JUDGMENT 1. - As both these appeals arise from the judgment of the learned Single Judge dated 17.3.1997 in S.B. Civil Writ Petition No. 3900 of 1995, the same are taken up for hearing together and are being decided under this common judgment. 2. Facts of the case are that Dr. (Mrs.) Narendra Kaur wife of Sardar Mahendra Singh, the respondent No.1 in these two appeals was appointed as a temporary Lecturer in Economics Department in the Kanoria Mahila Mahavidyalaya, Jaipur on 22.7.1965. A contract of the service was entered into between the respondent no.1 and the appellant college on 4th of July, 1966, the copy of which is enclosed as Annexure-1 to the writ petition out of which these appeals arise. The respondent No.1 came to be confirmed on 22.7.1966 as a Lecturer in Economics. It is not in dispute that on the date of execution of contract aforestated between the parties - college was receiving grant-in-aid from the Government of Rajasthan under the Rules for Payment of Grant-in-aid to Non- Government Educational, Cultural and Physical Education Institutions in Rajasthan, 1963 (for short, 'the Rules, 1963). It is also not in dispute that the college continued to receive the aid upto the date the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 'the Act, 1989') came into force. The State Government framed rules under the Act, 1989 which are known as the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 (for short 'the Rules, 1993'). It is also not in dispute that from the date of coming into force of the Act, 1989, the college is getting grant-in-aid from the Government under the provisions of this Act. 3. The Mahavidyalaya by its order dated 28.1.1995 (Annexure-2 to the writ petition) ordered for retirement of the respondent No.1 on attaining the age of superannuation from 31.3.1995 (after-noon). The respondent No.1 challenged that order by filing a civil suit. She also filed an appeal against that order before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur constituted under the Act, 1989. The appellant college as well as the Government filed reply to the appeal. The Tribunal rejected the appeal vide its order dated 22.6.1995. The respondent No.1 on 19.8.1995 filed S.B. Civil Writ Petition No.3900 of 1995 in the court challenging that order of the Tribunal. The appellant college as well as the Government filed reply to the appeal. The Tribunal rejected the appeal vide its order dated 22.6.1995. The respondent No.1 on 19.8.1995 filed S.B. Civil Writ Petition No.3900 of 1995 in the court challenging that order of the Tribunal. The writ petition was allowed by the learned Single Judge under the order dated 17.3.1997 and the respondent No.1 was held entitled to reinstatement forthwith with all consequential benefits. Felt aggrieved of and dissatisfied with the order of the learned single Judge, these two appeals, one by the State and another by the college, are filed. 4. Shri Mahendra Singh and Shri Jitendra Jain, learned counsel for the appellants contended that the learned Single Judge erred in granting relief to the respondent No.1. Referring to the provisions of the Rules, 1963 and the Rules, 1993, the learned counsel for the appellants submitted that the learned Single Judge erred in giving the benefit of the contract of the service to the respondent no.1 entered into between her and college. In their submission the learned Single Judge not appreciated the provisions of these Rules and the terms of the contract in correct perspective. 5. It has next been contended that the Ordinance 67-A and 68 of the University of Rajasthan under which the age of retirement of a Teacher of a Government aided private affiliated college prescribed 60 are of little help and assistance to the respondent No.1 in the present case. In alternate, it is contended that the provisions as contained in the aforesaid Ordinances are taken applicable still it is not of any help to her in the matter. In case the State makes a provision different than the provisions re the service conditions of the teachers of the Government aided private affiliated colleges then what the University prescribed, at the most the University may disaffiliate the college but those provisions will not supersede the rules framed by the State in this regard. 6. Referring to Section 16 of the Act, 1989 the learned counsel for the appellants contended that rights and benefits accrued to an employee of an existing Government aided private affiliated institution under the grant-in-aid rules in force at the commencement of the Act, 1989 the variation thereof to disadvantage to the employees are only protected. 7. 6. Referring to Section 16 of the Act, 1989 the learned counsel for the appellants contended that rights and benefits accrued to an employee of an existing Government aided private affiliated institution under the grant-in-aid rules in force at the commencement of the Act, 1989 the variation thereof to disadvantage to the employees are only protected. 7. Referring to the provisions of the Rules, 1963 and the Rules, 1993 the learned counsel for the appellants submitted that the age of retirement of the Teachers of the Government aided private affiliated colleges is 58. The agreement can not supersede the statutory rule. Lastly it is contended that the agreement is not binding on the State Government as it was not a party thereto. 8. Shri Manoj Kumar Sharma, learned counsel for the respondent No.1, submitted that a simple matter is made complicated by the State and the college. He has taken us through the provisions of the Rules, 1963 and submitted that the agreement provided the age of superannuation 60 as what it was there in the Rules, 1963 and thus retiring the respondent No.1 on attaining the age of 58 i.e. deprival of the service benefits of two years to her is illegal. In his submission the proviso to Section 16th of the Act, 1989 clearly attracted in the case and the order of premature retirement of the respondent no.1 from service made by the college is certainly a variation in service conditions agreed upon between the parties to her disadvantage. 9. In support of their rival contentions the learned counsel for the parties placed reliance on the following decisions, 1. G.N. Tandon Vs. State of Rajasthan & Others (D.B. Civil Writ Petition No. 4758/1995 decided on 22.10.1996) [reported in 1996(1) RLR 538) . 2. Dr. Kailash Chandra Mittal & 5 Others Vs. State of Rajasthan & Others (D.B. Civil Writ Petition No.544/1999 decided on 8.10.1999) . 3. Government of Andhra Pradesh Vs. Dr. A. Murali Babu Rao (SC) 1988 (2) SLR 182. 10. We have given our anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties. We have also gone through the writ petition, the reply filed thereto by the other side, the memo of appeals and the judgment of the learned Singh Judge. 11. In the case of Dr. Kailash Chandra Mittal & Others Vs. We have given our anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties. We have also gone through the writ petition, the reply filed thereto by the other side, the memo of appeals and the judgment of the learned Singh Judge. 11. In the case of Dr. Kailash Chandra Mittal & Others Vs. State of Rajasthan & Others (supra), the Division Bench of the Court observed that framing of the Ordinance 67-A was never authorised by the Act, 1946, to give any power to the University to frame service conditions of the teachers of the Government Aided Affiliated Private Colleges. It is further observed that the Ordinance 67-A is not an Ordinance in isolation. It is one of the Ordinance in the bunch of Ordinances framed by the University. It cannot be read in isolation and singularly. It is observed that if it is done it may be that it makes provision on specific point of laying down service condition, but if all the Ordinances are read they are framed on a variety of subjects. This also found the situation in the Act of 1989, Rules, 1993 and the Rules, 1963 as well. These enactments what the Division Bench said make provisions for various aspects of the aided institutions. Concluding that aspect the Division Bench said that the Ordinance 67-A cannot be preferred in separation to all other Ordinances. 12. In the case of G.N. Tandon Vs. State of Rajasthan & Others (supra), the Division Bench held, "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 interests 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 development of education and for promoting and protecting the rights and interest of the employees. 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 development 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." 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. 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 of the Regulations as has been held by the Supreme Court in the case of K. Nagaraj 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". 13. On careful reading of these two decisions of the Division Bench of the Court, prima facie, we find that there is apparent conflict therein so far as to applicability and binding effect of Ordinance 67-A of the University of Rajasthan re the service conditions of the teachers in the private Government aided affiliated colleges. 13. On careful reading of these two decisions of the Division Bench of the Court, prima facie, we find that there is apparent conflict therein so far as to applicability and binding effect of Ordinance 67-A of the University of Rajasthan re the service conditions of the teachers in the private Government aided affiliated colleges. However for the decision of these appeals scope and the applicability of the Ordinance 67-A of the University of Rajasthan need not to be gone into nor the matter is to be considered with reference thereto as the question which arises for determination in these appeals relates only to the effect of the proviso to Section 16 of the Act, 1989 to the alleged contract of service entered into between the appellant college and the respondent teacher. 14. To appreciate this short controversy arises in these appeals for consideration we consider it to be appropriate to reproduce here the relevant provisions from the Act, 1989, Rules, 1963 and the Rules, 1993. Section 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, insurance, age of retirement, entitlement of leave, conduct and discipline of persons appointed as employees of aided institutions in the State. Provided 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 this Act shall not be varied to disadvantage of such employees: Sub-Rule (1) of Rule 45 of the Rules 1993 "45. The age of superannuation : (1) The age of superannuation of teachers and other employees except Class IV 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 or 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." Sub-Rules 11, 16 and 17 of Rule 3 of the Rules, 1963, "(11) The institution shall promptly comply with all the instructions issued by the Department for the proper running of the institution. Any other employee of the institution may also be allowed extension in service upto the age of 60 years by the State Government." Sub-Rules 11, 16 and 17 of Rule 3 of the Rules, 1963, "(11) The institution shall promptly comply with all the instructions issued by the Department for the proper running of the institution. (16) The age of superannuation for teachers shall not ordinarily exceed 58 and no extension/re-employment in service shall be granted beyond the age of 60. In special cases the Government may waive this condition for not more that 5 years particularly for teachers doing post-graduate teaching or research work. (17) Grant-in-aid shall not be sanctioned to such of the institutions which have failed to comply with the conditions in the past." Rule 4 of the Rules, 1963, "Rule 4. Conditions of Service of the staff.-(a) The conditions of service of every member of the teaching and ministerial staff appointed substantively shall be governed by an agreement executed by him and the Governing Body/Council, or the Managing Committee, in the form given in Appendix III. Variations in minor details may be approved by the Director of Education. The agreement must be executed within one month of the appointment of the persons on probation." 15. Rule 3 of the Rules, 1963 enumerates the conditions for grant-in-aid. Clause (16) thereof, reproduced above, relates to the age of superannuation for teachers which shall not ordinarily exceed 58 and no extension or re-employment in service shall be granted beyond the age of 60. In special cases the Government may waive this condition for not more than 5 years particularly for teachers doing post-graduate teaching or research work. 16. Rule 4 of the Rules, 1963 proves that the conditions of service of the members of the teaching staff appointed substantively shall be governed by an agreement executed by him and the Governing Body/Council or the Managing Committee of the institutions in the form given in Appendix III. 17. Having gone through Appendix III of the Rules, 1963 we do not find any clause therein re the age of superannuation. The agreement which was entered into between the appellant college and the teacher is there on record of the writ petition as Annexure-1. In clause 3 thereof the provision is made for the age of superannuation. 17. Having gone through Appendix III of the Rules, 1963 we do not find any clause therein re the age of superannuation. The agreement which was entered into between the appellant college and the teacher is there on record of the writ petition as Annexure-1. In clause 3 thereof the provision is made for the age of superannuation. This agreement as per Rule 4 of the Rules, 1963 should have been in the form given in Appendix M. It is not in the form. Rule 4 of the Rules, 1963 makes a provision for variations in minor details but only with the approval of the Director of Education. 18. Having gone through the agreement document Annexure-1, leaving apart whether clause 3 inserted therein is a minor variation in minor detail or not, it is not approved by the Director of Education. Thus it has no legal value and enforceable against the State Government. Proviso to Section 16 of the Act, 1989 prohibits the Government from varying to the disadvantage of a teacher rights and benefits accrued to him or her under the grant-in-aid rules in force at the commencement of the Act. 19. The agreement entered into between the Managing Committee and the teacher relates to the service conditions as provided under Rule 4 of the Rules, 1963, and the rights and the benefits accrued to her thereunder are to be taken under the grant-in-aid Rules in force at the commencement of the Act but only those conditions in this agreement are protected which are provided in Appendix III to the Rules, 1963. 20. Sub-Rule (16) of the Rule 3 of the Rules, 1963 regulates the age of superannuation which ordinarily should not exceed 58 and no extension or re-employment in service is permissible beyond the age of 60. There the provision to provide any condition re-age of the superannuation is not there in appendix III and thus incorporation of condition No.3 in agreement Annexure-1 to the writ petition is contrary to the Rules and it is not protected. The age of superannuation under sub-rule (16) of Rule 3 of the Rules, 1963 is 58. The appendix III to the Rules, 1963 nowhere permits any contracting parties to incorporate a condition re-age of superannuation. The age of superannuation under sub-rule (16) of Rule 3 of the Rules, 1963 is 58. The appendix III to the Rules, 1963 nowhere permits any contracting parties to incorporate a condition re-age of superannuation. The question of extension or re-employment in service would have arisen at the stage the teacher attains the age of superannuation and that too only on consideration if it is found in the interest of the institution or where the teacher is doing post graduate teaching or research work. The teacher could not have been given extension or re-employment as a matter of course, right or rule nor there is any obligation of institution to extend or grant re-employment in service beyond the age of 58 years to a teacher. Element of consideration is utmost important, relevant and inbuilt condition. It is not contemplated at the entry in the service of this condition in agreement re retirement age. The sub-rule (16) of Rule 3 of the Rules 1963 is read as what contended by the learned counsel for the teacher it will become redundant. The element of consideration of necessity of extension-employment in service will go unbridled, uncontrolled and will confer wide power upon the Managing Committee of the College to fix the age of superannuation exceeding 58 in all the cases. Much emphasis laid by the learned counsel for the respondent teacher on the word 'ordinarily' mentioned in Sub-rule (16) of Rule 3 of the Rules, 1963 and contended that the Managing Committee of the College is free to fix 60 age of superannuation of a teacher even at the initial stage of his entry in service. There is a fallacy in this argument advanced by the learned counsel for the respondent teacher. The word 'ordinarily' follows by word no extension/re-employment in service shall be granted beyond the age of 60 which clinches the issue and renders this contention of the learned counsel for the respondent teacher wholly untenable. Though a discretion does lie with the appointing authority of the private Government aided affiliated institution to extend or re-employ a teacher beyond 58 years, but that accrues and permissible only at the stage when the teacher attains the age of superannuation and his or her retention in service on consideration is found in the interest of the institution or where the teacher is doing post graduate teaching or research work. 21. 21. Rule 45 of the Rules, 1963 is enacted so as to bring at par the age of superannuation of the teachers of the private Government aided affiliated colleges and the teachers in the Government Colleges. It is not disputed that the age of superannuation of the teachers in Government colleges is 58. In the private Government aided affiliated education institutions, it is taken 60, certainly it will make a hostile discrimination amongst the persons of the one class. For all the purposes and in sum and substance the teachers in Government colleges and the teachers in private Government aided affiliated colleges form one class. To overcome and remove this discrimination rightly in the Rule 45 of the Rules, 1993 the age of superannuation of the teachers in private Government aided affiliated colleges is fixed at 58. The clause (3) of the agreement, Annexure-1 to the writ petition, entered into between the respondent teacher and the College is not protected under proviso to Section 16 of the Act, 1989. It is not the case of the respondent teacher that the institution has extended her services beyond 58 prior to coming in force of the Act, 1989, or the Rules, 1993. The agreement Annexure-1 to the writ petition is not in the form of Appendix III, the State is not a party thereto and it is not otherwise also binding on the State.Taking into consideration all the aspects of the matter and the position of law and on minute scrutiny and consideration of the relevant provisions of the Rules, 1963, Act, 1989 and the Rules, 1993 we are satisfied that the order of the learned Single Judge cannot be allowed to stand. Both these appeals succeed and the same are allowed and the order of the learned Single Judge dated 17th of March, 1997 in S.B. Civil Writ Petition No. 3900 of 1995 is quashed and set aside. The parties are left to bear their own costs.SPL. appeal allowed. *******