IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 234/2006 Reserved on: 20.10.2010 Decided on:27.10.2010. Ramesh Chander Ladohia. ...Petitioner. Versus Sanatan Dharam Sabha and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Rajnish Maniktala, Advocate. For the Respondents : Mr. H.K. Paul, Advocate for respondents No. 1 to 3. Mr. V.D. Khidtta, Advocate for respondent No.4. Justice Rajiv Sharma, J. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Lecturer in the subject of Hindi in the respondent-College on 8.8.1972. His appointment was duly approved by the Vice-Chancellor of Himachal Pradesh University vide order dated 16.5.1980. Petitioner, on the basis of the Himachal Pradesh University Ordinances, made a representation to the respondent-college that he may be permitted to continue till the age of 60 years on 13.3.2006. However, fact of the matter is that petitioner was superannuated on 31.3.2006. Petitioner has assailed Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 the action of the respondents whereby he was superannuated on 31.3.2006 instead of 31.3.2008 by way of this petition. Interim relief was granted to the petitioner on 29.3.2006 and he was permitted to continue till the next date of hearing, i.e. 19.4.2006. The interim order dated 29.3.2006 was directed to operate till further orders by this Court on 25.4.2006. Respondent-college preferred Special Leave to Appeal (Civil) No. 15553/2006 before the Hon’ble Supreme Court against the interim order. The Hon’ble Supreme Court was pleased to stay the operation of order dated 25.4.2006 passed by this Court on 25.9.2006. The Special Leave to Appeal was disposed of by the Hon’ble Supreme Court on 16.11.2007 by passing following order: “Since the impugned order is an interim order, the Special Leave Petition is dismissed. It is made clear that the teacher has also since retired. As far as this petition is concerned, nothing survives except to state that the college will abide by the orders passed ultimately in the final hearing by the High Court.” 2. Thereafter petitioner preferred CMP No. 3952/2008 seeking amendment to the writ petition. The same was allowed by this Court on 8.4.2009. The amended writ petition was directed to be taken on record. Respondent-college has filed the reply to the amended writ petition. Respondent-university has not filed reply to the amended writ petition and Mr. V.D. Khidtta has relied upon the reply filed by the University to the un-amended writ petition. 3. Mr. Rajnish Maniktala has strenuously argued that the respondent-college is affiliated/associated with the Himachal Pradesh University and as per the First Ordinances of Himachal 3 Pradesh University, 1973; the retirement age for teachers is 60 years. 4. Mr. H.K. Paul has strenuously argued that the age prescribed under the Scheme is 58 years and in view of this there is no illegality in retiring the petitioner at the age of 58 years. Mr. Paul has also argued that the petition is not maintainable against the respondent-College. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Respondent-college, i.e. “Sanatan Dharam Snatakotar Sanskrit Mahavidyalaya” was recognized as “Adarsh Sanskrit Mahavidyalayas/Shodh Sansthans” on the basis of notification dated 25.3.1994. It will be apt at this stage to refer to certain salient features of the Scheme which was notified on 16.4.1993. The objective of the Scheme is to support and promote traditional Sanskrit learning and research. Conditions of recognition and financial assistance is provided under para 3 of the Scheme. According to sub-para (5) of para 4 of the Scheme, the Mahavidyalaya/Sodha Sansthan should be affiliated either to a University duly set up by an enactment of the Central Government or a State Government or to the Rashtriya Sanskrit Sansthan. Para 7 deals with management. In the management, one member is required to be nominee of the Government of India, one Sanshkrit Scholar as nominee of the Government of India, one nominee of the State Government, one nominee of the University to which the institution is affiliated, one nominee of the Parent Society/Trust and 4 Principal/Director of the Institution. The institution is required to manage its affairs through one unified account. The Government of India, as per para 15 of the Scheme, is required to financially assist the Mahavidyalaya/Sodha Sansthan to the extent of 95% of the admissible expenditure for recurring items which includes construction of buildings, acquisition of equipment etc., including salary and allowances to the approved staff. The assistance for non-recurring expenditure is limited to 75%. The Government of India has issued guidelines to Managing Committees of Adarsh Mahavidyalayas/Sodha Sanasthas regarding conditions of governing the services of teaching/non-teaching staff therein. Para 7 of the same reads thus: “The age of retirement for teaching and non-teaching staff shall be such as is applicable to corresponding staff employed in Graduate/Post-Graduate degree Colleges run by respective State Governments. The retirement will take effect from the afternoon of the last day of the month in which the employee attains the age of retirement.” 7. Mr. H.K. Paul has drawn the attention of the Court to Annexure R-4/B dated 20.2.2006 according to which age of retirement prescribed is 58 years, as per the Scheme. It is admitted fact that respondent-College is affiliated/associated with the Himachal Pradesh University. Ordinances 38.5 (B) (d) provides that the principal/teachers of the college or institution should be appointed in the manner and on the terms and conditions of service as laid down in the rules in Appendix ‘A’ to the Chapter-XXXVIII. Rule 12 of Appendix ‘A’ reads thus: 5 “12. Every teacher shall retire at the age of 60 years. However, a teacher shall be allowed to continue in service till the end of the semester or the academic session even though he may have attained the age of 60 years.” 8. Chapter-XXXIX provides for privilege of ‘Association’ to institutions for certificate in modern Indian Languages and certificates and degrees in Classical Indian Language (Sanskrit) Examination. Ordinances 39.5 (c) provides that the institution shall adopt and observe the service rules as appended to Chapter 38 of the First Ordinances of Himachal Pradesh University, 1973. It is thus abundantly clear that Appendix ‘A’ framed under Chapter XXXVIII is applicable to the petitioner as a whole under Chapter XXXIX. Petitioner was appointed as Lecturer, as noticed above on 8.8.1972. His appointment was also duly approved by the Vice - Chancellor of respondent-University. 9. The principal question, which arises for determination, now is: whether conditions of service of the petitioner are to be regulated by the First Ordinances of Himachal Pradesh University, 1973 since the respondent-college is associated/affiliated with the Himachal Pradesh University or by the Scheme framed by the Union of India. The age of retirement as per the First Ordinances of Himachal Pradesh University is 60 years. However, as per the guidelines framed by the Union of India, the retirement age is 58 years. It is well settled law that when there is conflict between the Act and Statute, the Act will prevail, if there is conflict between Statue and Ordinances, Statute will prevail and if there is conflict between Ordinances and executive instructions, Ordinances will 6 prevail. The provisions of Scheme cannot be in derogation of the Ordinances. The Scheme only entitles respondent-college to get financial aid to the extent of 95%. However, the institution is required to be affiliated as per the provisions of the Scheme, meaning thereby that the conditions stipulated/provided under the Ordinances are required to be followed in letter and spirit. In view of this the respondent-college could not retire the petitioner at the age of 58 years on 31.3.2006. He was required to be permitted to discharge his duties upto 31.3.2008 according to Rule 12 of the Appendix ‘A’ framed under Ordinances 38.5 of the First Ordinances of Himachal Pradesh University. 10. Mr. H.K. Paul has also taken objection that no writ will lie against the private institution, like respondent-College. According to him, the College is a private body and it only gets financial aid. Mr. Rajnish Maniktala has argued that the respondent-college is getting financial aid to the extent of 95% from the Central Government and it is affiliated/associated with the respondent- University and as such the writ petition would lie against the respondent-college. Mr. Rajnish Maniktala also argued that the respondent-college will fall within the ambit of expression “authority” under Article 12 of the Constitution of India. He also contended that since the respondent-college is discharging public functions, it will fall within the expression “authority’ under Article 226 of the Constitution of India. 11. The respondent-college, as per the provisions of the Scheme placed on record, is getting 95% aid from the Central 7 Government. There is one nominee in the management of the College of the Government of India one Sanshkrit Scholar as nominee of the Government of India, one nominee of the State Government, one nominee of the University to which the institution is affiliated, one nominee of the Parent Society/Trust and Principal/Director of the Institution. Primarily the management comprises of Government functionaries. It is also getting 95% financial aid. 12. Their Lordships of the Hon’ble Supreme Court in Manmohan Singh Jaitla vs. Commissioner, Union Territory of Chandigarh and others, 1984 (Supp) SCC 540 have held that aided school receiving 95% of expenses by way of grant from the public exchequer would fall within the ambit of other authorities. Their Lordships have held as under: “8. The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia etc.v. Khalid Mujib Sehrvardi & Ors. etc-(l) the aided school receiving 95%- of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made the Education Department of the Union Territory of Chandigarh as also the appointment of Head Master to be valid must be approved by the Director of public Instructions, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasia's case rendered on November 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia's case, Bhagwati, J. speaking for the Constitution Bench inter alia observed that 'the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with 8 governmental character.' Add to this the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality Substituting the words 'public trust' in place of the 'corporation' and the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third- respondent school was not amenable to the writ jurisdiction of the High Court.” 13. Their Lordships of the Hon’ble Supreme Court in Francis John vs. The Director of Education and others, AIR 1990 SC 423 have held that where the disciplinary proceedings were started against a Headmaster of a school, which was a recipient of the grant-in-aid as per the Grant-in-Aid Code, and the findings of the Dispute Settlement Committee were approved by the Director of Education of the Government and he permitted the termination of services of the head Master in consequence of which the order of termination was passed, a writ petition against such order of termination would be maintainable. Their Lordships have held as under. “9. In the instant case also we are concerned with the Grant-in- aid Code. The decision which was challenged before the High Court was the order of the Director of Education dated July 12, 1984 which is fully extracted above. It is further seen that a copy of the above order has been communicated by the Director of Education not merely to the Management of the School but also to the Zonal Officer, North Education Zone, Mapsa and the Grant-in-aid Section of the Directorate of Education. If the impugned orders of the director of Education and of the Dispute Settlement Committee to which he had referred the case are set aside then the order of termination of service of the appellant, which is pursuant to them would also have to fall. Any private school which receives aid from the Government under the Grant- in-aid Code, which is promulgated not merely for the benefit of 9 the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing from the public funds under the Grant-in-aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Dispute Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Tika Ram's case (supra).” 14. The Apex Court in Ganapathi National Middle School vs. M. Durai Kannan (dead) by LRs. and others, (1996) 6 SCC 464 have held that the educational institution receiving aid is an instrumentality or education agency of the State imparting education on behalf of the State which is a fundamental right of the citizens. Their Lordships have held as under: 2. The only question which arises for consideration is: whether the acquisition is for a public purposes? The High Court has taken the view that since the appellant-institution is being run by an individual which is not a registered society under the Societies Registration Act it is neither a company not a society and, therefore, acquisition does not serve any public purpose but only private interest. As a consequence, the acquisition is bad in law. The question, therefore, is: whether the view taken by the High Court is sustainable in law? Article 45 of the Constitution enjoins the State to provide free and compulsory education to all children upto age of 14 years. It is the constitutional mandate of the State to provide compulsory education. It is now settled law of this Court that right of education is a fundamental right to every child. The State cannot impart education by itself. Therefore, the agency through which it organises imparting education is recognised private institutions according to its procedure. As regards the State of 10 Tamil Nadu, it is governed by the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act 1973, Act 29 of 1974 (for short), the 'Education 'Act'). Section 3 defines "educational agency" in relation to any other private school to mean any person or body of persons permitted or deemed to be permitted under this Act to establish and maintain such other private institution. Section 5(1) of the Act envisages that the educational agency of every private school proposed to be established on or after the date of the commencement Act shall make an application to the competent authority for permission to establish such school. The prescribed procedure in that behalf has been enumerated in sub-section (2) of Section 5 particular relevant schools which is not an educational institution established under the Act. Since it is an educational institution already established in 1929 it gives no definition of educational agency under Section 3(b) which wad deemed school established under this Act. Therefore, when the educational institution has been established under the Act receiving grant-in-aid. Under Art. 29(2) of the Constitution “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them". Thereby the educational institution receiving aid is an instrumentality or education agency of the State imparting education on behalf of the State which is a fundamental right of the citizens. It is not in dispute that the entire expenditure for the acquisition is being met from the public funds, as accepted by the High Court. Under those circumstances, it is clearly a case of public purpose. It could be seen that when the order of eviction was sought to be enforced, this Court while upholding the decree of eviction had imposed a condition that the undertaking shall not be enforced when the land is sought to be acquired. This Court had recognized the need for the continuance of the educational institution in the said place and that the State had taken action to acquire the land at the expense of the State to provide the education to the middle school going children. Under those circumstances, the High Court was wholly wrong in its conclusion that public purpose is 11 not served in acquiring the land but benefits the private individuals.” 15. Their Lordships of the Hon’ble Supreme Court in K. Krishnamacharyulu and others vs. Sri Venkateswara Hindu College of Engineering and another, (1997) 3 SCC 571 have held that when an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of remedy provided under Article 226 of the Constitution of India. Their Lordships have held as under: “It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on par with the Government employees. The question is: when there is no statutory values issued in that behalf, and the Institution, at the relevant time, being not in receipt of any grant-in-aid; Whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this Court holding that when there is a interest created by the Government in a Institution to impart education, which is a fundamental right of the citizens, which is a fundamental right of the citizens, the teachers who teach the education gets an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees on bat with Government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instruction so the Government? It is not also in dispute that all the persons who filed the writ petition along with the appellant has later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on par with the Government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to available of the right to education. 12 The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum on should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to the element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226: the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution.” 16. The respondent-college is discharging public duties since it is imparting education to the students. Their Lordships of the Hon’ble Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smark Trust and others, AIR 1989 SCC 1607 have held that the issuance of mandamus is not confined to statutory authorities and instrumentalities of the State and can be issued to any other person or authority performing public duty. Their Lordships have held as under: “14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants- trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of 13 educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See - The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. 15. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the scope of this "judicial review" : "At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. 14 The statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are - and who are not - public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt.