THAKORLAL PRANLAL DESAI v. STATE — 1985 DIGILAW 346 (GUJ)

S. A. SHAH, J. ( 1 ) THE petitioners in all these petitions are Government servants and are working as Teachers in affiliated colleges. The petitio- ners have raised a common question that though they are Government servants they being the teachers of the affiliated colleges and the age of retirement in affiliated colleges being 60 years Government cannot retire them on completion of 58 years of age in accordance with Rule 161 of the Bombay Civil Services Rules 1959 (hereinafter referred to as the B. C. S. Rules ). Since all the petitions raise a common question regarding the age of retirement of Teachers of the affiliated colleges who are also Government servants all the petitions were heard together at the request of the Advocates of the parties and are disposed of by this common judgment. ( 2 ) SINCE there is some difference in the Rules made by the Gujarat University and the Saurashtra University I will narrate the facts in two sets. Shri T. P. Desai petitioner of Special Civil Application No. 978 of 1985 Shri G. A. Vohra and others petitioners of Special Civil Application No. 1046 of 1985 and Shri H. N. Raval petitioner of Special Civil Application No. 3461 of 1985 are all at present working as Teachers in Colleges Affiliated to the Gujarat University whereas Shri G. J. Vaidya petitioner of Special Civil Application No. 3412 of 1985 and Shri V. L. Bhatt petitioner of Special Civil Application No. 3528 of 1985 are at present working as Teachers in a College affiliated to Saurashtra University. ( 3 ) SO far as the Gujarat University is concerned. Mr. Girish Patel learned Advocate for petitioners in Special Civil Applications Nos. 978 of 1985 1046 of 1985 and 3461 of 1985 has relied upon the resolution dated 20-8-1977 from the printed Proceedings Book of the Executive Council of the Gujarat University. The said resolution made by the Executive Council in its meeting held on 20-8-1977 is in Gujarati. The relevant portion of it which is material for our purposes reads: The petitioners have been permitted to produce a copy of the minutes particularly item No. 16 thereof of the meeting of the Executive Council of the Gujarat University held on 20-8-1977. ( 4 ) IT is not seriously disputed before me by the learned Advocate General on behalf of the respondent. ( 4 ) IT is not seriously disputed before me by the learned Advocate General on behalf of the respondent. State in all the matters that the retirement age of the teachers of the Colleges affiliated to the Gujarat University is 60 years as contended by Mr. Girish Patel. ( 5 ) SO far as the Saurashtra University is concerned Ordinance No. 188 which applies to the Teachers of the Colleges affiliated to the Saurashtra University reads:"ordinance 188: the following shall be the terms and conditions of service of the full-time teachers working in private college affiliated to this University. these conditions are applicable to all the full-time teachers i. e. Principals Professors Lecturers Tutors Demonstrators and Physical Training Instructors. All college managements shall abide by these terms and conditions in relation to the teachers employed by them". The concerned petitioners are permitted to produce a typed copy of the aforesaid Ordinance on record. ( 6 ) IT will be seen from the aforesaid provisions that so far as the Gujarat University is concerned age of retirement of 60 years is applicable to the teachers of all affiliated colleges and there is no distinction between a private affiliated college and Government affiliated college. Whereas so far as the Saurashtra University is concerned the Executive Council of the said University itself has made a distinction between a Government affiliated college and private affiliated college and the Ordinance regarding the age of retirement has been made applicable only to the teachers of private affiliated colleges. The learned Advocates representing the petitioners who are teachers of the colleges affiliated to the Saurashtra University could not show any other provi- sions of Ordinances made in respect of the age of retirement of Teachers of Government Colleges affiliated to Saurashtra University. Hence the following picture emerges:" (1) So far as the teachers of colleges affiliated to Gujarat University are concer- ned the rule made by the Executive Council fixing the age of retirement as 60 years is applicable to all the teachers. (2) So far as the teachers of colleges affiliated to Saurashtra University are concerned the Executive Council of the said University has by Ordinance No. 188 fixed the age of retirement of teachers of private affiliated colleges only". (2) So far as the teachers of colleges affiliated to Saurashtra University are concerned the Executive Council of the said University has by Ordinance No. 188 fixed the age of retirement of teachers of private affiliated colleges only". In the aforesaid view of the matter no argument could be advanced by the learned Advocates representing the teachers of the colleges affiliated to Saurashtra University except the general arguments which shall be dealt with by me hereinafter at an appropriate stage. ( 7 ) I will now consider the submission of Mr. Girish Patel in the order in which they are raised. The Gujarat University Act and the Saurashtra University Act are admittedly the State Acts and the power of the State Legislature to enact the law regarding education is found in at Entry No. 11 in List II of State List of the Seventh Schedule to the Constitution of India. This Entry No. 11 has been deleted from the State List by the Constitution (Forty-second Amendment) Act 1976 sec 57 with effect from 3-1- 1977 and is included at Entry No. 25 of List III Concurrent List of the Seventh Schedule to the Constitution by the said Amending Act of 1976. However it is not disputed that the University Acts are the State Legislation within the meaning of Entry 11 and/or 25 as the case may be. The age of retirement of a Govern- ment servant has been fixed by relevant rule 161 of the B. C. S. Rules by the Governor of the State of Gujarat in exercise of his powers under Article 309 of the Constitution. It is therefore necessary to refer to the relevant provisions of the Constitution of India under which this power is exercised by the Governor. It is therefore necessary to refer to the relevant provisions of the Constitution of India under which this power is exercised by the Governor. ( 8 ) ARTICLE 309 of the Constitution reads:"309 Subject to the provisions of this Constitution Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State; provided that it shall be competent for the President or such person as he may direct in the case of service and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services any posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision In that Behalf is made by or under an Act of the appropriate Legislature under this Article and any rules so made shall have effect subject to the provisions of any such Act. "a plain reading of this Article shows that the appropriate legislature has power to regulate the recruitment and the conditions of service and till the same is exercised by the Legislatures the Governor of a State or such person as he may direct can make rules regulating the recruitment and the conditions of service and the said rule will remain in force until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article 309. It is further provided that any rule so made by the Governor shall have effect subject to the provisions of any such Act. In other words till the State Legis- lature exercises its powers the Governor has wide power to regulate the recruitment and the conditions of service of the Government emp- loyees and if this power is exercised by the Governor or his agents the same will remain in force till the appropriate Legislature exercises that power under Article 303 of the Constitution. The State Legislature has also the power to make laws in respect of State Public Service under Entry No. 41 of List II-State List of the Seventh Schedule to the Constitution. The State Legislature has also the power to make laws in respect of State Public Service under Entry No. 41 of List II-State List of the Seventh Schedule to the Constitution. It is therefore evident that `state Public Services have been treated as a special subject for the Legislation separately under Entry No. 41. Similarly if we see list I - Union List of the Seventh Schedule we find similar provision at Entry No. 70 viz. Union Public Services. It cannot therefore be disputed that the Union Public Services or the State Public Services have been specially dealt with by the Constitution Makers independent with other entries regarding other subjects. ( 9 ) MR. Girish Patel has vehemently argued that under the Gujarat University Act the Gujarat University had the power to lay down and regulate the conditions of services of the teachers as also of the non-teaching staff of the University as wall as those of the affiliated colleges and recognised or approved institutions and the Executive Council of the Gujarat University has been given power under clause (XXXIX) of sub-sec (1) of sec 20 of the said Act to lay down and regulate the salary scales allowances and conditions of service of the members of the teaching other academic and non-teaching staff of the affiliated colleges and approved institutions and in exercise of that power the Executive Council of the Gujarat University by its resolution dated 20-8-1977 laid down the retirement age of the teaching and non-teaching staff at 60 years and the petitioners though Government servants being the teaching staff of the affiliated colleges are governed by the said Resolution. ( 10 ) NOW if the said resolution of the Executive Council of the Gujarat University is applicable to all the teachers of the affiliated colleges the Government servants who are also teachers of the affiliated colleges will be governed by that resolution and not by Rule 161 of the B. C. S. Rules. According to Mr. Patel the age of retirement under Rule 161 of the B. C. S. Rules is 58 years while under the University Rules it is 60 years. Therefore there is conflict between the B. C. S. Rule 161 and the University rule and the University Rule being the Act of Legislature will prevail over Rule 161 of the B. C. S. Rules. ( 11 ) MR. Therefore there is conflict between the B. C. S. Rule 161 and the University rule and the University Rule being the Act of Legislature will prevail over Rule 161 of the B. C. S. Rules. ( 11 ) MR. Patel relies upon the wording of the proviso to Article 309 of the Constitution and submits that as soon as the Executive Council passed the resolution by virtue of the delegated power it became the Act of the University. In other words it has become the Act of the Legislature and therefore necessary consequence would be that the Act of Legislature having come into force provisions of Rule 161 of the B. C. S. Rules so far as they apply to the retirement age of a Govern. ment teacher will be deemed to have been impliedly repealed The question therefore that arises for my consideration is whether the resolution of the Executive Council of the Gujarat University is an Act of the Legislature as contemplated under the proviso to Article 309 of the Constitution ? ( 12 ) IT cannot be disputed that the University Act is deemed to be an Act of Legislature under Entry 11 of List II - State List of the Seventh Schedule to the Constitution of India and therefore a legislation on education and not a legislation under Entry 41 of the said List which deals with State Public Services. Can it therefore be said that the University Act is an Act which is envisaged under the proviso to Article 309 of the Constitution which repeals the rules made by the Governor ? In my opinion the rules made under Article 309 of the Constitution are the rules made under the powers conferred by the Constitution and in view of the decision of the Supreme Court in B S. Vadera v. Union of India AIR 1969 Supreme Court 118 these rules are statutory rules and have full effect both prospectively and retrospecti- vely. The Supreme Court in paragraph 24 has observed:". . . The clear and unambiguous expressions used in the Constitution must be given their full and unrestricted meaning unless hedged in by any limi- tations. The rules which have to be subject to the provisions of the Constitution shall have effect subject to the provisions of any such Act. The Supreme Court in paragraph 24 has observed:". . . The clear and unambiguous expressions used in the Constitution must be given their full and unrestricted meaning unless hedged in by any limi- tations. The rules which have to be subject to the provisions of the Constitution shall have effect subject to the provisions of any such Act. That is if the appropriate Legislature has passed an Act under Article 309 the rules framed under the proviso will have effect subject to that Act; but in the absence of any Act of the appropriate Legislature on the matter in our opinion the rules made by the President or by such person as he may direct are to have full effect both prospectively and retrospectively". The aforesaid observations of the Supreme Court clearly point out that the rules made by the Governor have full effect like a Statute inasmuch as the same can be made prospective as well as retrospective and Will remain in force till the Legislature makes an Act under Article 309 of the Constitution. The University Act which would fall either within Entry No. 11 of List II-State List or Entry No. 25 of List III-Concu- rrert List of the Seventh Schedule to the Constitution is a Statute on education and under the doctrine of pith and substance it may be possible for the Legislature to make incidental or subsidiary provisions. But when conflict arises between the two legislations provisions of the Legislation which is made under the subject must prevail over the legislation which deals with the anciliary provisions. The State Govern- ment has not made any legislation in exercise of its powers under Entry No. 41 of List II-State List of the Seventh Schedule to the Constitution regarding the State Public Services or a legislation in exercise of its powers under Article 309 of the Constitution. I have examined the scheme of the Gujarat University Act and its provisions and it cannot be said that the University Act has been enacted either under Entry 41 of List II-State List of the Seventh Schedule to the Constitution or under Article 309 of the Constitution. The very preamble and the Scheme of the Act show that the Gujarat University Act is a legislation regar- ding the education. The very preamble and the Scheme of the Act show that the Gujarat University Act is a legislation regar- ding the education. ( 13 ) THE learned Advocate General appearing for the respondent- State has heavily relied upon the decision of the Supreme Court in Dr. Ram Pal Chaturvedi v. State of Rajasthan 1970 Supreme Court Cases 75 In that case also there was a conflict between the Rules made under Article 309 of the Constitution and Ordinance No. 65 framed by the Rajasthan University under the University of Rajasthan Act 1946 The said Ordinance provided both the qualification as well as requisite experience for various posts. The appointment of Dr. D. G. Ojha Dr. Mathur and Dr. Rishi as principals of three different Medical Colleges were challenged on the ground that they were not possessing the requisite experience for the said posts. It was not disputed that the appointments were either temporary or officiating. There was also no dispute that Dr. Mathur and Dr. Rishi who were Government servants had acquired the qualifications prescribed under Rule 30 (4) of the Raja- sthan Medical Service (Collegiate Branch) Rules 1962 which was also in accordance with the University Ordinance. However so far as the teaching experience was concerned the statutory rule was amended during the pendency of the writ petitions in the Rajasthan High Court on 22-8-1966 with retrospective effect The said rule after amendment read as under:"30 Notwithstanding anything contained in sub-rules (1) or (3) above or any other provisions in the rules any selection or senior posts falling vacant may be filled in temporarily by appointment of any Specialist (Junior or Senior) in the service of the State who is a post-graduate and has teaching experience and practice in the speciality for such periods as are required by the University Ordinance for the time being in force on the date of such appointment: provided that : 7two years of service rendered in the speciality shall be reckoned as equivalent to one year teaching experience gained in the Speciality. (Emphasis supplied)" ( 14 ) IT will be seen from the aforesaid Rajasthan Medical Service Rule that for the appointment qualification as well as experience pre- scribed were the qualification and experience required by the University Ordinance for the time being in force on the date of such appointment. (Emphasis supplied)" ( 14 ) IT will be seen from the aforesaid Rajasthan Medical Service Rule that for the appointment qualification as well as experience pre- scribed were the qualification and experience required by the University Ordinance for the time being in force on the date of such appointment. However the proviso carves out the exception that two years of service rendered in the speciality shall be reckoned as equivalent to one year teaching-experience gained in the speciality. This was not under the Rajasthan University Act and the said appointments which were made were defended under the proviso to sub-rule (4) of Rule 30 of the said Act. In that case the said rule was amended with retrospective effect during the pendency of the petition in the Rajasthan High Court and therefore its validity was also challenged on the ground mala fides and unconstitutional discrimination but the validity regarding its retro- spective operation was not challenged seriously. It is therefore very clear that the requisite qualification under the University Ordinance was in direct conflict with the experience prescribed under the Statutory Rules. In other words the proviso had the effect of modifying to some extent the condition regarding experience prescribed by the Rajasthan University Ordinance. It may also be remembered that the case before the Supreme Court was in respect of Medical faculty where the quali- fication as well as the teaching experience was considered to be the criteria of eligibility. The said Ordinance required teaching experience and practice in the speciality whereas the Statutory Rules framed by the Government under Article 303 of the Constitution treated two years service rendered in the speciality equivalent to one year teaching experience gained in the Speciality. Therefore there was a conflict on the essential requirement of eligibility viz. teaching experience. The Supreme Court has therefore observed:". . . . . The narrow question requiring consideration therefore is whether the proviso according to which two years of experience rendered in the speciality is to be reckoned as equivalent to one years teaching experience gained in the speciality must as contended on behalf of the appellant yield to the requirement in the Ordinance which prescribes the minimum qualification of teaching experi- ence and therefore must he ignored. We are unable to hold the contention". We are unable to hold the contention". In respect of the validity of the rules under Article 309 of the Consti- tution the Supreme Court has observed as under:". . . . . . . . THE Collegiate Branch Rules having been made pursuant to the power conferred by Article 309 of the Constitution they must be given full effect subject to the provisions of any Act made by the appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the the Rajasthan Medical Service (Collegiate Branch ). Such Act need not specifically deal with the aforesaid Medical Services but it must be an Act as contemplated by Article 309 by or under which provision is made regulating the recruitment and conditions of service taking within its fold the said Medical services". ( 15 ) ACCORDING to the Supreme Court the rules made under Article 309 of the Constitution must be given full effect subject to the provi- sions of the Act made by the appropriate legislature. The question before the Supreme Court arose whether Ordinance No. 65 made under the Rajasthan University Act was a provision under the Act regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service (Collegiate Branch) as contemplated under Article 309 of the Constitution Shri Gokhale learned Advocate for the Appellant referred to Entry 41 in List II of 7th Schedule to the Con- stitution which deals with the subject inter alia of State Public Services and submitted that the Act fell within this entry and there- fore came within the purview of Article 309. To this argument the Supreme Court observed:". . . . . . . We are not impressed by this submission. In our opinion on a con- sideration of the pith and substance of the Act and on a comparison of the language used in the Entries Nos. 11 and 49 (should be 41) of List II the filed of legislation of the Act more appropriately falls under Entry No. 11 which deals with the subject of education including university. The appointments of Dr. Ojha Dr. Mathur and Dr. Rishi thus seem to us to be fully justified by the Collegiate Branch Rules and their appointments cannot be held to be invalid by reason merely of non-compliance with the provisions of Ordinance No. 65 in regard to the condition of teaching experience. The appointments of Dr. Ojha Dr. Mathur and Dr. Rishi thus seem to us to be fully justified by the Collegiate Branch Rules and their appointments cannot be held to be invalid by reason merely of non-compliance with the provisions of Ordinance No. 65 in regard to the condition of teaching experience. The field of operation of this Ordinance app- ears to us to be restricted to the question of affiliation of the colleges concerned with the Rajasthan University". ( 16 ) THE aforesaid observations are very apt and clear answer to the argument of Mr. Girish Patel. On a close scrutiny in my opinion the Supreme Court has clarified the position as under:" (1) The rules framed under Article 309 of the Constitution of India must be given full effect subject to the provisions of the Act made by appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service; (2) Such Act must be an Act as contemplated by Article 309 by or under which provision is made regulating the recruitment and conditions of service taking within its fold the said Medical Services; (3) The Rajasthan University Act considering the pith and substance was an Act which more appropriately fell under Entry No. 11 of List II-State List of the Seventh Schedule to the Constitution which deals with the subject of education including University and (4) The Geld of operation of the Ordinance appeared to be restricted to the question of affiliation of the colleges concerned with the Rajasthan University". ( 17 ) SO far as our case is concerned the rules made under Article 309 of the Constitution and particularly Rule 161 of the B. C. S. Rules deals with the age of retirement of every Government servant including the teachers of the University. The Gujarat University Act is a legis- lation failing within Entry 11 of List II-State List of Seventh Schedule to the Constitution. Therefore considering the pith and substance of the said Legislation the impugned resolution of the Executive Council of the Gujarat University cannot be said to be a Legislation falling within Article 309 of the Constitution because it is nowhere stated in clear terms that the same is applicable to the Government servants who are also teachers of the colleges affiliated to the Gujarat University. The Gujarat University Act falls within said Entry 11 of List II. The B. C. S. Rules were enacted in 1959 and were already in force when the Executive Council of the Gujarat University passed the impugned resolution in year 1976. This resolution cannot be said to be the Act of appropriate Legislature which has amended the Rules under Article 309 of the Constitution. I therefore reject the contention of Mr. Girish Patel that the Rules framed by the University must prevail upon Rule 161 of the B. C. S. Rules. ( 18 ) THE alternative contention of Mr. Girish Patel is that if the rule of the Gujarat University framed under the Gujarat University Act cannot be considered to be an Act contemplated by Article 309 of the Constitution so as to replace the Rules framed by the Governor then there being two inconsistent rules or laws the question must be resolved by referring to the established principles of interpretation occupying the same field. The special law must prevail over the general law and the later law must prevail upon the earlier law. Therefore the rule of the University both under the special law and the later law must prevail over Rule 161 of the B. C. S. Rules. This argument of Mr. Patel also cannot be accepted for the simple reason that the resolution of the Gujarat University is not the Act of the Legislature but at the most a rule made by the Executive Council of the Gujarat University exercising its power under clause (ix) of sub-sec. (1) of sec. 20 of the Gujarat University Act. It is a settled principle of law that the rule-making authority does not enjoy the same powers which the Legislature enjoys. Rules shall have to be made within the frame-work of the Act. ( 19 ) SO far as the Rules made by the Governor in exercise of the powers under Article 30 of the Constitution of India are concerned they are to be given full effect both prospectively and retrospectively as observed by the Supreme Court in case of B. S. Vadera (Supra) unless hedged in by any limitations. In other words they are to be given full effect if they are hedged in only by (1) an Act of appropriate Legislature (2) Part III of the Constitution and (3) other provisions of the Constitution. In other words they are to be given full effect if they are hedged in only by (1) an Act of appropriate Legislature (2) Part III of the Constitution and (3) other provisions of the Constitution. This would mean that it has wide amplitude so much so that the same can be made retrospective also. ( 20 ) IN view of the decision of the Supreme Court in case of Dr. Ram Pal Chaturvedi (supra) the Gujarat University Act considering its pith and substance appropriately falls under Entry 11 which deals with the subject of education including University and the field of operation of the Ordinance (Rajasthan University Ordinance) was con- sidered to be restricted to the question of affiliation of the colleges concerned with the Rajasthan University. Similarly the resolution of the Executive Council of the Gujarat University must be treated to be restricted to the question of affiliation of the colleges concerned with the Gujarat University only. If there is any breach of any of the provisions regarding the affiliation the University may if it so desires take action. But it cannot be said that the resolution of the Executive Council of the Gujarat University is an Act of Legislature which is in conflict with the rules made by the Governor under Article 309 of the Constitution. Question will also arise whether the rule making authority can expand or restrict the rights conferred by the statutory rules which are made under the Constitution and should be given full effect subject to the three limitations referred to above ? . ( 21 ) IN the aforesaid view of the matter Mr. Girish Patel is not right when he contends that the University resolution is a special law and that it being a later law must prevail over Rule 161 of the B C S. Rules because both are rules one framed under the Constitution and the other framed under the Statute. ( 22 ) THE next question is even if the interpretations which are applicable to the Statutes are applied to the Rules I would say that the rules under Article 309 of the Constitution are the rules which deal with the recruitment and conditions of service whereas the Gujarat University Act mainly deals with education qualification of teachers and may incidentally deal with the conditions of service also. BUt when the rules regarding conditions of service of Government servants are made the Rules that may be made by the University being subsidiary rules must apply to the teachers of the affiliated colleges except the Government servants who are also teachers of the affiliated collages. In that respect I would say that the rules under Article 309 of the Constitution are special rules only dealing with recruitment and conditions of service of Government servants. ( 23 ) MR. Girish Patel has contended that the B. S. C. Rules were made in year 1959 where as the University Resolution is passed in year 1979 and therefore the University Resolution is later than the B. C. S. Rules and therefore it must prevail. This argument also cannot be accepted because the Rules were made by the competent Authority under Article 309 of the Constitution in 1959 when the Gujarat University Act was already there on the Statute Book and merely because the Executive Council of the Gujarat University exercised its powers later it cannot be said that the Gujarat University Act is a later Act. In my opinion the argument of Mr. Patel regarding the interpretation of statutes in this respect is not applicable at all to the facts and circumstances of the present case. ( 24 ) THE next contention of Mr. Girish Patel is that the affiliated colleges must satisfy all the requirements of the Gujarat University. It is significant to note that under the scheme of the Gujarat University Act the affiliation and recognition are granted to the colleges under sec. 33 of the said Act on fulfilment of certain conditions and one of the conditions of service provided in clause (j) of sub-sec. (5) of the said section reads:" (J. that the college shall comply with the Statutes Ordinances and Regulations providing for conditions of service including salary scales and allowances of the teaching and other academic and non-academic staff of an affiliated college". It is therefore evident that an affiliated college has to fulfil the con- ditions which are prescribed by the Statutes Ordinances and Regulations Resolution of the Executive Council is not a statute or regulation providing for condition of service. ( 25 ) MR. It is therefore evident that an affiliated college has to fulfil the con- ditions which are prescribed by the Statutes Ordinances and Regulations Resolution of the Executive Council is not a statute or regulation providing for condition of service. ( 25 ) MR. Patel has then drawn my attention to the fact that the impugned resolution passed by the Executive Council of the Gujarat University is statutory and has the same force and for that he has relied upon a decision of a Division Bench of this Court. I am not concerned with the statutory force of the resolution in this case. The resolution may bind the persons who are covered thereunder but such a resolution cannot prescribe a condition required to be fulfilled. This assumes importance because there is some difference between an Ordinance made by the Executive Council and a statutory order passed by the Executive Council. The Executive Council has the power to act either under the Ordinance or Resolution. But if the Executive Council acts under an Ordinance it acts under clauses (X) or (XI) of sec. 30 of the Gujarat University Act and the Court under sec. 31 (4) of the said Act has a power by a resolution to cancel or to refer back but not to amend any such Ordinance and under sec. 31 (5) the Vice-Chancellor has a power to suspend the operation of any such Ordinance until the Court considers it as provided in sub-sec. (3) of sec. 31. Therefore the action of the Executive Council taken under an Ordinance is subject to scrutiny and review of the Court. ( 26 ) EVEN if we consider the provisions of withdrawal of recognition contained in sec. 38 of the Gujarat University Act sub-sec. (1) thereof in clear terms states that the recognition may be withdrawn or suspended if an institution has failed to observe any of the conditions of its recognition i. e. the condition imposed by sec. 33 (5) of the Gujarat University Act. It is on record that the Gujarat University has not taken any action even though Rule 161 of the B. C. S. Rules is operative after the passing of the impugned resolution nor the learned Advocate appearing on behalf of the Gujarat University has advanced any argument or filed any affidavit or submitted to the orders of this Court. It is on record that the Gujarat University has not taken any action even though Rule 161 of the B. C. S. Rules is operative after the passing of the impugned resolution nor the learned Advocate appearing on behalf of the Gujarat University has advanced any argument or filed any affidavit or submitted to the orders of this Court. No exception has been taken by the Gujarat University that the State Government has not followed the resolution. Therefore it can be presumed that the Gujarat University does not feel aggrieved even in ease the teachers are retired at the age of 58 years. ( 27 ) THE next contention of Mr. Patel is that since the Government has accepted the U. G. C. Scheme providing grant to the affiliated colleges till the teachers attain the age of 60 years the Government cannot resile from the responsibility of continuing the teachers till they attain the age of 60 years. This contention is based upon Government resolution dated 23-11-1976 (Annexure D) which is on the subject of revision of salary scale of University and College teachers - Vth Five Year Plan Scheme. Reading the resolution it appears that the Govt. of India has accepted the recommendations of the U. G. C. for a revision of the salary scales of the University and College teachers with effect from 1-1-1973 and has decided that the State Governments which adopt these scales in the Universities and affiliated colleges will be assisted by Government of India for the period from 1-1-1973 to 31 to the extent of 80 percent of the additional expenditure involved in giving effect to the revised scales of pay. The Government of Gujarat appears to have accepted the said recommendations with some modifications subject to the condition that when the assistance from the Government of India under the scheme ceases if the affiliated colleges have a deficit even after payment of grant-in-aid under the normal rules prescribed from time to time such colleges should be reimbursed the deficit to the extent of the amount which represents the difference between the expenditure under the revised pay-scales and the old pay scales of teachers in those cases assistance was available under the scheme. By the said Resolution option is also given to the teachers whether to opt for the old scale or the revised scale and the revised scale was made available subject to the terms and conditions prescribed by the Government. Several terms and conditions have been laid down on which assistance is available from the State Government and which the affiliated colleges have to accept if they want the grant. Mr. Patel relies upon clause (7) of the said Resolution which reads:" (7 ). The age of superannuation of teachers including principals for the purpose of grant-in-aid shall be 60 years. There shall be an assessment of the teacher when he is about to complete the age of 55 years and one who is not above Average shall be retired prematurely. The University/college shall not be entitled to receive any grant from the Government in the case of persons continued beyond the age of 60 years. A person who has already been given an extension on attaining the age of 60 years on 1/01/1973 or thereafter shall continue to be in the old scale of pay during the period of extension and shall not be eligible for the revised scale of pay". ( 28 ) THIS part of the resolution itself shows the conditions of the; grant-in-aid. Government has agreed to give grant till a teacher reaches the age of 60 years. If a teacher continues after the age of 60 years grant will not be available. The teachers who have already been given extension on their attaining the age of 60 years on 1-1-1973 or there after are continued to be in the old scale of pay during the period of extension. This would mean that prior to this the State Govern ment was giving grants even for the teachers who were given extension beyond the age of 60 years. This has nothing to do with the fixation of the age of retirement of the teachers of affiliated or University colleges. These are merely the conditions of grant-in-aid and since ors the recommendations of the U. G. C. the Government of India was prepared to give 80 per cent grant and the State Government has also extended more benefits by paying the difference to the affiliated colleges that grant will be available till a teacher reaches the age of 60 years and not beyond that. In my opinion if the grant is extended by the State Government to the affiliated colleges to impart education and employ qualified and better teachers and possibly because the age of retirement of teachers in non-Government colleges was 60 years Gov- ernment might have thought it fit to give aid to such colleges till the teachers working in the said colleges reach the age of superannuation prevailing in affiliated private Colleges. This resolution therefore cannot extend the age of teachers of the Government affiliated colleges which is governed by the statutory rules made under Article 309 of the Constitution of India. ( 29 ) SO far as the Teachers of the Saurashtra University are con- cerned the Resolution of the Executive Council of the said University is very specific and it applies only to the teachers of the non-Govern- ment colleges and is not in conflict with the rules made under Article 309 of the Constitution for the teachers of the Government affiliated colleges. They have therefore no case at all and must retire on rea- ching the age of 58 years. The observations made by me with regard to the Gujarat University are also applicable to the Saurashtra University. ( 30 ) IN the result there is no substance in any of the contentions raised by Mr. Girish Patel and other Advocates of the respective peti- tioners having adopted the arguments of Mr. Patel and no other arguments either by Mr. Patel or any other Advocates have been advan- ced I hold that there is no case made out by any of the petitioners and the petitions deserve to be dismissed. The petitions are accordingly dismissed. Rule issued in each of the petitions is discharged with no order has to costs. (The rest of the judgment is not material for the reports.) (ATP) petitions dismissed. .