A.K. Mathur, J.
1. All the three writ petitions involve common questions of law and facts, therefore, they are disposed of by this common order.
2. For the convenient disposal of these writ petitions the facts given in the case of Jagdish Prasad v. Slate of Rajasthan and Ors. S.B. Civil Writ Petition No. 2141 of 1991 are taken into consideration:
3 The petitioner by this writ petition has prayed that the order dated 30.6.1990 may be declared illegal and be quashed and the petitioner be allowed to continue in service till he attains the age of 60 years or till 30th June following thereafter. In the alternative, it is prayed that in case for allowing the petitioner to continue upto 60 years of age and the provisions contained in Rule 3 (16) of the Grant-in-Aid Rules which fixes the age of superannuation as 58 years of the Teachers working in Government aided school or colleges., comes in the way of the petitioner then to this extent the same may be declared illegal and be struck down.
4. The petitioner entered the service of the respondent Maharishi Dayanand College, Sri Ganganagar (for short 'the College' hereinafter) way back in the year 1969. While the petitioner was in service an agreement was entered into between the petitioner and the respondent College. A copy of the agreement has been placed on the record as Annex. 1. It is alleged that as per para 10 of the agreement it was agreed between the petitioner and the 2nd and 3rd respondents that the age of superannuation of the petitioner will be 60 years and his actual retirement shall be on 30th day of June following attaining age of 60 years. It is alleged that the U.G.C. Pay Scales were made applicable from the year 1973 and the petitioner made an application on 5.6.1990 whereby he requested the Management of the respondent College to fix his pay in the U.G.C. Pay Scales and to pay him arrears in pursuance of the aforesaid fixation. Since the respondent College was not responding to his request, therefore, he made an application to the respondent No. 4 the Director, College Education requesting that the respondent College may be directed to fix the pay of the petitioner in the U.G.C. Pay Scales and to pay the same to the petitioner. It is alleged that on account of this the Management has not taken it kindly and has informed the petitioner that he will be retired from service on attaining the age of 58 years in terms of Rule 3 (16) of the Grant-in-Aid Rules, 1963 i.e. 30.6.1990. The retirement was effected on 30.6.1990. The petitioner preferred an appeal against the order dated 30.6.1990 before the respondent No. 4 the Director, College Education. The Director, College Education informed the petitioner that the appeal is only maintainable against the punishment imposed on the employee and not against such retirement. Then, the petitioner also made a representation by way of appeal and he was informed that no such appeal lies against such retirement.
5. The respondent No. 2 is a Society registered under the Societies Registration Act and is a body corporate which can sue and can be sued. The Governor of Rajasthan promulgated the University of Ajmer Ordinance 1987 on 23.7.1987 and it came into force on the date of publication of the aforesaid notification. Then on 1.8.1987 a notification was issued notifying that all colleges, institutions and institutes which have ceased to be affiliated with the University of Rajasthan and are not affiliated to any University of the State are affiliated to University of Ajmer with effect from 1.8.1987. The Ajmer University Acts, 1987 was brought into force on 7.11.1987. It is alleged that till the Ajmer University came to be established by the University of Ajmer. Ordinance, 1987 the respondent College was governed by the Rajasthan University Act and its statutes and Ordinances. In this connection the petitioner has referred to Ordinance 67A of the University of Rajasthan which lays down the age of superannuation. Ordinance 67A reads as under:
67A. 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 is 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 teaching may be retained in service upto the age of sixty two years provided he continues to be mentally and physically fit for duty. Such an extension shall be granted by the Management with the prior approval of the Vice-Chancellor and the Syndicate.
6. Ordinance 68 lays down the format of the agreement which reads as under:
68, The following form the Agreement is hereby prescribed to be adopted by the non-government affiliated colleges for appointment to the teaching posts (except principal).
Agreement made this... .day of.. .19...between.... of the first part and the Managing Committee of....College...through the Principal/Secretary of the second part:
Whereas the college has engaged the party of the first part to serve the college as...subject to the conditions and upon the terms hereinafter contained, this agreement witnesseth that the party of the first part and the college hereby contract and agree as follows:
(1)...
(2) ...
(3) ....
(4) ...
(5) ...
(6) ...
(7) ...
(8) ...
(9) ...
(10) The age of superannuation will be 60 years.
(1) ...
Signed this day of....79...
(1)
(2)
in the presence of
(1)
(2)
7. It is alleged that by virtue of the provisions of the Act the respondent College is affiliated under the Ajmer University Act and it is a statutory body and this College which is affiliated under the Ajmer University Act receives Grant-in-Aid to the extent of 80% from the Government of Rajasthan, The State Government has framed the Grant-in-Aid Rules and Rules 3 (16) of these Rules provides the age of superannuation. Rule 3 (16) reads as under:
3 (16) The age of superannuation for teachers shall not ordinarily exceed 58 and no extension/re-employment in service shall be granted beyond the age of 60. 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.
8. Therefore, the grievance of the petitioner is that the respondent College is affiliated with the University of Ajmer and previously it was affiliated with the University of Rajasthan. But the provisions of the University of Rajasthan Ordinances are mutatis mutandis applicable to the University of Ajmer. Therefore, the petitioner is entitled to continue upto the age of 60 years and he has already executed a statutory agreement with the respondents No. 2 and 3 and as per that agreement also the age of retirement of the petitioner is 60 years. As such the petitioner is entitled to continue upto 60 years of age.
9. A reply has been filed by the respondents No. 2 and 3 and they have raised an objection that the petitioner has filed the present writ petition against a private educational institution which is a registered body and no writ petition is maintainable against any private party. It is submitted that the Rajasthan Rules for Payment of Grant-in-Aid to Non Governmental Educational & Cultural Institutions, 1963 (hereinafter referred to as 'the Grant-in-Aid Rules') are applicable and in that the age of retirement is 58 years. Therefore, the petitioner cannot be allowed to continue beyond 58 years of age.
10. A reply has been filed by the State and the Director, College Education and they have taken the position that the service conditions of the petitioner are governed by the Grant- in-Aid Rules and under Rule 3 (16) thereof the age of retirement is 58 years. Therefore, the petitioner cannot be allowed to continue beyond 58 years of age.
11. Before I proceed to answer the question it will be necessary to refer here the history in brief.
12. The petitioner was employed with the respondent No. 2 i.e. Maharishi Dayanand College, Sri Ganganagar which is being run by respondent No. 2, which is a Society registered under the Societies Registration Act. Before the Ajmer University came into force this College was affiliated to the University of Rajasthan but when the University of Ajmer has come into force all the colleges not affiliated to the University of Rajasthan, the University of Jodhpur, and the Mohanlal Sukhadia University shall stand affiliated to the University of Ajmer.
13. Mr. Mridula learned Counsel for the petitioners has made a reference to Section 6 of the University of Ajmer Act, 1987 (referred to hereinafter as the Act of 1987). Section 6 of the Act of 1987 reads as under: -
6. Territorial Jurisdiction: Subject to the provisions of the University of Rajasthan Act, 1946, the Jodhpur University Act, 1962 (Rajasthan Act 17 of 1962), the Mohan Lal Sukhadia University Act, 1962 (Rajasthan Act 18 of 1962) and any other law for the time being in force, the jurisdiction of the University shall extend to and the powers conferred by or under this Act shall be exercisable throughout the territory of the State of Rajasthan.
14. According to Section 6, except the provisions of the University of Rajasthan Act, the University of Jodhpur Act and the Mohan Lal Sukhadia University Act, the jurisdiction of the Ajmer University shall extend to and the powers conferred by and under this Act shall be exercisable throughout the territory of the State of Rajasthan and in exercise of this power and by virtue of Section 6 all the other colleges except those which are notified by the State Government in the State of Rajasthan shall stand automatically affiliated to the University of Ajmer. A notification has also been issued by the Government of Rajasthan in exercise of the power conferred by Section 5 of the University of Rajasthan Act, 1946 read with Section 6 of the University of Ajmer Act, 1987 (Act No, 38 of 1987) terminating the territorial jurisdiction and so also affiliation of the University of Ajmer over the colleges specified therein and extended the jurisdiction and affiliation of the University of Rajasthan over them with immediate effect of certain affiliated Colleges mentioned in this notification. Therefore, the learned Counsel submitted that this college automatically stands affiliated by virtue of Section 6 of the Act of 1987.
15. I think the submission of the learned Counsel appearing on behalf of the petitioners appears to be justified that by virtue of Section 6 all the affiliated colleges of Rajasthan except those which are excluded by specific notifications No. F. 5 (15) (Edu/Gr. IV/87 dt. 29.10.1988) and No. F.5 (15)Edu./Gr.IV/87 dt. 4.11.1988) issued by the Government all other colleges in the State of Rajasthan except the colleges affiliated to the University of Rajasthan, the University of Jodhpur and the Mohan Lal Sukhadia, automatically stand affiliated to the Ajmer University. Therefore, according to this college shall stand affiliated to the University of Ajmer.
16. Learned Counsel has not been able to point out any provision regarding affiliation under this Act but has also referred to Section 41 of the Act which relates to transfer of college and institutions and in that he has invited my attention to Sub-section (4) of Section 41 of the Act which reads as under:
(4) A person employed as a teacher or an employee in any college, Institution or any other body or agency referred to in Sub-section (1) shall, from the date of notification issued under the said subsection, be deemed to have become the teacher or, as the case may be, the employee of the University on the same terms and conditions.
17. It says that a person employed as a teacher or an employee in any college, institution or any other body or agency referred to in Sub-section (1) shall from the date of notification issued under the said sub section be deemed to have become the teacher or as the case may be, the employee of the University on the same terms and conditions. Therefore, the learned Counsel submitted that by virtue of this provision, the service conditions of the petitioner shall be governed by the University of Rajasthan Act and Ordinances. Hence, learned Counsel has pressed into service the provisions of the University of Rajasthan Act, and Ordinances, in this connection, learned Counsel has specifically invited my attention to Ordinance 67A and 6B which have already been reproduced above.
18. The principal submission of the learned Counsel for the petitioner is that since the age of superannuation has been prescribed under Ordinance 67A i.e. 60 years then all the members of the affiliated colleges i.e. teachers and employees, shall be entitled to continue upto the age of 60 years and he has also invited my attention to Clause (10) of the agreement, which prescribed the agreement to be executed by the non-Government affiliated colleges and their teaching staff. Therefore, he submitted that the petitioner is entitled to continue inservice upto 60 years of age. Learned Counsel further submitted that a harmonious construction should be given to this clause and Rule 3 (16) of the Grant-in-Aid Rules which also prescribes that the incumbent will continue upto 58 years of age which is extendible upto 60 years with the permission of the Government.
19. As against this, learned Counsel for the respondents submitted that since the institution receives the Grant-in-Aid from the Government and the Government has prescribed certain rules for governing their service conditions and in that the age of superannuation has been prescribed as 58 years, therefore, this institution cannot allow the incumbent: to continue upto 60 years of age, as they are bound by the Grant-in-Aid Rules.
20. Mr. Mridul, learned Counsel for the petitioners, submitted that Ordinance 67A and the Agreement which has been prescribed under Ordinance 68 of the University of Rajasthan Ordinances arc statutory in nature and the Government is bound by that statute and they have to give Grant-in-Aid to the Society to continue the petitioner upto the age of 60 years. It may also be relevant to mention here that the Grant-in-Aid Rules have now been superseded and now the Rajasthan Non-Government Educational Institutions Act, 1989 has been promulgated.
21. 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 67A the age of superannuation which has been prescribed 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 candidate was 58 years. By virtue of Ordinances 67A and 68 the Government of Rajasthan cannot be bound to automatically extend the age of retirement in 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 Stale. No mandamus can be issued against the State of Rajasthan that these candidates should he 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 formal of agreement for such affiliated colleges. It is this affiliated college which has 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.
22. Mr. Mridul, learned Counsel for the petitioner has invited my attention to a decision of this Court delivered in the case of M.S. Chhonkar v. The State of Rajasthan and Ors. S.B. Civil Writ Petition 1214/1990 decided on 10.1.1992 by Jaipur Bench of this Court). I have been informed that an appeal has been preferred against that decision and the appeal is pending. Therefore, I need not to comment on this judgment. Similarly, learned Counsel has also invited my attention to the decision of this Court delivered in the ease of Shri K.B.L. Mathur v. State of Raj. and Ors. S.B. Civil Writ Petition No. 973/1991, decided on 13.7.1992 by the Jaipur Bench of this Court. In this case Shri K.B.L. Mathur was retired on attaining the age of 58 years and he filed an appeal before the State Government and the State Government passed an interim order extending the services of the petitioner upto the date he attains the age of 60 years. Despite that order no salary was paid to the petitioner on the pretext that in some other cases State has filed writ petitions. In the case of M.K. Marwah who was also a Lecturer entered into an agreement as well, and he continued in service but under order dated 26.12.1983 the Managing Committee terminated the agreement in terms of Clause 6 of the agreement, This petitioner also filed an appeal before the State Government and the same was dismissed. Likewise in the case of Sharad Vinayak Kapada who was also retired from service on attaining the age of 58 years, also filed an appeal before the Government and the appeal was not disposed of though the Management recommended that he may be given extension upto the age of 60 years. In the light of these facts these writ petitions have been filed and they have been disposed of by this common order, So far as Marwah and Sharad Vinayak are concerned, the learned Single Judge followed the decision given in the case of M.S. Chhonkar and allowed the imcumbent to continue upto 60 years of age and so far as K.B.L. Mathur is concerned he was also granted the relief and it was directed that a Screening Committee may be constituted to examine the case of the petitioner for his placement in senior/selection scales if any and he may be given the scale according to the rules. Since, M.S. Chhonkar's case was followed in the case of M.S. Marwah and Sharad Vinayak Kapade, therefore, I would not like to make any comment as appeal against the judgment of M.S. Chhonkar is pending and therefore, I would like to restrain myself from making any comment on the judgment. But the fact remains that these Ordinances 67A and statutory agreement are concerned it is between the institution and the employee and the Government of Rajasthan is not a party to it. Therefore, no mandamus can be issued against the Government that they should allow these incumbents to continue upto 60 years of age and saddle the Government with the financial liability of these incumbents upto 60 years. In this connection, Mr. Mridual has also invited my attention to Miss Raj Soni v. Air Officer in charge Administration and Ors. : [1990]2SCR412 . But that case has also no application in the present case because in that case the Teachers were appointed prior to the enforcement of the Delhi Education Act in a school controlled by the Air Force and their service conditions were governed by the Delhi Education Code which provided 60 years of the age of superannuation for the school teachers. Their Lordships of the Supreme Court, therefore, held that since the age of retirement of 60 years has been reduced under the Act to 58 years but they were employed prior to coming into force of this Act, therefore, the retirement benefit of such candidate is to be determined on the basis of 60 years and they were directed to be paid the arrears. Therefore, that is not the case here. Therefore, that analogy will not be applicable here.
23. Mr. Agrawal, learned Counsel for the respondents has invited my attention to a recent decision of their Lordships of the Supreme Court delivered in the case of T.P. George and Ors. v. State of Kerala and Ors. : [1992]2SCR311 . This was a case of an affiliated college and the U.G.C. Scheme was implemented by the State of Kerala except the age of retirement which was 55 years. The High Court look the view that as long as the superannuation remains 55 years and so long as the State Government has not accepted the U.G.C.'s recommendation to fix the age of superannuation at 60 years, the teachers cannot claim as a matter of right that they are entitled to retire on attaining the age of 60 years. In that context, their Lordships of the Supreme Court expressed their agreement with the observations made by the Division Bench of the High Court which read as under:
We are in agreement with the observations of the Division Bench of the Kerala High Court in Writ Appeal No. 223 of 1991 quoted in the impugned judgment which run as follows:Though Clause 26 of the Scheme provides that the age of superannuation for teachers should be 60 years and the scheme contemplates certain improvement in the revision of pay-scales and providing for assistance in that behalf, it is not a scheme which is statutory binding either on the State Government or the different Universities functioning under the relevant statutes in the State of Kerala, What the State Government has done by its order dated 13.3.1990 is to Implement the UGC Scheme Including revision of scales of pay in relation to teachers in Universities Including Kerala Agricultural University, affiliated colleges, Law Colleges, Engineering Colleges and Qualified Librarians and qualified Physical Education Teachers with effect from 1.1.1986, subject however to the express condition that in so far as the age of retirement is concerned, the present fixation of 55 years shall continue. The contention of the appellant is that the State Government having accepted the UGC Scheme, and as the scheme provides for a higher age of 60 years, once the State Government accepted the Scheme, all the clauses of the Scheme became applicable. It is not possible to accede to this contention. Firstly, as already stated the UGC Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the Universities to follow the same. Therefore, the State Government had the discretion either to accept or not to accept the scheme. In its discretion it has decided to accept the Scheme, subject to the one condition, namely, in so far as the age of superannuation is concerned, they will not accept the fixation of higher age provided in the Scheme. The State Government having thus accepted the Scheme in the modified form, the teachers can only get the benefit which flows from the Scheme to the extent to which it has been accepted by the State Government and the concerned Universities. The appellant cannot claim that major portion of the Scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation. That is a matter between the State Government on the one hand and the University Grants Commission on the other, which was provided certain benefits by the Scheme. It is for the University Grants Commission to extend the benefit of the Scheme, depending upon its satisfaction about the attitude taken by the State Government in the matter of Implementing the same. That is a matter entirely between the State Government on the one hand and the University Grants Commission on the other. Teachers of the private Institution concerned are governed by the Statutes framed under the relevant statutory enactment. As long as the superannuation remains fixed at 55 years and as long as the State Government has not accepted the UGC's recommendation to fix the age of superannuation at 60 years, teachers cannot claim as a matter or right, that they are entitled to retire on attaining the age of 60 years.
24. Therefore so far as the liability of the State of Rajasthan is concerned, I think no mandamus can be issued because the State of Rajasthan which give 80% of the financial aid to the Institutions and it has laid down the terms and conditions and in that terms and conditions for such teachers the age of superannuation has been prescribed at 58 years. Unless the Government of Rajasthan increases the age of superannuation of teachers of such affiliated colleges the Government of Rajasthan cannot be saddled with the financial burden of these teachers upto 60 years.
25. But now the question is what is the position of teaching staff of such affiliated colleges. It is true that University prescribed the age of superannuation of the teachers of the affiliated colleges at 60 years and they asked these teachers to execute an agreement. This is an agreement between the teachers and the institution and I may say so that it is a price for affiliation that this agreement has been executed between the teachers and the institution. This is a contract between the teachers and the institution that they will retain them upto the age of 60 years. But the difficulty is that they are not going to get financial aid for these teachers upto 60 years and their loyalty is divided between the two i.e. burden of affiliation and lack of financial resources from the Government for such teachers. According to the Grant-in-Aid Rules i.e. Rule 3 (16) as it existed the age of retirement was 58 years and it can be extended upto 60 years provided it is recommended by the institution and accepted by the Government. Therefore, in case the Government refuses to extend the age of retirement then the financial liability will have to be incurred by the Institution.
26. Mr. Agrawal, learned Counsel for the respondents has also invited my attention to Ordinance 67A and submitted that these institutions will not be covered by this clause as they are maintained by the Government as it receives 80% financial aid and in that connection he has invited my attention to the dictionary meaning of the word 'maintained' as defined in Black's Law Dictionary Sixth Edition which reads as under:
Maintained. Carried on; kept possession and care of; kept effectively; commenced and continued.
27. This contention of the learned Counsel does not appear to be justified. A bare reading of Ordinance 67A says that this provision of affiliation will not be applicable to the colleges which are maintained by the State Government, and these institutions are not exclusively maintained by the Government. The word 'maintained' implies that the institutions are exclusively maintained by the Society and they are reimbursed by the State Government upto the extent of 80% Therefore, these affiliated colleges arc not maintained by the State Government. This contention of Mr. Agrawal cannot be sustained.
28. The upshot of the above discussion is that since a statutory contract has been entered into between the teachers and the Institutions to continue these teachers upto 60 years of age. Therefore, this is the price the institution will have to pay for seeking affiliation and it is a statutory agreement between the institution and the teachers, Therefore, so far as the petitioners are concerned the institution will have to retain them upto 60 years of age by virtue of the agreement but this will be liability to be incurred by the institution and the Government cannot be saddled with this liability,
29. In the case of Eric Virendra Kumar v. State of Rajasthan and Ors. S.B. Civil Petition No. 4099 of 1991 there is an additional factor that the Institution has recommended to the Government for grant of extension to the petitioner. The Government granted him one year's extension and the second year's extension was not granted. Therefore, the petitioner could not be continued upto the age of 60 years as I have already mentioned above, it is a statutory contract between the petitioner and the Institution. Therefore, the petitioner is concerned he is entitled to be continued upto 60 years of age and the institution will have to incur the liability to continue the petitioner upto the age of 60 years hut the Government of Rajasthan cannot be saddled with this liability.
30. Thus, as result of the above discussion, the writ petitions are dismissed qua the State Government but they are allowed qua the respondents No. 2 and 3.