TATIA, J. - (1.) THIS appeal is directed against the order dated 31. 3. 1998 of the Rajasthan Non-Government Educational Institution Tribunal, Jaipur.
(2.) THE fact of the case are that the petitioner was appointed as Lecturer (English) in B. J. S. Rampuria Jain College on 21. 7. 1967. THE B. J. S. Rampuria Jain College is a Society registered under the Societies Registration Act and is an aided non-government educational institution. It is running Graduate and Post-graduate College in Bikaner. According to the petitioner, in view of the Ordinance 67a of the Rajasthan University Ordinances, the petition can be retired on attaining the age of 60 years and the petitioner cannot be retired at the age of 58 years even after coming into force of the Rajasthan Non-government Educational Institution Act, 1989 (for short `the Act of 1989' ). THE petitioner's contention is that at the time of entering the service with the respondent-College, no agreement was executed by the petitioner with Managing Committee of the respondent - College with the petitioner and, therefore, the petitioner's service conditions can be governed by the proforma agreement provided under the Rajasthan University Ordinances because of the reason that a decision was taken by the University that the Ordinances framed by the University of Rajasthan shall continue to be in force and the teachers of the respondent - College are required to be retired only on attaining the age of superannuation as provided under the Ordinance 67a. Even in the Act of 1989, first proviso to sub-section (1) of Section 16 of the Act of 1989 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 this Act, shall not be varied to the disadvantage of such employee and the second proviso to sub-section of Sec. 16 of the Act of 1989 provides 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. Since the petitioner was governed by the Rajasthan University Ordinances wherein the has a right to remain in service till attaining the age of 60 years, therefore, in view of the above provisos of sub-section (1) of Section 16, any provision which is against the rights and benefits under the grant-in-aid Rules in force at the commencement of the Act of 1989 cannot be varied to the disadvantage of such employees. THE reduction in age from 60 years to 58 years in view of the rule 45 of the Rajasthan Non- government Educational Institution (Recognition, grant-in-aid and Service Conditions etc.), Rules, 1993 (for short, the Rules of 1993), in case of teachers and other employees except Class IV employees, is a provision effecting the accrued right of the petitioner and is also provision disadvantageous to the petitioner and hence it cannot be applied in view of sub-section (1) of Section 16 of the Act of 1989. In addition to above, the learned counsel for the petitioner submits that even as per rule 45 of the Rules of 1993, extension can be allowed by the State Government upto the age of 60 years in case of teachers who are engaged in postgraduate teaching of research work and extension upto five years is permissible. The respondent-College passed a resolution on 30. 3. 1990 which provides that the cases of all the employees reaching the age of 58 years be recommended to the government for extension of period. Therefore, even if the petitioner is governed by the Rules of 1993 and is to be retired at the age of 58 years then in view of the resolution of the Managing Committee of the respondent-College dated 30. 3. 1990, the petitioner's case is required to be forwarded to the State Government for extension of service for further period of two years from the date when the petitioner attains the age of 58 years so the petitioner can be superannuated on attaining the age of 60 years. In reply, the respondents submitted that as per the Rules of 1993, the age of superannuation of the petitioner is 58 years and under special circumstances only, the government may waive this condition and allow the extension. So far ais the case of the petitioner is concerned, the extension could have been allowed, at best, for two years, that too, when the managing Committee of the respondent - College deems it proper to grant extension. It is also submitted that earlier, the extension was to be allowed by the State Government but under the Ordinance dated 18. 6. 1997 (Annexure-9), the discretion vests with the Managing Committee of the institution that they may grant extension to the employee whose extension is being deemed necessary by the Managing Committee. The extension of the age of superannuation is a discretion of the Managing Committee of the respondent - College and the State Government and the same cannot be enforced by way of writ petition. It is also submitted that Ordinance 67 and 67a are not applicable in the present case and service conditions of the petitioner have to be governed by rule 45 of the Rules of 1993 which provides the age of superannuation as 58 years. The learned counsel for the petitioner relied upon the judgment of the Division Bench of this Court delivered in the case of : G. N. Tandon vs. State of Rajasthan & Ors. (1), wherein the Division Bench of this Court while considering the controversy with respect to the age of superannuation of employee who had agreement with the institution containing term of retirement at the age of 60 years held as under:- " 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 to the Act, shall not be varied to the disadvantage of such an employee. " In the above referred case, the was an agreement between the petitioner and the institution, executed on 20. 1. 1966 wherein it was provided that the age of superannuation will be 60 years. The Division Bench also referred the decisions of the two earlier writ petitions: M. S. Chhonkar vs. State of Rajasthan, (2) K. B. L. Mathur vs. State of Rajasthan (3), wherein the similar view was expressed.
(3.) THE learned counsel for the respondents submitted that Division Bench in subsequent decision after considering the case of G. N. Tandon held that employee is to retire on attaining age of 58 years. In this case of Mohan Lal Jangid vs. THE State of Rajasthan & Others (4), wherein it has been held that since the petitioner opted for revised pay scale on a condition that the age of superannuation shall be governed by the grant-in-aid Rules then it amounts to voluntary acceptance of age of retirement on attaining the age of 58 years. In this Mohan lal Jangid's case, the Division Bench of this Court specifically observed as under:- " In this case we need not go into the question whether the petitioners service conditions are governed under Rule 45 (1) and (2) of the Rules of 1993 or under Ordinance 67-A of the Rajasthan University Ordinances, in view of the fact that the petitioner specifically entered into an agreement exercising the option that he shall retire on attaining the age of 58 years. " THEreafter, the Division Bench held that the petitioner exercised the option and elected the revised pay scale with effect from 1. 1. 1986. THE petitioner having exercised his option taking the revised pay scale on the condition that his age of superannuation shall be governed by the grant-in-aid rules. THEre is voluntary change of contracts as regards the age of superannuation and the petitioner cannot be permitted to blow hot and cold at the same breath. In the light of the above reasoning's, the judgment delivered by the Division Bench in the case of G. N. Tandon (supra) was distinguished by the Division Bench in the case of Mohan Lal Jangid (supra ). Yet another judgment of the Division Bench delivered in the case of Dr. Kailash Chandra Mittal vs. State of Rajasthan & Ors. (5), decided on 8. 10. 1999 is there. In this case of Dr. Kailash Chandra Mittal, the case of Mohan Lal Jangid was considered and in Mohan Lal Jangid's case, the case of G. /n. Tandon was already considered. In the case of Dr. Kailash Chandra Mittal the Division Bench of this Court held as under:- " In our considered opinion, the judgment given by this Court in Mohan Lal Jangid's case (supra) is sufficient authority to lay down that the petitioner was to be retired at the age of 58 because he has voluntarily entered into a personal contract with the respondents for retiring him at the age of 58, as he wanted to get the benefit of the revised pay scales, in view of this judgment, we were not required to go into the question of Ordinance 67a, but in the judgment referred to above, the question of applicability of ordinance 67a was not gone into, therefore, we permitted the petitioner to address the Court on this aspect as well. " A bare perusal of the Division Bench judgments in the cases of Mohan Lal Jangid vs. State of Rajasthan (supra), and in Dr. Kailash Chandra Mittal, referred to above, the Division Bench gave preference to the contracts entered into between the employer and the institution and did not decide the question of applicability of Ordinance 67a in the case of Mohan Lal Jangid, therefore, the Division Bench while deciding the case of Kailash Chandra Mittal permitted the petitioner to address on this aspect of the matter. The Division Bench in the case of Kailash Chandra Mittal considered the Ordinance 67a and other provisions of law and held as under:- " The age of superannuation of an employee is a private contract in between petitioner in accepting new pay scales, has accepted the age of retirement as 58. The University Ordinance 67a has no role to play as discussed above. In view of the execution of Ord. 67a, the law laid down in Mohan Lal Jangid's case (supra) will hold the filed. " ;