Mr. T.V. Ramana Rao vs The State Of Telangana

Telangana High Court

Mr. T.V. Ramana Rao vs The State Of Telangana on 1 May, 2024

          THE HON'BLE SRI JUSTICE PULLA KARTHIK

                 WRIT PETITION No.8552 of 2022
ORDER:

Aggrieved by the action of the respondents in contemplating to retire the petitioner on attaining the age of 58 years instead of 65 years and consequently to direct the respondents to continue the petitioner in service till he attains the age of 65 years, the present Writ Petition is filed.

2) Heard Sri Gangaiah Naidu, learned senior counsel, representing Ms.G. Bhanu Priya, learned for the petitioner, learned Government Pleader for Services-I appearing for respondents 1 and 2, Sri Mahaboob Ali, learned counsel for respondent No.3, and Sri M. Surender Rao, learned senior counsel appearing for respondents 4 and 5.

3) It has been contended by the learned senior counsel appearing for the petitioner that the petitioner is an M.Tech (Mechanical) degree holder and he was appointed as Lecturer in Mechanical department of the 5th respondent-Institution on 16.06.1997, after following due procedure, qualification and experience prescribed by the All India Council for Technical Education (AICTE). Hence, he is entitled to be continued upto 65 years of age, as per the statutory regulations issued by AICTE. Learned senior counsel has contended that these regulations are -2- statutory and mandatory in nature and non-implementation of these regulations would render respondents 4 and 5 in-eligible for approval being granted by AICTE every year, which is sine qua non for running the institution. Learned counsel has vehemently contended that the 5th respondent-Institution is approved by AICTE and regulated by the Rules and Regulations issued by AICTE from time to time. In exercise of the powers conferred under sub-section (1) of Section 23 read with Section 10 (g) (h) and (I) of the AICTE Act, 1987, the AICT has issued All India Council for Technical Education Pay Scales, Service Conditions and Minimum Qualifications for the Appointment of Teachers and other Academic Staff such as Library and Physical Education Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education - (Diploma) Regulations, 2019' (in short '2019 Regulations') on 01.05.2019. According to the said Regulations, which govern the service conditions of the Teaching Staff, the age of superannuation of faculty members is '65' years. While drawing the attention of this Court to Regulation 2.12 of 2019 Regulations, the learned senior counsel has contended that even as per the 2010 Regulations, which were superseded by 2019 Regulations, the age of superannuation of teaching staff is '65' years. Thus, the learned senior counsel has contended that the AICTE Regulations being statutory in nature, it is mandatory for -3- any AICTE approved Institution to comply with the said Regulations. In exercise of the power conferred under clause (i) of Section 10 of the AICTE Act, initially, the AICTE has made recommendations regarding revision of pay-scales and service conditions of Teachers of Technical Institutions by its Notification F.No.1-65/CD/NCE/98-99, dated 30.12.1999, exclusively applicable to Teachers, Librarians and Physical Education personnel in Diploma Level Technical Institutions covered under the AICTE Act and as per Regulation 12.0, the age of superannuation of Teachers in Diploma level Institutions was increased to 62 years, as per Regulation 2.4 the pay-scales, qualifications and other associated terms as given in the said notification dated 30.12.1999 shall be applicable to all self- financing (Private unaided) Institutions such as the 5th respondent- Institution. It is further contended that the Hon'ble Supreme Court in Pramod v. State of Maharashtra 1 has held that the AICTE Regulations are statutory in nature and the age of superannuation prescribed under the AICTE Regulations has to be followed. Learned senior counsel has further contended that the AICTE has amended the 2010 Regulations in the year 2019 reaffirming the age of superannuation as 65 years, which was extendable upto 70 years of age basing on the performance of the 1(2016) AIR (SC) 204 -4- teacher. Even the approval handbook of AICTE specifically states that the age of superannuation of all faculty and principals is 65 years. Though 4th and 5th respondents have no separate service rules governing the service conditions of teachers and non-teaching staff, the Rules applicable to the State Government Institutions presses into service by virtue of Section 78A of TS Education Act. In spite of the petitioner making several representations to the respondents for implementation of the Regulations and to continue the age of superannuation upto 65 years, there is no response from the respondents. Therefore, the learned senior counsel prayed this Court to issue necessary directions to the respondents to continue his services till he attains the age of 65 years. In support of his submissions, learned counsel has placed reliance on:

i) Marwari Balika Vidyalaya v. Asha Srivastava 2;

ii) Order dated 24.05.2021 passed by the High Court of Karnataka at Bengaluru in WP No.15421/2020 (S-R); and

iii) Order dated 19.07.2022 passed by the Hon'ble High Court of Andhra Pradesh in W.P. No.19447 of 2016.

4) Per contra, the learned Senior Counsel appearing for respondents 4 and 5 has contended that the 4th respondent, which is a Society registered under the Telangana Society Registration Act, 2001, has established the 5th respondent-Institution in the 2 (2020) 14 SCC 449 -5- year 1994 and it has the approval from AICTE and affiliated to State Board of Technical Education. Further, it is purely an unaided Institution and charges the fee prescribed by the Commissioner for Technical Education and does not charge any capitation fee. Further, in terms of Rule 16 of the Rules governing the service conditions of its employees, the academic staff shall be retired at the end of the month in which the incumbent attain the age of 58 years. Further, the appointment of the petitioner is subject to the terms and conditions of the Service Rules prescribed by the Governing Body of the Institution from time to time. The learned senior counsel has vehemently opposed the writ petition as not maintainable either in law or on facts as the 4th and 5th respondents are purely private Organizations and do not fall within the definition of Article 12 of the Constitution of India and insofar as the service conditions of the employee are concerned, they are contractual in nature and they do not have statutory flavor.

Therefore, any direction to continue the petitioner beyond the age of retirement would tantamount to rewriting the contract of employment. In case of employee and employer relationship, no element of public function is involved and therefore no writ can be issued against the 4th and 5th respondents. Always, it is the prerogative of the employer to fix the age of retirement and neither the AICTE Act nor the Regulations framed thereunder govern the -6- contract of service entered into by it in respect of its employees. The contract of employment entered into by the employer with its employees fall within the ambit of purely private contract against which writ jurisdiction cannot lie. Further, the petitioner is also having a grievance redressal mechanism, which remedy was not at all availed by him. Therefore, it is prayed to dismiss the writ petition. In support of his contentions, learned senior counsel has placed reliance on:

i)     Federal Bank v. Sagar Thomas 3;
ii)    K.K. Saxena v. International Commission 4;
iii)   Binny Ltd v. Sada Sivan 5;
iv)    Ramakrishna Mission v. Kago Kunya 6; and
v)     St. Mary's Education Society v. Rajendra Prasad Bhargava 7.



5)     Learned counsel for respondent No.3 has contended that

AICTE is a Statutory Body enacted to provide proper planning and coordinated development of the technical education system throughout the country, the promotion of qualitative improvements of such education in relation to planned quantitative growth and regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. Section 10 of the AICTE Act prescribes the functions of Council 3 2003 (10) SCC 733 4 2015 (4) SCC 670 5 2005 (6) SCC 657 6 2019 AIR (SC) 5570 7 (2023) 4 SCC 498 -7- and mandates that it shall be the duty of the Council to take all necessary steps, as it may think fit, for ensuring coordinated and integrated development of technical education and maintenance of standard. Section 10 (k) of AICTE Act empowers the AICTE to grant approval for starting new Technical Institutions and for introduction of new courses of programmers in consultation with the agencies concerned and Section 10 (q) of the AICTE Act empowers the AICTE to withhold or discontinue grants in respect of courses programmes to such technical institutions which fail to comply with the directions given by the council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the direction. Learned counsel has further contended that pursuant to the mandate given to the AICTE, the council has issued various notifications from time to time laying down the pay scales, service conditions and qualifications for teachers and other academic staff in Technical Institutions of Degree and Diploma level. Accordingly, the AICTE has got issued a Gazette Notification dated 01.03.2019 for Degree Level Technical Institutions. Para 1.4 thereof prescribes all the service conditions including the retirement. Para 2.9 thereof prescribes that the age of superannuation of all faculty members and principles of Institutions shall be 65 years, an extension of Five years (till the attainment of 70 years of age) may be given to -8- those faculty members who are physically fit, have written technical books and has an average 360 degree feedback of more than 8 out 10 indicating them being active during the last three preceding years of service. Further, the State of Telangana has issued G.O.No.45 dated 30.03.2021 increasing the age of superannuation from 58 to 61 years to all the Government employees including the teachers. However, the learned counsel has contended that the petitioner was appointed by respondent No.5, which was sponsored by respondent No.4, which is an Educational Society and not by the State under Article 12 of the Constitution of India and it is a Private Body running the Education Institution for their benefit and respondents 4 and 5 are not discharging any public functions nor funded by the State. Therefore, the Writ Petition filed under Article 226 of the Constitution of India is not maintainable. Hence, it is prayed to dismiss the Writ Petition.

6) This Court has taken note of the submissions made by the respective parties and perused the material on record.

7) Learned senior counsel appearing for respondents 4 and 5 mainly attacks the writ petition on two grounds viz., firstly that the service conditions of the petitioner are governed by the Service Rules prescribed by the Governing Body of the 5th respondent- -9- Institution from time to time; and secondly that the writ petition is not maintainable as respondents 4 and 5 being purely private Organizations do not fall within the definition of Article 12 of the Constitution of India.

8) Insofar as the first contention of respondents 4 and 5 is concerned, The AICTE (Pay Scales, Service Conditions and Qualifications for the Teachers and other Academic Staff in Technical Institutions (Diploma) Regulations, 2010, as amended in 2019, would apply to all the Technical Institutions imparting technical education and such other courses/programmes and areas as notified by the council from time to time and these Rules are statutory in nature. Therefore, respondents 4 and 5 are obligated to follow the said Regulations.

9) In this context, it is apt to note that in Pramod's case (referred supra), the Hon'ble Apex Court has held that the age of superannuation for teachers of the polytechnic stand enhanced to 65 years with sole exception of librarian whose age of superannuation continues to be 62 years. Relevant paras 15 and 16 of the said judgment read as under:

"15. On the issue of age of superannuation, there was no occasion for the High Court to consider the relevant Rules or notifications and before us there is a serious controversy as to whether the age of superannuation on the post of a teacher other

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than Principal ought to be 60, 62 or 65 years. According to the respondent, the State Government had issued a Notification through the Higher and Technical Education Department dated 5- 3-2010 whereby the age of superannuation for non-government polytechnic institutions has been increased from 58 years to 60 years and it can be extended up to 62 years only after obtaining prior approval of the State Government. Similarly, for the post of Principal the age of superannuation has been increased to 65 years but with the rider that State Government should grant approval for any further extension beyond 62 years.

16. On the other hand, the stand of the appellant is that he has been arbitrarily ignored and not considered for extension because of pending litigation against the management of the respondent Society since several years. It is the further case of the appellant that the State Government has never differed with the recommendation of AICTE on the issue of age of superannuation: in exercise of its statutory powers under sub- section (1) of Section 23 read with Sections 10(i) and 9v), of the All India Council for Technical Education Act, 1987. AICTE has issued the Regulations dated 5-3-2010; and the Regulations, inter alia, provide for age of superannuation and since they apply to technical institutions conducting technical education and such other courses/programmes and areas as notified by the Council from time to time, the age of superannuation for teachers of the polytechnic stand enhanced to 65 years with sole exception of Librarian whose age of superannuation continues to be 62 years."

10) Further, in Parshvanath Charitable Trust v. All India Council for Technical Education 8, the Hon'ble Supreme Court has held that the regulations framed by the Central authorities 8 (2013) 3 SCC 385

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such as AICTE have the force of law and are binding on all concerned.

11) It is equally apt to reproduce the relevant portion of Regulations 2019 which prescribes the age of superannuation, which is as under:

"2.9 Age of Superannuation:-

The age of superannuation of all faculty members and Principals of institutions shall be 65 years. An extension of 5 years (till the attainment of 70 years of age) may be given to those faculty members who are physically fit, have written technical books and has average 360 degrees feedback of more than 8 out of 10 indicating them being active during last 3 preceding years of service."

12) Further, it is to be noted that approval will be granted to an Institution by the AICTE in terms of the AICTE (Approval for granting new technical Institutions, introduction of courses or programs and approval of intake capacity of seats for the courses or programs) Regulations, 1994 (in short 'Approval Regulations'). Regulation 6 thereof deals with conditions for Grant of Approval. Sub-Regulation (v) of Regulation 6 reads as under:

"v) the staff shall be recruited as per the norms and standards specified by the Council from time to time."

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13) A conjoint reading of all the above i.e. the law laid down in Promod's case and Parshvanath Charitable Trust's case (referred supra), Regulation 6 (v) of Approval Regulations coupled with the fact that Regulations 2019 are statutory in nature having been framed in exercise of power under Section 10 (i) and (v) read with Section 23 (1) of All India Council for Teachers Education Act, 1987, this Court is of the considered view that Regulations 2019 are strictly binding on respondents 4 and 5. As Regulations 2019 prescribes the age of superannuation of the faculty staff to be '65' years, the respondents 4 and 5 are also obligated to follow/ implement the same.

14) Coming to the other ground raised by respondents as regards maintainability of the Writ Petition is concerned, it is apt to refer to some of the judgments holding the field in this context:

i) In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani 9, the Apex Court while dealing with a case where the services of a Lecturer had been terminated who was working in the college run by the Trust, has held, at paras 20 and 22, as under:

"20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights

9 (1989) 2 SCC 691

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under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states:

"To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract".

[Ed. : S.A. de Smith, Judicial Review of Administrative Action (4th Edn., Stevens & Sons Lted., London 1980) at p.540]. We shave this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is very wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226 . We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition."

ii) In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineer 10, the Apex Court held as under:

"4. ... We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to 10 (1997) 3 SCC 571

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education. The private institutions cater to the need of providing 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 one 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 that element, the teacher, being 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 a 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."

iii) In Raj Kumar v. Director of Education 11, the Hon'ble Supreme Court has held that Section 8 (2) of Delhi School Education Act, 1973, is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. Moreover, this Court also considered the Objects and reasons of Delhi school Education Act, 1973, and came to the conclusion that the termination of service of the driver of a private school without obtaining prior approval of Director of Education was bad in law. It is further held that the intent of the Legislature while enacting the Delhi School Education Act, 1973, was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their 11 (2016) 6 SCC 541

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employment. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8 (2) of the Delhi School Education Act, 1973, is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.

iv) While dealing with a similar situation, in Marwari Balika Vidyalaya's case (referred supra), the Hon'ble Supreme Court has held that the orders of the learned Single Judge holding that the Writ Petition is not maintainable as the respondent institution is a purely unaided private educational institution, cannot be sustained. The appellant-employee had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.

15) In view of the above settled proposition of law, the objection raised by the respondents with regard to maintainability of the Writ Petition is liable to be rejected as imparting education is a public function and the writ petition is maintainable.

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16) Coming to the judgments relied by the learned counsel for respondents 4 and 5, in Sagar Thomas's case (referred supra), the aggrieved person was an employee of a bank; In K.K. Saxena's case (referred supra), the aggrieved person was an employee of International Commission on Irrigation and Drainage; In Sadasivan's case (referred supra), the aggrieved party was working in a company, which is a manufacturer of cloth; and in Kago Kunya's case (referred supra), the aggrieved party was the employee of a hospital being run by the respondent-Ramakrishna Mission. In all the above cases, it was categorically held that the writ petition was not maintainable on the ground of absence of public element. Therefore, the said judgments are not helpful to the respondents herein. Further, in Rajendra Prasad Bhargava's case (referred supra), the aggrieved party was a non- teaching staff. Therefore, the said decision is also of no avail to the respondents herein.

17) As regards the objection taken by respondents 3 and 4 with regard to non-availment of alternative remedy i.e. approaching the Grievance Redressal Committee provided under All India Council for Technical Education (Redressal of Grievance of Faculty/Staff Member) Regulations, 2021, by the petitioner before approaching this Court is concerned, in view of the law laid down by the Hon'ble

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Supreme Court in Whirlpool Corpn. v. Registrar Of Trade Marks 12, the same cannot be a bar for the petitioner to approach this Court.

18) For the foregoing reasons, the Writ Petition is allowed and the respondents are directed to continue the petitioner in service till he attains the age of 65 years. However, it is made clear that the petitioner is not entitled for salary for the intermittent period in view of the principle 'No work No pay'.

Miscellaneous petitions pending, if any, shall stand closed. No costs.

                                                  ____________________
                                                  PULLA KARTHIK, J
Date :     01 - 05 - 2024
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Note : L.R. copy to be marked




12 (1998) 8 SCC 1