- (1.) HON'ble NAOLEKAR, J. - This petition is being filed by the petitioner for enforcement of his right of contract of employment to serve the college till the age of sixty years and challenging his retirement at the age of 58 years.
(2.) BHAGWAN Das Todi College, Laxmangarh, Sikar (hereinafter referred to as "the respondent College") is affiliated with the respondent No. 2 University of Rajasthan. The petitioner was born on 10th July, 1938. By order dated 17. 06. 1965 the petitioner after selection was appointed as Lecturer in Mathematics in the respondent College in the pay scale of 285-800 with D. A. An employment agreement was executed between the petitioner and the Managing Committee of the respondent College (respondent no. 4) on 28. 8. 1965. As per clause 3 of this agreement the age of superannuation was on attaining the age of sixty years. The petitioner was retired on attaining the age of 58 years by the respondent in exercise of the powers under Rule 45 (1) of the Rajasthan Non-Government Educational Institutions Rules, 1993 (hereinafter referred to as "the Rules of 1993" ). It is the case of the petitioner that the agreement of employment entered into between the parties has been superseded and was replaced by statutory agreement under Ordinance 67a and 68 of the University Ordinances after the college was affiliated to the Rajasthan University. The petitioner's service condition shall be governed by the Ordinance. The respondent State entered appearance and filed reply contending that the petitioner's appointment as Lecturer in Mathematics was made subject to the condition of application of grant-in-aid Rules prescribed by the Government of Raj- asthan and the order passed and the Rules made by Managing Committee of the respondent College. Further the petitioner entered into an agreement when the revised pay scale was prescribed exercising the option of retirement on attaining the age of 58 years and thus is bound by the option exercised by him. Under Ordinance 67 A the compulsory retirement of a permanent whole time 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. Further, to be recorded in writing, whole time permanent teacher of outstanding merit particularly known for his excellence and quality of teaching may be retained in service upto the age of 62 years provided he continues to be mentally and physically fit for duty. Such an extension is subject to prior approval of the Vice Chancellor and the Syndicate by the Management. The petitioner's claim is based on Ordinance 67 A wherein it has been provided that the age of superannuation is 60 years, whereas Rule 45 of the Rules of 1993 provides that 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. The Government got power to waive this condition and allow extension in service for a period not exceeding five 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 Government. The Rules framed under the Rajasthan Non-Government Educational Institutions Act, 1989 provides the age of superannuation 58 years. 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 on agreement exercising the option that he shall retire on attaining the age of 58 years. The respondent College is recognised educational institution by the State Government. It receives grant-in-aid from the State Government. The State Government by orders dated 5. 4. 1978 and 6. 8. 1988 revised the pay scales of teaching staff of the Non- Government Aided Educational Institutions, it was made clear that the teachers wanting to take benefit thereunder shall be governed by the Grant-in-Aid Rules, 1963 in the matter of superannuation and all such teachers shall have to give their option in writing. It has been specifically mentioned that the teachers of Non- Government Aided Educational Colleges shall have option to elect to draw the pay either in the pay scale prescribed for them under the Revised New Pay Scale Rules, 1976 or in the revised pay scales prescribed under this order with effect from 1. 9. 1976. The option for one of the scale shall be exercised with reference to 1st September, 1976 and the option once exercised shall be final. The pay of the teachers who exercised option to draw the pay in the revised New Pay Scales Rules, 1976 with effect from 1. 9. 1976 shall be fixed in accordance with the provisions of Rajasthan Civil Services (Revised New Pay Scales) Rules, 1976. The option shall be exercised in writing in the form appended within a period of two months from the date of publication of the order in the Official Gazette. The option shall be intimated by the teacher to the Principal of the College. In case the intimation regarding option is not received by the Principal within the specified time a teacher shall be deemed to have elected to draw the pay in the revised pay scale from 1. 9. 1976 under the order. The option shall be pasted in the service book and a true copy of it shall also be placed in the personal file of the concerned teacher. The revision of the pay scale was subject to the condition that the age of superannuation and other conditions of service of the teachers shall be governed by the Rules relating to the condition of service of aided colleges under the grant-in- aid rules.
(3.) THE petitioner exercised the option and elected the Revised Pay Scale with effect from 1. 1. 1986. THE petitioner having exercised its option taking the revi- sed pay scale on the condition that his age of superannuation shall be governed by the grant-in-aid rules there is a voluntary change of contracts as regards the age of superannuation and the petitioner has opted for his retirement at the age of 58 years. THE petitioner cannot be permitted to blow hot and cold at the same breath. Having got the benefit of the revised pay scale now it does not lie in the mouth of the petitioner to say that his retirement shall be on attaining the age of 60 years and not 58 years which has been specifically agreed to. THE judgment on which the strong reliance is placed is dated 22. 10. 1996 in G. N. Tandon vs. State of Rajasthan & Others (1 ). It is distinguishable on its own facts. THE Ordinance 67 of the Rajasthan University Ordinances was made applicable in the absence of the statu- tory contract having been mutually varied which is very clear when the court says:- ". . . . . . 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. Here in the present case the petitioner having exercised the option, there is voluntary acceptance of the age of retirement for the grant of revised pay scale. The order of retirement on attaining the age of 58 years of the petitioner is in accordance with law. The writ petition is accordingly dismissed. ;