JUDGMENT 1. - This appeal is directed against the judgment dated 21-2-2000 passed by a learned single Judge of this Court in S. B. Civil Writ Petition No. 594/2000 whereby the writ petition of the appellant institution was dismissed. The writ petition was filed to challenge the order dated 20-11-1999 passed by the Rajasthan Non-Government Educational Institution Tribunal, Jaipur (hereinafter referred to as 'the Tribunal'). 2. Respondent No. 2 - Shri. R. S. Chauhan preferred an application under Section 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 'the Act of 1989') challenging the order dated 29-10-1996 whereby he was retired from service w.e.f. 30-6-1996. Respondent stated that he was engaged on the post of Lecturer by executing an agreement. As per the terms of the agreement age of retirement was at the age of 60 years. The appellant institution retired him w.e.f. 30-6-1996 at the age of 58 years by issuing order dated 25-4-1996 but realising the mistake later on, the aforesaid order was withdrawn. However, by issuing subsequent order dated 29-10-1996 respondent was again retired w.e.f. 30-6-1996. This was the second order of retirement after withdrawing the first order. The Tribunal decided the matter holding that the applicant-respondent was due for retirement only on attaining the age of 60 years as per the agreement and not at the age of 58 years as per Rule 45 of the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 (hereinafter referred to as 'the Rules of 1993'). Reliance was placed by the Tribunal on a Division Bench decision of this Court in the matter of G. N. Tandon v. State of Raj. & Ors. ((1996) (1) RLR 538) . 3. The writ petition filed by the appellant institution could not find favour in view of the Division Bench judgment of this Court in the case of G. N. Tandon (supra) and accordingly, the writ petition was dismissed. 4. Heard learned counsel for the appellant and learned counsel for respondent No. 2. 5. Learned counsel for the appellant submits that as per Rule 45 of the Rules of 1993, the age of retirement was 58 years at the relevant time thus, the respondent was rightly retired from the service at the age of 58 years. 4. Heard learned counsel for the appellant and learned counsel for respondent No. 2. 5. Learned counsel for the appellant submits that as per Rule 45 of the Rules of 1993, the age of retirement was 58 years at the relevant time thus, the respondent was rightly retired from the service at the age of 58 years. Reliance has been placed on the judgment of a Division Bench of this Court in the case of The Director, Directorate of College Education, Rajasthan, Jaipur & Anr. v. Dr. (Mrs.) Narendra Kaur & 3 Ors. ( 2003 (1) RLR 24 ) . In the aforesaid judgment, the earlier judgment of the Division Bench in the case of G. N. Tandon was considered and thereupon the Division Bench came to the conclusion that after coming into effect the Rules of 1993 the age of retirement of the employees of aided institution would be guided by the Rules of 1993. It is urged that this appeal may be decided in the light of the latter judgment of the Division Bench. 6. Learned counsel for respondent No. 2 on the other hand supported the judgment of the learned single Judge. It is submitted that the appellant institution is an 'un-aided' institution hence, Rule 45 of the Rules of 1993 has no application. Referring to Section 16(1) of the Act it is submitted that the power to make rules in respect of the 'aided institutions' exists with the Government whereas the appellant institution is an 'in-aided' institution. Therefore, the judgment of the Division Bench in the case of Dr. Narendra Kaur has no application in the present case. 7. Having heard the learned counsel for the parties we have scanned the matter carefully. 8. A perusal of the writ petition shows that the appellant institution has categorically stated that it is not receiving grant-in-aid from the Government. The aforesaid fact is borne out from para 1 of the writ petition itself. Taking the aforesaid to be the stand of the appellant now the matter is required to be looked into for the reason that according to the counsel for respondent No. 2, Rule 45 of the Rules of 1993 does not apply to the 'un- aided' institutions specially in respect of the subject matters indicated under Section 16 of the Act of 1989. To appreciate the aforesaid argument, Section 16 of the Act of 1989 is quoted hereinunder:- "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 institution 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 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 of 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." 9. A bare perusal of the aforesaid provision shows that the State Government is having power to regulate various conditions of service including the condition pertaining to age retirement. However, this is in respect of an 'aided institution' and not for 'un-aided institution'. The word 'aided institution' has been defined in the Act of 1989 as well as in the Rules of 1993. Section 2 (c) of the Act of 1989 defines the word 'aided institution' as under:- "(c) 'Aided institution' means, a recognised institution, which is receiving regular aid in the form of maintenance grant from the State Government:" Perusal of the definition clause also shows that 'aided institution' would be such a recognised institution which is receiving aid from the State Government. In view of the aforesaid provisions it become clear that the Government while exercising its power under Section 16(1) of the Act of 1989 can regulate the conditions of service as mentioned therein in respect of an 'aided institution'. In view of the aforesaid provisions it become clear that the Government while exercising its power under Section 16(1) of the Act of 1989 can regulate the conditions of service as mentioned therein in respect of an 'aided institution'. The question which comes up for our consideration as to whether the Rules of 1993 can yet be applied to an 'un-aided institution'. If we look at the provisions of Section 43 of the Act of 1989, it says that the Government can make rules for the purpose of carrying into effect the provisions of the Act. Thus, the rules can be framed by the Government to the extent indicated for carrying out the provisions of the Act. In the light of the aforesaid, Rule 45 of the Rules of 1993 is required to be read. For ready reference, Rule 45 of the Rules of 1993 is quoted hereinunder:- "45. The age of superannuation - (1) The age of superannuation of teachers and other except class IVth 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 4 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 up to the age of 60 years by the State Government. (ii) The teachers who attain the age of superannuation after 31st December, may be allowed extension by the Government upto the end of the academic session or 30th June whichever is earlier. (iii) The superannuation age of the Class IV employees shall be 60 years and they may also be allowed extension for 2 years by the State Government. (iv) The political sufferers, who happen to work in an aided institution, as Secretary and in capacities other than teaching staff, may also be allowed extension upto the age of 65 years, provided they are physically fit as per certificate of the Principal Medical Officer or Chief Medical Officer of the district and produce a certificate from the Government in General Administration Deptt. of their being political sufferers. (v) A retired Government servant shall not be employed by any educational institution in any capacity. of their being political sufferers. (v) A retired Government servant shall not be employed by any educational institution in any capacity. (vi) The cases for extension of service shall be submitted to Government by the institution along with the following documents:- (a) Application of the employees as specified in Appendix-XIII. (b) Medical certificate of a Government Medical Officer in the prescribed form. (c) A copy of the resolution passed by the management. (d) A statement showing examination results of his pupils at least or last three years in the case of teachers. (e) Certificate of satisfactory service rendered by the employee. (f) Certificate regarding other outstanding achievements of the employees, if any. (vii) Such applications should be submitted directly to the State Government at least three months prior to the date of retirement of the employee concerned failing which they will not be considered. (viii) The institutions shall be allowed to receive the usual grant-in-aid in respect of the expenditure incurred for such sanctioned period of extension: Provided that the employees other than class-IV who have crossed the age of 58 years shall also be retired on 31-3-99 unless the extension of services granted to them by the competent authority." 10. Aforesaid rule is required to be read along with Section 16(1) of the Act, where it is provided that Government can regulate service conditions like age of retirement of an employee of 'aided institution'. 11. If we look at the other provisions of the Act like Sections 18, 28 and 30 and many other provisions those provisions extend to all the recognised institution irrespective of the fact as to whether it is receiving grant-in- aid or not. Word recognised institution has been defined under the Act, which reads thus : "Recognized institution" means a non-Government educational institution affiliated to any University or recognised by the Board, Director of Education or any officer authorised by the State Government or the Director of Education in this behalf." Section 18 of the Act of 1989 makes a reference of 'recognized institution' for effecting removal, dismissal or reduction of rank of the employees. Similarly, Section 28 of the Act of 1989 also makes reference of 'recognized institutions'. Even in Section 30 of the Act of 1989, powers have been given to the District Officer to inspect the recognised institutions. Similarly, Section 28 of the Act of 1989 also makes reference of 'recognized institutions'. Even in Section 30 of the Act of 1989, powers have been given to the District Officer to inspect the recognised institutions. Thus a deliberate departure exists under Section 16(1) of the Act of 1989 when it makes a reference of aided institution only and not of recognised institution simplicitor. In the case of MGD Girls School & Anr. v. Education Tribunal & Smt. Indubala Srivastava [1995 (1) WLC (Raj.) 99] a Division Bench of this Court came to the conclusion that the Rules have to be consistent with the statutory provisions and they neither over-ride the substantive provisions of the Act nor do they enlarge the scope of such substantive provisions. Referring to Rules 2 (d) & 2(s) of the Rules of 1993 the Division Bench came to the conclusion that the Rules have no application on an institution not receiving grant-in-aid from the State Government and not affiliated to any Board or University in the State of Rajasthan. In the case of MGD School (supra) the recognition of the institution was from the Central Board of Secondary Education, New Delhi. Though the present matter is of the nature where the appellant institution is affiliated to University of Rajasthan, thus rules of 1993 may apply to the extent it is applicable to an un-aided institution. Rules 45 of the Rules of 1993 is, however, to be read along with Section 16(1) of the Act of 1989 because in view of the judgment of M.G.D. Girls School's case, rules have to be consistent with the statutory provision and they neither over ride nor enlarge the scope of substantive provision. 12. Rule 45 of the Rules of 1993 provided the age of retirement to be 58 years at the relevant time, later on this rule has been amended. An argument is made by the learned counsel for the appellant that Rule 45 does not make any difference between the 'aided' and 'un-aided' institution. The aforesaid argument cannot be accepted because Rule 45 has to be read along with Section 16(1) of the Act of 1989. In the case of Central Bank of India v. Their Workmen (AIR1960 SC 12) it was held that a statutory rule cannot enlarge the meaning of the Section. The aforesaid argument cannot be accepted because Rule 45 has to be read along with Section 16(1) of the Act of 1989. In the case of Central Bank of India v. Their Workmen (AIR1960 SC 12) it was held that a statutory rule cannot enlarge the meaning of the Section. If the rule goes beyond what the section contemplates, the rule must yield to the statute. The relevant para runs thus:- "If a rule goes beyond what the section contemplates, the rule must yield to the statute. In State of Uttar Pradesh v. Babu Ram Upadhya ( AIR 1961 SC 751 ) it was held that the rule must be so interpreted as to be consistent with provisions of the statute. In this very case, it was held that the rules made under a statute must be treated for all purposes of construction as if they were contained in the Act, itself. In B.K. Garad v. Nasik Merchants Co- operative Bank Ltd. ( AIR 1984 SC 192 ) , it was held that if there was any conflict between statute and the subordinate legislation, the statute prevails over the subordinate legislation and the subordinate legislation if not in conformity with the statute, the same has to be ignored with a view to give effect to the statutory provision. Thus, the principles are well settled and we are required to make harmonious construction of the provisions of the Act and Rules." The aforesaid judgment shows that the rules must be interpreted so as to be consistent with the provisions of the statute and in the present matter Section 16(1) of the Act of 1989 is specific because the power of the Government to regulate various conditions of service including the age of retirement of an employee is of an 'aided institution' in the State. In view of the specific provision of Section 16(1) of the Act the Government is given powers to regulate age of retirement of an employee of the aided institution only. It is also seen that at places like Sections 17, 18, 28 and 30 of the Act of 1989 word 'recognized institution' is used to extend the effect of the Act on the 'recognized institutions' for the subject matters referred in those sections. It is also seen that at places like Sections 17, 18, 28 and 30 of the Act of 1989 word 'recognized institution' is used to extend the effect of the Act on the 'recognized institutions' for the subject matters referred in those sections. Hence, there exists deliberate departure in Section 16(1) to use word "aided institution" and not to use word "recognized institution" if harmonious construction of the statute and the Rule 45 of the Rules of 1993 is taken then Rule 45 can- not apply in respect of 'un-aided institutions'. Thus, in view of the above, we cannot accept the aforesaid argument of the learned counsel for the appellant. 13. Another argument raised by the learned counsel for the appellant is that even recognition of the institution is granted on certain terms and conditions. As per the condition of recognition, the institutions are under obligation to provide same salary and benefits to the teachers as admissible to the Government teachers. Thus, in view of the condition of recognition, all the conditions are applicable to a teacher of Government Educational Institution and aided institution become applicable even to the un-aided institutions to maintain its recognition otherwise the institution can be de- recognised also. In view of above Rule 45 of the Rules of 1993 becomes applicable. The learned counsel for the respondent on the other hand submits that any term or condition of the recognition is an issue between the management and the body granting recognition and for that purpose he has referred the judgment of the Supreme Court in the case of Kumari Regina v. St. Aloysius School & Anr. [ (1972) 4 SCC 188 ] : ( AIR 1971 SC 1920 ) . It would be gainful to quote paras 23 and 24 of the aforesaid judgment wherein it has been held that any term or condition of recognition cannot be enforced by third party. "23. Ordinarily the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. "23. Ordinarily the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the education department would not mean that the relationship between its management and its employee has ceased to be governed by the contracts of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act over- riding that law as one finds in statutes dealing with industrial disputes and similar other matters. There is in fact no such provision in the Act and none was pointed out to us. The result is that the relations bet-ween the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contract of employment and the terms and conditions contained therein. Part II Rules, which cannot be regarded as having the status of statutory rules made under Section 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations. 24. But it cannot also be gainsaid that the Government has the power, to admit schools to recognition and grants-in-aid, it can de hors the Act, laying down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non- compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management on the ground of breach or non-compliance of any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one month's notice, or one month's salary in lieu thereof in accordance with the contract of employment between the teacher and the management, such a termination would be valid. But the Government can insist that since its rules provide for three month's notice, the management cannot terminate the service of a teacher by giving only one month's notice. Though, in the absence of a statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were not complied with. But that does not mean that Part II Rules confer upon a third party, viz., an aggrieved employee of a school, any remedy enforceable at law in the event of the management of an elementary school refusing to comply with these rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein." Thus, even if recognition of the institution is given on certain terms and conditions, violation thereof is between the institution and the body granting recognition but no right can be claimed by third party, like in this case by the appellant, hence, this argument of the counsel for the appellant cannot be accepted. 14. Now comes the judgment in the case of Dr. Narendra Kaur. So far as the present matter is concerned, the judgment in the case of Dr. Narendra Kaur has no application because in that case the Division Bench decided the issue in reference to an 'aided institution'. Perusal of the judgment would reveal that much emphasis has been led in respect of the provisions pertaining to 'aided institution' whereas the present institution is not an 'aided institution'. Thus, the judgment in the case of Dr. Narendra Kaur does not apply to the present matter though the aforesaid judgment is applicable to the 'aided institution'. 15. If we come to the facts of the present case in the light of the above discussion. The respondent was engaged on the post of Lecturer pursuant to an agreement providing the age of retirement to be 60 years. In view of the agreement between the parties, it becomes clear that the rights of the parties would be governed by the aforesaid agreement because the learned counsel for the appellant has not shown that the appellant institution is having its own rules providing different age of retirement than given in the agreement. 16. In view of the discussions made above we are of the opinion that the appellant being an 'un-aided institution' cannot seek benefit of Rule 45 of the Rules of 1993 so as to retire its employee contrary to the agreement. Otherwise also, we do not find any error in the judgment passed by the learned single Judge. Hence, the appeal so preferred by the appellant is, dismissed.Appeal dismissed. *******