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
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
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
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
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
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
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
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-
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
- 13 -
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
sur
Note : L.R. copy to be marked
12 (1998) 8 SCC 1
