Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment

Judgment:

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. --------------------------------------------------------------------------------------------

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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ORDER

23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'court' => 'Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.

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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.

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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.

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			'appellant' => 'Pramod Mishra',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.

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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.

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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.

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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.

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			'appellant' => 'Pramod Mishra',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 0 => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :',
	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.

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	'title_for_layout' => 'Pramod Mishra Vs the State of Madhya Pradesh - Citation 1041535 - Court Judgment | ',
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			'appellant' => 'Pramod Mishra',
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			'casename' => 'Pramod Mishra Vs. the State of Madhya Pradesh',
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			'court' => 'Madhya Pradesh',
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			'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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		'judgement' => '<p>1 HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :</p><p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :</p><p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- </p>ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”</p><p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.</p><p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”</p><p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.</p><p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :</p><p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.</p><p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.</p><p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.</p><p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.</p><p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.</p><p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.</p><p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.</p><p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.</p><p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.</p><p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.</p><p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.</p><p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.</p><p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”</p><p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.</p><p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.</p><p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.</p><p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”</p><p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.</p><p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.</p><p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.</p><p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*',
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	(int) 1 => '<p>10621. Of 2010 (s) Pramod Mishra V/s State of Madhya Pradesh & Others and Writ Petition No :',
	(int) 2 => '<p>11468. Of 2010 (s) Pradeep Agnihotri V/s State of Madhya Pradesh & Others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------------- Shri K.C. Ghildiyal, learned counsel for the petitioner. Shri P.K. Kaurav, learned Dy. Advocate General with Shri Rajesh Tiwari, Government Advocate for respondents. -------------------------------------------------------------------------------------------- ',
	(int) 3 => 'ORDER<p> 23.8.2012 As common question of law and fact are involved in both these petitions, they are being heard and disposed of by this common order. For the sake of convenience the material and the documents available on the record of W.P. No.10621/2010 is being referred to in this order”',
	(int) 4 => '<p>2. Petitioners in both these petitions namely Shri Pramod Mishra and Shri Pradeep Agnihotri are holding the post of Workshop Superintendent in the Government Polytechnic College Nowgaon, District Chhatarpur. It is their case that they are being retired at the age of 62 years, whereas in accordance to the All India Council for Technical Education (Pay Scales, Service Conditions and Qualifications) for the Teachers and Other Academic Staff in Technical Institution (Diploma) Regulations, 2010 (hereinafter referred to as the 'Regulation, 2010') the age of retirement has been enhanced from 62 to 65 years with effect from 13.3.2010 and without granting benefit of this regulation, retirement of petitioners at the age of 62 years is said to be unsustainable. It is the case of petitioners that the aforesaid Regulation of 2010 is framed under Section 23(1) read with Section 10(i) and (v) of the All India Council for Technical Education Act, 1987 (hereinafter referred to as and Act of 1987) and the retirement of petitioners contrary to the aforesaid statutory provision is illegal.',
	(int) 5 => '<p>3. Challenge is also made to an act of the State Government in not extending the benefit of a Circular dated 19.10.2010 Annexure R-1 to the petitioners and treating it to be prospective with effect from 19.10.2010. It is stated that this circular dated 19.10.2010 should be made retrospective i.e. with effect from 13.3.2010 and should apply to the petitioners also, as it is nothing but implementation of the statutory provisions as contained in the Regulation 2010”',
	(int) 6 => '<p>4. It is not in dispute that the petitioners were appointed as Workshop Superintendent in the Technical Education and Training Department of the State Government and on such appointment are presently holding the post of Workshop Superintendent in Government Polytechnic College Nowgaon. The terms and conditions for appointment of petitioners are governed by the Madhya Pradesh Technical Education (Gazetted) Service Recruitment Rules, 1990. As per the provisions of the said Rule so also Regulation, 2010 it is not in dispute that the post of Workshop Superintendent is treated at par with that of Lecturer and infact petitioners fall in the category of Lecturers/ Teachers for all purpose, to that extent there is no dispute. It is seen from the records that the Government of India, Ministry of Human Resources Development Department of Higher Education issued a notification dated 31.12.2008, Annexure P-2, by which taking note of the condition and shortage of teaching staff in various Universities/Colleges and Education Institute a decision was taken to enhance the age of retirement of teachers involved in the Class-Room teaching from 62-65 years. Taking note of this Circular issued by the Government of India dated 31.12.2008, Annexure P-2, the State Government adopted this policy and issued notification on 16.4.2010, Annexure P-3, enhancing the date of retirement of Teachers from 62 to 65 years in the State Government Institutes of Higher Education under the Department of Higher Education. However as the Polytechnic Colleges and Institutions do not came under the Department of Higher Education, the said Circular is not applicable to the petitioners. As far 4 as the Polytechnic Institutes are concerned, it is governed by the Act of 1987. It is the case of petitioners that when the Regulation 2010 was framed with effect from 13.3.2010 and when the age of retirement of employees working in all Technical Institutions were enhanced by the All India Council for Technical Education by incorporating in the said Regulation, a particular age of superannuation petitioners are also entitled to work upto 65 years, as age of retirement of all Teachers including Workshop Superintendent in Technical Institutions stands enhanced from 62-65 years with effect from the date of Regulation, 2010 came into force i.e. 13.3.2010. It is stated that vide order Annexure P-4 dated 21.12.2009 petitioners were proposed to be retired with effect from 31.8.2010, on attaining the age of 62 years, claiming that as per Regulation 2010 they can only be retired at the age of 65 years, this writ petition is filed.',
	(int) 7 => '<p>5. Shri K.C. Ghildiyal, learned counsel for the petitioner taking me through the provisions of the Act of 1987, Section 10, Section 23 and the Regulation of 2010 Annexure P-1 argued that the Regulation framed under Section 23 of the Act of 1987 is statutory in nature, is binding and comes into force with effect from the date as notified and, therefore, once the age of superannuation of Lecturer and Workshop Superintendent is enhanced from 62-65 years by virtue of Regulation 2010 with effect from 13.3.2010, petitioners are also entitled to the same benefit. Taking me through the provisions of Clause (i) pertaining to the Age of Superannuation and interpretation 5 of the provision with regard to Applicability of Scheme, as contained in Annexure P-1 Shri Ghildiyal argued that once a Regulation, statutory in nature framed under Section 23 of the Act of 1987 determines the age of superannuation of persons like the petitioners to be 65 years, the State Government contrary to the said statutory provision cannot issue any Circular/Notification like Annexure R-1 dated 19.10.2010 and deny the benefit of the statutory provisions to the petitioners. It is argued that the Regulation of 2010 has statutory force, it becomes effective from the date of its enforcement and action of the State Government in implementing it by means of executive instructions i.e. Annexure R-1 dated 19.10.2010 with effect from a date contrary to the date of its enforcement is unsustainable. Accordingly, the first ground canvassed by Shri K.C. Ghildiyal is to the effect that the statutory regulation framed has to be given full effect to and once on the basis of said statutory provision the age of retirement/superannuation is fixed at 65 years, petitioners cannot be retired at a age prior to the said age of superannuation i.e. 65 years. It is emphasized that modification of this statutory provision and given it effect from 19.10.2010 vide Annexure R-1 is illegal. In support of the aforesaid contention say that the statutory provision cannot be superseded or modified by an executive instructions, Shri Ghildiyal invites my attention to the following judgments :',
	(int) 8 => '<p>1. Uttaranchal Jal Sansthan Vs. Laxmi Devi (2009) 7 SCC 205.',
	(int) 9 => '<p>2. State of M.P. Vs. G.S. Dall And Flour Mills 1992 (Supp) 1 SCC 150.6 3. Gujarat Housing Board Engineers Assn. Vs. State of Gujarat (1994) 2 SCC 24.',
	(int) 10 => '<p>4. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh and Others 2011) 11 SCC 702.',
	(int) 11 => '<p>5. State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (1995) 4 SCC 104.',
	(int) 12 => '<p>6. Accordingly, it is emphasized that once the statutory provision gives some benefit to the petitioner, the same cannot be taken away in the manner done by executive instructions.',
	(int) 13 => '<p>7. The next limb of argument of Shri Ghildiyal was that once the State Government has implemented the recommendation of the Central Government and the provisions of the Regulation 2010 by executing order Annexure R-1 dated 19.10.2010 then the executive instructions Annexure R-1 and the benefit accruing to the petitioners therein cannot be given effect from an arbitrary date i.e. 19.10.2010. It is stated by Shri Ghildiyal that this circular Annexure R-1 was issued in view of provisions of Regulation 2010 published in the Gazette on 5.3.2010 and enforced from 13.3.2010 and as this circular only implements the Regulation, 2010, the circular has to be given effect to from the date the Regulation 2010 came into force as per law and by introducing clause (3) in the said circular enhancing age of superannuation of Workshop Superintendent and Lecturer from 62 to 65 years only with effect from 19.10.2010 the State has acted illegally and arbitrarily. It is stated that circular Annexure R-1 dated 19.10.2010 has to be given retrospective effect i.e. from the date the Regulation 2010 came into force and fixing an arbitrary date i.e. 19.10.2010 for enhancing the age of retirement, is unsustainable. 7 Accordingly, the second ground canvassed is that an unreasonable date has been fixed for enforcement of Circular Annexure R-1.',
	(int) 14 => '<p>8. Finally the last ground canvassed was that the Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 has been incorporated which has the effect of amending the provisions of Fundamental Rule 56 and as by amending the said provision the age of retirement of Teachers has been enhanced from 62 to 65 years. The benefit of this amendment should also be granted to the petitioners and as the amended statutory benefit applicable in the State of Madhya Pradesh has not been granted to the petitioners, the action is illegal.',
	(int) 15 => '<p>9. Accordingly, on the aforesaid three grounds, learned counsel for the petitioner prays for interference.',
	(int) 16 => '<p>10. Shri P.K. Kaurav, learned Deputy Advocate General along with Shri Rajesh Tiwari, Government Advocate for the State refutes the aforesaid allegations and by inviting my attention to the Circular Annexure P-1 dated 13.3.2010 issued by the Central Government, and by referring to the stipulations, as contained in paragraph, submitted that the Central Government in fact vide Annexure P-1 implement its earlier Circular dated 23.3.2007 and the purpose for which the age was enhanced from 62 to 65 years is indicated therein, Shri Kaurav emphasized that the Central Government has enhanced the age of superannuation for teachers working in Central Government Institutes functioning under the Department of Higher and Technical Education 8 and left it to the State Government to adopt the scheme, as initially enforced by the Department of Higher Education. It is stated that the policy of the Central Government as contained in the Circular dated 31.12.2008 is only implemented in the Regulation 2010 by applying it to Technical Institution. So far as Technical Institution like Polytechnic College functioning under the administrative control of State Governments are concerned Shri P.K. Kaurav invites my attention to the provisions of the Regulation 2010, particularly the clause pertaining to applicability of the said provision and submits that in the clause pertaining to 'Applicability of Scheme' vide clause (iii) & (iv), a discretion is given to the State Government to extend the Regulation/Scheme Annexure P-1 to Polytechnic Technical Institution under the purview of State Legislatures in accordance to discretion of State Government. Accordingly, referring to the aforesaid clause with regard to 'Applicability of Scheme' Shri P.K. Kaurav argues that a discretion is given to the State Government to extend the benefit of Regulation 2010 to the Polytechnic Institutions functioning under the control of the State Government and as the State Government has decided to implement the Scheme and make it applicable to the Polytechnic Institutes with effect from 19.10.2010 the petitioners should not have any right to claim any benefit and in doing so no error has been committed.',
	(int) 17 => '<p>11. Shri P.K. Kaurav invites my attention to certain orders passed by a Division Bench of this Court in W.P. No.5267/2010 (Dr. 9 R.K. Chapra and Others vs. State of M.P. and Others) Annexure R-2 and submits that while interpreting the Circular dated 16.4.2010, Annexure P-3, issued by the Madhya Pradesh Higher Education Department similar arguments advanced have already been rejected and, therefore, not no further benefit can be granted to the petitioners. Shri Kaurav emphasized that Regulation 2010 may have statutory force, as they are incorporated under Section 23 of the Act of 1987, but as there applicability to the Polytechnic Institutes functioning under the State Government is subject to discretion given to the State Government, the State Government having chosen to implement the same only with effect from 19.10.2010, they have not committed any error. Shri P.K. Kaurav submits that whenever a statutory provision is enforced and a question arises with regard to its mandatory or directory nature the intention of the Legislature which enacted the provision has to be taken note of. It is stated by him that Regulation 2010 is nothing but a Regulation laying down various service conditions of Teachers and Staff Members working in Polytechnic Institutes pertaining to their pay-scale, appointment, promotion, provident fund Payment etc.. and as the teachers working in the Polytechnic Institutes functioning under the State Government are governed by the condition of their service as laid down by rules framed under Article 309 of the Constitution, therefore, with regard to applicability of the Regulation 2010 to the State Government Polytechnic Institutions, discretion is given to the State Government with regard to their implementation and as the State Government has 10 exercised the discretion in judicious manner no interference is called for. Accordingly, Shri P.K. Kaurav submits that in the facts and circumstances of the case the action of the State Government is reasonable as per law and the same does not call for any interference.',
	(int) 18 => '<p>12. I have heard learned counsel for the parties at length and perused the record. From the record it is clear that the petitioners are working in Polytechnic Institution which have been established by virtue of Rules and Regulations framed by the State Government. The service condition of the employees working in these institutions are governed by various statutory provisions formulated under Article 309 of the Constitution. The terms and conditions of their service are determined by the statutory rules so framed and their contract of employment including the pay-scale, promotion, seniority, pension, provident fund etc. and various other service conditions are laid down therein. The question, therefore, not in this writ petition is as to whether the Regulation 2010 applies to the employees working in Polytechnic Institutions functioning under the State Government with effect from the date it was brought into force i.e. 13.3.2010 or any discretion is given to the State Government to implement it from particular date.',
	(int) 19 => '<p>13. As far as enhancement of age of retirement in the institution that come under the Higher Education Department is concerned, even though the Central Government issued the notification vide Annexure P-2 dated 31.12.2008 and enhanced the age 11 of retirement and other benefits payable to the Teacher and other staff members working in the Institution of Higher Education with effect from a particular date, but by virtue of provisions and the clause for applicability of the scheme as contained in Annexure P-2 the State of Madhya Pradesh enforced the scheme with effect from 6.4.2010 vide Annexure P-3. But these were only executive in nature and were not statutory. So far as Regulation 2010 is concerned these are regulation framed under Section 23 of the Act of 1987 and it is not in dispute that once the regulation is framed under Section 23 of the act of 1987 it is statutory and has binding force. Shri Ghildiyal is right in contending that Regulation framed under Section 23 is statutory binding and same cannot be modified and changed by an executive instructions, to that effect the contention advanced by Shri Ghildiyal has to be accepted and there is no dispute in accepting the aforesaid proposition.',
	(int) 20 => '<p>14. However, at the same time the question which warrants consideration by this Court in these two petitions are as to whether the Regulation 2010 became applicable in the State of Madhya Pradesh and has to be applied to Teachers and other employees working in Polytechnic Institution immediately with effect from the date of its enforcement i.e. 13.3.2010 or any discretion is given to the State Government to adopt this Scheme or Regulation 2010 from a subsequent date. To consider the aforesaid question the provisions of Regulation 2010, particularly with regard to the clause pertaining to 'Applicability of Scheme' may be taken note of”',
	(int) 21 => '<p>15. Before considering the said question, a perusal of scheme indicates that scheme has been formulated as Regulation 2010 for fixing the pay-scale, service condition, qualification and various other terms and conditions for the employees and teachers working in Technical Institution. The regulation in the form of a scheme lays down the pay-scale to be granted to different categories of employees like Principal, Librarians, Lecturers, Professors, Assistant Professors; Increments to be granted, so also for providing Incentives on acquiring Higher Qualification; Scheme for Career Advancement; Fixation of Pay; Study Leave; Research Promotion Grant; Allowances; Age of Superannuation; Pension; Family Pension; Provident Fund; Consultancy Assignments and various other provisions, thereafter the clause with regard to Applicability of the Scheme is incorporated. In this Regulation 2010 the clause with regard to 'Applicability of Scheme' reads as under : Applicability of the Scheme: (i) This Scheme shall be applicable to teachers in Technical Institutions and other equivalent cadres of Library and for Physical Education Personnel in all the AICTE approved institutions. The implementation of the revised scales shall be subject to the acceptance of all the conditions mentioned in this letter as well as Registration to be framed by the AICTE in this behalf. (ii) This Scheme does not extend to the posts of professionals like System Analysts, Senior Analysts, Research Officers etc, who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government. (iii) This Scheme may be extended to all Polytechnic Technical Institutions coming under the purview of State legislatures. 13 (iv) The entire liability on account of revision of pay scales etc of Polytechnic teachers shall be that of the State Government. State Government, taking into consideration other local conditions, may also decide in their discretion, to introduce scales of pay higher than those mentioned in this Scheme and may give effect to the revised bands/scales of pay from a date on or after 1.1.2006. However, appropriate steps to achieve the goals and objectives of MHRD’s “Sub-Mission of polytechnics”. may be taken. (Emphasis Supplied) For the purpose of the present writ petition only Clause (iii) & (iv) are relevant.',
	(int) 22 => '<p>16. Clause (iii) clearly shows that this Scheme, i.e.. Regulation 2010 may be extended to all Polytechnic Institutes coming under the purview of State Legislature, even though Shri Ghildiyal may be right in contending that Regulation 2010 framed in the Act of 1987 is statutory in nature, but the aforesaid clause clearly shows that with regard to Polytechnic Institutes that come under the purview of State Legislature, the scheme may be extended at the discretion of State Government. It is, therefore, clear that with regard to extending the provision of scheme a discretion is given to the State Government, as the words used in particular clause are 'may be extended'. Once the statutory scheme incorporates a provision given discretion to the State Government to be extended it to certain categories of institution or persons, then such discretion given by scheme or statutory provision itself entitles the State Government to adopt it in a manner as may be permissible from a particular date. That being so, even though 14 Regulation, 2010 can be held to be statutory in nature, but by virtue of Clause (iii) as reproduced hereinabove, a discretion is given to the State Government to implement the Scheme with regard to Polytechnic Institutes and, therefore, the State Government is perfectly justified in issuing the circular Annexure R-2 dated 19.10.2010 and implementing it in a particular manner with effect from a particular date, the contention of Shri Ghildiyal to the effect that the scheme has to be extended to Polytechnic Institution also with effect from the date the Regulation 2010 came into force cannot be accepted for the simple reason that scheme itself gives discretion to the State Government to adopt it from a particular date in a particular manner. The provision with regard to applicability of the Scheme as is reproduced hereinabove is similar to one as is contained in the earlier scheme formulated by the Central Government vide Annexure P-2 dated 31.10.2008 for Institutions under the Higher Education Department and while enhancing age of retirement and other service benefits. In the said scheme also a similar benefits with regard to applicability of the Circular cannot be considered. The Honble' Division Bench of this Court which has interpreted the said provision in the case of R.K. Chapra (supra) and vide order Annexure R-2 after taking note of judgment rendered by the Supreme Court in the case of State of W.B. Vs. Tropical School Employee Union and Others, (1996) 8 SCC 29.it has been held that State Government can implement the scheme with effect from a subsequent date. The age of superannuation which was enhanced from 62 to 65 years vide circular dated 31.12.2008 was 15 implemented in the State of Madhya Pradesh with effect from 16.4.2010 and the same has been upheld by the Division Bench after some objections as raised in this petition were dismissed. That being so, once similar argument as has been canvassed in this writ petition is already considered and rejected by the Division Bench, as indicated hereinabove, I see no reason to take a different view as far as fixing of the date for implementation of the Circular Annexure R-1 with effect from 19.10.2010 is concerned.',
	(int) 23 => '<p>17. The next contention of Shri Ghildiyal to the effect that Regulation 2010 is statutory in nature and, therefore, the State Government cannot chose a different date for its implication subsequent to the date it came into force with effect from 13.3.2010 cannot be accepted, because the clause pertaining to applicability of said regulation gives discretion to the State Government as indicated hereinabove to the extent of its applicability to the Polytechnic Institutes of the State Government and if by exercising the said discretion the State Government implemented the scheme for Polytechnic Institution with effect from 19.10.2010, this court cannot interfere into the matter. The action of the State Government being is in accordance to law the same does not call for any consideration.',
	(int) 24 => '<p>18. That apart, the question of the statutory provision being directory or mandatory has to be considered in the light of the intention of the legislature in making a particular rule. In this regard the principle considered and taken note of by the Supreme Court in the 16 matter of interpreting the words 'shall' and 'may' and the principle to be followed for finding out as to whether the statutory provision is mandatory or directory as laid down in the case of Sarla Goel and Others Vs. Kishan Chand (2009) 7 SCC 65.and State of M.P. Vs. Pradeep Kumar (2000) 7 SCC 37.may be taken note of. In the case of Sarla Goel (supra) after considering the principle for Interpretation of statute, it has been held by the Supreme Court that the question as to whether a provision is mandatory or directory depends upon intention of legislature and not purely on the language of the statutory provision. The same principle was earlier considered by the supreme Court in the case of Pradeep Kumar (supra) and in both these cases the principle indicated at page 516 in Crawford on Statutory Construction, which is considered as under : “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislate must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it in one way or the other.”',
	(int) 25 => '<p>19. If the aforesaid statutory provision is taken note of, it would be seen that while interpreting a particular statutory provision and when the words used in the statute are 'may' or 'shall' the 17 principles for interpretation contemplate that the Court should try to determine the intention of the legislature and after doing so should proceed to decide as to whether the provision is directory or mandatory in nature. This Court has already held that the provisions of Regulation 2010 so far as it applies in the State of Madhya Pradesh to employees working in the Polytechnic Institutes are directory in nature and the State Government is bestowed with a discretion to adopt the scheme except revision of pay-scale in its discretion. In the matter of revision of pay-scale, certain mandate as indicated in clause (iv) of the Applicability of Scheme has to be given effect to, with regard to other provisions like age of superannuation and other service benefit clause (iii) gives discretion to the State Government to implement it in a particular manner or not. Even though this Court has recorded the aforesaid finding the entire question can be examined in accordance to the principle for statutory interpretation, as is reproduced in para 18 hereinabove. It is clear that in the clause pertaining to 'Applicability of Scheme' i.e. clause (iii) the word used is 'may', normally when the word used is 'may' the provisions is held to be directory in nature. However, in this case if the provision is interpreted after taking note of the legislative intention it would be seen that the Regulation 2010 contemplates a detailed scheme for grant of certain benefit to employees working in various technical institutes. As far as employees working in the Polytechnic Institutes established by the State Legislature are concerned, already their service conditions are governed by various rules framed under Article 309 of the 18 Constitution. That being so, their cannot be two set of rules governing the service condition of such employees, namely the scheme formulated in Regulation 2010 and rules framed by the State Government under Article 309 of the Constitution. It is, therefore, keeping in view these factors the rule makers who enacted the Regulation 2010 thought it appropriate to give discretion to the State Government in the matter of implementation of the scheme contained in Regulation 2010, this was necessary in order to avoid a conflict between the scheme contained in Regulation 2010 and the statutory rules framed thereunder Article 309 of the Constitution, that being the legislature intention as is clear from the material available on record, the State Government was well within its right in issuing the Circular Annexure R-1 dated 19.10.2010 in the matter of implementing the provisions of Regulation 2010 and this power exercised by the State Government in issuing Circular Annexure R-1 dated 19.10.2010 is in accordance to discretion conferred on the State Government by Regulation 2010 itself and if the exercise of this discretion is analyzed in the back drop of the legal principle governing interpretation of statute, as is detailed hereinabove, this Court does not find any error in the discretion so exercised.',
	(int) 26 => '<p>20. Accordingly, even though it has been found by this Court that the Regulation 2010 is statutory in nature but as the Regulation itself gives discretion to the State Government in the matter of its implementation in the State of Madhya Pradesh with regard to 19 employees working in the Government Polytechnic Institutes, the act of the State Government in exercising its discretion and issuing the Circular Annexure R-1 is a valid and legal act which does not call for any interference. Accordingly, the grounds canvassed by Shri K.C. Ghildiyal on behalf of petitioner is found to be unsustainable.',
	(int) 27 => '<p>21. As far as ground with regard to amendment brought into effect under Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 2011 is concerned this statutory provision has been brought into force with effect from 6.5.2011 i.e. much after retirement of petitioners and, therefore, this provision will not help petitioners, as it does not have retrospective effect.',
	(int) 28 => '<p>22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*'
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22. Accordingly, in the facts and circumstances of the case, finding no ground for interference, both the petitions are dismissed. (Rajendra Menon) Judge ss*

Court	Madhya Pradesh High Court
Decided On	Aug-23-2012
Appellant	Pramod Mishra
Respondent	The State of Madhya Pradesh

Pramod Mishra Vs. the State of Madhya Pradesh - Court Judgment