Banasthali Vidyapeeth Through Secretary v. R.L Gupta And Others

Shiv Kumar Sharma, J.:— The controversy in these two Writ Petitions turns on the construction of the expression “Non-Government Educational Institution as defined in Section 2(p) of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 1989 Act).

2. Contextual facts depict that the respondent Shri R.L Gupta (for short the employee) filed an application under Section 21 of 1989 Act (Application No. 188/1998) before the Rajasthan Non-Government Educational Institution Jaipur (for short the Tribunal). It was inter alia stated in application that the employee was appointed as office assistant (accounts) in the Banasthali Vidyapeeth (for short the Institution) a recognised institution as defined under Section 2(s) of 1989 Act. The institution is an aided institution within the meaning of Section 2(b) of 1989 Act. Vide Order dated August 21, 1986 the institution suspended the employee and was not paid subsistence allowances. A prayer was made to direct the institution to pay subsistence, allowance to the employee. An appeal under Section 19 of 1989 Act was also submitted by the employee before the Tribunal assailing the three orders of the institution with the prayer to quash the said orders and reinstate the employee with all, consequential benefits. The institution in its returns filed in both the matters raised preliminary objection to the maintainability of the said application and appeal on the ground that the institution was not amenable to the jurisdiction of the Tribunal as the institution was a deemed University under the provisions of the University Grants Commission Act, 1956 (hereinafter referred to as 1956 Act) that does not come within the purview of non-Govemment educational institution as defined in Section 2(p) of 1989 Act. Learned Tribunal vide common order dated February 14, 2002 overruled the preliminary objection raised by the institution. Against this order that the institution has preferred the instant Writ Petitions seeking declaration that the Tribunal has no jurisdiction to entertain the application and appeal of the employee.

3. For the sake of convenience the observations of impugned order may be divided into two parts. In the first part the Learned Tribunal held as under:—

“From above discussion we can reach to the conclusion that under Section 3 of University Grants Commission Act, 1956 Central Govt, has notified “Banasthali Vidyapeeth” P.O Banasthali Vidyapeeth (Raj) as deemed University vide Notification dated 25.10.1983 and as such above institution which was accorded the status of deemed University is a “University” as defined under Section 2(v) of the Act of 1989.

“Banasthali Vidyapeeth’ the non-Petitioner being a deemed University does not fall within the definition of “Non-Government Educational Institution” as defined under Section 2(p) of the Act of 1989”.

4. The second part of the order runs as under:—

“Doctrine of Estoppel” prescribes that non-Petitioner cannot be permitted to blow both hot and cold at the same time. The conduct of non-Petitioner in receiving benefits particularly grant-in-aid under rules of 1993 and Act of 1989 undoubtedly shows that the non-petitioner institution has chosen to be governed by the Act of 1989 claiming itself to be Non-Government Educational Institution. Now it is not open to the non-Petitioner institution to say that it is not a Non-Government Educational Institution.

From the above discussion I come to the conclusion that non-Petitioner institution, which is receiving grant in aid from State under Act of 1989 is a. Non-Government Educational Institution and as such is amenable to the jurisdiction of this Tribunal”.

5. Before proceeding further it will be useful to advert to the relevant statutory provisions.

1989 Act was enacted to provide for better organisation and development of education in the Non-Government Educational Institutions in the State of Rajasthan. “Non-Government Educational Institution” has been defined in Section 2(p) of the 1989 Act thus:—

“Non-Government Educational Institution” means any college, school, training institute or any other institution, by whatever name designated, established and run with the object of imparting education or preparing or training students for obtaining any certificate degree, diploma or any academic distinction recognised by the State or Central Government of functioning for the educational, cultural or physical development of the people in the State and which is neither owned nor managed by the State or Central Government or by any University or local authority or other authority owned or controlled by the State or Central Government.”

6. As per Section 2(q) “Recognised Institution” means a Non-Government Educational Institution affiliated to any University or recognised by the Board, Director or Education or any officer authorised by the State Government or the Director of Education in this behalf:

“University” as per Section 2(v) of 1989 Act means a University established by law in the State of Rajasthan.

7. Before the Learned Tribunal it was submitted by the Institution that the Application/Appeal of employee was not maintainable as the Institution did not fall within the scope of 1989 Act and the Rajasthan Non-Government Educational institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 in as much as the Institution did not fall within the definition of “Recognised Institution” as given under Section 2(q) of the 1989 Act and Rule 2(s) of 1993 Rules. The Institution did not fall within the definition of “Non Government Educational Institutions” as given under Section 2(p) of the 1989 Act the Rules 2(r) of 1993 Rules. As per definition of recognised Institution as given under Section 2(q) of 1989 Act and Rules 2(s) of 1993 Rules, Recognised Institution means a Non-Government Educational Institution affiliated to any University or recognised by Board, Director or Education or any Officer authorised by the State Government or the Director of Education in this behalf. The Institution is a deemed University as notified by the Government of India, Ministry of Education and Culture Department of Education in exercise of its powers under Section 3, of the University Grants Commission Act, 1956 vide Notification dated October 25, 1983 published in the official gazette on November 26, 1983. The Notification incorporated in the application was as under

No. F. 9-6/81-U-3

Government of India

Ministry of Education and Culture

(Department of Education)

New-Delhi the 25th October, 1983

NOTIFICATION

In exercise of the powers conferred by Section 3 of the University Grants Commission Act, 1956 (3 of 1956) the Central Government, on the advice of the Commission, hereby declare that Banasthali Vidyapity, P.O Bansasthali Vidyapith, (Rajasthan) shall be deemed to be a University for the purposes of the aforesaid Act.

(M.R Kolhatka)

Joint Secretary to the

Government of India.”

8. It was contended by the institution that by virtue of declaration of the institution as University, the provisions of the University Grants Commission Act, 1956 have become applicable to the institution and the Central Government has effective control over the institution as indicated in the 1956 Act. The institution is amenable to control ofthe University Grants Commission and the Central Government as provided under Chapter IV of the 1956 Act. It was also averred that the employee was not an employee within the definition of the terms “employee” as given under Section 2(i) of 1989 Act and Rule 2(j) of 1993 Rules.

9. The institution in the instant Writ Petition has assailed the second part of the impugned order, whereas the employee in the returns to the Writ Petitions vehemently criticised the first part of the impugned order and made a prayer to quash it.

10. I first take up the submission advanced on behalf of the employee in regard to the first part of the impugned order whereby the Learned Tribunal declared the institution as a deemed University under Section 3 of the 1956 Act and held that it does not fall within the definition of Non-Government Institution as defined under Section 2(p) of 1989 Act.

11. It is contended by Mr. L.L Gupta, Learned Counsel for the employee that the Institution does not fall within the definition of ‘University’ as provided by Section 2(v) of 1989 Act. the institution has not been established by law in the State of Rajasthan by State Legislature. Merely because the institution was notified as a deemed University under 1956 Act, applicability of 1989 Act cannot be excluded. It is further urged that the institution treated itself as a recognised institution and is getting aid from the State Government vide order dated January 12, 1995 therefore, the institution is estopped to say that it is not a recognised institution. The aid was granted to institution under Rule 15 of 1993 Rules by the Director of Secondary Education for the year 1997-98. It is next canvassed that Notification dated October 25, 1983 cannot be regarded as law as defined in the Rajasthan General Clauses Act 1955 (for short 1955 Act). Reliance is placed on clauses 31, 41 and 48 of section 32 of 1955 Act to show that in the absence of a Notification published in Rajasthan Gazette, the said notification could not have been treated as Law. It is also contended that the institution was established in 1950 and status of deemed University was conferred on October 25, 1983 under the provisions of 1956 Act vide Notification issued outside the State of Rajasthan. As such the institution could not have been treated as the University established by law in the State of Rajasthan. Section 2(v) of 1989 Act does not include deemed University in the definition of University. The provisions of 1956 Act only related to granting status of deemed University for higher education whereas the Institution has been imparting even primary education. The institution was recognised as Non-Government Educational Institution by the Govt. of Rajasthan and its recognition was neither surrendered nor cancelled. It is lastly contended that legal fiction is adopted in law for a limited and definite purpose. There is no justification to extend it beyond the purpose for which the Legislature adopted it. While supporting the second part of the impugned order Learned Counsel placed reliance on State of Maharashtra v. Laljit Rajshi Shah, (2000) 2 SCC 699 : AIR 2000 SC 937, Union of India v. R.C, Jain (1981) 2 SCC 308, Azeez Basha v. Union of India (AIR 1968 SC 662), Oxford University Press v. Commissioner Of Income Tax, (2001) 3 SCC 359 : AIR 2001 SC 886 and Braithawaite & Co. v. E.S.I, AIR 1968 SC 413.

12. Mr. B.L Sharma, Learned Senior Counsel supported the first part of the impugned order and placed reliance on Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 : [2001 (4) SLR 227 (SC)], Bharathidasan University v. AICTE, (2001) 8 SCC 676 : [2001 (8) SLR 328 (SC)] and R. Sivaraman v. Registrar, MGR Medical University Gundy, AIR 1999 Madras 82 : [1998 (3) SLR 123 (Mad.)]. It is contended by Learned Senior Counsel that the Notification issued under 1956 Act was not required to be published in the Rajasthan Gazette. Word ‘Law’ has been defined under Article 13(3) of the Constitution of India and it cannot be read in a narrow sense. It is further canvassed that there can be no estoppel against the statute and the second part of the impugned order is illegal and the learned Tribunal has committed illegality in overruling the preliminary objection raised on behalf of the institution.

13. I have reflected over the rival submissions and weighed the material on record.

14. ‘University’ as per Section 2(f) of 1956 Act means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under the Act. It is thus evident that the definition of University as laid down under 1956 Act does not limit it within a State and includes any University established or incorporated by or under a Central Act, Provincial Act or State Act and includes any such institution as recognised by the University Grant Commission.

15. Section 3 of the 1956 Act provides that the Central Government may not advice of the Commission declare by Notification in the official Gazette that any institution for higher education other than a University shall be deemed to be a University for the purposes of 1956 Act and on such a declaration being made all the provisions of 1956 Act shall apply to such an institution as if it were University within the meaning of Section 2(f).

16. Mr. L.L Gupta and Mr. R.A Katta Learned Counsel for the employee urged that definition of University provided in 1956 Act should not be imported into 1989 Act. Learned Counsel supported this contention by referring the observations of the Hon'ble Supreme Court made in Union of india v. R.C Jain supra wherein it was indicated that “it is not a sound rule of interpretation to seek the meaning of words used in the Act, in the definition clause of other statutes. The definition of an expression in one Act must not be imported into another. It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretion is given to it for the purposes of that Act alone.” In Oxford University Press v. Commissioner Of Income Tax (supra) Hon'ble Supreme Court propounded that it is not permissible to read to the definition of a word in one Act into another Act unless the latter Act so requires. In Baithwaite & Co. v. E.S.I supra it was held that legal fiction is adopted in law for a limited and definite purpose and there is no justification to extend it beyond the purpose for which the Legislature adopted it. Word ‘establish’ as used in Article 30(1) of the Constitution would mean to bring into existence. This was held by their Lordships of the Supreme Court in Azeez Basha v. Union of India supra. In State of Maharashtra v. Laljit Rajshi Shah (supra) the Hon'ble Supreme Court propounded thus:—

“It is well known principle of construction that in interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in, so construing the fiction it is not to be extended beyond the purposes for which it is created, or beyond the language of the section by which it is created, A legal fiction in terms enhanced or the purpose of one Act is normally restricted to that Act and cannot be extended to cover another Act.”

17. Mr. L.L Gupta, Learned Counsel appearing for the employee contended that definition of Non-Government Education Institution and University should be interpreted with the help of definition of Law Notification, and Gazette as defined in Clauses 31, 41 and 48 of Section 32 of 1995 Act. Learned Counsel further canvassed that every Notification is not included in the definition Of Law, which was not published in the Rajasthan Gazette. According to Learned Counsel as the Notification issued under Section 3 of 1956 Act was not published in Rajasthan Gazette, the institution which is deemed University under Section 3 of the 1956 Act cannot be termed as University as defined in Section 2(v) of 1989 Act.

18. Mr. B.L Sharma, Learned Senior Counsel appearing for the Petitioners canvassed that the definition of law cannot be read in a narrow sense. Law as defined under Article 13(3) of the Constitution of India, includes any Ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The learned Senior Counsel conceded that the notification under Section 3 of the 1956 Act was published in the Central Gazette and if it was not published in the Rajasthan Gazette it does not mean that the institution, a deemed University was not established by law. University as per Section 2(v) of 1989 Act means the University established by law in the State of Rajasthan. The institution that was established by 1956 Act in the State of Rajasthan, comes within the definition of University as provided by Section 2(v) of 1989 Act. Learned Senior Counsel supported the first part of the impugned order wherein Learned Tribunal held that the institution is not a non-Government Education Institution as defined under Section 2(p) of 1989 Act.

19. For the purposes of Section 2(v) of 1989 Act, a University should be established by law in the State of Rajasthan. The question that requires answer in the instant matters is whether the institution is a University established by law in the State of Rajasthan? From the materiaj on record it is established, that the institution is a deemed University as notified by the Government of India in exercise of its powers under Section 3 of 1956 Act vide Notification dated October 25, 1983 published in the official gazette on November 26, 1983. Clause 3(a) of Article 13 of the Constitution defines ‘Law’ and clause 3(b) defines Laws in force. Their Lordships of the Supreme Court in re, under Article 143, of the Constitution of India AIR 1965 SC 745 indicated that an Act of the Legislature will obviously be a law within clause 3(a) of Article 13, although it is not expressly mentioned in it. Kerala: High Court in State Bank of Travancore v. K. Vinaychandran, AIR 1989 kerala 302 observed that all orders and notifications made or issued under statutory powers and hence legislative in nature amount to law in force. Hon'ble Supreme Court in Carew and Company v. Union of India, (1975) 2 SCC 791 : AIR 1975 SC 2260 observed that law is not a brooding omnipotence in the sky but a pragmatic instrument of social order. It is an operational and controlling economic life and interpretative efforts must be imbused with the statutory purpose. In the Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256 : AIR 1977 SC 965 their Lordships of the Supreme Court indicated that law is meant to serve the living and does not beat its abstract wings in rural void. Its fundamental fulfilment as social engineering depends on its sensitized response to situation; subject matter and the complex of realities which required ordered control.

20. A holistic understanding is the simple justice to the meaning of all legislations. Fragmentary group of rules can misfire or even backfire.

21. The Petitioner institution is a deemed University established vide Notification dated October 25, 1983 issued under Section 3 of 1956 Act and published in the official Gazette on November 26, 1983. After following the sound rule of interpretation to seeking the meaning of work “Law” used in Section 2(v) of 1989 Act and without importing the definition of one Act into another, I am of the view that the institution is a University established in the State of Rajasthan and thus does not fall within the definition of Non-Government Educational Institution as defined under Section 2(p) of 1989 Act. I do not find any merit in the submissions canvassed by the Learned Counsel for the employee. Definition of ‘Law’ as provided in the Rajasthan General Clauses Act 1955 is not relevant to decide the controversy involved in the instant matters.

22. That takes me to the second part of the impugned order wherein it was held that the conduct of the institution in receiving benefits particularly grant in aid under 1993 Rules and 1989 Act shows that the institution has chosen to be governed by 1989 Act and now the institution is estopped from asserting that it is not a Non-Government Educational Institution.

23. During the course of arguments my attention was drawn to the various documents appended to the Writ Petitions. A bare look at the office order issued by the Director Secondary Education Rajasthan bearing No. Shivira/Madhya/Anu/D/. Swikriti/96-97/97-98 revealed that the name of institution was shown in the list of the institutions which have been receiving grant in aid from the State of Rajasthan under 1993 Rules. On the strength of this document Learned Counsel for employee canvassed that the institution is a Non-Government Educational Institution, as under 1993 Rules grant in aid can only be obtained by the Non-Government Educational Institutions and after receiving the grant in aid under 1993 Rules the institution is now estopped from pleading that it is not covered under 1989 Act. Learned Counsel for the institution refuted this contention and took me through the various documents to show that after the institution granted the status of deemed University, it name was removed from the list of aided institutions w.e.f 1984-85. Heaving scrutinised the material on record I find that although the name of institution was removed from the list of aided institutions w.e.f 1984-85 still the institution had been receiving grant in aid in 1996-97 and 1997-98. The question therefore arises for considering whether after receiving grant in aid under 1993 Rules the institution is estopped from saying that it is not a Non-Government Educational Institution.

24. It is necessary at this juncture to refer to a Judgment rendered by the Division Bench of Madras High Court headed by Hon'ble Shri Justice Shiva Raj V. Patil (as His Lordship then was) in R. Sivaraman v. Registrar, M.G.R: Medical University Gundi (supra). In Para 13 of the said Judgment their Lordships of Madras High Court indicated that A plain reading of Section 3 of the U.G.C Act does not show that anything more is required to be done further in order to deem any institution for higher education as Deemed University. In the said section, it is also stated that all the provisions of the U.G.C Act shall apply to such institution, as if it were University within the meaning of section 2(f) of the U.G.C Act. Hence, it is very clear that on such declaration being made in regard to an institution for higher education as Deemed University, all the provisions of U.G.C Act shall apply and it becomes a University for the purposes of the U.G.C Act, as per Section 2(f) of the said Act.”

25. Dealing with the argument that unless Chennia Medical College excluded from the list of the institutions, it did not have the status of deemed University, the Division Bench propounded in Para 16 thus:—

“16. The argument that the Madras Medical College, Chennai is one of the Institutions included in the list of the Institutions in the Schedule of the University Act under section 1(3)(a) and section 66 of the University Act, continues to be an affiliated college, unless it is excluded or omitted from the schedule as per section 66 of the U.G.C Act, declaring the Chennai Medical College, Chennai as a Deemed to be University, is not subject to section 66 of the University Act. It was pointed out to us that there are more Medical Institutions which are affiliated to the Tamil Nadu Dr. M.G.R University as on today, but they do not find place in the Schedule. Merely because the Chennai Medical College, Chennai continues to be in the Schedule, it does not take always its status of Deemed to be University. By necessary and the viable implication, the Chennai Medical College, Chennai is deemed to be excluded from the Schedule, the moment a declaration was made under Section 3 of the U.G.C Act, conferring the Status of Deemed to be University on it. Even assuming that there is some conflict between the U.G.C Act and the University Act, to this limited extent, the declaration made under Section 3 of the U.G.C Act prevails.”

26. Ratio indicated in R. Sivaraman (supra) is squarely applicable to the facts of the instant matters. There is yet another legal question that arises for consideration, whether doctrine of estoppel can be operated against a statute ?

27. Section 115 of the Indian Evidence Act embodies the doctrine of estoppel. It provides that if a person by his declaration, act or omission intentionally causes another person to believe a thing to be true and act upon such belief, he cannot later on in any suit or proceeding be allowed to deny the truth of that thing. To invoke the doctrine of estoppel contained in Section 115, three conditions are necessary to be satisfied:

(i) There must be a declaration, act or omission on the part of a person;

(ii) By the said declaration, act or omission that person must have intentionally caused or permitted another person to believe a thing to be true.

(iii) He must have intentionally caused or permitted the said another person to act upon such belief.

28. The doctrine embodied in the Section is a rule of evidence, creating substantive rights in favour of the person to whom a representation has been made or an assurance has been given. As a general proposition, in either case, estoppeal will not operate against a statute, and any statement of promise made will not bind the government if it is against the statute. In Motilal Padampat Sugar Mills v. State of Uttar Pradesh, (1979) 2 SCC 409 : AIR 1979 SC 621, their Lordships of the Supreme Court indicated that the doctrine cannot also be applied in the teeth of an obligation or liability imposed by law. It is well settled that it is the Legislature which prescribes the law and not the official interpreting it and he has no right to modify the provisions of a statute. As already stated, in the second part of the impugned order the Learned Tribunal applied the doctrine of estoppel and observed that it is not open to the institution after receiving grant-in-aid under 1993 rules to say that it is not a Non-Government Educational Institution. I do not see any legal force in this observation of the Learned Tribunal. Once it is held that the institution is a University as defined under section 2(v) of the 1989 Act, and thus does not fall within the definition of Non-Government Institution as defined under section 2(p) of 1989 Act, the doctrine of estoppel is not attracted. Even if it is held that the institution is getting benefit under the 1993 Rules from the State of Rajasthan it cannot be observed that the institution is amenable to the jurisdiction of the Learned Tribunal.

29. For the reasons aforementioned, I allow both the Writ Petitions and set aside the impugned order of the learned Tribunal and I hold that the institution being not a Non-Government Educational Institution as defined under section 2(p) of the 1989 Act, is not amenable to the jurisdiction of the Learned Tribunal. Costs easy.

30. Petition allowed.