Bachchha Raj Agrawal vs State Of M.P. & Ors.

“The petitioners therefore most humbly pray that, this Hon'ble Court may kindly be pleased to allow the petition and issue a Writ of mandamus / certiorari or any other suitable writ order or direction in the nature of writ, thereby, the order Annexure P/1 may kindly be quashed with all consequential benefits and the respondents may kindly be further directed to allow the petitioner to work till attaining the 62 years of age of superannuation as recommended by the AICTE/ and pay entire benefits including pay and allowance as he has not been retired in the age of 60 years. Cost of the petition may also be awarded to the petitioners or any other order or directions deemed fit in the facts and circumstances of the case may kindly be issued.

"That, the order dated 5.3.2007 (Annexure-P/13) may kindly be quashed."'

“ The age of superannuation of teachers in diploma level technical institution would be 62 years and thereafter no extension of service shall be given. However, an Institute may re-employ a superannuated teacher up to 65 years of age in accordance with the existing provision (s) in the Statutes/Memorandum of Association and Rules/ Schemes, Regulations and Bye-laws of the Institute, as the case may be.

The age of superannuation of Librarians, Physical Education personnel and such other employees of technical institutions who are treated at par with the teachers and whose age of superannuation was 60 years, will now be 62 years. However, there is no provision of reemployment for such category of staff.”

18.

Admittedly, the amendment to Statute 28 of the College Code on 7-1-2004 was not based on any proposal from the Executive Council of any University. It was made by the Coordination Committee on its own motion. The interpretation of Section 34(4) of the 1973 Adhiniyam by the High Court that the Coordination Committee can only suggest modifications of the said Statutes in force is not correct.

19.

The High Court has gone wrong in observing that any proposal for amendment to a Statute made by the Coordination Committee has to be sent to the Executive Council of the University. The power to amend the Statute is conferred on the Coordination Committee and not on the Executive Council as has been understood by the High Court. A further error committed by the High Court was to hold that there is no recommendation of the Standing Committee on the basis of which a Resolution was passed on 7-1-2004. The High Court lost sight of the minutes of meeting of the Standing Committee dated 1-4-2003 by which recommendation was made to maintain the age of superannuation of Teachers working in aided private colleges on a par with those working in the government colleges.

20.

We are not in agreement with the conclusion of the Full Bench of the High Court that the language of the Resolution dated 7-1-2004 is in the nature of a recommendation. It is clear from the facts narrated above that the matter pertaining to the age of superannuation of Teachers working in aided private colleges was referred by the Coordination Committee to the Standing Committee. On the basis of the recommendations of the Standing Committee, the Coordination Committee passed a Resolution on 7-1-2004 which was given effect to by an amendment to Clause 26 of the College Code. The second point answered by the Full Bench is that the UGC Regulations are not applicable to the State Government per se but are to be adopted by the State Government. The High Court was of the opinion that the Government had accepted the payment of revised pay scales only in respect of the Teachers working in the government institutes. The Standing Committee and the Coordination Committee of the University is represented by the senior officers of the State Government and it is not for the State Government to contend that they will not extend the benefit of enhancement of the age of superannuation till 65 years to the Teachers working in the private aided institutes in spite of the provisions in the College Code.

21.

For the aforementioned reasons, we set aside the judgment [S.C. Jain v. State of M.P., 2017 SCC OnLine MP 1544 : (2017) 4 MP LJ 404] of the Full Bench of the High Court and the consequential judgments [Lalit Dave v. State of M.P., 2017 SCC OnLine MP 2047] , [Santbir Singh Bhatia v. State of M.P., 2017 SCC OnLine MP 2048] , [J.P. Chourasiya v. Union of India, 2017 SCC OnLine MP 2046] , [G.S. College of Commerce and Economics v. Union of India, 2017 SCC OnLine MP 2041] , [M.P. Ashaskiya Mahavidyalayeen Pradhyapak Sangh v. State of M.P., 2017 SCC OnLine MP 2049] , [A.P. Pyasi v. State of M.P., 2018 SCC OnLine MP 1275] , [Alka Gopal v. State of M.P., 2018 SCC OnLine MP 1276] , [Ajit Kumar Jaiswal v. State of M.P., 2017 SCC OnLine MP 2045] of the Division Bench of the High Court and direct the Government of Madhya Pradesh to pay salaries to the Teachers in aided private colleges who are working and also those who have worked till they attained the age of superannuation of 65 years.

4.

Having heard the learned counsel appearing on behalf of the respective parties and considering the various orders passed by the High Court, by which in similar facts and situation and not accepting the submission on behalf of the State that on the principle of “no work no pay” the teachers are not entitled to any monetary benefits for the intervening period between 62 years and 65 years of age, we are of the opinion that the appellant shall be entitled to all consequential and monetary benefits including the arrears of salaries and allowances for the intervening period, as if he would have been retired at the age of 65 years. The appellant being similarly situated teacher cannot be singled out. Even in Balkrishna Rathi v. State of M.P. [Balkrishna Rathi v. State of M.P., 2021 SCC OnLine MP 3778] and other allied writ appeals, it was submitted by the State that on the principle of “no work no pay” such teachers are not entitled to any monetary benefits. However, the High Court vide detailed judgment and order has negated such a plea and defence and has observed that as the teachers were prevented from serving up to the age of 65 years though they were entitled to, as held by this Court in R.S. Sohane [R.S. Sohane v. State of M.P., (2019) 16 SCC 796] , they cannot be denied the monetary benefits for the intervening period. It is reported that the said judgment and order [Balkrishna Rathi v. State of M.P., 2021 SCC OnLine MP 3778] passed by the Division Bench of the High Court has been implemented by the State after the special leave petition against the said judgment and order has been dismissed [State of M.P. v. Balkrishna Rathi, 2022 SCC OnLine SC 572] by this Court.

6.

In view of the above discussion and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the Division Bench of the High Court in Jacob Thudipara v. Higher Education Deptt., Mantralaya Vallabh Bhawan [Jacob Thudipara v. Higher Education Deptt., Mantralaya Vallabh Bhawan, WA No. 667 of 2016 sub nom Lalit Dave v. State of M.P., 2017 SCC OnLine MP 2047] is hereby quashed and set aside, which was passed relying upon the decision of the Full Bench of the High Court in S.C. Jain v. State of M.P. [S.C. Jain v. State of M.P., 2017 SCC OnLine MP 1544] , which has been subsequently set aside by this Court in R.S. Sohane [R.S. Sohane v. State of M.P., (2019) 16 SCC 796] . It is held that the appellant herein is entitled to the benefit of enhanced age of superannuation i.e. 65 years. He shall be entitled to all the consequential and monetary benefits including arrears of salaries, etc. as if, he would have been continued up to the age of 65 years. The arrears, etc. shall be paid to the appellant within a period of six weeks from today. However, considering the fact that there was a huge delay in preferring the appeal, which has been condoned by this Court, the appellant shall not be entitled to any interest on the arrears for the period between 9-5-2017 till the filing of the present appeal.

28.

For all the above stated reasons, this Court is of the considered view that the age of superannuation as prescribed under regulation 2.12 is binding on the third respondent University and any other prescription of age of superannuation repugnant to the AICTE regulation is to be held void and inoperative and it cannot be enforced in law.

29.

The trajectory of the above judicial discourse would only lead to an inexorable conclusion that these petitioners have made out a peremptory case for grant of relief as prayed for by them.

30.

In the said circumstances, there will be a direction to the third respondent University to reinstate the petitioners in service forthwith and continue them in service till they attain the age of 65 years, as prescribed by AICTE regulations, 2019.

31.

The third respondent University is directed to pass appropriate orders reinstating the petitioners with effect from the respective dates the petitioners were retired from service, along with consequential benefits, including all pay and allowances for the period when the petitioners had been kept out of employment, illegally, within a period of four weeks from the date of receipt of a copy of this order.

32.

In the result, the writ petitions are allowed. There will be no order as to costs. Consequently, W.M.P.Nos.19128 and 19143 of 2021 are closed.

21.

Wherefore, I deem it appropriate to follow the judgments cited by the learned Senior Counsel appearing for the petitioner quoted (supra) and not the one relied on by the learned Senior Counsel appearing for the 4th respondent/Institute. It is also apposite to refer to the Constitution Bench judgment of the Apex Court in the case of J. P. Unnikrishnan Vs. State of Andhra Pradesh reported in AIR 1993 SC 2178 wherein the Apex Court has held as follows:

“162 Private educational institutions may be aided as well as un-aided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognising/affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on. In particular, in the matter of admission of students, they have to follow the rule of merit and merit alone — subject to any reservations made under Article

15.

They shall not be entitled to charge any fees higher than what is charged in Governmental institutions for similar courses. These are and shall be understood to be the conditions of grant of aid.

The reason is simple: public funds, when given as grant — and not as loan — carry the public character wherever they go; public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the constitutional mandate of Articles 14 and 15. All the Governments and other authorities in charge of granting aid to educational institutions shall expressly provide for such conditions (among others), if not already provided, and shall ensure compliance with the same. Again aid may take several forms. For example, a medical college does necessarily require a hospital. We are told that for a 100-seat medical college, there must be a fully equipped 700-bed hospital. Then alone, the medical college can be allowed to function. A Private Medical College may not have or may not establish a hospital of its own. It may request the Government and the Government may permit it to avail of the services of a Government hospital for the purpose of the college free of charge. This would also be a form of aid and the conditions aforesaid have to be imposed — may be with some relaxation in the matter of fees chargeable — as observed. The Governments (Central and State) and all other authorities granting aid shall impose such conditions forthwith, if not already imposed. These conditions shall apply to existing as well as proposed private educational institutions.

169 We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In Ahmedabad St. Xaviers College Society v. State of Gujarat [(1974) 1 SCC 717 : (1975) 1 SCR 173] it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been “the consistent view of this Court”. They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State — much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance — the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, bridges etc. In short, the position is this: No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory — in the interest of general public — upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved — with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbefore — the following scheme which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation.

(Emphasis supplied)

O R D E R

(i)

Writ Petition is allowed.

(ii)

Impugned Communication/Memo dated 03.12.2019 issued by the 4th respondent insofar as it pertains to the petitioner stands obliterated.

(iii)

The petitioner is entitled to continue in service till he attains the age of 65 years.

(iv)

Petitioner is entitled to all the consequential benefits that would flow from quashing of the Communication/Memo dated 03.12.2019.

(v)

No costs.

23.

In the State of Tamil Nadu and another v. Adhiyaman Educational & Research Institute and Others, (1995) SCC 104, the Supreme Court held that having regard to the aforesaid object of the Act and functions of the Council established under the AICTE Act, the State Acts cannot lay down the standards and requirements higher than those prescribed by the AICTE Act, which was Central Act, for technical institutions and to that extent the provisions of the State Act were held to be repugnant to the Central Act.

24.

A common thread, which is discernible from the aforesaid judgments is that in the matter of technical education covered by the AICTE Act and to maintain the uniformity, the standards prescribed by the Council established under this Act would prevail. This was necessary to have uniformity in the educational standards in so far as technical education in this country is concerned. Once we accept this proposition, it would also follow that the service conditions laid down by the AICTE would also have uniform application in all technical institutions. Once it is recognized that norms and standards and the requirements of technical education are to be uniform, this cannot be achieved in case the service conditions of the employees working in these institutions are also uniform. It would, therefore, logically follow that the age of retirement, as recommended by the AICTE and duly accepted by the MHRD would be applicable to the librarians working in DTTE as well. 25.Our aforesaid discussion, thus, leads to the conclusion that the judgment of the Tribunal extending the benefit of enhancement of age of librarians from 60 to 62 years is perfectly valid and does not call for any interference. This writ petition is accordingly dismissed with costs quantified at Rs.10,000/-. It is also directed that the petitioner shall implement the judgment of the Tribunal forthwith.

6.

Denial to make payment of salary was only on the ground that he has not worked upto the age of 65 years, but the fact remains that there was a specific direction of the Hon'ble Supreme Court to make payment of salary to the Teachers who have worked in Private Aided Institutions upto the age of 65 years i.e. the age of superannuation. It is not the case of the petitioner that he was not willing to render his services, rather it is the case of the petitioner that he was pre-maturely retired by the Department and was not permitted to work in the Institution. The petitioner was not at fault at any point of time. The petitioner was always willing to perform his duty, but he was prevented to do so for the reasons, which is solely attributable to the respondents. The Hon'ble Supreme Court while dealing with the issue has considered the fact that the power to amend an statute is conferred to the Coordination Committee and not on the Executive Council. Therefore, the error was committed by the High Court to hold that there is no recommendation of the Standing Committee.

7.

Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Dayanand Chakarawarty and others (2013) 7 SCC 595 had held that "if an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of "no work no pay" shall not be applicable to such employee."

8.

A Division Bench of this Court in the case of Balkrishna Rathi vs. State of M.P. (W.A.No.378 of 2018) has considered the similar controversy and has held that even if an employee has not rendered his services, but he was forced by the employer not to work, therefore, without applying the principle of "no work and no pay" has also directed to pay salary.

9.

Therefore, in terms of the order passed by the Hon'ble Supreme Court in the case of Dr. R.S. Suhane (supra) , the writ petitioner was entitled to get the salary upto the age of 65 years. Refusing to continue the petitioner upto the age of 65 years was rightly held to be illegal by the Writ Court.

10.

Keeping in view the overall facts and circumstances of the case as well as order of the Hon'ble Supreme Court in the case of Dr. R.S. Suhane (supra), no illegality appears to have been committed by the Writ Court. The order passed by the Writ Court is just and proper and does not call for any interference in the present writ appeal. Writ appeal sans merit and is accordingly dismissed.

"18.

It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i)

Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)

(ii)

Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii)

Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv)

Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v)

In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

“11.

In the case at hand, the appellants were working on the post of Stenographers when the subject illegal payment was made to them. It is not reflected in the record that such payment was made to the appellants on account of any fraud or misrepresentation by them. It seems, when the financial benefit was extended to the appellants by the District Judge, Cuttack, the same was subsequently not approved by the High Court which resulted in the subsequent order of recovery. It is also not in dispute that the payment was made in the year 2017 whereas the recovery was directed in the year 2023. However, in the meanwhile, the appellants have retired in the year 2020. It is also an admitted position that the appellants were not afforded any opportunity of hearing before issuing the order of recovery. The appellants having superannuated on a ministerial post of Stenographer were admittedly not holding any gazetted post as such applying the principle enunciated by this Court in the above quoted judgment, the recovery is found unsustainable.”

“13.

It is in this background that the provisions contained in the two legislative enactments have to be scrutinized. The provisions of the AICTE Act are intended to improve technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such a coordinate action in higher education with proper standard is of paramount importance to national progress.”