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Rajasthan High Court · body

1996 DIGILAW 1185 (RAJ)

G. N. Tandon v. State of Rajasthan

1996-10-22

A.K.PARIHAR, M.P.SINGH

body1996
Honble SINGH, J. – This Writ Petition is dirercted against the order/notice dated 4.5.1995 requiring the petitioner to retire from service with effect from 30.9.1995 on attaining the age of 58 years. (2)The only controversy to be decided in this case is whether the petitioners age of retirement is 58 years or 60 years. (3) The respondent No. 3 – Arya Samaj Sikshan Sabha is a Society registered under the Societies Registration Act. It runs a Post- graduate Degree College known as Dayanand College, Ajmer. It is a non-government aided Institution. It gets 90% grant-inaid-from the Government. It is affiliated to the University of Rajasthan and is governed by the different provisions of the Rajasthan University Act and the Ordi- nances and Statutes framed there under. (4) The petitioner was appointed as a Lecturer in the said College on 23.7.1964 and subsequently confirmed on the said post on 6.8.1965. (5)In terms of the University Ordinance 67, which provides that the principal and all Members of the teaching staff of the College, other than those maintained by the State, shall be appointed on a written contract which shall be on a duly stamped paper and as per the proforma laid down by the University, an agreement was entered into between the petitioner and the respondent No. 3 on 20.1.1966. The relevant Clause 3 runs as follows:– ``That the age of superannuation will be 60 years. The actual time of retirement shall be the thirtieth day of June following attaining of that age. (6)The State of Rajasthan vide notification No. F.2(24) / Edu./Cell/ VI/62, dated 19.1.1963 notified ``The Rules for Payment of Grant- in-aid to Non-Government Educational Cultural and Physical Education Institutions in Rajasthan, 1963. But, these Rules were not framed in exercise of the legislative power. It was only a-sort of executive instructions. Rule 3 while dealing only with the conditions of grant mentions in sub-rule (16) that – ``The age of superannuation for teachers shall not ordinarily exceed 58 and no extension/ re-employment in service shall be granted beyo- nd the age of 60. In special cases the Government may waive this condition for not more than five years particularly for teachers doing post-graduate teaching or research work. In special cases the Government may waive this condition for not more than five years particularly for teachers doing post-graduate teaching or research work. (7) The management, making Rule 3 sub-rule (16) as a tool, had victimised a number of teachers from time to time by retiring them on attaining the age of 58 years but that has been rectified by the High Court in writ petitions whose reference will be made in subsequent paragraphs. (8) Amittedly, at the time when the petitioner was appointed as a Lecturer, the said college was affiliated to the University of Rajasthan. Ordinance 67-A provides:– ``O.67-A.The date of compulsory retirement of a permanent wholetime teacher in a college affiliated to the University other than those maintained by the Government is the day on which he attains the age of 60 years.In special circumstances, however, to be recorded in writing, whole-time permanent teacher of outstanding merit particularly known for his excellance and quality of teaching may be retained in service upto the age of sixty-two years provided he continues to be mentally and physically fit for duty. Such an extension shall be granted by the Management with the prior approval of the Vice-Chancellor and the Syndicate. (9) Ordinances 67 and 68 provided for statutory contract of be entered into between the non-government affiliated colleges and the teachers. In compliace of these provisions the required agreement was entered into between the petitioner and the college. (10)The earlier action of the management terminating the services of the permanent lecturers of the college and retiring them from service on attaining 58 years of age, was challenged in this Court in writ petition No. 1214/90 (M.S. Chhonkar Vs.State of Rajasthan(1 ) connected with five other writ petitions, wherein this Court vide order dated 10.1.1992 after perusal of the grant-in-aid Rules, 1963,and the agreement which was entered into between the parties,held that the lecturers were entitled to be retained in service upto the age of 60 years as per their agreements. This judgment was subsequently followed in another bunch of cases in which the leading case was S.B. Civil Writ Petition No. 973/91 (K.B.L. Mathur Vs. State of Rajasthan(2). In that case also similar view was pressed. It has been stated by the learned counsel for both the parties that these judgments have not been set aside so far and hold field even today on the point of controversy. State of Rajasthan(2). In that case also similar view was pressed. It has been stated by the learned counsel for both the parties that these judgments have not been set aside so far and hold field even today on the point of controversy. (11)After the petitioner was appointed, the State of Rajasthan enacted the Rajasthan Non-Government Educational Institutions Act, 1989 to provide for better organisation and development of the education in the Non- Government Educa- tional Institutions in the State. This Act came into froce on 4.6.1992 and is known as the Act No. 19 of 1992. Section 16 of the said Act runs as follows:– ``16. Power of the State Government to regulate the terms and conditions of employment. (1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insuranc, age of retirement, entitlement as leave, conduct and discipline, of persons appointed of employees of aided institution in the State: Provided that the rights and benefits accruing to an employee of an exisiting institution under the grant-in-aid rules in force at the com- mencement of this Act shall not be varied to the disadvantage of such employee: Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him immediately before the commencement of this Act: Provided also that, irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed. (2) Every recognised institution shall constitute a provident fund for the benefit of its employees in such manner and subject to such conditions as may be prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time. (12) In exercise of powers conferred by Section 43 of this Act, the State Government framed Rules in 1993 regulating the recognition, grant-in-aid and service conditions etc. to the Non- government Educational Institutions. The relevant provisions of Rule 45(i) runs as follows:– ``45 ........ the age of Super Annuation. (12) In exercise of powers conferred by Section 43 of this Act, the State Government framed Rules in 1993 regulating the recognition, grant-in-aid and service conditions etc. to the Non- government Educational Institutions. The relevant provisions of Rule 45(i) runs as follows:– ``45 ........ the age of Super Annuation. - (i) The age of superannuation of teachers and other employee except class- IVth employees shall be the last date of the month in which they attain the age of 58 years. In special circumstances, the Government may waive this condition and allow extension in service for a period not exceeding 5 years for such college teachers, who are engaged in post-graduate teaching of research work. Any other employee of the Institution may also be allowed extension in service upto the age of 60 years by the State Government. (ii) ................ (13) All of sudden, an order/notice dated 4.5.1995 was issued in the name of the petitioner by the Secretary of the respondent No.3 requiring him to retire on 14.9.1995 on attaining the age of 58 years. The matter was taken by the petitioner to the Rajasthan Non-Government Educational Institutions Tribunal,Jaipur. But his case was not accepted by it, with the result the writ petition was filed praying for quashing the order of the Tribunal as well as the order / notice dated 4.5.1995 on the ground that he has a right to continue upto the age of 60 years. (14)The respondent No. 3 in its reply, mainly relying upon the rule 3 (16) of the 1963 Rules and Rule 45 of the 1993 Rules, contended that the petitioner is to retire on the attaining the age of 58 years. But the learned counsel for the respon- dent has fairly conceded that it was not a termination order. It was only an order of retirement on arttaining the age of superannuation which was 58 years. (15)After hearing the learned counsel for the parties at length,wer are of the view that the writ petition is liable to succeed mainly on the ground that this Court, on earlier occasions while deciding two different bunches of the writ petitions; one in the case of M.S. Chhonkar and other in the case of K.B.L.Mathur (supra), has already held that the lecturers of respondents No. 3 are entitled to continue at the age of 60 years. These judgments have attained finality and we find no reason to disagree with them. Apart from it, the vested right of the petitioner to superannuate at a particular age in terms of the statutory instrument dated 20.1.66 is well protec- ted. This vested right could not have been taken away by the Act No. 19 of 1992 and the Rules framed thereunder, inasmuch as Section 16 of the Act itself provides that the rights and benefits accruing to an employee of an existing institution under the grant-in-aid Rules in force at the commencement of the Act, shall not be varied to the disadvantage of such an employee. (16)The Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress,(3), has observed as under : – `` that a permanent employee of a statutory authority, corporation or instrumentality under Article 12 has a lien on the post till he attains superannuation or is compulsorily retired or service is duly termina- ted in accordance with the procedure established by law. Security of tenure ensures the benefit of pension on retirement. Dismissal, removal or termination of his/ her service for inefficiency, corruption or other misconduct is by way of penalty. He/ she has a right to security of tenure which is essential to incalcate a sense of belonging to the service or organisation and involvement for maximum production or efficient service. It is also a valuable right which is to be duly put an end to only as per valid law. (17)It is also the established view of the service jurisprudence that the vested right of a permanent employee can be taken away only in accordance with law and not in any other way. (18)In Clause (8) of the agreement it has been stated :– `` Except when termination of services has taken place under para (7) (a),(b) and (c), neither party after confirmation shall terminate this agreement save by giving to other party three months notice in writing or by paying a sum equivalent to thrice the monthly salary then being earned by the party of the first part. (19) Without going into the validity of this clause this petition can be decided in as much as the respondents counsel himself admitted that it is not a case of termination of service by the management but the petitioner is being retired on attaining the age of superannuation. (19) Without going into the validity of this clause this petition can be decided in as much as the respondents counsel himself admitted that it is not a case of termination of service by the management but the petitioner is being retired on attaining the age of superannuation. (20) The Act No. 19 of 1992 as well as the Rules framed thereunder are designed with an intention to promote, preserve and protect the right and interest of the employee of the non-government educational institutions. Neither the Act nor the Rules framed thereunder intended to take away the vested right or to vary the service conditions to the disadvantage of the teacher who has entered into a statutory instrument. Even Section 16 itself clarifies the position that the provisions of this Act shall not be to the disadvantage of the employee already working. This Act is a beneficial legislation intended only for better organisation and deve- lopment of education and for promoting and protecting the rights and interest of the employees. There was no intention of the legislature to take away or curtail or restrict the rights which is already accrued. (21) Contesting the writ petition, the learned counsel for the respondent has referred to a decision of the Supreme Court reported in Yeshwant Singh Kothari Vs. State of Indore & Others(4), wherein it was observed: – `` There is thus no room for the argument that providing for the date of retirement was to fix a ``tenure for retirement as ordinary incidence of service. The legislature in enacting Section 11(1) of the Act cannot be attributed the fault of tautology to have used the word ``tenure as explanatory of the expression ``terms and conditions of service or inclusive of it. (22)In that case there was a provision in the State Bank of Indore (Officers) Service Regulations,1979 for fixing the age of superannuation which could be varied in accordance with the provisions of the Act itself. In the instant case the controversy is different. Once the respondent No.3 has entered into the statutory agreement as provided in Ordinance 67 and 68 framed under the Rajasthan University Act, and in view of the Ordinance 67 A, the petitioner acquired a right to continue in service upto 60 years. In the instant case the controversy is different. Once the respondent No.3 has entered into the statutory agreement as provided in Ordinance 67 and 68 framed under the Rajasthan University Act, and in view of the Ordinance 67 A, the petitioner acquired a right to continue in service upto 60 years. He could not be made to retire at the age of 58 years without making amendment in the Ordinance or by mutually altering the terms and conditions of the agreement. There is no dispute with regard to settled view of law that the age of retirement can be reduced in accordance with the provisions of the Act or the Regulations as has been held by the Supreme Court in the case of K.Nagara. Vs. Government of Andhra Pradesh, but that is not the case here. As observed earlier, in the instant case the University has not so far amended the Ordinance 67 nor the terms of the statutory contract have been mutually varied so the orders dated 4.5.1995 and 30 .9.1995 become bad in law. (23) For the reasons given above, the writ petition succeeds and is allowed with Rs. 2000/- as costs.The order/ notice dated 4.5.1995 and the order of the Tribunal dated 30. 9.1995 are quashed and set aside.The petitioner is entitled for all the consequential benefits.