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Judgment
Narendra Kumar Jain, J.—This order disposes of above named two writ petitions.
Learned Counsel for petitioners prayed for adjournment of the cases whereas learned Counsel for respondents opposed it vehemently and contended that on number of occasions the matters have been adjourned at the request of learned Counsel for petitioners; the matters are fully covered by decision of Full Bench of this Court in Shri Vishwanath Sharma v. State of Rajasthan and Three Ors. 2006 WLC (Raj.) UC 235, hence both the writ petitions be dismissed.
Since the learned Counsel for respondents opposed the prayer for adjournment of the petitioners vehemently, I heard him and myself examined the pleadings as well as the documents of both the parties.
The petitioners preferred separate applications u/s 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter shall be referred to as ''the Act of 1989'') challenging the action of respondents thereby retiring the petitioners from service on attaining age of 58 years and praying for a direction to the respondents to allow them to continue in service upto the age of 60 years. The Rajasthan Non-Government Educational Institutions Tribunal, Jaipur, vide its judgment dated 18th December, 2002, held that since petitioners have opted for new/revised pay scale, therefore, their case is not governed by Ordinance 67-A of the Rajasthan University Ordinances and the same is governed by Rule 45 of the Rajasthan Non-Government Educational Institutions Rules 1993, and Rule 3(16) of the Rajasthan Grant-in-Aid to Educations & Cultural Institutions Rules, 1963, hence the age of superannuation of the petitioners is 58 years. Being aggrieved with the same, the present writ petitions have been preferred.
There were two conflicting decisions of two different Division Benches and therefore the matter was referred to the Larger Bench after framing following question for consideration thereof:
Whether Ordinance 67-A of the Rajasthan University Ordinances will prevail or the employees will be governed by the Rajasthan Non- Government Educational Institutions Act, 1989 and the Rajasthan Grant-in- Aid to Educational and Cultural Institutions Rules, 1963.
The Full Bench took into consideration that though it is not specifically stated in the question but from the facts of the case, which have come on record, it is apparent that the dispute relates to age of superannuation of Teachers of the Non-Government Recognized, Affiliated Aided Colleges in the State of Rajasthan.
The Full Bench answered the reference in the terms that the service conditions including the age of superannuation of employees of Non- Government Recognized, Affiliated Aided Institutions will be governed by the Act of 1989 and the Rules of 1993. The relevant Paragraphs of the judgment rendered by the Full Bench are reproduced as under:
The learned Single Judge, under its order dated 09.08.2000, 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 & 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 Institutions Act, 1989 (hereinafter referred as "the Act, 1989") and the Rajasthan Grant-in-Aid to Educational 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 Recognized Affiliated Aided Colleges in the State of Rajasthan.
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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.
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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.
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.
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The contention 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 Ordinance 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.
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 cases of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , 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 u/s 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.
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.
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 applicability 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 2000 WLC (Raj.) UC 343.
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.
The Act of 1989 and the Rules of 1993 prescribe the age of superannuation for teachers as 58 years. Since the petitioners have opted to accept new/revised pay scale which came into effect w.e.f. 01.01.1986 and the respondents have accepted the same, therefore, Ordinance 67- A is not relevant in the present case, and as per provisions of the Act of 1989 and the Rules of 1993, the petitioners were rightly retired by the respondents at the age of 58 years. After considering the case of both the parties and the judgment of the Non-Government Educational Institutions Tribunal, it is clear that the question involved in the present writ petitions has been answered by the Full Bench in Shri Vishwanath Sharma''s case (Supra) and both the writ petitions are fully covered by the said decision and, in view thereof, I do not find any merit in these writ petitions and the same are accordingly dismissed but with no order as to costs.
A copy of this order may be placed in connected file.