KESHOTE, J. - (1.) THE learned Single Judge, under its order, dated 9. 8. 2000, on having found conflict in two Division Bench decisions of the Court in G. N. Tandon vs. State of Rajasthan & Ors. (1996 (1) RLR 538 and Dr. Kailash Chandra Mittal & 5 Ors. vs. State of Rajasthan (2000 WLC (Raj.) UC 343), referred the matter to the Larger Bench and the question framed for consideration thereof is whether Ordinance 67-A of the Rajasthan University Ordinances (for short, "the Ordinances"), will prevail or the employees will be governed by the Rajasthan Non-Government Educational Institution Act, 1989 (hereinafter referred to as "the Act, 1989") and the Rajasthan Grant-in-Aid to Education and Cultural Institutions Rules, 1963 (for short, "the Rules, 1963"). Though it is not specifically stated in the question but from the facts of the case, which have come on the record, we find that the dispute relates to the age of superannuation of the teachers in the Non-Government Recognised Affiliated Aided Colleges in the State of Rajasthan.
(2.) FOR adjudication of the question referred to hereinabove the facts necessary for the decision of the case to be noticed briefly are recorded as follows:- Respondent No. 2, Seth Juthalal Education Society, Jhunjhunu (hereinafter referred to as `the Society') is a Society registered under the Societies Registration Act, 1958. Seth Motilal P. G. College, Jhunjhunu (for short, `the College') is an educational institution established and controlled by the Society and the College is a non-Government recognised and educational institution which is managed and controlled by the governing body of the Society. The annual budget of the college runs into several lacs and 90% thereof is admittedly contributed by the State of Rajasthan by way of grant-in-aid. The petitioner was initially appointed as a Teacher in the Seth Motilal High School. The School attained the status of an Inter College and later it was upgraded as a P. G. College. The petitioner was appointed as a Lecturer (Commerce) in the College. At the time of entry of the petitioner in the service as Lecturer (Commerce), on 5. 7. 1958, he executed an agreement in favour of the College which is alleged to have been executed in pursuance of the Statute incorporated under Clause 30 (iv) and Ordinance 67 of the Rajputana University Hand Book Part II, 1951 Edition. Clause 3 of the agreement aforesaid reads as under,- " That the age of superannuation will be 60 years, the actual time of retirement shall be the 30th day of June following attaining of that age. " The petitioner alleged that his appointment in the College as Lecturer (Commerce) vide order, dated 21. 7. 1958, was subjected to confirmation by the University of Rajasthan and regulated under the Rules and Regulations of he Institution. The petitioner averred that as per Clause 3 of the agreement, dated 5. 7. 1958, he has to remain in service of the college till he attains the age of 60 years and the actual time of retirement shall be the 30th day of June following attaining of that age and further in terms of Rule 3 (16) of the Rules, 1963 the petitioner was not required to apply for extension of his period of retirement to 60 years from 58 years but since in the past, the teachers had applied for extension of their period of retirement, under misconception of law, he applied under the Rules, 1963 for extension of the period of his retirement vide application dated 7. 10. 1979. The Principal of the College, vide his letter, dated 9. 4. 1990, informed the petitioner that the governing body of the college has rejected his application aforesaid, for extension of the period of his retirement. It is stipulated in the said letter that the petitioner will retire on attaining the superannuation age of 58 years. It is further stated that since the petitioner will attain the superannuation age of 58 years on 9. 4. 1990, he will, therefore, be retired on 30. 4. 1990. The reason assigned for non- extension of the retirement age of the petitioner was that it was not considered essential in the interest of the Institution and the students to grant the extension. It is not necessary to set out the facts in detail regarding the show cause notice, dated 10. 11. 1999 served upon the petitioner in the matter of issuance of appreciation certificate by him to one Shri C. P. Chaturvedi, working as Lecturer (Political Science) in the College as it has no bearing on the reference for determination.
(3.) THE petitioner submits that he made an appeal/representation under Rule 4 (g) of the Rules, 1963, to the Director of the College Education, Government of Rajasthan, on 6. 4. 1990, who, in turn, decided the same and the decision thereof has been communicated to him under the letter, dated 28. 4. 1990. THE Director of College Education, Government of Rajasthan, has opined that as per Rule 3 (16) of the Rules, 1963 the age of superannuation of the teachers and the employees of the non- Government recognised educational institutions receiving grant- in-aid is 58 years. The petitioner filed this petition on 24. 4. 1990 praying therein for grant of following relief, " (a) The impugned orders, dated 9. 4. 1990 whereby the directions have been given to compulsorily retire the petitioner w. e. f. 30. 4. 1990 by respondent Nos. 2 and 3 be declared un- constitutional and illegal and the same may be quashed and set aside;" (b) A declaration may be granted in favour of the petitioner that the age of superannuation is 60 years as stipulated in the service agreement dated 5. 7. 1958 and his premature retirement vide impugned order dated 9. 4. 1990 may be declared illegal, invalid and ultra vires. (c) The petitioner be allowed by an appropriate direction to continue in service till he attains the age of 60 years. (d) An appropriate direction may be given to the respondent No. 2 to consider the case of the petitioner for extension in service for 5 years w. e. f. the date he attains the age of 60 years. (e) The order dated 9. 4. 1990 whereby it has been proposed to impose a penalty of "censure" against the petitioner be quashed. " The respondent contested the writ petition and filed their separate replies thereto. They have taken manifold defences in the reply to the writ petition. The substantial defence taken by them is that the agreement entered into between the petitioner and the Society at the time of his entry as Lecturer (Commerce) in the College was not binding on the Government of Rajasthan, which gives 90% grant-in-aid to the College and further that it was not a party thereto. The age of superannuation of the employees and the teachers in the non-Government recognized affiliated aided colleges as per Clause 3 (16) of the Rules, 1963, was 58 years. ;