1 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER (1) S.B.CIVIL WRIT PETITION NO.9221/2007 Devi Lal Choudhary and another Versus The State of Rajasthan and others (2) S.B.CIVIL WRIT PETITION NO.7966/2007 Shri Parasrampuria Rajasthan Ayurveda College Samiti Versus The State of Rajasthan and others (3) S.B.CIVIL WRIT PETITION NO.3432/2008 Inder Singh and another Versus The State of Rajasthan and others (4) S.B.CIVIL WRIT PETITION NO.13154/2008 Prof.Krishan Gopal and others Versus The State of Rajasthan and others DATE OF ORDER --- November 13, 2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Anoop Dhand, Mr.J.K.Singhi, and Ms.Neelam Pareek on behalf of Mr.G.K.Garg, for the petitioners Mr.Dinesh Yadav, Addl.AG Mr.Sanjay Tyagi, for the respondent REPORTABLE BY THE COURT (1) By this common order, three writ petitions – CWP No.9221/2007, CWP No.13154/2008, CWP No.3432/2008 filed by the employees of the Shri Parasrampuria Rajasthan Ayurveda College Samiti and one more CWP No.7966/2007 filed by Shri Parasrampuria Rajasthan Ayurveda College Samiti are being decided together as identical relief of 2 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases payment of salary, appointment of the Administrator has been claimed by employees of the Samiti whereas the Samiti has filed the writ petition to call off the strike. (2) The question of law involved in all these three writ petitions relates to the running of Shri Parasrampuria Rajasthan Ayurvedic College (hereinafter referred to as `the Institution’) run by Shri Parasrampuria Rajasthan Ayurveda College Samiti (hereinafter referred to as 'the Samiti’) and payment of salary and other benefits to the working staff of the College, and further in case, it is not possible for the Samiti to run the College, then whether the provisions of the Rajasthan Non-Government Educational Institutions Act, 1989 (in short `the Act of 1989') and the Rajasthan Non- Government Educational Institutions (Recognition, Grant-in- Aid and Service Conditions etc.) Rules, 1993 (in short `the Rules of 1993') can be invoked or not ? (3) Briefly stated, the relevant facts of the case, as mentioned in CWP No.13154/2008 Prof.Krishna Gopal and others V. State and others are that the petitioners are working either as Professor, Lecturer, L.D.C. and Class IV employees of the Institution, claiming the relief of payment of arrears of salary and regular monthly salary whereas the Samiti has also filed CWP No.7966/2007 to direct the private respondents therein to resume the teaching work and hospital activities forthwith by calling off their agitation. In other writ petitions, it has been submitted that the symbolic 3 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases strike was called in early 2008 when the management of the Institution did not fix their salary as per Vth Pay Commission and further did not pay salary to the staff. However, the strike was kept in abeyance on 14.5.2008 and ultimately, the strike was called off from 21.5.2008. On 6.9.2008, the Institution received a letter of the Secretary, Central Council of Indian Medicine which directed the Rajasthan Ayurved University to transfer students of Shri Parasrampuria Rajasthan Ayurveda College to two other private colleges i.e. Bhanwar Lal Dugar Vishwabharti Ayurved College, Sardar Shahar and J.R.Tatia Ayurved College, Sri Ganganagar. At this stage, serious apprehension was expressed by the petitioners that if the students of the other Colleges were transferred, then certainly, the Institution will be closed and their services will be dispensed with and further, the Samiti will get success in grabbing the property and assets of the Institution. Certain important facts with regard to the establishment and the prestige of the Institution are as follows: (i) The present Institution was first established on 19.12.1942 in the name of Rajputana Ayurveda College, Sikar having a campus of 36 Bighas of land where on some part the building was constructed and soon became a prestigious Ayurved institution; 4 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases (ii) On 4.3.1963 the Samiti was registered under the provisions of the Rajasthan Societies Registration Act,1958. (iii) Professors, Lecturers, L.D.C. and Class-IV employees appointed subsequently are working since more than twenty years and hospital activities are also being carried on. (4) It is stated in the writ petition that in between 1997 and 2005, a lot of correspondence was also made between the Institution and the State Government for taking over the Institution and merging it in government college but the Managing Committee was not interested to convert the Institution into government college because it wanted to grab the properties and assets of the Institution by removing the teaching and non-teaching staff. (5) It is further stated in the writ petition that prior to the year 2007, the Institution was running, except withholding payment of salary. On 26.6.2007, a Committee was constituted by the Rajasthan Ayurved University, Jodhpur in pursuance to which the Directorate of Ayurved, Rajasthan, Ajmer issued an order on 10.7.2007 for the purpose of inspection. On 11.7.2007, the said Committee carried out the inspection and gave its report on 17.7.2007. On 31.7.2007, the Vice Chancellor of the Rajasthan Ayurved University, Jodhpur and other officials inspected the Institution suddenly and found several irregularities. On 23.8.2007, the District 5 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases Ayurved Officer, as per order of the District Collector, Sikar made a visit to the Institution for inspection but the inspection was got done on 24.8.2007. On 6.9.2007, the Directorate of Ayurved made recommendation to the State Government for appointment of the Administrator in the Institution. On 12.10.2007, the Managing Committee passed Resolution that the land, building and affairs of the Institution may be handed over to the State Government and till the finalization of all formalities, Administrator may be appointed by dissolving the Managing Committee. (6) It is also stated in the writ petition that with a view to run the Institution as a private College, the Managing Committee of the Institution started harassing the petitioners, stopped making payment of salary since last thirteen months and prior to that also, the Management did not pay salary and other benefits to the petitioners as per the recommendations of the Vth Pay Commission. For this reason, the petitioners went on symbolic strike against the mis-deeds of the Managing Committee of the Institution but the classes were taken by the teaching staff in the campus of the Institution and the strike was kept in abeyance on 14.5.2008, and ultimately, called off finally on 21.5.2008. (7) It is then stated in the writ petition that in the similar circumstances, the State Government directed the Director of Ayurved, Rajasthan, Ajmer to absorb the services of the staff 6 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases working in the Ayurved Vishwabharti College, Sardar Shahar in government service vide order dated 16.7.1972. (8) In CWP No.13154/2008, the order of transfer of students dated 6.9.2008 was challenged and interim prayer was also sought for not to transfer the students. On 17.12.2008, this Court passed an order of maintaining status quo with liberty to the petitioners to file representation before the State Government. (9) In CWP No.3432/2008, interim order was sought that the respondents may be restrained from taking any steps for privatisation of Shri Parasrampuria Rajasthan Ayurved College, Sikar and interim order was passed on 17.4.2008 restraining the respondents from privatizing Shri Parasrampuria Rajasthan Ayurved College, Sikar. (10) The State Government in its reply, filed in CWP No.9221/2007, has stated that the Rajasthan Ayurved Grant- in-Aid Rules, 1972, (hereinafter referred to as `the Rules of 1972’) will apply and there are no provisions for appointment of the Administrator in the Rules of 1972 and the same have been followed by the respondents No.1 and 2. It is also stated in the reply that for any wrong done by the respondents No.3 and 4, the State Govt. cannot be held responsible. (11) Respondents No.3 and 4,in reply to CWP No.9221/2007, have raised the preliminary objection of disputed questions of fact and continuation of strike without any reasonable cause, with the further submission on merit that the services 7 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases of the petitioner No.1 in CWP No.9221/2007 has been terminated on disciplinary ground before filing the writ petition. Further, the fact of receipt of any grant-in-aid from the State Government, under the Rules of 1972, since last three years has been denied and even prior to that, 50% aid was granted. The Institution was run with the aid received from Alok Parasrampuria. The report submitted by the other concerned officer has been stated to be biased report and the grant in aid was stopped by the State Government. In such circumstances, there was no fault on the part of the Samiti in not paying the salary to its employees. It has further been stated that there is no mal-functioning, mismanagement or misutilisation of funds and breach of statutory provisions. It is pertinent to mention here that on 12.10.2007, an emergency meeting of the Samiti was called and the Samiti, in the interest of the Institution, resolved that the State Government may appoint an Administrator. (12) Respondent No.5 has filed reply stating that it did not receive any complaint from the petitioners, therefore, the respondent No.5 has not been able to take any action. (13) On the basis of the aforesaid pleadings of the parties, while passing the aforesaid order on 17.12.2008 the petitioners were given liberty to file representation before the State Government with a further direction to the State Government that the representation so filed by the petitioners will be considered and decided within a period of one month 8 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases and decision of the Government will be produced before the Court in sealed cover on the next date. On 22.1.2009, it was submitted by Mr.Dinesh Yadav, Additional Advocate General that the provisions of the Act of 1989 and the Rules of 1993 are not applicable to the present case and there is no provision for appointment of the Administrator in the Rajasthan Ayurved Grant in Aid Rules, Rules of 1972, (in short `the Rules of 1972') therefore, after prima facie discussion of the provisions of the Act of 1989, the Rules of 1993 and the Rules of 1972, again time was granted to the State Government to decide the representation by 4.2.2009. On 25.5.2009, the State Government placed its decision dated 3.3.2009 on record stating that the Act of 1989 and the Rules of 1993 are not applicable in case of Institution/Ayurved Department, as held by this Court in CWP No.921/1995 decided on 26.2.2007 at the Principal Seat of this Court at Jodhpur. (14) Counsel for the petitioners, on the issue of not releasing the salary and further appointment of the Administrator under the Act of 1989 and release of grant under the Rules of 1993, placed reliance on judgment of this Court at the Principal Seat dated 14.10.2008 in Dr.Raj Singh Malik and others V. State and others, CWP No.3314/2006 wherein it has been held that the Rules of 1972 which were in existence prior to the enactment of the Act of 1989 are now governed by the Rules of 1993 framed under the provisions of Sec.43 of the Act of 9 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases 1989, therefore, the entire controversy revolve around the question of applicability of the Act of 1989 and the Rules of 1993 on which arguments were addressed by both the parties and ultimately, the same were recorded in the order sheet dated 12.10.2009. (15) It is stated at the bar that no appeal has been filed against the aforesaid judgment dated 14.10.2008 and the same has attained finality. (16) Counsel for the State submitted that the College was receiving aid under the Rules of 1972, therefore, the service conditions of the employees of the Samiti will be governed by the Rules of 1972 and there is no such provision for appointment of the Administrator in the Rules of 1972. In support of his submission, counsel for the State has relied on the judgment dated 26.2.2007 of this Court in Smt.Kamla Devi V. State and another (supra) (17) Counsel for the Samiti submitted that it could not make payment of the salary to its staff either on account of not getting 80% grant in aid in time or stopping of the same by the Government despite several letters and further the call of strike has paralysed the work of the College. (18) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. (19) Before proceeding further,it is relevant to reproduce the orders dated 16.6.1972, 6.9.2007 and Resolution dated 10 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases 12.10.2007, the order sheet dated 12.10.2009 and Sec.10, 14 and 40 of the Act of 1989 which are as under: Order dated 16.6.1972 “Government of Rajasthan Medical and Public Health Department (Gr.III) No.F.24(1)Ayurved/71 Jaipur, the 16th June,1972 The Director, Ayurved Department, Rajasthan, Ajmer. Sub: Absorption of the staff of Ayurved Vishva Bharti Sardarshahar College in Government Service. Ref: Your letter No.Prati-1/72/3715 dated 7.2.72. Sir, I am directed to convey sanction of the Governor to the absorption of the following personnel of the defunct Ayurved Vishwa Bharti Sardarshahar College in Rajasthan Government Service in the Ayurved Department against the available vacancies in the following manner with effect from the date they take over charge of the post on which they are absorbed: (emphasis supplied) S.No. Name Date of Birth Post on which Absorbed Pay Scale 1 Shri Ved Prakash 01/07/35 Lecturer 375-850 2 Shri Draveshwar Jha 15.4.1933 Demonstrator 225-525 3 Shri Ramavatar 15.10.1935 Demonstrator 225-525 4 Shri Yamuna Lal 02/02/44 Vaidya Gr.III 180-425 5 Shri Sagar Mal 01/12/34 Vaidya Gr.III 180-425 On their appointment on these posts these persons will be allowed the same pay that they were drawing as on 31.3.1971 before the Management of the Institution decided to revise their Pay Scales w.e.f. 1.4.1971. 2. The absorption would be subject to the following conditions: 1) The absorption on the posts indicated above is purely ad hoc and provisional subject to the selection by the R.P.S.C. 2) The service rendered in Ayurved Vishwa Bharti shall not count for any purpose whatsoever. 11 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases 3) These personnel will be governed by the relevant Ayurvedic Service Rules and other rules applicable to Rajasthan Government Servants. 4) Age Relaxation would be done as per rules. 5) They will be required to produce Medical Certificate of fitness for Government Service before joining the post. This issues with the concurrence of the Finance Department (Exp.1) vide their U.O. Note No.D.1707/FD/Exp.I/72 dated 15.5.1972. Sd/- Yours faithfully, (Moti Lal Kakkar) Dy.Secretary to the Govt. Order dated 6.9.2007 राजःथान सरकार िनदेशालय, आयुवȶद ǒवभाग, राजःथान अजमेर बमांक-प.2/लेखा-10/अनु/2(4)/2006/41634 Ǒदनांक 06.09.2007 उप शासन सिचव, िचǑक×सा (मुप -4) आयुवȶद ǒवभाग, राजःथान जयपुर ǒवषय: ौी परसरामपुǐरया आयुवȶद महाǒवधालय, सीकर मɅ ूशासक िनयुƠ करने बाबत्. महोदय, ǒवषयाÛतग[त िनवेदन है Ǒक ौी परसरामपुǐरया राजःथान आयुवȶद महाǒवधालय,सीकर के Ʈारा ǒवगत तीन वषɟ से अनुदान हेतु आवेदन नहȣं Ǒकया गया है अथवा अनुदान िनयमɉ के पǐरपेआय मɅ पाऽता पूण[ नहȣं करने के कारण अनुदार ःवीकृत नहȣं Ǒकया गया है। संःथा कȧ ूबÛध सिमित एवं कम[चाǐरयɉ के मÚय सàबÛध तनावपूण[ चलने के कारण संःथा एवं कम[चाǐरयɉ के Ʈारा जो पऽाचार Ǒकया जा रहा है उसमɅ ǒवरोधाभासी तØय दशा[यɅ जा रहे हɇ। ऐसी ǔःथित मɅ ǒवभाग कȧ सàमित मɅ राÏय सरकार Ʈारा िनण[य िलया जाकर उƠ संःथा के िलए ूशासक िनयुƠ Ǒकये जाने कȧ काय[वाहȣ करना ूःताǒवत है। (emphasis supplied) भवदȣय िनदेशक Resolution dated 12.10.2007 ौी परसरामपुǐरया राजःथान आयुवȶद महाǒवधालय, सीकर (332001)राजःथान Ǒदनांक- 12.10.2007 को ौी परसरामपुǐरया राजःथान आयुवȶद महाǒवधालय सिमित कȧ आपात बैठक मɅ पाǐरत ूःताव कȧ ूमाǔणत स×य ूितिलǒप 12 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases ूःताव Ǒकया गया Ǒक ूबÛध सिमित संःथा के समःत कम[चाǐरयɉ के अनुरोध पर संःथान के Ǒहत मɅ संःथा कȧ समःत चल अचल सàपित को राÏय सरकार को सौपते हए संःथान मɅ ु काय[रत समःत शै¢ǔणक-अशै¢ǔणक कम[चयाǐरयɉ सǑहत राÏय अधीन Ǒकये जाने कȧ अनुसंशा करते हɇ तथा उƠ राÏयाधीन ूǑबया पूण[ होने तक वत[मान ूबÛध सिमित को भंग कर तुरÛत ूभाव से संःथा मɅ ǒवƣीय एवं ूशासिनक काय[ संचालन हेतु ूशासक कȧ िनयुǒƠ करने के िलए राÏय सरकार से िनवेदन करते हɇ। ूबÛध सिमित वत[मान पǐरǔःथितयɉ मɅ संःथा के उÏजवल भǒवंय कȧ कामना करते हए उपरोƠ ूःताव पर अपनी पूण[ सहमित åयƠ ु करते हɇ। (emphasis supplied) ह० ह० ह० अÚय¢/उपाÚय¢ कोषाÚय¢ सिचव Order dated 12.10.2009 “The main issue involved in the matter is whether the provisions of the Rajasthan Non- Government Educational Institutions Act,1989 and the Rules of 1993 framed thereunder, are applicable to Shri Parasrampuria Rajasthan Ayurvedic College, Sikar and if yes, then further, keeping in view the present state of affairs, the Government may act as per Section 10 of the Act of 1989 for appointment of staff. (emphasis supplied) Arguments heard. Order is reserved.” Section 10 “10.Powers of the State Government to take over management – (1) Notwithstanding anything contained in any law for the time being in force, whenever it appears to the State Government that the managing committee of any recognised institution has neglected to perform any of the duties assigned to it by or under this Act or the rules made thereunder or has failed to manage the institution properly and that it has become necessary in the public interest to take over the management of such institution, it may, after giving to such managing committee a reasonable opportunity of showing cause against the proposed action, take over such management and appoint an administrator to exercise control over the assets of the institution and to run the institution for such period as the State Government may from time to time fix. (emphasis supplied) (2) Where, before the expiry of the period fixed under sub-section (1), the State Government is of opinion that it is not necessary to continue the 13 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases management of the institut6ion by an administrator, such management shall be restored to the managing committee.” Section 14 “14. Closure of recognised institutions – (1) No recognised institutin or its class or the teaching of any subject therein shall be closed without a notice in writing to the Competent Authority. It shall have to be shown that adequate arrangements have been made for the continuance of teaching of the students for th entire remaining period of study for which the students had been admitted or for the refund of the remaining fees, if any, paid by the students. (emphasis supplied) (2) The period of notice under sub-section (1) shall be such as may be prescribed and different periods of notice may be prescribed for different classes of institutions having regard to the period of each course of study.” Section 40 “40.Over-riding effect of the Act – The provisions of this Act shall have effect notwithstanding anything inconsistent contained in any instrument having effect by virtue of any law.” (emphasis supplied) (20) In the judgment dated 26.2.2007 passed in CWP No.921/1995 Smt.Kamla Devi V. State and another (supra), relied by the respondents, the issue was with regard to age of superannuation and although there is a reference of the Act of 1989 and the Rules of 1993 framed thereunder simply for the reason that on raising query by the Court, it has been asserted that the Institution is receiving aid under the Rules of 1972 and not under the provisions of the Act of 1989 and the Rules of 1993, therefore, the same has not been discussed, debated and no finding was recorded regarding the over riding effect and it was simply held that since the 14 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases Institution is getting aid under the Rules of 1972, the petitioner, who was an employee of Bhanwar Lal Dugar Vishwa Bharti Sardarshahar, his service conditions will be governed by the Rules of 1972 and he was rightly retired on attaining the age of superannuation of 58 years as per the Rules of 1972. The relevant portion of the aforesaid judgment is as under: “It is contended by counsel for the petitioner that under Rajasthan Non-government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 ( hereinafter for short “the Rules of 1993), the age of retirement as prescribed is of 60 years, as such the respondents erroneously ordered for retirement of the petitioner w.e.f. 31.12.1994. Per contra, in reply to the writ petition, it Per contra, in reply to the writ petition, it is stated by the respondents that in accordance is stated by the respondents that in accordance with Rule 8(2)(a) of the Rajasthan Ayurved with Rule 8(2)(a) of the Rajasthan Ayurved Anudan Sahayata Rules, 1972 (hereinafter for Anudan Sahayata Rules, 1972 (hereinafter for short “the Rules of 1972) as amended under the short “the Rules of 1972) as amended under the notification dated 09.11.1989 (Annexure R/3), notification dated 09.11.1989 (Annexure R/3), the age of retirement for doctors, the age of retirement for doctors, compounders/nurse and members of the other compounders/nurse and members of the other cadres is 58 years. On asking, it is asserted that cadres is 58 years. On asking, it is asserted that the respondent institution is getting aid under the respondent institution is getting aid under the Rules of 1972 and not by the Rajasthan Non- the Rules of 1972 and not by the Rajasthan Non- Government Educational Institutions Act, 1989 Government Educational Institutions Act, 1989 (hereinafter for short “the Act of 1989”) or the (hereinafter for short “the Act of 1989”) or the rules framed thereunder. A set of the Rules of rules framed thereunder. A set of the Rules of 1972 is also placed on record. 1972 is also placed on record. (emphasis supplied) (emphasis supplied) The Rules of 1972 pertains to grant of aid to the Non- The Rules of 1972 pertains to grant of aid to the Non- government Ayurved, Unani, Naturopathy, Homeopathy and government Ayurved, Unani, Naturopathy, Homeopathy and other indigenous alternative medicinal Educational institutions. other indigenous alternative medicinal Educational institutions. The dispensary where the petitioner was working is affiliated The dispensary where the petitioner was working is affiliated with teaching of Ayurved at the respondent institution. with teaching of Ayurved at the respondent institution. The The respondent is getting aid under the Rules of 1972 respondent is getting aid under the Rules of 1972 and not under the Act of 1989 or the rules and not under the Act of 1989 or the rules framed thereunder. The service conditions of the framed thereunder. The service conditions of the petitioner were required to be regulated in petitioner were required to be regulated in accordance with the Rules of 1972 and not by the accordance with the Rules of 1972 and not by the Rules of 1993. It is not in dispute that under the Rules of 1993. It is not in dispute that under the Rules of 1972, the age of retirement prescribed Rules of 1972, the age of retirement prescribed for doctors, compounders/ nurse and members of for doctors, compounders/ nurse and members of other cadres that includes Class IV Cadres, is 58 other cadres that includes Class IV Cadres, is 58 15 CWP No.9221/2007 Parasrampuria Ayurved College & connected 3 cases years and,therefore, I am of the opinion that no years and,therefore, I am of the opinion that no illegality is committed by the respondents while illegality is committed by the respondents while retiring the petitioner on acquiring the age of 58 retiring the petitioner on acquiring the age of 58 years. years. In result, the writ petition is having no In result, the writ petition is having no merit, the same, therefore, is dismissed.” merit, the same, therefore, is dismissed.” (emphasis supplied) (emphasis supplied) (21) In the later writ petition – CWP No.3314/2006 Dr.Raj Singh Malik & Others V.State and others, the controversy was with regard to the grant of