Sjngle Bench: Hon'bte Shri Manindra Mohan_Shnyastava, J v. RESPQNDENTS

Sjngle Bench: Hon'bte Shri Manindra Mohan_Shnyastava, J. PETITIONERS Writ Petition No.1654/2004 Chhattisgarh KaLyan Samiti and 2 others Versus RESPQNDENTS State of Chhattisgarh and 2 others WRIT PEnTION UNDER ARTiCLE 226/227 OF THE CONSTlTUTION OF JNDiA Present: - Shri B.P.Mishra, counsei for the petitioner/s. Shri Ratnesh Kumsr Agrawa!, Panel Lawyer for the State / respondents. ORAL ORDER (Passed on 1" of January, 2013) iSt Heard.

2. The petitioner has filed this writ petltion under Article 226 of the Constitution of india assailing legatity and validity of order dated 30/12/03 (Annexure P/12) and order dated 11/02/04 (Annexure P/14) and has aiso prayed that the resolution of ihe goveming body in its meeting convened on 12/07/92 (Annexure P/2), 27/10/792 (Annexure P/5) according approval for extension of service tenure of petttioner No.3 for a period oftwo years w.e.f. 01/11/92 and further continuance tiii the end of ' academic year under para 26 of the Coliege Code be declared as legally binding on the respondent with further direction to grant all consequential benefits of coniinuity, salary, other allowances and pensionary benefits.

3. This petition has been fiied by petitioner No.1, an educationa! institution/society registered under M.P. Society Registrikaran Adhiniyam,

1973. Petitioner No.2 is the goveming body constituted under the Coliege Code (Statute No.28). Petitioner No.3 was the Principai at the relevant time for whose benefit and cause, petitioner No.1 and 2 have joined in this petition aiong with petitioner No.3.

4. Petitioner No.3 was initially appointed in a private college run by petitioner No.1. While the petitioner was so continuing, the college started receiving grant-in-aid from the State Government. These facts are noi disputed.

5. The petitioner No.3 was going to attain the age of superannuation on 28/10/92. At this stage, the governing body of the coilege held its generai meeting on 12/07/92 wherein a resotution was passed to extend the tenure of the services of petitioner No.3 for a period of two years as provided under Para 26 of the Coilege Code (statute No.28 framed by the aWMea University, Ravishankar Vishwavidyala, Raipur in exercise of powers under Section 35 ofthe M.P. Vishwavidyalaya Adhiniyam, 1973). On 27/10/92, a special meeting of the governing body was held in which, it was unanimously resolved to extend the tenure ofthe services ofthe petitioner No.3 for a period of two years. An order was passed on 28/10/92 (Annexure P/6) by the Chairman of the goveming body extending the tenure of the services of pet'rtioner No.3 for a period of two years to become effective from 29/10/92. It however, appears that the State .•^.a!"*n^r: ~''~ /,-f ^. ^, •"'8 S Government did not approve and accept the extension which resulied IR stopping grant-in-aid for providing salary to the petitioner in respect of the period subsequent to the date of his superannuation. The petitioner then fiied a writ petition (W.P.No.2411/93) before the High Court of Madhya Pradesh at Jabalpur. During the pendency of the said writ petition, Joint Director, Department of Higher Education, Government of Madhya Pradesh passed an order on 19/05/94 (Annexure P/9) by which, treating the case of the petitioner as a special case, extension for a period of one year w.e.f. 01/11/92 to 31/10/93 was granted. The writ petition came to be finaiiy disposed off vide order dated 23/04/02 with a direction to consider petitioner's representation for extension of hls services w.e.T. 01/11/93 to 30/06/95. After the petitioner submitted representation, the respondent passed an order on 30/12/03 (Annexure P/12) rejectfng petitioners ciaim for payment of salary and ailowances. The petitioner thereafter, served tegal notice and as the grievance of the petltioner was not redressed despite notices given by him, this writ petition has been filed praying for reliefs as mentioned above.

6. Learned counsel the petitioner argued that the petitioner's institution, being an aided private coliege, is governed by the provisions of coltege code which is a statute rramed by the University i.e. Ravishankar University in exercise of powers conferred under Section 35 of the M.P. Vishwavidyalaya Adhiniyam, 1973. According to him, the provisions contained in the college code have statutory force. Clause 26 of the Colle.ge code confers power and authority on the governing body to extend the services of the permanent teacher in the interest of coliege up to a period of two years beyond the age of 60. His submission is that the governing body had taken a decision and unanimousiy resoived to extend the tenure of the services of the petitioner No.3 for a period of two years for valid reasons i.e. interest the institution. Therefore, respondent/authorities are obliged under the taw to pay salary to the petitioner in respect of the period of extended service which inciudes service up to the end to the academic session i.e. upto 30/06/95. Further submission is that the governing bociy had taken a decision in a properly constituted meeting with quorum provided under the law. Therefore, merely because representative of the State Government / Anudaan Ayog was not present, it wouid not provide any ground for the State to disapprove the action of the governing body of the coilege and refuse grant-in-aid for payment of salary of the petitioner for the extended period of service. Learned counsel for the petitioner also contended that in any case, once the State Govemment approves extenslon of servlce for a period of one year, meaning thereby that the resolution was acted upon, it could not fail back on the same ground to refuse further extension of another one year as resolved by the governing body.

7. On the other hand, learned State counsel contended that the main operative reason for not granting the approval to extend the services of the petitioner was that in the meeting of the governing body, where decision \'^' was taken to extend services of the petitioner, representative of the State was not present. Therefore, in these circumstances, the State was fuliy justified in refusing grant-in-aid for payment of salary to the petjtioner beyond the actual date of superannuation on 31/10/12. Learned counsel for the State further eontended that extension couid not be ciaimed as of right by the petitioner where resolution of the committee itself was not legal and valid. For want of presence of nominee of the State Govemment, the resolution itselfwas invalid and coutd not be acted upon. Learned counsei submits that the State, taking into consideration alt the facts ana' circumstances, as a special case to avoid hardship, granted extension to petitioner No.3 for a period of only one year vide order dated 19/05/93 (Annexure P/9) cleariy stating that it will not be treated as a precedent. Therefore, in these circumstances, the petitioner is not entitled to anything more than what has been granted to him.

8. After hearing leamed counsei for the parties, perusai of pleadings and documents on record, the only issue which arises for consideration in this writ petition is whether the State had a valid, rational and legal basis for not accepting extension of services of the petitioner on the basis of resolution dated 27/10/92 passed bythe governing body ofthe college.

9. Undeniably, the petitioner's institution is receiving grant-in-aid from the State Government. It is also affiliated to the privileges of the Unwersity i.e. Ravishankar Vishwavidyala, Raipur which is a state universlty constituted under the Act of 1973. Therefore, the provisions of statute '/'/fs^% I. ^ J 6 No.28, commoniy known as the College Code, are applicabie. The educational institutions, which are receiving grant-in-aid from the State the M.P. Ashaskiya Government, are govemed by the provisions of Shikshan Sanstha (Anudan Ka Praday) Adhiniyam, 1978 (for short 'the Act of 1978'). Amongst others, the Act makes provisions for regular payment of salary to the teachers and other employees of non-Government instltutions of higher education which are receiving grants from the M.P. Uccha Shiksha Anudan Aayog Adhiniyam, 1973. Section 6 (a) (i) provides that on and from the appointment date, no teacher shall be recruiteet without following procedure prescribed in this behalf. The provision is in the nature of a non-obstante clause having overriding effect over any other law for the time being in force, or any rules, by taws, statutes or regulations made therein.

10. In exercise of powers conferred under Section 10 of the Act of 1 978, the rules regulating recruitment have been framed which are known as Ashaskiya Anya Sanstha M.P. Karmachariyon ke Bharti) Niyam, 1979 (hereinafter rererred to as 'the rutes (Adhyapakon Shikshan Tatha of 1979'). In so far as recruitment on the post of teacher in the institution of higher education is concemed, Rule 10 of the aforesaid ruie ciearly provides that the recruitment shalt be made in accordance with the provisions of the college code. Therefore, in the matter of appointment, recruitment, promotion etc. of teachers of Govemment aided private ' "SS.a. ^^ \ ^ colleges, is the provision of the college code which has been made appiicable.

11. Neither in the Act of 1978 nor in the rules of 1979, there are specific provisions dealing with extension of service. Therefore, the provisions contained in Ctause 26 of the Coltege Code would be applicable in the matter of extension of tenure of service of a teacher of Government aided private college.

12. In para 26 of the College Code, the goveming body of the coiiege has been conferred power and authority to extend the services of a permanent teacher in the Interest of the coilege upto a period of two years beyond the age of 60. Therefore, the power to extend the services vests in the governing body.

13. The submission of learned State counsel is that the resolution of the governing body was not in accordance withthe provisions of the Cottege Code, need to be examined in the light of the provisions contained in the Co?lege Code itseif. Before examining the scheme of constitution of governing body and meeting, it is profitable to note that the Coiiege Code is a statute framed by the University in exercise of statutory powers under Section 35 of the Act of 1973. It has statutory force. This aspect was examined by the Supreme Court in the case of Prabhakar Ramkriaina Jodh v. A.L. Pande, 1970 MPLJ 983. when it was held, thus - "8. It is not disputed on behalf of the respondents that the Coliege Code has been made by the University in exercise of statutory power conferred by Section 32 and under Section 6 (6) of the Act. tt is also conceded on behalf of the respondents that the College Code is intra wres of the powers of the University contained in Section 32 read with Section 6 (6) of the Act. opinion, the provisions of Ordinance 20, otherwise caiied the College Code have the force of In our taw. colleges and it confers iegat rights on the teachers of the affiliated is not a correct proposition to say that the Coilege Code mereiy regutates the legal reiationship between the affiliated colieges and the University alone. We do not agree with the High Court that the provisions of ihe Coilege Code constitute power of management. On the contrary we are of the viewlhat the provisions of the Coliege Code relating to the pay scaie of teachers tenure properly fali within the and their security of statutory power of affiliation granted to the University It is true that Clause 7 of the Ordinance under the Act. provides that all teachers of affiiiated colieges shall be appointed on a written contract in the form prescribed in Scheduie A, but that does not mean that teachers have mereiy contractual remedy against the Governing Body ofthe Coliege. On the other hand, we are ofthe opinion that the provision of Ciause 8 of the Ordinance reiating to security of the tenure of teachers are part and parcel of the teachers service condltions and, as we have already pointed out, the provisions of the Coilege Code In this regard are validiy made by the university in exercise of the statutory power and have, therefore, the it foiiows, therefore, that the force and effect of iaw. fa^ssf- •,11, Coilege Code creates legal rights in favour of teachers of affiliated colieges and the view taken by the High Court is erroneous."

14. Constitution of the governing body is provided in Ciause 6 of the College Code which reads that the governing body for the management of the college shall consists of member enumerated in clauses (a) to (g) of para6(1).

15. Clause 7 of the Coliege Code provides for quorum to be five members. Therefore, if the governing body holds its meeting and transacts its business and passes resolution with atleast five members, completing quorum, it would be a decision of the governing body notwithstanding absence of other members.

16. However, the submission of the State counsel has been that in the meeting, which was organised, the State representative was not present. Though in the rejoinder, it has been stated by the petitioner that a communication was sent and request was made to the Government to depute their representative, there are no details in that regard given by the petitioners as to on which date, communication was sent nor any notice in written has been placed on record. Moreover, there is no acknowledgment of service or any documentary evidence which would warrant presumption under any iaw to be drawn with regard to service of notice to the Government or the nominee of the Government. pleadings in this regard .,»&.-,. '^•: ^:, ' "'•'iS: l&ft. l 1 fS 10 ! are blissfully vague. Therefore, the petitioner, in the opinion of this Court, has failed to discharge his burden of proof that any notice of meeting was issued much iess served upon the Government or its nominee to participate in the meeting. True it is that five members constitute a quorum. But that presupposes that the Govemment or its nominee, before hoiding meeting, has been duly noticed of the meeting and for one reason or the other, they failed to participate in the meeting. In the absence of any proof fact of issuance or service of notice to the Government or any representative, the meeting of the governing body itself would be iltegat and that illegality cannot be wiped out merely because the quorum was complete.

17. in view of the above discussion, the reason assigned by the State Government to refuse to accept the extension of the petitioner for a period of two years under the resolution of the governing body cannot be said to be either arbitrary, unreasonable or contrary to the provisions of the Coltege Code or the Act of 1978 or Rules made thereunder. Grant-in-aid is provided by the State Government. Therefore, the State Govemment has all the authority to decide whether in any case, grant-in-aid sha!) be provided or not. Ifthe State forms an opinion that decision /' resolution was not in accordance with the provisions of taw and particulariy when such a decision was taken in the absence of ihe nominee of the State Government, it would constitute a valid reason for the State Government, not to accept the decision of the governing body of the coiiege and to '^. !**!ft ^.:: ':^' ^ y> 3 ^ 11 refuse grant-in-aid for making payment of salary for the period beyond the date of superannuation. To my mind, the deelsion of the respondents does not suffer from any illegality or arbitrariness so as to warrant interference bythisCourt.

18. This Court has taken note of the admitted fact that even if the State did not approve the resolution for the reasons stateci hereinabove, yet, treating the case of the petitioner as a speciai case, an order was passed by the State Government on 19/05/93 (Annexure P/9) granting extension of service of the petitioner for a period of one year w.e.f. 01/11/92. Once this extension is granted to the petitioner, the erfect would be that the date of superannuation of the petifioner would be extended up to 01/11/93, which falls in the midst of the session. The Proviso to Clause 26 of the Coilege Code (statute No.28) ciearly provides that where the date of retirement of a teacher with or without extension falis due during the course of the academic session, the goveming body shall ailow the teacher to continue tilt the end of the academic year. Therefore, as a direct consequence of extension of petitioners services for a period of one year, the date of retirement of the petitioner fell due on 31/10/93 i.e. during the course of academic session. Therefore, the petitioner was entitied under the law to continue till the end of the academic year which would definitely fall in the year 1994. In these circumstances, the State is obiiged to provide grant-in-aid for payment of salary of the petitioner till the end of the academic session in the year 1994. According to iearned counsei for 12 \") the petitioners, the academic year is considered up to 30/06/94. If that be so, the responderits shall be obliged to provide grant-in-aid for payment of salary to the petitioner up to the period, June, 1994.

19. The saiary, aliowances and aii other dues shall be accordingty released by the respondents in the light of observations made by this Court.

20. In the writ petition, the petitioner has prayed for grant of retirai benefrts. in this regard, learned State counsel states that ihe petitioner has been granted ail the benefiis of retirement treating the date of superannuation with extension period of one year. The retiral dues of the petitioner shall be accordingly paid on the basis of the period of service including extended period of service as per the order of the State Government. Any dues if remain unpaid on account of pendency of this petition, shall be immediatety released within an outer timit of three months including satary up to the end of academic session from the date of receipt of copy of this order. The petition is accordingiy partly allowed. No order ~ as to costs. Sd/- ManmdraMohanShrivastava DeepK 'y 13 \ .- Headiines

1. In the matter of extension of service of a teacher of a private but aided coflege, statute No.28 (Coilege Code) is applicabie. Coliege Code being a statute framed in exercise of powers under Section 35 of Adhiniyam has the force of iaw. the C.G. Vishwavidyaiaya

3. No proof of issuance and sen/ice of notice of meeting on the member of the Governing Body. Meeting illegal, even if quorum was compiete. Deepfi