Madhya Pradesh High Court
Dhirendra Singh vs The State Of Madhya Pradesh on 6 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:605
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 6 th OF JANUARY, 2025
WRIT PETITION No. 19845 of 2021
DHIRENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Kailash Chandra Ghildiyal - Senior Advocate with Shri Aditya Singh Thakur -
Advocate for petitioner.
Shri Aakash Malpani - Panel Lawyer for State.
ORDER
This petition has been filed assailing the order dated 28.05.2021 (Annexure
P/7), passed by the respondent No.5 whereby the services of the petitioner were
terminated as well as the order dated 03.08.2021 (Annexure P/10) whereby the
representation submitted by the petitioner has been rejected.
2. The case of the petitioner is that the respondent No.5 is an Institution
registered under provisions of Societies Registration Act, Delhi, having its office
at 7 E Swami Ramtirtha Nagar, Jhansi Road, New Delhi. Respondent No.5
Institution is also having a branch in Chitrakoot, District Satna. The respondent
No.5 Institution is running a High School at Chitrakoot, District Satna in the name
and style of Ramnath Ashram Shala, which is a residential school. The School is
in receipt of 100% grant-in-aid from the Tribal Department of the State
Government and has governed under the provisions of Ashaskiya Sanstha Anudan
Niyam, 1985 (herein after referred to as Anudan Niyam). The provisions
regarding appointment in the Institution receiving grant under the Anudan Niyam
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Signed by: TAJAMMUL
HUSSAIN KHAN
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are contained in Rule 12(a) of Anudan Niyam, which inter-alia provides that the
appointment shall be made by requisitioning the names from the Employment
Office and after approval from the District Collector. The promotion will be made
in accordance with the procedure prescribed. The suspension or penalty order shall
be passed after affording opportunity of hearing to the employee concerned and
appeal against such orders will lie before the Collector. The appointments in the
Institution are required to be made after following the reservation rules as
applicable to the Government Departments. The petitioner after undergoing the
due process of selection was appointed on 01.08.1994 as Principal in Ramnath
Ashram High School. The appointment was later on, approved by the Collector
vide letter dated 31.03.2008 and he was appointed in the pay scale of Rs.6500-
10500 with effect from the initial date of appointment. The age of retirement of the
employees of the State Government is governed by the provisions of Madhya
Pradesh Government Servant (Adhivarshiki Ayu) Adhiniyam, 1967 (hereinafter
referred to ‘the Adhivarshiki Ayu Adhiniyam’). The Adhivarshiki Ayu Adhiniyam
was amended in the year 2007 and the age of retirement of the teachers of schools
was enhanced from 60 to 62 years. Subsequently, in the year 2018, the age of
retirement of all Government servants in the State of Madhya Pradesh was
increased to 62 years by amending the Adhivarshiki Ayu Adhiniyam. The said
amendment is applicable to the case of the respondent No.5 Institution also. The
respondent No.5 issued an order dated 28.05.2021 informing that the services of
the petitioner will come to an end with effect from 30.06.2021 on account of the
fact that the petitioner has attained the age of 60 years, in accordance with
the service rules of the respondent No.5 Institution. The representations were filed
by the petitioner, but of no consequence. Thereafter, he preferred a writ petition
being W.P. No.10763 of 2021, which was disposed off on 29.06.2021 directing
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the competent authority to decide the representation of the petitioner within a
period of 30 days. The petitioner submitted a representation before the respondent
No.5 on 01.07.2021 requesting to accept the date of retirement of the petitioner as
62 years. The representation submitted by the petitioner has been decided by the
respondent No.5 vide order dated 03.08.2021 and the same has been rejected on
the ground that respondent No.5 is a private institution and governed by its own
rules. It is argued that once the institution is receiving 100% grant-in-aid from the
Government the institution is governed by the Anudan Niyam and the employees
of the private institutions receiving grant-in-aid from the Government are entitled
to the similar benefits as has been received by the Government employees. He has
placed reliance upon the judgment passed by this Court in the case of Suresh
Kumar Dwivedi vs. State of Madhya Pradesh, 1993 MPLJ 663 whereby the
teachers and employees of the State Government were allowed to continue in
service up to 62 years. It is pointed out that the teachers working in the
institutions receiving grant from the Tribal Department are allowed to continue in
service up to age of 62 years. It is submitted that once there is an amendment
being incorporated in Adhivarshiki Ayu Adhiniyam enhancing the age of
superannuation the same is made applicable to all departments of the Government.
Subsequently, the same is applicable to the respondent No.5 institution also as the
institution is receiving 100% grant-in-aid. He has placed reliance upon the
judgment passed by the Hon’ble Supreme Court in the case of Dr. Jacob
Thudipara vs. The State of Madhya Pradesh and others, (2022) 7 SCC 764 and in
the case of Dr. R.S. Sohane vs. The State of Madhya Pradesh and others, (2019)
16 SCC 796 and the order passed by this Court in the case of State of Madhya
Pradesh (The) & others vs. Dr. R.B. Tiwari, 2022 (3) JLJ 306 and has prayed for
quashment of the impugned orders.
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Signed by: TAJAMMUL
HUSSAIN KHAN
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3. On notice being issued separate replies have been filed by the authorities
supporting the impugned order. The respondent No.5 in its reply submitted that as
the institution is having its own set of rules, therefore, the petitioner’s services are
governed by the rules formulated by the institution as the same is a private
institution. It is submitted that both the rules are different. Merely the fact that the
institution is receiving grant-in-aid from the Government cannot ipso facto make
him entitled for grant of benefit of extension of superannuation age in terms of
Adhivarshiki Ayu Adhiniyam. He has placed reliance upon the judgment passed
by this Court in the case of Ashutosh Pandey vs. Managing Director, MPSRTC &
Ors., 2020 (3) MPLJ 590, wherein similar view was taken by the Bench.
4. Counsel appearing for the State has supported the reply filed by the
respondent No.5. Apart from supporting the reply filed by the respondent No.5
they have further contended that the main dispute is with respect to the age of
superannuation from the respondent No.5 institution and has nothing to do with
the present respondents. Rule 7.3 of the Rules governing the services of the
respondent No.5 institution makes it clear that the age of superannuation of their
employee is 60 years.
5. A rejoinder is filed by the petitioner placing on record the amendment in the
Adhivarshiki Ayu Adhiniyam.
6. Heard the counsel for the parties and perused the record.
7. The sole question which crept up for consideration before this Court is
whether the rules which are applicable to the Government employees are
applicable to the case of the petitioner also as the petitioner is an employee of the
respondent No.5 institution, which is a private institution receiving 100% grant-
in-aid.
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Signed by: TAJAMMUL
HUSSAIN KHAN
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8. The Hon’ble Supreme Court in the case of Dr. R.S. Sohane (supra) has held
as under:
“16. Admittedly, the amendment to Statute 28 of the College
Code on 7-1-2004 was not based on any proposal from the
Executive Council of any University. It was made by the
Coordination Committee on its own motion. The interpretation of
Section 34(4) of the 1973 Adhiniyam by the High Court that the
Coordination Committee can only suggest modifications of the said
Statutes in force is not correct.
17. The High Court has gone wrong in observing that any
proposal for amendment to a Statute made by the Coordination
Committee has to be sent to the Executive Council of the
University. The power to amend the Statute is conferred on the
Coordination Committee and not on the Executive Council as has
been understood by the High Court. A further error committed by
the High Court was to hold that there is no recommendation of the
Standing Committee on the basis of which a Resolution was passed
on 7-1-2004. The High Court lost sight of the minutes of meeting of
the Standing Committee dated 1-4-2003 by which recommendation
was made to maintain the age of superannuation of Teachers
working in aided private colleges on a par with those working in the
government colleges.
18. We are not in agreement with the conclusion of the Full
Bench of the High Court that the language of the Resolution dated
7-1-2004 is in the nature of a recommendation. It is clear from the
facts narrated above that the matter pertaining to the age of
superannuation of Teachers working in aided private colleges was
referred by the Coordination Committee to the Standing
Committee. On the basis of the recommendations of the Standing
Committee, the Coordination Committee passed a Resolution on 7-
1-2004 which was given effect to by an amendment to Clause 26 of
the College Code. The second point answered by the Full Bench is
that the UGC Regulations are not applicable to the State
Government per se but are to be adopted by the State Government.
The High Court was of the opinion that the Government had
accepted the payment of revised pay scales only in respect of the
Teachers working in the government institutes. The Standing
Committee and the Coordination Committee of the University is
represented by the senior officers of the State Government and it is
not for the State Government to contend that they will not extend
the benefit of enhancement of the age of superannuation till 65
years to the Teachers working in the private aided institutes in spiteSignature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
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of the provisions in the College Code.
19. For the aforementioned reasons, we set aside the judgment
of the Full Bench of the High Court and the consequential
judgments of the Division Bench of the High Court and direct the
Government of Madhya Pradesh to pay salaries to the Teachers in
aided private colleges who are working and also those who have
worked till they attained the age of superannuation of 65 years.”
9. The Division Bench of this Court in the case of Dr. R.B. Tiwari (supra) has
held as under:
“6. Denial to make payment of salary was only on the ground
that he has not worked upto the age of 65 years, but the fact remains
that there was a specific direction of the Hon’ble Supreme Court to
make payment of salary to the Teachers who have worked in
Private Aided Institutions upto the age of 65 years i.e. the age of
superannuation. It is not the case of the petitioner that he was not
willing to render his services, rather it is the case of the petitioner
that he was pre-maturely retired by the Department and was not
permitted to work in the Institution. The petitioner was not at fault
at any point of time. The petitioner was always willing to perform
his duty, but he was prevented to do so for the reasons, which is
solely attributable to the respondents. The Hon’ble Supreme Court
while dealing with the issue has considered the fact that the power
to amend an statute is conferred to the Coordination Committee and
not on the Executive Council. Therefore, the error was committed
by the High Court to hold that there is no recommendation of the
Standing Committee.
7. Hon’ble Supreme Court in the case of State of Uttar Pradesh
Vs. Dayanand Chakrawarty and others; (2013) 7 SCC 595 had held
that “if an employee is prevented by the employer from performing
his duties, the employee cannot be blamed for having not worked,
and the principle of “no work no pay” shall not be applicable to
such employee.”
8. A Division Bench of this Court in the case of Balkrishna
Rathi vs. State of M.P. (W.A.No.378 of 2018) has considered the
similar controversy and has held that even if an employee has not
rendered his services, but he was forced by the employer not to
work, therefore, without applying the principle of “no work and no
pay” has also directed to pay salary.
9. Therefore, in terms of the order passed by the Hon’ble
Supreme Court in the case of Dr. R.S. Suhane (supra), the writ
petitioner was entitled to get the salary upto the age of 65 years.
Refusing to continue the petitioner upto the age of 65 years was
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rightly held to be illegal by the Writ Court.
10. Keeping in view the overall facts and circumstances of the
case as well as the order of the Hon’ble Supreme Court in the case
of Dr. R.S. Suhane (supra), no illegality appears to have been
committed by the Writ Court. The order passed by the Writ Court is
just and proper and does not call for any interference in the present
writ appeal.
11. Writ appeal sans merit and is accordingly dismissed.”
10. The Hon’ble Supreme Court in the case of Dr. Jacob Thudipara (supra) has
held as under:
“4. Having heard the learned counsel appearing on behalf of the
respective parties and considering the various orders passed by the
High Court, by which in similar facts and situation and not
accepting the submission on behalf of the State that on the principle
of “no work no pay” the teachers are not entitled to any monetary
benefits for the intervening period between 62 years and 65 years
of age, we are of the opinion that the appellant shall be entitled to
all consequential and monetary benefits including the arrears of
salaries and allowances for the intervening period, as if he would
have been retired at the age of 65 years. The appellant being
similarly situated teacher cannot be singled out. Even in the case of
Writ Appeal No.378/2018 and other allied writ appeals, it was
submitted by the State that on the principle of “no work no pay”
such teachers are not entitled to any monetary benefits.
5. However, the High Court vide detailed judgment and order
has negated such a plea and defence and has observed that as the
teachers were prevented from serving up to the age of 65 years
though they were entitled to, as held by this Court in R.S. Sohane
(supra), they cannot be denied the monetary benefits for the
intervening period. It is reported that the said judgment and order
passed by the Division Bench of the High Court has been
implemented by the State after the special leave petition against the
said judgment and order has been dismissed by this Court.
6. In view of the above discussion and for the reasons stated
above, the present appeal succeeds. The impugned judgment and
order passed by the Division Bench of the High Court in WA No.
667 of 2016 is hereby quashed and set aside, which was passed
relying upon the decision of the Full Bench of the High Court in
WA No.950/2015, which has been subsequently set aside by this
Court in R.S. Sohane (supra). It is held that the appellant herein is
entitled to the benefit of enhanced age of superannuation i.e. 65
years. He shall be entitled to all the consequential and monetary
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HUSSAIN KHAN
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benefits including arrears of salaries, etc. as if, he would have been
continued up to the age of 65 years. The arrears, etc. shall be paid to
the appellant within a period of six weeks from today. However,
considering the fact that there was a huge delay in preferring the
appeal, which has been condoned by this Court, the appellant shall
not be entitled to any interest on the arrears for the period between
09.05.2017 till the filing of the present appeal.”
11. The Division Bench considered the judgment passed in the case of Dr. R.S.
Sohane (supra) and the proposition laid down by the Hon’ble Supreme Court in
the case of State of Uttar Pradesh vs. Dayanand Chakrawarty and others, (2013) 7
SCC 595, wherein, it is held that if any employee is prevented by the employer
from performing his duties, the employee cannot be blamed for having not
worked, and the principle of “no work no pay” shall not be applicable to the facts
and circumstances and the employee will be entitled for 100% back wages for that
intervening period. The case of the petitioner is fully covered by the judgments
passed by the Hon’ble Supreme Court in the case of in the case Dr. R.S. Sohane
(supra) and in the case of Dr. Jacob Thudipara (supra) as well as the order passed
by the Division Bench of this Court in the case of Dr. R.B. Tiwari (supra).
12. The institution receiving 100% grant-in-aid is governed by the Anudan
Niyam, which provides for a specific mechanism for appointment of the teachers
and staff for imposition of penalty, punishment, promotions, etc. Rule 12 (a) is
important and reads as under:-
“12.(अ) सं था म कायरत कमचा रय क िनयु के िलए द ए मलामट ए चंगे
क पलसर नॉ ट फकेशन आफ वेके सी ए ट के ावधान का पालन कया जाएगाA
आव यकता होने पर व ापन िनयमानुसार कया जावेगा तथा िनयु के िलए
उ मीदवार क यूनतम शै णक यो यता एवं अनुभव का िनधारण चयन सिमित
ारा कया जायेगाA िनयु के िलए चयन सिमित म वभाग के जलािधकार को
आव यक प से स मिलत कया जावेगा A चयन सिमित क िसफा रश पर चयिनत
उ मीदवार क िनयु कले टर के अनुमोदन के प ात ् ह क जा सकेगी पदो नित
के िलए भी पदो नित सिमित म वभाग के जलािधकार को शािमल कया जाएगा और
पदो नित सिमित क अनुशंसाओं का कले टर ारा अनुमोदन कर दए जाने के प ात ्
ह पदो नित आदे श सा रत कए जायगेA इस या से हटकर क गई िनयु यां एवं
पदोनितयां मा य नह ं क जायगीA िनल बन एवं कसी कार का द ड सं था पतSignature Not Verified
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HUSSAIN KHAN
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करने को संबंध म सं या क कायका रणी सिमित का अिधकार रहे गाA कायका रणी
सिमित ारा िनणय लेने के पूव संबंिधत कमचार को सुनवाई का पूण अवसर दया
जावेगाA कायचा रणी के िनणय के व कले टर को अपील क जा सकेगी A इस संबंध
म कले टर का िनणय अ तम होगाA”
13. There is no dispute with respect to the fact that the respondent No.5
institution is receiving 100% grant-in-aid from the Government. The respondents
have accepted the aforesaid propositions. The only contention raised by the
respondents is that they are having their own set of rules, but the fact remains that
the respondent No.5 institution is receiving 100% grant-in-aid, therefore, they will
be governed by the Anudan Niyam. Admittedly, the rules applicable to the
Government employees will be applicable to the employees of such private
institutions which are receiving grant-in-aid. As the aforesaid aspect was duly
considered by the Hon’ble Supreme Court in the case of Dr. R.S. Sohane (supra)
and in the case of Dr. Jacob Thudipara (supra) as well as the order passed by the
Division Bench of this Court in the case of Dr. R.B. Tiwari (supra) the petitioner
herein too will be entitled to the enhanced age of superannuation. There is nothing
on record to show that the case of the petitioner is distinguishable to that of Dr.
R.S. Sohane (supra) and Dr. Jacob Thudipara (supra). As the petitioner was
forcefully stopped from working in the institution despite of the fact that he has
shown his willingness to work in the institution the principle of ‘no work no pay’
will not be applicable to the case of petitioner. He will be entitled for grant of
monitory benefits upto the enhanced age of superannuation as the petitioner has
already crossed the age of superannuation during the pendency of this petition.
14. Under these circumstances, the writ petition is allowed. The petitioner is held
entitled for the benefit of enhanced age of superannuation in term of Adhivarshiki
Ayu Adhiniyam. The respondents are directed to treat the petitioner retired on
attaining the age of superannuation in terms of Adhivarshiki Ayu Adhiniyam and
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Signed by: TAJAMMUL
HUSSAIN KHAN
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are further directed to calculate the arrears over the salary during the intervening
period and paid to the petitioner along with interest @ 6% per annum.
15. The entire exercise be completed by the authorities within a period of 90
days from the date of receipt of certified copy of this order.
(VISHAL MISHRA)
JUDGE
THK
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
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