiliated to the University of Rajasthan and the University of Rajasthan has prescribed a format of agreement for such affiliated colleges. It is this affiliated college, which has been entered into a statutory agreement and this agreement is between the affiliated college and its employee/teacher and the Government cannot be bound by such agreement and cannot be saddled with financial liability. This is a bilateral contract between the college and its employee/teachers because of the affiliation with the University. By this no mandamus can be issued against the Government to accept the same.
40. The benefit of Ordinance 67-A of the Ordinances was not extended to the teachers against the Government of Rajasthan by the learned Single Judge in that case on the ground that the agreement entered into between the teacher and the college affiliated to the University of Rajasthan is not binding on the Government of Rajasthan as it was not a party thereto however, the learned Single Judge held that the agreement is certainly binding on the institution and where the age of superannuation is not extended by the Government of Rajasthan, it cannot be saddled with the liability to reimburse for the salary to be paid to the teacher for the period exceeding the age of 58 years; and that is the liability of the institution.
41. In the case of M.S. Rikhy v. State of Rajasthan Ors. S.B. Civil Writ Petition No. 621/1991, decided on 6.8.2002, it is suffice to say that before the learned Single Judge al these points, which have been canvassed and argued before us, were not placed for consideration. Thus, we do not consider it necessary to discuss and deal therewith in detail.
42. Now we shall proceed to consider the contentions raised by the learned Counsel for the parties in seriatim.
1. (a) Re the agreement entered into between the petitioner and the Society binding on the Government of Rajasthan.
43. Ordinance 67 of the Ordinances provides that the Principal and all other members of teaching staff of the college other than those maintained by the State, shall be appointed on a written contract, which shall be on a duly stamped paper and as per proforma laid down by the University.
44. Ordinance 67-A of the Ordinances lays down the date of compulsory retirement of a permanent whole time teacher in a college affiliated to the University other than those maintained by the Government, the day on which he attains the age of 60 years. In special circumstances, however, to be recorded in writing, whole-time permanent teacher of outstanding merit particularly known for his excellence and quality of teacher may be retained in service upto the age of sixty-two years provided he continues to be mentally and physically fit for duty. The management of the college with the prior approval of the Vice- Chancellor and the Syndicate shall grant such an extension.
45. Ordinance 68 of the Ordinances prescribed the form of agreement to be adopted by the non-Government affiliated colleges for appointment to the teaching posts except Principal. Clause (10) of the form of agreement is relevant for the decision of the case, which reads:
The age of superannuation will be 60 years.
46. Copy of the agreement entered into between the petitioner and the college on 5.7.1958 (i.e. prior to the Rules, 1963 were brought into force) has been produced on the record of the writ petition as Annexure-1. It is a bilateral agreement between the petitioner and the college. Undisputedly the Government of Rajasthan was not a party thereto. An agreement entered into is binding only on the parties thereto. It is not binding nor the third party is bound by it. Set it apart whether it is a statutory agreement or not, even if we proceed with he assumption, presumption and acceptance that it is a statutory contract the statute, under which it is provided and entered into between the parties, the Ordinances 67, 67-A or 68 of the Ordinances do not make it binding on the party other than the contracting parties. The learned Counsel for the petitioner has failed to point out any provision from the Act, 1946 or the Statute or the Ordinances, or to cite a decision of the Hon'ble Supreme Court or of this Court or of any other High Court to show and establish to our satisfaction that statutory agreement of the nature, in question, is binding on a person, though it was not a party thereto, Keeping in view the provisions of the Ordinances 67, 67-A and 68 of the Ordinances as stand and the bilateral agreement between the petitioner and the college, we have no hesitation to hold that it is not binding on the Government of Rajasthan.
1(b) Effect of the Statutory Agreement.
47. The Ordinance 67-A of the Ordinances prescribes the age of superannuation for the teachers of non-Government affiliated aided colleges is the day on which he attains the age of 60 years. Aided colleges is the day on which he attains the age of 60 years. The format of agreement for the teachers in non- Government recognized affiliated aided colleges is prescribed under Ordinance 68 of the Ordinances and as per thereto the age of superannuation of a teacher is 60 years. Under the Ordinance 67-A or 68 of the Ordinances, the format of the agreement prescribed thereunder and the Agreement entered into between the petitioner and the college, the Government of Rajasthan cannot be saddled with the financial liability to reimburse to the college for the payment of salaries and other benefits to the petitioner upto the age of 60 years. The Rules, 1963 were executive in nature but now the Act, 1989 is enacted by the State Legislature. Under the Rules, 1963 the age of retirement of the teachers in non-Government recognised affiliated aided colleges, is on their attaining the age of 58 years.
48. As said earlier the statutory agreement entered into between the petitioner and the college, not binding on the government of Rajasthan and thus it cannot be enforced against it. No writ of mandamus can be issued against the Government of Rajasthan and in favour of the petitioner to allow him to continue upto the age of 60 years, merely because the college is affiliated to the University of Rajasthan and, the Ordinance 67-A of the Ordinances, prescribed 60 years age of retirement of the teachers of the non-Government recognized affiliated aided colleges. Where a writ of mandamus, as prayed for by the petitioner in the writ petition, is issued against the Government of Rajasthan, the result thereof would be in reimburse for the salaries and other service benefits, which are to be paid to be petitioner by the college upto the date he attains the age of 60 years. The Government of Rajasthan as it is not bound by the agreement, cannot be saddled with the financial liability to be discharged by the college. It being a bilateral agreement between the petitioner and the college, it is binding on the college, and the petitioner can enforce the same against it but no writ of mandamus can be issued against the Government of Rajasthan. The petitioner applied for extension of his age of superannuation from 58 to 60 years; even if it whereby granted by the college, the financial liability will have to be incurred and borne by it and not by the Government of Rajasthan.
49. The upshot of the of the above discussion is that the statutory agreement in between the petitioner and the college, is not binding on the Government of Rajasthan, although the petitioner may have a right to enforce the same against the college, no writ of mandamus can be issued against the Government of Rajasthan to direct the college to continue the petitioner upto the age of 60 years as to reimburse for his salary and other allowances to be paid to him by the college during the extended period of service.
2. Effect of acceptance of the benefits by the petitioner of revised pay scales effective from 1.9.1996:
50. The Government of Rajasthan, Education (Gr.III) Department, under its order, No. F3/(19)/Edu/Gr.III/77, Jaipur, Dated 5.4.1978, revised the existing pay scales of the teachers of the non-Government recognised affiliated aided colleges with effect from 1.9.1976. The revision of the pay scales aforesaid, inter alia, were made subject to the terms and conditions that the age of superannuation and other conditions of the service of teachers as well as Principals shall be governed by the rules relating to conditions of service of non-Government recognized affiliated aided colleges under Grant-in-aid rules; the teachers of the non- Government recognized affiliated aided colleges shall have option to elect to draw pay either in the pay scale prescribed for them under the Revised New Scale Rules 1976 or in the Revised Pay Scales prescribed under the order with effect from 1.9.1976. The option for one of the scales shall be exercised with reference to 1.9.1976 and option once exercised shall be final. The option shall be exercised in writing in the form appended to the said order within a period of two months from the date of publication thereof in the official gazette. The option shall be intimated to principal of the College. In case the Principal does not receive the intimation regarding option within the specified time a teacher shall be deemed to have elected to draw pay in the revised pay scale with effect from 1.9.1976 under that order. The option is to be pasted in the service book and its true copy is also to be placed in the personal file of the concerned teachers.
51. The petitioner exercised the option for the Revised Pay Scale with effect from 1.9.1976 under the order aforesaid of the Government of Rajasthan. Reference may have to the document Annexure-R2/1 to the reply to the writ petition, filed by the respondent No. 2. It reads as under:
Forum of option
(i) I, Vishwa Nath Sharma (Name), Lecturer (Designation), hereby elect the revised scale of pay with effect from 1.9.1976 as notified under Education Department Memo/Letter No. F3/Edu/Gr.III/77 Dated 5.4.1978.
(ii)...(Name)...(Designation) hereby elect to continue on the Revised New Pay Scale 1976...(mention scale) with effect from 1.9.1976 under Rajasthan Civil Service (Revised New Pay Scale) Rules, 1976.
Signature Dr. V. Sharma Vishwa Nath Sharma Name (V.N. Sharma) Designation Lecturer Name of College in which employed -
Seth Motilal College, Jhunjhunu Date: 22.4.1978 Station: Jhunjhunu Attested Principal (with Official Stamp) Undertaking I hereby agree to refund the overpayment, if any, made to me on account of incorrect fixation of my pay in the revised pay scales sanctioned under Education Department memo/letter No. F3/Edu/Gr.III/77, Dated 5.4.1977.
52. Consequences of the acceptance of the pay in the revised pay scale with effect from 1.9.1976 as provided under the order aforesaid the age of superannuation of the petitioner shall be as provided under the Rules, 1963.
53. The petitioner having opted for the revised pay scale with effect from 1.9.1976 subjected to the condition that his superannuation age shall be governed by the Rules, 1963 and it is thus a case of voluntarily change of term of agreement as regards t the age of superannuation.
54. The matter yet can be examined from another aspect. The petitioner's subsequent conduct i.e., after acceptance of the revised pay scale with effect from 1.9.1976 also makes it clear that he voluntarily and on his own had accepted the modification of agreement as regards to the age of superannuation. Under the Rules, 1963 the age of superannuation is extendable by two years. The petitioner, to take the benefits of the provisions of the Rules, 1963 and more particularly Rule 3(16) thereof, submitted application on 7.10.1989 to the Secretary of the Society under the subject -"Application for Extension in Service Under Rule 3(16) of the Grand-in-Aid Rules, 1963". The reasons given by the petitioner for extension of his services read as under:
(i) My health is quite good to perform hard and active work to give my experienced services to the institution. (medical Certificate of C.M.H.O. attached)
(ii) During my service period my academic standard of work has been of the highest orders and results uniformly brilliant. My constitution in maintaining smooth tone of the institution and help in other daily routine work as well as during various Examinations of Rajasthan, Kota, Udaipur and Jodhpur Universities has always been commendable.
(iii) I always took keen interest in all curricular and co- curricular activities and discharged my duties sincerely and faithfully. During my service period I worked as Rover Scout Leader from 1958 to 1962. Worked as Prof. Incharge Cultural Association, Worked as Member and Convener of Internal Audit Party and Director College Parishad. During my tenure as Director of College Parishad our college won several Trophies particularly Six Trophies alone in 1965-1966 in Debate competitions organized by various educational institutions and earned great name and fame for the institution.
(iv) I have been a member of the board of Studies in ABST of the University of Rajasthan from 28.12.1976 to 27.12.1979 for a term of three years (Copy of letter No. 66/76/Aca.I/45667-87M dated 4.1.1977 enclosed) and played important role in framing and designing syllabus for the Faculty of Commerce.
(v) I am doing Post-Graduate Teaching as Head of the Deptt. of Accountancy and Business Statistics since July 1981. I have been attending Faculty Meeting in this capacity since 1965.
(vi) There is provision under Rule 3(16) in Grant-in-Aid Rules, 1963 for the extension of service period upto five years for teachers doing Post-Graduate Teaching (Copy enclosed).
(vii) According to Teachers Agreement Form vide item No. 3--(Under Statute 30(IV) and Ordinance 67 or Rajputana University Hand-Book Part II, 1951 Edition):
That the age of superannuation will be 60 years. The actual time of retirement shall be the thirtieth day of June following attaining of that age.
(Photo State copy of Teachers Agreement Form enclosed) Sd/-
Signature of Applicant
55. It is a different matter that the request aforesaid made by the petitioner for extension of his retirement age from 58 to 60 years has not been accepted by the Society, but it stood admitted by him that he would retire at the age of 58 years as provided under Rule 3(16) of the Rules, 1963. The petitioner, in Para No. 8 of the writ petition, stated that since some teachers in the past had applied for extension in service, as such under misconception of fact and law he also applied under Rule 3(16) of the Rules, 1963 for extension in service vide application dated 7.10.1979 but it is obvious that it is nothing but an afterthought, manufactured and a concocted statement sought to take a u-turn from his own admission in regard to the age of superannuation. The petitioner is not an illiterate person; he is a teacher and he knew and understood well about his right, agreement, Act, 1946, Ordinances, Statutes, Rules, Regulations, etc. he cannot be permitted to blow hot and cold at the same breath. Having taken the benefit of the revised pay scale with effect from 1.9.1976, it does not lie in the mouth of the petitioner to say that his retirement should be on attaining the age of 60 years and not 58 years. The terms and conditions of the statutory agreement entered into between the petitioner and the society have been varied voluntarily by, the petitioner for consideration of taking benefits of the revised scale of pay with effect from 1.9.1976 hence he cannot be given the benefit thereunder of the age of retirement nor the statutory agreement in the facts of this case is enforceable against the Society much less against the Government of Rajasthan.
56. Learned Counsel for the petitioner has laid much emphasis on the point that Section 16 of the Act, 1989 has given legal protected umbrella to the statutory agreement entered into between the petitioner and the Society. Section 16 of the Act, 1989 empowers the State Government to regulate the terms and conditions of the teachers and the employees working in the Non- Government recognised affiliated aided colleges; it provided that the State Government may regulate the recruitment and conditions of service including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, of persons appointed as employees of aided institutions in the State.
57. First proviso to Sub-section (1) of Section 16 of the Act, 1989 provides that the rights and benefits accruing to an employee of an existing institution under the grand-in-aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee.
58. Learned Counsel for the petitioner does not dispute that the Rules, 1963, were in force at the time of commencement of the Act, 1989. First proviso to Sub-section (1) of Section 16 of the Act, 1989, as it reveals from a bare reading thereof, protects or preserves only those rights and benefits accruing to an employee of an existing institution under the Rules, 1963. Thus, the rights and benefits accruing to the petitioner under the Rules, 1963 may not be varied to his disadvantage.
59. The question is whether the right and benefits accruing to the petitioner under the Rules, 1963 have been varied to his disadvantage by the Act, 1989 and the Rules 1993 framed thereunder?
60. Under Rule 3(16) of the Rules, 1963, it is not in dispute, the age of superannuation for teachers of the Non-Government recognised affiliated aided institutions was 58 years and that has not been varied to the disadvantage of the petitioner. Reference here may have to the provisions of Rule 45 of the Rules, 1993, which provides that the age of superannuation of the teachers and other employees except Class IV employees shall be the last date of the month in which they attain the age of 58 years. In special circumstances, the Government may waive this condition and allow extension in service for a period not exceeding five years for such college teaches, who are engaged in post-graduate teaching of research work and any other employee of the Institution may also be allowed extension in service upto the age of 60 years by the State Government.
61. As regards to the contention raised by learned Counsel for the petitioner that the Rules, 1963 will not have overriding effect on the Ordinance 67-A of the Ordinances, suffice it to say that the petitioner has voluntarily accepted the benefits of the revised pay scales with effect from 1.9.1976, thus the term of agreement as regards to the age of superannuation stood varied and the superannuation age in his case will be as provided in the Rule 3(16) of the Rules, 1963. Therefore, this contention is not of any substance, merit and help to the petitioner.
(3) Whether the non-Government recognized aided colleges are maintained by the Government?
62. Ordinance 67-A of the Ordinances is attracted in the case of retirement of permanent whole time teacher in the college affiliated to the University of Rajasthan other than those maintained by the Government. Where the Government maintains the college affiliated to the University the provisions of the Ordinance 67-A of the Ordinances are not attracted in the case of compulsory retirement of a permanent whole time teacher working therein.
63. Learned Counsel for the petitioner submitted that in Jagdish Prasad's case (supra), the learned Single Judge of the Court considered this aspect and held that non-Government recognised affiliated aided colleges receiving grant-in-aid do not fall under the category of colleges "maintained by the State Government". We have carefully gone through the judgment of the learned Single Judge of the Court delivered in Jagdish Prasad's case (supra), and find that this point was considered and the Court held that non-Government affiliated colleges receiving grant-in-aid are not maintained by the State Government. It has further been held that the word 'maintained' implies that the institutions are exclusively maintained by the State. In the opinion of the Court in Jagdish Prasad's case (supra), these institutions are maintained by the Society and they are reimbursed by the State Government upto the extent grant-in-aid made available to them.
64. The Rules 1963 have been framed by the Government for payment of grant-in-aid to non-Government educational and cultural institutions in the State of Rajasthan.
65. Under the Rules, 1963 it is provided that all institutions functioning in -Rajasthan for the educational and cultural development of the people are eligible for the recurring or maintenance grant, non-recurring grants towards equipments/buildings etc. and such other grants as may be sanctioned by the Government from time to time, which may be paid at the direction of the sanctioning authority. The institutions have been classified in two categories, (i) Educational Institutions and (ii) Other Institutions.
66. Rule 3 of the Rules, 1963 lays down conditions of grant to the effect that no grant shall be made to an institution unless it agrees to comply with the conditions laid down, which are over and above the conditions prescribed by the University, the Board of Secondary Education, Rajasthan and the State Department of Education and every institution which applies for grant-in-aid shall be deemed to have accepted its obligation to comply with these conditions. We consider it appropriate to make reference of some of the important conditions, in this judgment:
(2) The records and accounts of the institution shall be open to inspection and audit by persons authorised by Government or the Education Department or the Accountant General.
(3) Admissions and all facilities including free studentship, half free studentships, provided by the institutions shall be available to every section of people without any distinction of caste or creed.
(4) The institution shall not be run for the profit of any individual and its Governing Body/Council or Management is such as can be trusted to utilize its assets for the furtherance of the objects of the institution.
(5) The institution shall, satisfy the requirements laid down under Appendix 1 regarding to constitution of the management or governing body. Among other things, the constitution of the said body shall ensure its secular character by specially laying down that not more than 2/3rd of its members shall belong to any particular caste, or creed. Any change in the personnel of the Government or Managing body shall be reported early to the Department.
(6) The institution shall supply of the Education Department a list of all its assets, that the income of which is utilized for its expenditure.
(7) In the event of the Government being satisfied that a serious dispute exists in the Managing Committee or Governing Board of the institution, which hampers the smooth running Managing Committee is willfully delayed for more than six months, the Government after giving them a show cause notice may suspend the Governing Body Council or the Managing Committee and appoint an Administrator to exercise control over assets and to run the institution till a new Governing Body/Council or the Managing Committee is formed according to rules or the dispute is settled otherwise.
(8) The institution shall not be closed down on down-graded without atleast one full academic year's notice being given to the Department. Such notice shall contain (i) the reasons of the intended closure or down-grading, and (ii) the list of all the assets held by it.
(9) The institution shall unless specially exempted by Government, invest its endowment in trust stock or place them in deposit in the State Bank of India, the Post Office Savings Bank or any Schedule Bank or one Bank recognized by the State Government. All money realized as fees from students, contributions, endowment and donations received for the institutions, its reserved funds, sums earmarked for building operations or other capital purposes and grants-in-aid shall constitute the Institutional Fund, which shall be placed in the State Bank of India, the Post Office Savings Bank or any other Scheduled Bank or State Recognized Bank. No money shall be kept out of the Institution Fund. Withdrawals from the Institutional Fund shall be made only by a person who is duly authorized by the Governing Body or the Managing Committee to operate the Fund, and only for the purpose of incurring expenditure for the maintenance or improvement of the institution.
(10) ...
(11) The institution shall promptly comply with all the instructions issued by the Department for the proper running of the institution.
(12) The scale of tuition and other fees charged from the students shall not be lower than the scale laid down by the government in this connection and shall not be changed without the previous approval of the Government.
(13) No grant shall be admissible for the starting of a new Course class, section or subject, information of the same shall be given to the Department at least three months before such closures.
(14) No untrained teacher shall be permanently appointed in a school or in a teacher training institution without the permission of the Director of Education, unless the teacher concerned has been exempted from the training qualifications by the Department or the Board of Secondary Education.
Note:This rule will not apply Higher Secondary Schools until the academic Session 1965-1966.
(15) An institution shall not appoint staff on a temporary basis for more than two year without the permission of the Director of Education.
(16) The age of superannuation for teachers shall not be ordinarily exceeds 58 years and no extension/re-employment in service shall be granted beyond the age of 60 years. In special cases the Government may waive this condition for not more than 5 years particularly for teachers doing post-graduate teaching or research work.
The age of superannuation of employees holding posts equal to Class III and Class IV employees of Governments shall not exceed 58 years and 60 years respectively.
No Government Servant retired on superannuation will be re- employed by any Institution receiving grant under these Rules.
Teachers who have received National and State. Awards may be re-employed by the aided institutions till such teachers complete 58 years. Such aided institution would receive the usual grant-in-aid on the expenditure incurred on such teachers also.
(17) Grant-in-aid shall not be sanctioned to such of the institutions which have failed to comply with the conditions in the past.
(18) The Grant-in-aid shall be utilized for the same purpose for which the same is sanctioned.
(19) The un-utilized balance shall be surrendered to the Department/Government before the close of the academic session.
67. Rule 4 of the Rules, 1963 prescribes the condition of service of the staff, which reads as under:
(a) The conditions of service of every member of the teaching and ministerial staff appointed substantively shall be governed by an agreement executed by him and the Governing Body/Council, or the Managing Committee, in the form given in Appendix III. Variations in minor details may be approved by Director of Education. The agreement must be executed within one month of the appointment of the persons on probation.
(b) The scale of pay and allowances to the staff of the institutions shall not be less than those prescribed by the Government for the staff of similar category in Government institutions. In case of higher salary scales grant-in-aid shall ordinarily be admissible at the prescribed Government scales only. The Government may in special cases allow grant on higher scales.
(c) Rules governing private tuitions and appearing at public examinations for members of the staff of the institutions shall not be more liberal than those prescribed for Government institutions of the same type and standard.
(d) Salaries to the staff shall be paid in full and regularly every month and no unauthorized cut shall be made therein. The Director of Education may, if be considers it necessary, direct the Governing Body/Council or the Management of any particular institution to discharge salaries by Cheque.
(e) No persons on the staff of the institution shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him provided that this clause shall not apply:
(i) Where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on criminal charge; or
(ii) Where it is not practicable to give that person an opportunity of showing cause and the Department's consent has been obtained before the action is taken.
(f) An order imposing punishment of the kind referred to in Clause (e) above shall contain the reasons thereof and a copy of it shall be given to the person concerned immediately and sent to the Department for information within a month.
(g) An appeal shall lie to the authority mentioned in Appendix V from every order of the Governing Body/Council or the managing Committee imposing punishment referred to in Clause (e) above.
(h) The management shall implement the order passed by the appellate authority mentioned in (g) above within three months of the receipt of the copy thereof unless such implementations is stayed by the orders of any Court or any higher authority.
(i) In case the management fails without sufficient reason to pay the amount, if any, specified in the order of the appellate authority, the Director may deduct in from the next grant-in-aid and, if necessary, from subsequent grant-in-aid bills also and pay the person concerned on behalf of the management. This would be deemed to be a payment to the management of the institution itself.
(j) P.F. Rules are to be followed by the institution as framed by the Department/Board of Secondary Education/University/Universities to be established:
Provided that the institutions shall follow directions issued by the Government of Rajasthan with regard to investment of past accumulations as well as current and future accretions of the CPF account and ancillary matters from time to time.
Note.--The Department/Board of Secondary Education/University/Universities to be established shall make necessary amendments in the respective rules framed by them.
(k) (i) All accumulated, current and future accretions to the P.F. amount of the employees and contribution of the institution shall be deposited in the interest bearing personnel deposit account by the institution in Government Treasury in the manner and as per directions laid down by the State Government from time to time.
(ii) The reserve funds and deposits etc. of institutions shall also be invested in the State Government Securities or National Savings Securities viz. Post Office Saving Bank Account, National Defence Certificates or defence Deposit Certificates only.
(iii) All the other recurring and non-recurring grants which are not needed within a period of three months shall be deposited in the Post-Office Saving Account.
Note.--Reserve Funds will be invested in the manner prescribed under (ii) above only if under the relevant rules the maintenance of such funds is a condition precedent for entitlement to grant-in-aid.
68. Rule 10 of the Rules, 1963 provides for reduction, withdrawal, and withholding etc. of the grant.
69. Rule 13 of the Rules, 1963 provides that an institution or a body, which has received grant-in-aid under these rules, shall not transfer any property to any persons, institution or body without the concurrence of the Department/Government as the case may be, except the disposal of un-serviceable articles.
70. Rule 14 of the Rules, 1963 lays down that all materials purchased from time to time out of the funds of an institution shall be entered in a stock register which shall be maintained by every institution on the grant-in-aid list. The Head of the Institution shall be responsible for the proper custody thereof. All the bills received for payments shall bear the following certificate:
The quality of articles received is good, quantity correct and according to the specifications, rate is not more than those prevailing in the market and entered in stock register at page No. ...
71. Rule 15 of the Rules, 1963 provides that all purchases costing more than Rs. 250/- shall be made after calling for tenders from the manufacturers, suppliers and contractors. As far as possible, lowest tenders shall be accepted unless for any special reasons to be recorded in writing the management decides otherwise.
72. Appendix-I contains the provisions of formation of Governing Bodies and according to that the Managing Committee or Governing Council shall consist of not more than fifteen members plus the Head or Heads of the institution or institutions run by the Society. There should be one member nominated by the Education Department, who may be a Senior Education Officer or eminent educationist. It is incumbent upon the institution to enforce the principles of disciplines laid down thereunder.
73. Appendix III provides Form of Agreement.
74. The Government of Rajasthan has replaced the Rules, 1963 by the Act, 1989. Under the Act, 1989 it has framed the Rules 1993. The Act, 1989 has been enacted to provide for better organization and development of education in the Non-Government educational institutions in the State of Rajasthan.
75. Clause (b) of Section 2 of the Act, 1989 defines "aided institutions" means a recognized institution which is receiving aid in the form of maintenance grant from the State Government.
76. Clause (n) of Section 2 of the Act, 1989 defines "Maintenance grant" means such recurring grant-in-aid to the an institution as the State Government may, by general or special order, direct to be treated as such grant.
77. Clause (p) of Section 2 of the Act, 1989 defines "Non- Government educational institutions" means any college, school, training institute or any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate, degree, diploma or any academic distinction recognized by the State or Central Government or functioning for the educational, cultural or physical development or the people in the State and which is neither owned nor managed by the State or Central Government or by any University or local authority or other authority owned or controlled by he State or Central Government.
78. Section 3 of the Act, 1989 makes a provision for recognition of institutions. The recognition can be given only to those institutions, which are registered under the Rajasthan Societies Registration Act, 1958 or it is being run by a public trust registered under the Rajasthan Public Trusts Act, 1959 or by a trust created in accordance with the provisions of the Indian Trusts Act, 1882.
79. Section 4 of the Act, 1989 confers a right of appeal upon any person aggrieved by refusal of recognitions to an institution.
80. Under Section 5 of the Act, 1989 a provision is made for withdrawal of recognition. The State Government is empowered to withdraw the recognition of an institution where the management thereof obtains the same by fraud, misrepresentation or suppression of material particulars, or where, after obtaining recognition, it fails to comply with any of the terms and conditions prescribed under Sub-section (1) of Section 3.
81. Section 6 of the Act, 1989 confers right of appeal upon an institution against the order of withdrawal of recognition of institution.
82. Section 7 of the Act of 1989 provides for grant of aid to institutions. It is only available to recognized institutions.
83. The Section 3 of the Act, 1989 provides that every aided institution shall keep accounts in such manner and containing such particulars as many be prescribed; the accounts of every aided institution shall be audited at the end of every academic year in the manner as may be prescribed.
84. Constitution of a managing committee for every recognized institution is provided under Section 9 of the Act, 1989.
85. Under Section 10 of the Act, 1989 the State Government is conferred with the power to take over management of any non- Government educational institution, which reads as under:
10. Powers of the State Government to take over management.--(1) Notwithstanding anything contained in any law for the time being.
86. Section 14 of the Act, 1989 puts an embargo on the power of closure of recognized institutions by the management thereof.
87. Section 15 of the Act, 1989 provides that notwithstanding anything contained in any law for the time being in force, no transfer by way of sale, mortgage, charge or otherwise of any right or interest in or possession of any immovable property of an aided institution shall be made except after making an application in the prescribed manner to the director of Education or an officer authorized by him in this behalf and obtaining prior approval in writing. Any transfer made in contravention of the provision aforesaid is void.
88. Sub-section (23) of Section 15 of the Act, 1989 provides that if the Secretary of the Managing Committee of an aided institution commits default in furnishing the statement under Section 13 or furnishes a statement which is false or incorrect in any material particular or acts in contravention of Sub-section (1), the sanctioning authority may, after giving an opportunity of showing cause, withhold, stop or suspend aid to such institution.
89. Sub-section (4) of Section 15 of the Act, 1989 provides that in the event of an aided institution being closed or discontinued or its recognition being withdrawn, the secretary to its Managing Committee shall handover to the office authorized by the director or Education in this behalf all the records, accounts and the management and possession of properties of the institution.
90. Section 14 of the Act, 1989 puts an embargo on the power of closure of recognized institutions by the management thereof.
91. Section 15 of the Act, 1989 provides that notwithstanding anything contained in any law for the time being in force, no transfer by way of sale, mortgage, charge or otherwise of any right of interest in or possession of any immovable property of an aided institution shall be made except after making an application in the prescribed manner to the Director of Education or an officer authorized by him in this behalf and obtaining prior approval in writing. Any transfer made in contravention of the provision aforesaid is void.
92. Sub-section (3) of Section 15 of the Act, 1989 provides that if the Secretary of the Managing Committee of an aided institution commits default in furnishing the statement under Section 13 or furnishes a statement which is false or incorrect in any material particular or acts in contravention of Sub-section (1), the sanctioning authority may, after giving an opportunity of showing cause, withhold, stop or suspend aid to such institution.
93. Sub-section (4) of Section 15 of the Act, 1989 provides that in the event of an aided institution being closed or discontinued or its recognition being withdrawn, the Secretary to its Managing Committee shall handover to the officer authorized by the Director or Education in this behalf all the records, accounts and the management and possession of properties of the institution.
94. Section 16 of the Act, 1989 relates to the powers of the State Government to regulate the terms and conditions of employment of teachers and other employees of non-Government recognized affiliated aided colleges; it provides that the State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, of persons appointed as employees of aided institutions in the State provided that the rights and benefits accruing to an employee of an existing institution under the grant-in-aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee.
95. Sub-section (2) of Section 16 of the Act, 1989 mandates recognized institution to constitute a provident fund for the benefit of its employees in such manner and subject to such conditions as many be prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time.
96. The reference here may have to the decision of the Hon'ble Apex Court in State of Andhra Pradesh v. S.K. Moinuddin AIR SC 1474. In that decision their Lordships of the Hon'ble Supreme Court upheld fixing of superannuation age of the teachers of the affiliated colleges by the State Legislature.
97. Reference here may also have to another decision of the Hon'ble supreme Court in Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. . The observations made by the Hon'ble Supreme Court in Para No. 195 of the judgment in that case are as under:
Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent percent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognizing/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standards of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone -subject to any reservations made under Article 15. They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses these are and shall be understood to be the conditions of grant of aid. The reason is simple; public funds, when given as grant and not as loan-carry the public character wherever they go; public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the constitutional mandate of Articles 14 and 15. All the government and other authorities in charge of granting aid to educational institutions shall expressly provide such conditions (among others), if not already provided, and shall ensure compliance with he same. Again aid may take several forms for example, a medical college goes necessarily require a hospital. We are told that for a 100 seat medical college, there must be a fully equipped 700-bed hospital. Then alone, the medical college can be allowed to function. A Private Medical College may not have or may not establish a hospital of its own. It may request he government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed may be with some relaxation in the matter of fees chargeable - as observed. The Governments (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.
98. Section 17 of the Act, 1989 makes a provision for recruitment of employees, which shall be made either after open advertisement in a local daily newspaper or from amongst the candidates sponsored by the employment exchange in the manner as may be prescribed.
99. Section 18 of the Act, 1989 is a provision regarding removal, dismissal or reduction in rank of the employees of recognized institutions, and according thereto no employee of a recognized institution, subject to any rules that maybe made in this behalf, shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken, provided that no final order is this regard shall be passed unless prior approval of the Director of Education or an Officer authorized by him in this behalf has been obtained.
100. The orders in the matter of removal, dismissal or reduction in rank of employees of recognized institutions are made appealable to the Tribunal constituted, under Section 19 of the Act, 1989.
101. Section 20 of the Act, 1989 provides that a contract between a recognized institution and an employee, whether made before or after the commencement of this Act, shall, to the extent that it takes away any right conferred on such person by or under this Act, be null and void.
102. Section 22 of the Act provided for constitution of the Tribunal, according to which the State Government shall appoint a Judicial Officer of the Rank of a District Judge to preside over the Tribunal.
103. Sections 23, 24 and 25 of the Act, 1989 are the provisions relating to Constitution of the Tribunal and Functions, procedure, powers thereof.
104. Section 26 of the Act, 1989 provides that the decision of the Tribunal shall be final and no suit or other proceedings shall lie in any Civil Court with respect to matters decided by it.
105. Section 27 of the Act, 1989 bars he Civil Courts to have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tribunal.
106. Section 27-A of the Act, 1989 makes a provision for execution of orders of the Tribunal; it reads:
27-A Execution of orders of Tribunal.--The orders of the Tribunals deciding appeals preferred under Section 19 and disputes referred to in Section 21 shall be deemed to be the decree of the lowest Civil Court having territorial jurisdiction over the local area in which the respondent/s against whom the order has been made ordinarily resides or carries on business or personally works for gain and shall be executed as such by such Civil Court.
107. Section 28 of the Act, 1989 lays down that every employee of a recognized institution shall be governed by the code of conduct as may be prescribed and on the violation by him of any provision of such code of conduct, the employee shall be liable to a disciplinary action.
108. Section 29 of the Act, 1989 relates to pay and allowances of the employees of the recognized institutions. The scales of pay and allowances except compensatory allowance with respect to all the employees of an aided institution shall not be less than those prescribed for the staff belonging to similar categories in Government institutions. It reads as under:
29. Pay and allowances of employees.--(1) The scales of pay and allowances except compensatory allowances with respect to all the employees of an aided institution shall not be less than those prescribed for the staff belonging to similar categories in Government institutions.
(2) Notwithstanding any contract to the contrary, the salary of an employee of a recognized institution, for any period after the commencement of this Act, shall be paid to him by the management before the expiry of the fifteenth day or such earlier day, as the State Government may, by general or special order appoint, of the month next following the month in respect of which or part of which it is payable:
Provided that if at any time the State Government deems it fit, it may prescribe a different procedure for payment of salary and allowances.
(3) The salary shall be paid without deductions of any kind except those authorized by the rules made under this Act or by any other law for the time being in force.
109. Section 30 of the Act, 1989 authorizes the District Education Officer or any other officer of the Education Department not below the rank of the said officer, for the purpose of this Act, to inspect or cause to be inspected at any time any recognized institution or call for such information or record including registers, books of accounts, vouchers, etc. from its management with regard to the payment of salaries to employees or give to such management any direction for proper management of financial matters including prohibition of any wasteful expenditure as he thinks fit, so as to enable the management to pay salaries to the employees regularly and the management shall comply with such directions.
110. Section 31 of the Act, 1989 prescribes the mode of payment of salaries of employees of a recognized institution by its management and according thereto the disbursement of salaries of its employees shall be made by account payee Cheques. Sub-section (2) thereof provides that in case the management of an aided institution fails to pay the salary of its employees as referred to in Sub-section (1) or in Section 29, the director of Education or any officer authorized by him, may deduct such salary from the amount payable as the next grant-in-aid, or if necessary, from the amount of any subsequent grant-in-aid and pay to the staff such salary on behalf of the management.
111. Section 32 of the Act, 1989 makes a provision of recoveries of amounts due from aided institutions. This Section reads as under:
32. Recoveries of amounts due from aided institution.--(1) Where, at the commencement of this Act or thereafter, pursuant to any agreement, scheme or other arrangement, any salary or other dues are payable by the management of an aided institution to its employee according to the scale fixed by such agreement, scheme or arrangement, the District Education Officer or the Competent Authority may, by order in writing, direct the Secretary of the Managing Committed to deposit, with him the amount so payable.
(2) Before making an order under Sub-section (1), the District Education Officer shall conduct an enquiry as to the amount payable to the employee in such manner as may be prescribed.
(3) An appeal may be preferred against the order made under Sub-section (1) to such officer as may be empowered by the Director of Education in this behalf within such time and in such manner as may be prescribed.
(4) Any money due from the management under the orders of the District Education Officer, or where an appeal was preferred, under the orders of the officer making an order in appeal shall be recoverable as an arrear of land revenue under the provisions of the Rajasthan Land Revenue Act, 1956. Such money may also be recovered by setting it off against any sum due to the management from the State Government. Any amount deposited or recovered under this sub-section shall be paid to the employee concerned.
(5) Any amount due at the commencement of this Act or thereafter, to the State Government pertaining to any aid given or grant paid by the State Government may be recovered from the management as an arrears of land revenue under the provisions of the Rajasthan Land Revenue Act, 1956.
112. Section 33, 34 and 35 of the Act, 1989 are the provisions for penalties for transfer or closure of a recognized institutions without notice and without satisfying the competent authority and for not discharging the duties of secretary and, provision for cognizance on complaint.
113. Section 36 of the Act, 1989 provides for Government's power of review. According to it, notwithstanding anything contained in the Act, the State Government may, on its own motion or otherwise, after calling for the records of the case, review the order made by an authority under Section 6 or under Sub-section (6) of Section 7, confirm, modify or set aside the order, remit the case of the authority which has made the order directing such further action as it considers proper, or pass such orders as it deems fit.
114. Section 40 of the Act, 1989 provides for overriding effect of this act. It reads:
40. Overriding effect of the Act.--The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any instrument having effect by virtue of any law.
115. Section 43 of the Act, 1989 confers upon the State Government the power to make Rules and in exercise thereof he Government framed the Rules, 1993 and we would like to refer the provisions thereof as under:
Clause (b) of Rule 2 of the Rules, 1993 defines the word "Affiliated institutions" means a Non-Government educational institution affiliated to any University established by law in the State of Rajasthan.
Clause (n) of Rule 2 of the Rules, 1993 defines the word "Institution" means it includes all movable and immovable properties pertaining to an educational institution.
116. Chapter II of the Rules, 1993 regulates the recognition of institution, its refusal and withdrawal.
117. Chapter III of the Rules, 1993 relates to aid, accounts and audit.
118. Rule 9 of Chapter III of the Rules, 1993 empowers the State Government to sanction the grants for maintenance or recurring grant; non-recurring grant towards equipments, building etc. or such other grants as may be sanctioned by the Government from time to time.
119. Rules 14, 15 and 16 of the Rules, 1993, provides for approved expenditure, payment of recurring and non-recurring grants.
120. Chapter IV of the Rules, 1993 regulates constitution of the managing committee.
121. Chapter V of the rules, 1939 provides for general conditions of service. Rule 26 of this Chapter provides that the recruitment of employees in a recognized institution shall be made on merit, either after open advertisement in a local daily news paper having a wide circulation or from amongst the candidates sponsored by the employment exchange, in the manner prescribed therein; the qualification of the candidates shall be as prescribed by the Government for similar category of employees in Government educational institutions except for the post of Organizing Secretary. The Selection Committee shall consist of (i) Two representatives of the Managing Committee, (ii) Head of the concerned institution, (iii) One officer nominated by the Director of Education and for colleges two experts/educationists in case of selection for the post of Principal and one educationist expert in case of other post as nominated by the concerned University shall also be included in the Selection Committee besides the above members.
122. The reservation polity as laid down by the Government and the instructions issued from time to time with regard to appointment of the candidates belonging of SC/ST, are to be followed by the non-Government recognized aided institutions for all category of services i.e., teachers, ministerial staff and Class IV employees.
123. The Managing Committee shall, within a fortnight of selection, forward the list of selected candidates, with its recommendations along with information in the proforma prescribed in Rule 27 of the Rules, 1993, to the competent authority as specified in Appendix IX, for its approval.
124. Rule 28 of the Rules, 1993 provides that the competent authority, may, after due consideration, either approve the recommendations of the managing committee or reject the same for the reasons to be recorded in writing.
125. Under Rule 29 of the Rules, 1993 it is provided that the Managing Committee may make necessary appointment after having obtained the approval of the Competent Authority.
126. As per Rule 30 of the Rules, 1993 all persons appointed in the institution shall be placed on probation for a period of one year. The discharge/termination of services of probationer is permissible with prior approval of the authority competent to make the appointment.
127. Under Rule 32 of the Rules, 1993 norms of work of the employees of an institution re to be prescribed for similar categories of the employees in the Government educational institutions.
128. Under Rule 33 of the Rules, 1993 the Selection Committee of an institution has been given power to make appointment to fill in a vacancy, which cannot be immediately filed in by procedure laid down under the Rules by the Selection Committee, on urgent temporary basis for a period not exceeding six months.
129. Rules 34 and 35 of the Rules, 1993 relate pay, allowances and payment thereof.
130. Rules 36 to 42 of the Rules, 1993, relates to the procedure for enquiry an appeal under Section 32 of the Act, vacation salary, suspension, removal or dismissal from service, appeal, reinstatement and implementation of Orders in Appeal.
131. Rules 43 of the Rules, 1993 regulates the private tuitions by the employees, and the provision thereof shall be same as those applicable to the employees of the Government educational institutions.
132. Rule 44 of the Rules, 1993 is the provision for maintaining the service books of the employees.
133. Rule 45 of the Rules, 1993 is the provision prescribing superannuation age of the employees of the institutions. It reads:
45. The age of Superannuation.--(1) The age of superannuation of teachers and other except Class IV shall be the last date of the month in which they attain the age of 58 years. In special circumstances, the Government may waive this condition and allow extension in service for a period not exceeding 4 years for such college teachers, who are engaged in post-graduate teaching or research work. Any other employee of the Institution may also be allowed extension in service upto the age of 60 years by the State Government.
(ii) the teachers who attain the age of superannuation after 31st December, may be allowed extension by the Government upto the end of academic session or 30th June whichever is earlier.
134. Chapter VI of the Rules, 1993 relates to admissibility of leave.
135. Chapter VII of the Rules, 1993 deals with conduct and discipline rules.
136. Chapter VIII of the Rules, 1993 is regarding the provisions of contributory provident fund.
137. Chapter IX of the Rules, 1993 contains miscellaneous provisions.
138. The scheme of Rules, 1963 (Prior to its repealed), the Act, 1989 and the Rules, 1993, framed thereunder, reveals that the State Government has financial and administrative control to substantial extent on the non-Government recognized affiliated aided institutions. A bare reading of the provisions of the Rules, 1963 (prior to its repealed) the Act, 1989 and the Rules, 1993, framed thereunder, makes it clear that it is not a simple case of reimbursement of expenses incurred by the non-Government recognized aided institutions, by the State Government; it is a grant made by the State Government to the non-Government recognized aided institutions. The grant is subject to fulfillment of terms and conditions laid down, compliance of the provisions made under the Rules, 1963 (prior to its repealed), the Act, 1989 and the Rules, 1993, framed thereunder. The grant is not only for payment of salaries and other allowances to the teaching and non-teaching staff of the non-Government recognized aided institutions.
139. The college is receiving from the Government of Rajasthan grant-in-aid to the extent of 90% under the head of approved expenditure and the management of the college may not spend balance amount from its own pocket, it comes in the form of tuition fees and other fees charged by it from the students.
140. Having gone through the entire scheme of the Rules, 1963, as stood at the relevant time, the Act, 1989 and the Rules, 1993, framed thereunder, the State Government has substantial control over the non-Government recognized affiliated aided institutions under both heads i.e., financial as well as administrative. The society, which runs the college, would have arranged for the building or other properties of funds but ultimately the substantial administrative and financial control over the non-Government recognized aided institutions vests with the State Government. The Managing Committee of the college is to be constituted as per the provisions of the Act, 1989 and the Rules, 1993, framed thereunder.
141. The Government of Rajasthan grants financial aid to such institution so that the education at doorsteps is made available to the citizen of the State. The Government of Rajasthan has control in the matter of appointment of teachers; it has power to lay down their service conditions including age of superannuation and take over the management of the institution. Where the non- Government recognized aided institutions are taken not maintained by the Government of Rajasthan for the purpose of Ordinance 67-A of the Ordinances, then there shall be two different ages of superannuation for the teachers in the non-Government recognized affiliated aided institutions and Government Colleges, that may not be proper, reasonable and fair.
142. Rule 45 of the Rules, 1993 has been enacted by the Government of Rajasthan so as to bring at par superannuation age of the teachers in the non-Government recognized aided affiliated colleges and the teachers in the colleges maintained by the Government. For all the purposes and intents of the age of superannuation the teachers in the colleges maintained by the Government of Rajasthan and the teachers in the non-Government recognized aided affiliated colleges form one class. Undisputedly at the relevant time superannuation age of teachers in the colleges maintained by the Government was 58 years and where in the non-government recognized affiliated aided colleges it is taken 60 years, then certainly it will result in discrimination amongst the teachers form one class. To overcome and remove this apparent discrimination the Government of Rajasthan, under Rule 45 of the Rules, 1993, prescribed 58 years the age of superannuation of the teachers in the non-Government recognized aided affiliated colleges.
143. Government of Rajasthan, in our opinion, after coming into force of the Rules, 1963 (as stood prior to its repealed), the act, 1989 and the Rules, 1993, framed thereunder, needs to consider the matter of prescription of the age of superannuation of the teachers of the non-Government recognized affiliated aided institutions in the Ordinance 67-A of the Ordinances to bring it at par with the age of superannuation of the teachers in Government maintained colleges. But that appears not to have been done for the reasons best known to it. A provision of an Act is to be interpreted so as to avoid prescription of two different ages of superannuation of teachers in non-Government recognized affiliated aided institutions and the colleges maintained by the Government. Where the non-Government recognized affiliated aided colleges are taken to be not maintained by the Government of Rajasthan, it will result in having two different ages of superannuation for the teachers working in the non-Government recognized affiliated aided institutions and the colleges maintained by the Government of Rajasthan, which, on the face of it, appears unreasonable, unjustified and ambiguous.
144. As a result of the aforesaid discussion we are satisfied that the non-Government recognized affiliated aided institutions are maintained or deemed to have been maintained for the purpose of Ordinance 67-A of the Ordinances, by the Government of Rajasthan and the benefits thereof are not available to the teachers of the non-Government recognized affiliated aided institutions.
4. Whether the University of Rajasthan has power to lay down service conditions including the superannuation age of the teachers of the non-government recognized affiliated aided institutions.
145. Before we proceed to digest, discuss and give our decision on the contention of the learned Advocate General, we consider it necessary and appropriate to briefly refer to the provisions of the Act, 1946, the Statutes and the Ordinances.
146. Section 4 of he Act, 1946 is a provision |in respect of the powers of the University and Sub-section (7) thereof provides that the University shall have, inter alia, powers to inspect affiliated and approved institutions and to take measures to ensure that proper standard of teaching, instruction and training are maintained in them.
147. Senate and Syndicate are the authorities of the University under Section 17 of the Act, 1946.
148. Section 20 of the Act, 1946 provides for the functions of the Senate. One of the functions of the Senate is to make statutes, and of amending and repealing Statutes, subject to confirmation by the Chancellor.
149. Section 22 of the Act, 1946 lays down the powers and functions of the Syndicate subject to such conditions as may be prescribed by or under the provisions of the Act, 1946. The Syndicate has been conferred with the power, inter alia, to make, amend and cancel Ordinances.
150. Section 27 of the Act, 1946 relates to scope of Statutes; it provides that subject to such conditions as may be prescribed by or tinder the provisions of the Act, 1946, the Statutes may, consistently with this Act, provide for all or any of the following matters, namely:
(7) inspection and recognition, affiliation or approval of hostels, colleges and institutions;
(15) all matters which by this Act, are to be or may be prescribed by Statutes, or which are dealt with in the Statutes set out in the Schedule to this Act.
151. Section 29 of the Act, 1946 is the provision pertaining to the scope of Ordinances; it lays down that subject to such conditions as may be prescribed by or under the provisions of the Act, 1946, the Syndicate may make Ordinances consistent with the Act and the Statutes, to provide for all or any of the following matters, namely:
(6) emoluments and conditions of services of University teachers;
(8) rules to be observed and enforced by affiliated colleges in respect of transfer of students;
(9) all matters which by this Act or the Statutes are to be or may be provided for by Ordinances; and (10) generally all matters for which provision is, in the opinion of the Syndicate, necessary for the exercise of the powers conferred or the performance of he duties imposed upon the Syndicate by this Act or the Statutes.
152. Statute 26 of the Statutes is the provision for affiliated colleges management.
153. Statute 30 of the Statutes makes the provision for teaching staff in the affiliated colleges. Clauses (1), (4) and (5) of the Statute 30 are relevant for the purpose of decision in the matter and the same are reproduced hereunder:
(1) Every college shall satisfy the University that the number and qualifications of its teaching staff in each subject are adequate, and in accordance with, the rules prescribed by the University, and that their emoluments and the conditions of their service are such as may be approved by the University.
(4) Every teacher in a college not maintained by a Government shall be employed under a written contract stating the conditions of his service and the salary to be paid to him, and a "copy of his contract shall be given to the teacher and a copy shall be lodged with the University.
(5) Any difference or dispute of any kind whatsoever arising out of a contract between an affiliated college not maintained by a Government and a member of its teaching staff including the Principal shall be referred to arbitration and determined on the lines of the provisions of the Indian Arbitration Act, 1940. Such arbitration shall be held by two persons not associated with the college concerned, one to be chosen by each party in difference; and in case of their non- agreement the Vice-Chancellor or his nominee shall act as the Umpire. The decision of the arbitrators or of the Umpire, as the case may be, shall be final. An award given in favour of the teacher in such an arbitration shall be a condition precedent to any right of action against the college in respect of such difference or dispute.
154. Statute 42-A of the Statutes, which is relevant for decision in the matter reads as under:
42-A. All Statutes, Ordinances, Regulations & Rules governing matters with regard to admissions of students to affiliated colleges, enrolment of students, discipline, health and residence, scholarships, medals and prizes and examination shall mutatis mutandis apply and shall always be deemed to have been applied to the Teaching Departments and Colleges run by the University; and for these matters such a Teaching Department or College shall be deemed and shall be regarded as always to have been deemed as an affiliated college.
155. Ordinance 65 of the Ordinances prescribes the minimum qualifications for teachers in various faculties in the colleges affiliated to the University of Rajasthan.
156. Ordinance 66 of the Ordinances recommends minimum pay scales for teachers in non-Government recognized affiliated aided colleges.
157. Ordinance 67 of the Ordinances is nothing but only repetition of the Statute 15(4) of the Statutes.
158. It is not gainsay that Clause (11) of Order 68 of the Ordinance is pari materia to statute 30(5) of the University of Rajasthan. It reads as under:
(11) Any difference or dispute of any kind whatsoever arising out of this contract shall be referred to arbitration and determined in accordance with the provisions of the Indian Arbitration Act, 1940. Such Arbitration shall be held by two persons not associated with the college-one to be chosen by each party to this agreement, and in case of their non-agreement, the Vice-Chancellor or his nominee shall act as Umpire. The decision of the arbitrators or of the Umpire, as the case may be, shall be final. No party to this agreement shall have a right a sue the other in a Court of Law, except for the purpose of enforcing the award N.B.: This clause shall be not apply in the case of a dispute arising in connection with termination of the services of any member of the teaching staff who is on probation or on a temporary basis.
159. Section 4 of the Act, 1946 though defines powers of the University but therefrom we find that it has not been conferred with any power to prescribe service of teachers of affiliated colleges. The' powers of the University as regards to affiliated colleges are only to the extent to inspect them and to take measures to ensure that proper standards of teaching, instruction and training are maintained in them.
160. Clause (7) of Section 27 of the Act, 1946 relates to inspection and recognition, affiliation or approval of hotels, colleges and institutions. That has nothing to do with prescription of framing of any Statute for laying down thereunder the service conditions of teachers in affiliated colleges.
161. Clause (15) of Section 27 of the Act, 1946 also does not empower the Senate to lay down the service conditions of teachers of non-Government recognized affiliated aided colleges. A plain reading of this clause is suggestive of the fact underlying therein does not mean to confer power of framing Statute for lying down service conditions of teachers of non-Government recognized affiliated aided colleges. The Senate has power to frame Statute consistent with the Act, 1946 and when under the Act, 1946 itself the University has no power to prescribe service conditions of teachers of non-Government recognized affiliated aided colleges, no question does arise of making of the Statute by the Senate on the subject aforesaid. It is a general provision and does not indicate and point out towards the service conditions and, therefore, no Statute can be framed under the Act, 1946 to give powers to the University to prescribe service conditions of teachers of non-Government recognized affiliated aided colleges.
162. Under Item No. (i) of Section 22 of the Act, 1946 the Syndicate has power though subject to Statutes, to inspect and to affiliate, recognize or approve colleges and hostels or institutions, and to withdraw affiliation, recognition or approval from them.
163. Under Item No. 8 of Section 29 of the Act, 1946 the Syndicate is empowered to make Ordinances for non-Government recognized affiliated aided colleges in respect of transfer of students.
164. As regard to the matters at Item Nos. (9) and (10) of Section 29 of the Act, 1946 it is suffice to say thereunder also the Syndicate has no power to make any Ordinance for laying down thereunder the service conditions of teachers of non-Government recognized affiliated aided colleges.
165. A conjoint reading of the provisions of Sections 22 and 29 of the Act, 1946, leaves no doubt in our mind whatsoever that the Syndicate has no power to make Ordinances to lay down service conditions of teachers of non-Government recognized affiliated aided colleges.
166. Statute 26 of the Statutes relates to management and emphasis thereunder is to take measures to ensure that proper standards of teaching, instruction and training are maintained and not to lay down the service conditions of the teachers of the non-Government recognized affiliated aided colleges not maintained by the Government.
167. Statute 30(1) of the Statutes provides that the emoluments and other conditions of service of teachers of affiliated colleges are to be such as may be approved by the University.
168. The learned Counsel for the petitioner submitted that from the Statute 30(1) of the Statutes reasonably it can be inferred that the University of Rajasthan has power to lay down service conditions of teachers of non-Government recognized affiliated aided colleges.
169. We are not in agreement with this contention of the learned Counsel for the petitioner for three reasons; first that under that Act, 1946 the University has no power to lay down service conditions of teachers of non-Government recognized affiliated aided colleges, secondly under the Statute the Senate has no power to frame any Statute relating to service conditions of teachers of non-Government recognized affiliated aided colleges and thirdly the Statute 30(1) of the Statutes provides only for approval of service conditions by the University meaning thereby the service conditions are to be prescribed by institutions or some other authority or the State and not by the University. Prescription and approval are two different and distinct in all respects and approval cannot be taken to mean and understand the prescription. The Statute 30(1) of the Statutes does not empower the University to prescribe service conditions of teachers of non-Government recognized affiliated aided colleges. The Statute 30(1) of the Statutes speaks only of approval of the conditions of service by it of the teachers of non-Government recognized affiliated aided colleges, therefrom it cannot be taken that the University has been clothed with or it intended for prescribing age of superannuation of teaching staff of non-Government recognized affiliated aided colleges.
170. Statute 30(4) of the Statutes also does empower the University of Rajasthan to prescribe service conditions of teachers of non-government recognized affiliated aided colleges not maintained by the Government of Rajasthan. Under the Statute 30(4) of the Statutes a teacher in college not maintained by the Government and affiliated to the University of Rajasthan, is to be employed under the written contract and that shall contain the conditions of service and salary to be paid to him. A copy of contract of employment of teacher by non-Government recognized affiliated aided colleges, is to be given to the teacher and a copy thereof is to be lodged with the University of Rajasthan. The proforma of agreement/contract provided under ordinance 68 of the Ordinances is for the guidance of the non-Government recognized affiliated aided colleges not maintained by the Government of Rajasthan but service conditions are not to be prescribed by the University of Rajasthan. A plain reading of Clauses (1) and (4) of the Statute 30 of the Statutes speaks in unequivocal terms that the service conditions of teachers of non- Government recognized affiliated aided colleges are not to be laid down by the University. Even if there remained any slightest ambiguity on this matter has been removed by Clause (5) of the Statute 30 of the Statutes. This a provision regarding resolution of the dispute of any kind whatsoever arrived at between non- Government recognized affiliated aided colleges not maintained by the Government and a member of its teaching staff. The contract means the contract of employment of teacher in non-Government recognized affiliated aided colleges not maintained by the Government, which includes or has to include service conditions of teacher. Any dispute regarding service conditions of a teacher of non-Government recognized affiliated aided colleges not maintained by the Government, is to be decided by arbitration. This provision clinches the issue and makes it clear and leaves no dispute whatsoever that the service conditions of teachers of non-Government recognized affiliated aided colleges not maintained by the Government are not to be prescribed by the University of Rajasthan. There cannot be two views nor it is in dispute that the age of superannuation of a teacher in non- Government recognized affiliated aided colleges not maintained by the Government, is a service condition.
171. Ordinance 65 of the Ordinances prescribes minimum qualifications for teachers in the various faculties in the colleges affiliated to the University of Rajasthan.
172. Under Ordinance 66 of the Ordinances the University of Rajasthan has recommended the minimum pay scales for teachers in non-Government recognized affiliated aided colleges.
173. Service conditions do not mean only the age of superannuation. Ordinance 67-A of the Ordinances is read in isolation and singularly then it may be that it makes provision for specific point of laying down only one service condition i.e., the age of superannuation. The Ordinances are framed on the variety of subjects. Other than the age of superannuation specially the ordinances do not lay down the service conditions and rightly so because the University of Rajasthan is not authorized by the Act, 1946 to frame service conditions of the teachers of non-Government recognized affiliated aided colleges not maintained by the Government, pay scale may also be one of the service condition but the Ordinance 66 of the Ordinances, speaks only of recommendation of the pay scale by the University.
174. The recommendation and prescription are two different and distinct acts. Ordinance 65 of the Ordinances relates to minimum qualifications, which are to be possessed by the teachers in various faculties of colleges affiliated to the University of Rajasthan. The University has kept this power with it so as to ensure and satisfy that the college maintains proper standard of teaching, instructions and training.
175. A combined reading of the Ordinance 67-A and 68 of the Ordinances and the State 30 of the Statutes, makes it explicity clear that the University has to satisfy that the number and qualifications of teaching staff of non-Government recognized affiliated aided colleges in each subject are adequate and in accordance with the rules prescribed by the University and that their emoluments and the conditions of their service are such as may be approved by the University.
176. The Act, 1946 and the Statutes framed thereunder segregate and delineate the fields of the University and the non-government recognized affiliated aided colleges in respect of prescribing of service conditions of teachers of non-Government recognized affiliated aided colleges other than those maintained by the Government.
177. The Act, 1946, Statutes and Ordinances do not give explicit power to the University of Rajasthan where by the consequence of not following of the provisions of Ordinance 67-A of the University of Rajasthan have been provided for. In absence of any provisions for any consequences for violation of provisions of Ordinance 67-A of the Ordinances it may not be taken that the University has intended and desired to enforce Ordinance aforesaid strictly on the non-Government recognized affiliated aided colleges. We are in agreement with the observations made by the Division Bench while deciding Dr. Kailash Chandra Mittal's case (supra) that in absence of any providence under the provisions of the Act, 1946, there is every doubt that Ordinance 67-A is a piece of legislation which, if at all intended for the purposes of laying down service conditions of teachers of non-Government recognized affiliated aided colleges, then, this is a piece of legislation, which is under the authority of the Act.
178. The contentions of the learned Counsel for the petitioner that Ordinance 67-A of the Ordinances is special law which preferred over the Act, 1989 and the Rules, 1993 framed thereunder, is difficult to out right accept it. It is to be looked into, considered and appreciated in the light of various other Ordinances, as Ordinance 67-A of the Ordinances is not the Ordinance in isolation. This is one of the Ordinances in a bunch of Ordinances framed by the University. Reading it in isolation and singularly, it may be that it makes provision for specific point of laying down service conditions, but if all the Ordinances are concerned, they are framed on a variety of subjects. Statute 30(1) speaks of the conditions of service of teaching staff of non-Government recognized affiliated aided colleges, which are such 'as may be approved by the University'. This expression used in Clause (1) of Statute 30 is not without any significance, effect and purpose. It is approval by the University of service conditions and not the prescription thereof by the University. Where under the Statute the University only speaks of approval of the conditions of service then it cannot be taken that the University ever intended to prescribe the age of superannuation of teaching staff of non-Government recognized affiliated aided colleges or for that matter conditions of their services. This expression used in Statute 30(1) takes away the vigour of Ordinance 67-A of the Ordinances. The Ordinance 67-A of the Ordinances thus cannot be preferred in separation to all other Ordinances.
179. The Act, 1989 and the Rules, 1993 make provision for various aspects of the non-Government recognized aided institutions, which are affiliated to the University of Rajasthan. It is no more res integra that the conditions of grant-in-aid are the one, which have given power to the State Government to lay down service conditions of the teachers of the non-Government recognized affiliated aided colleges not maintained by the State Government. Grant-in-aid given to the non-government recognized aided institutions, is not as loan- carry; it is generated out of public fund which cannot be donated for private purposes. Keeping in view this aspect and two decisions of the Hon'ble Supreme Court in the case of State of A.P. v. S.K. Moinuddin (supra) and Unni Krishnan, J.P. and Ors v. State of Andhra Pradesh and Ors. (supra), the State Government concerned has all the power to prescribe service conditions of the teachers of non-Government recognized aided institutions not maintained by the Government. That's what precisely has been done by the State Legislature under Section 16 of the Act, 1989 and under Rule 45 of the Rules, 1993 prescribing thereunder the superannuation age of teachers of the non-Government recognized affiliated aided colleges not maintained by the Government.
180. As a result of the aforesaid discussion we are of the opinion that framing of Ordinance 67-A to give power to the University to provide age of superannuation of teachers of non- Government recognized affiliated aided colleges not maintained by the government, is not authorized by the Act, 1946.
181. We are not in agreement with the view taken by the Bench of this Court in G.N. Tandon's case (supra) on the point of interpretation and applicable of Ordinance 67-A of the Ordinances and we uphold the view taken by another Bench of this Court in Dr. Kailash Chand Mittal's case (supra).
182. The reference is answered in the terms that the service conditions, including the age of superannuation, of the employees of non-Government recognized affiliated aided institutions will be governed by the Act, 1989 and the Rules, 1993.