SECRETARY MAHATAMA GANDHI MISSION & ARN. Vs. BHARTIYA KAMGAR SENA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 115-116 of 2017, Judgment Date: Jan 05, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 115-116 OF 2017
(Arising out of SLP (C) Nos. 26523-26524 OF 2012)
Secretary Mahatama Gandhi Mission & Another … Appellants
Versus
Bhartiya Kamgar Sena & Others … Respondents
WITH
CIVIL APPEAL NOS. 117-118 OF 2017
(Arising out of SLP (C) Nos. 26525-26526 OF 2012)
CIVIL APPEAL NOS. 119-120 OF 2017
(Arising out of SLP (C) Nos. 26519-26520 OF 2012)
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. The first appellant in all these three appeals is a charitable trust
registered under the Bombay Public Trusts Act, 1950. The first appellant
established and has been administering two engineering colleges, one at
Nanded and another at Aurangabad in the State of Maharashtra. The first
respondent appears to be an unregistered body of persons who are the
employees of the first appellant. They are the staff of the
abovementioned two engineering colleges belonging either to the category of
teaching or non-teaching staff. The details of which are not necessary for
the purpose of this case.
3. In the year 2002, the first respondent and others (some non-teaching
members in the employment of the appellant) approached the Bombay High
Court by way of a Writ Petition No. 333 of 2002 praying that the respondent
therein (which included the authorities of the State of Maharashtra) be
directed to extend the benefits of the revised pay scales as recommended by
the Fifth Pay Commission set up by the Government of India to the employees
of the appellant herein. The said writ petition was allowed by a judgment
dated 19th December, 2003 by the Division Bench of the Bombay High Court[1]
giving various directions to Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad (Respondent No. 5 in that Writ Petition).
4. Aggrieved by the said judgment, the employer carried the matter to
this Court in SLP(C) No. 19567-19568 of 2004 which came to be dismissed by
an order of this Court dated 24.10.2005.
5. Subsequently, there was a settlement dated 30.1.2006 between the
appellant and the petitioners in Writ Petition No. 333 of 2002. The terms
of the settlement were reduced to writing whereunder the non-teaching staff
(petitioners in W.P. 333 of 2002) of the appellant agreed to waive their
right to claim arrears of pay calculated in terms of the recommendation of
the Fifth Pay Commission for the period between January 1, 1996 to December
31, 2000. Correspondingly, the appellant herein undertook to implement
future pay revisions[2].
6. The Sixth Pay Commission set up by the Government of India made its
recommendations on 24.3.2008. The University Grants Commission (UGC) (a
statutory body) recommended extension of the benefit of the revised pay
scales under the Sixth Pay Commission Report to the teaching staff of all
the Central Universities, deemed universities and universities whose
maintenance expenditure is borne by the UGC. Government of India accepted
the recommendation and formulated a scheme. Under the said scheme, the
Government of India had decided to revise the pay scales of the various
classes of teachers[3] in the Central Universities and colleges thereunder
subject to various terms and conditions stipulated in the scheme. The
Government of India communicated its acceptance to UGC by its letter dated
31.12.2008.
It was also declared under the scheme:-
“(v) The Scheme may be extended to universities, Colleges and other higher
educational institutions coming under the purview of State legislatures,
provided State Governments wish to adopt and implement the Scheme subject
to the following terms and conditions;”
The scheme also provided that in the event of the extension of the scheme
by any State government to Universities or colleges and other higher
educational institutions coming under the purview of State legislatures,
the Government of India would undertake to meet a part of the financial
burden resulting from the implementation of such scheme[4].
Copy of the said letter was also forwarded to all the State Governments.
7. The State of Maharashtra took note of the abovementioned developments
and by a Government Resolution (hereafter “GR”) dated 12.8.2009 made a
“scheme” revising the pay scales and the dearness allowances of all
teachers and other equivalent cadres of the Universities, colleges and
other higher educational institutions coming under the purview of the State
legislature. Preamble to the said GR insofar as it is relevant reads:
“Government of India vide its letter dated 31st December, 2008 referred to
above has revised the pay scales of teachers and equivalent cadres in the
Central Universities subject to various provisions of the scheme of
revision of pay scales as contained in the said letter, and regulations to
be framed by the UGC in this behalf. Government of India has mentioned in
the said letter that scheme may be extended to Universities, Colleges and
other higher education Institutions coming under the purview of State
Legislatures, provided State Governments wish to adopt and implement the
scheme. It has further been clarified by the Government of India that
payment of central assistance for implementing this scheme is subject to
the condition that the entire scheme of revision of pay scales together
with all the conditions etc. shall be implemented by the State Government
as a composite scheme without any modification etc.
The question of revising the pay scales etc. of teachers and equivalent
cadres in universities, college under State Legislature was under active
consideration of the Government for some time. The Government after
considering all the aspects has decided.
To revise pay scales and the dearness allowance of all teachers and
equivalent cadres w.e.f. 01/01/2006 as per the Central Government (UGC)
scheme while other allowances as per the State Government employees;”
8. From the tenor of para 8(E) of the GR it is clear that the State of
Maharashtra did not direct the revision of the pay scales of the non-
teaching staff of the educational institutions mentioned therein.
“Para 8(E). Applicability of the Scheme:
(i) This scheme shall be applicable to teachers and other equivalent
carders of library and physical education in all the Universities, Colleges
and other Higher educational Institutes coming under the purview of state
legislature though (sic) the department of Higher and Technical Education
of Maharashtra and governed by the rules of University Grant Commission.
However, the unaided colleges will not be entitled for any financial
assistance from the State Government and similarly in case of aided
institutes of the Government assistance will only be limited to the
teachers who retired on or before 31st December 2005 and who worked on re-
employment on that date, including those whose period of re employment was
extended after that date.
The implementation of the revised scales shall be subject to acceptance of
all the conditions mentioned in this Resolution as well as Regulations to
be framed by the UGC in this behalf. Universities implementing this
Scheme shall amend their relevant statutes and ordinances in line with the
Resolution and the UGC Regulations issued in this regard from time to
time.”
9. Vice-Chancellor of the third respondent University, issued order No.
214 dated 29.8.2009 in the purported exercise of power under Section
14(8)[5] of the Maharashtra University Act, 1994. The Order purported to
extend the scheme propounded by the Government of India and adopted by the
State by the GR dated 12.8.2009 to all the colleges affiliated to that
university. The tenor of the order No. 214 makes it clear that the scheme
is made applicable only to teachers and equivalent cadres of librarian and
physical education.[6] There is some issue regarding the legality of
the action of the Vice-Chancellor in resorting to the power under Section
14(8). We should deal with the same later.
10. On 7th October, 2009, the Government of Maharashtra made Rules
invoking its power under the provisions of the various Universities’
Acts[7], etc., “prescribing a standard code providing for the terms and
conditions of service” of the non-teaching employees of the various
organizations described thereunder. The expression standard code is
traceable to Section 8(3)[8] of the Maharashtra Universities Act, 1994
which authorises the State to make rules providing for the various aspects
of employment of officers, teachers and other employees of the
Universities, affiliated colleges and recognised institutions. It further
declares that when such Rules are made they would prevail over any other
subordinate legislation made by any statutory authority functioning under
the Act.
11. Rule 2(1) of the said Rules stipulates that those rules apply to the
full time non-teaching employees of: (i) 12 specified non-agricultural
universities, and (ii) the affiliated non-government aided colleges[9].
12. Under the said Rules elaborate provisions dealing with the pay
structure of the non-teaching employees of the abovementioned two classes
of educational institutions were made. The Rules did not apply to the non-
teaching employees of the unaided non –government colleges.
13. It is also necessary to take note of the fact that the All India
Council for Technical Education (‘AICTE’, for short) made Regulations dated
05.03.2010 in the purported exercise of the powers under Sections 10(1)(v)
and 23(1) of the AICTE Act (52 of 1987). Those regulations deal with the
pay scales and other service conditions of the teachers and other academic
staff in technical institutions. Regulation 1[10] makes it clear that
these regulations are applicable only to the teachers and other academic
staff of technical institutions. In other words, the regulations have no
application to the non-teaching staff employed in the technical
institutions though such technical institutions are run with the approval
and under the superintendence of AICTE.
14. It is in the background of the abovementioned rules and regulations
the correctness of the judgment impugned in these appeals is required to be
examined.
15. By the impugned judgment, the Bombay High Court (Aurangabad Bench)
disposed of four writ petitions, viz. writ petitions no.11091/2010,
8780/2010, 2035/2011 and 4443/2009. We are only concerned with the
impugned judgment insofar as it dealt with the writ petitions
no.11091/2010, 8780/2010 and 2035/2011 because these appeals before us are
directed only against those writ petitions.
16. There are numerous prayers in each of the writ petitions. It may not
be necessary to extract all the prayers. But from the impugned judgment
the main reliefs claimed in these three writ petitions and granted (insofar
as they are relevant) can be culled out.
17. Writ Petition No.11091/2010 was filed by the “teaching and non-
teaching staff of the engineering college” at Aurangabad run by the 1st
appellant. The main prayer is for recovery of the amount in respect of the
pay scales fixed by the Fifth Pay Commission and for the implementation of
the pay scales fixed by the Sixth Pay Commission. The High Court declined
to grant any relief with respect to the Fifth Pay Commission on the ground
of laches but allowed the petition insofar as it prayed for the
implementation of the pay scales fixed by the Sixth Pay Commission[11].
18. Writ Petition No.8780/2010: It was filed by the “non-teaching staff”
of the Engineering College, Nanded run by the 1st appellant herein. They
prayed that the management be directed to implement the Fourth, Fifth and
Sixth Pay Commission Reports w.r.t. the petitioner/non-teaching staff. The
High Court directed that the pay scales suggested by the Sixth Pay
Commission for the non-teaching staff be given.[12]
19. Writ Petition No.2035/2011: The prayer in this writ petition (filed
by a lone petitioner) is for the implementation of the revision in the pay
scales in terms of the Fourth, Fifth and Sixth Pay Commission Reports. The
High Court opined that relief could be granted only with reference to the
Sixth Pay Commission Report but not the other two Pay Commission Reports in
view of laches.[13]
20. Hence, these appeals by the employers.
21. Before we proceed to examine the correctness of the judgment under
appeal and the various grounds on which the same is challenged, we think it
appropriate to note the reasons given by the High Court for the conclusion
reached by it.
22. The relevant paragraph containing “reasons” for the decision is para
17 of the impugned judgment.
“17. A copy of G.R. dated 4.2.1999 issued by the State Government under
section 8 of the Maharashtra Universities Act, 1994 shows that from
1.1.1996 the State Government provided Standard Code of 1999 and it made
changes in the Standard Code Rules of 1984. The pay scales came to be
revised for non-teaching staff of non-agricultural universities of
Maharashtra and also for non-teaching staff working in affiliated colleges
and recognised institutions. A copy of notification issued by the State
Government on 7.10.2009 shows that another revision of pay scales was done
with effect from 1.1.2006. This time it was specifically mentioned that
the G.R. was issued for non teaching staff working in universities and
colleges receiving grants-in-aid from the Government. The aforesaid G.Rs.
and Standard Code Rules 1984 show that both aided and unaided colleges must
have hierarchical structure of clerical staff/administrative staff as
provided in Standard Code Rules. In view of Rules 16(2) of Rules of 1984,
it further follows that the time-scale of such staff and allowances shall
be as prescribed by the State Government and as revised by the State
Government from time to time. After every 10 years the State Government
revises the pay scales and G.Rs. are issued in that regard. Though the
notification or G.Rs. of year 2009 now cover the aided institutions, they
are for the purpose of showing financial liability of the State Government.
As in view of Rule 16(2) of Rules of 1984, such policy decision changes
the pay scales of different classes of staff provided in 1984 Rules, the
scales automatically apply to unaided institutions also, though they are
not specifically mentioned in the G.R. These institutions are also covered
under the State Legislature and so they are bound by the policy decision
taken by the State in this regard.”
23. The service conditions of the non-teaching employees of the
affiliated colleges in the State of Maharashtra were earlier governed by a
set of Rules known as the Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-
teaching employees) Rules, 1984 (hereafter “1984 Rules”).
24. In exercise of the power under Section 8(3) of the Maharashtra
Universities Act, the Government of Maharashtra made Rules known as the
Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard
Code (revised pay of non-teaching employees) Rules, 1999 (hereafter “1999
Rules”). Under Rule 12 of the said Rules it is provided as follows:
“Rule 12. Overriding Effect of Rules:
The provisions of the Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Terms and Conditions of Non-Teaching
Employees) Rules, 1984, shall not, save as otherwise provided in these
rules, apply to cases where pay is regulated under these rules, to the
extent they are inconsistent with these rules.”
25. Though it is a little difficult to interpret the meaning of the
highlighted portion of the Rules in terms of the settled principles of the
Interpretation of the Statutes, having regard to the context we believe
that the Rule maker intended to declare that the 1984 Rules insofar as they
are inconsistent with the 1999 Rules should give way to the latter. In
other words, the 1984 Rules are not totally repealed. They still operate
if they are not inconsistent with the 1999 Rules.
26. The 1999 Rules provided for the revision of the pay scales of the non-
teaching employees[14] of the non-agricultural universities and affiliated
colleges. They did not make any distinction between employees of aided
affiliated colleges and non-aided affiliated colleges. They apply uniformly
to both categories of affiliated colleges[15], while specifically excluding
certain classes of employees.
27. In the year 2009 the Government of Maharashtra framed another set of
Rules known as Maharashtra Non-Agricultural Universities and Affiliated
Colleges Standard Code (Non Teaching Employees Revised Pay) Rules, 2009
(hereafter “2009 Rules”). Rule 17 of the said Rules reads as follows:
Rule 17. The overriding effect of rules- Barring unless otherwise provided
for in these rules in cases where pay has been regulated as per these rules
the provisions in the Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Service and Conditions of the non-
teaching employees) Rules, 1984 if inconsistent with these rules then would
not apply up to that limit.
28. The language of the Rule once again suffers from the same problem as
its predecessors. The drafting of the Rules leaves much to be desired.
Giving due allowance for the inelegance of language and bad drafting, we
are of the opinion that Rule 17 declares that 2009 Rules override the 1984
Rules but makes no reference to the 1999 Rules.
29. If the content of the 1999 Rules is in any way inconsistent with the
2009 Rules, to the extent of the inconsistency the 2009 Rules ought to
prevail over the 1999 Rules. Because one of the settled principles of
interpretation is that if there is any inconsistency between two laws made
by the same law making body at different points of time dealing with the
same subject matter, the latest declaration of law would operate.
It is for the first time under Rule 2 of the 2009 Rules the applicability
of the revised pay scales is limited to the affiliated non-government aided
colleges.
“Rule 2- Cadre of employees to whom these rules apply:
1. These rules will apply to the full time non teaching employees subject
to the review of non teaching posts of the following 12 non agricultural
universities and to the full time non teaching employees subject to the
review of the non teaching posts in affiliated Non Government Aided
colleges other then [sic] those managed and maintained by the State
Government and Local Authorities.”
However, according to the High Court[16], from Rule 16(2) of the 1984
Rules, “it … follows … that the time scale of” the non-teaching staff and
“… allowances shall be as prescribed by the State Government and as revised
by the State Government from time to time” and “As in view of Rule 16(2) of
Rules of 1984, such policy decision changes the pay scales of different
classes of staff provided in 1984 Rules, the scales automatically apply to
unaided institutions also, though they are not specifically mentioned in
the G.R. These institutions are also covered under the State Legislature
and so they are bound by the policy decision taken by the State in this
regard.” — Some logic!
30. We hasten to add that the incoherence of the reasoning adopted by the
High Court need not necessarily mean that the judgment under appeal is
unsustainable. We, therefore, proceed to examine the legal rights of the
parties on the basis of the material available on record.
31. To determine the correctness or otherwise of the judgment under
appeal, it is required to examine the legal right of the teaching and other
academic staff on one hand and the non-teaching staff on the other hand of
the two unaided engineering colleges administered by the 1st appellant to
receive pay in terms of the recommendations of the Pay Commission set up by
the Union of India.
32. Before we deal with the rival submissions made before us, we deem it
profitable to capture the Scheme of educational system and employment
herein under the Constitution of India.
33. Importance of the role of education in the life of human beings is
well known to the society which invented the concept of ‘Zero’. Even the
colonial Rulers established educational institutions and encouraged the
establishment of educational institutions by non-state actors by
introducing a system of supporting them by providing financial aid to some
extent. The very fact that the makers of the Constitution of India chose
to refer to “aid out of State funds” to educational institutions in Article
29(2)[17] and “aid to educational institutions” in Article 30(2)[18], is
proof of the fact that the makers of the Constitution took note of the need
to financially support educational institutions established even by non-
state actors.
34. Education is one of the most vital elements for preservation of the
democratic system of Government. The Supreme Court of America in
Wisconsin v. Yoder, 406 US 205 (1972) observed:
“ … some degree of education is necessary to prepare citizens to
participate effectively and intelligently in our open political system if
we are to preserve freedom and independence. …”
35. Education becomes a basic tool for individuals to lead an
economically productive life. An economically productive life of the
individual not only improves the quality of life of the individual and his
family but also contributes to some extent to the benefit of the society at
large. Production of goods and services to a large extent depend upon the
availability of technically qualified human resources. Technical education
therefore has the potential to directly contribute to the economic
prosperity of a technically qualified individual as well as the society.
36. This Court in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh
& Others, (1993) 1 SCC 645, took note of the fact that “education is the
second highest sector of budgeted expenditure after the defence” and also
that it constitutes “3 per cent of the Gross National Product is spent in
education”[19].
37. This Court took note of the mandate of Article 41[20] “to illustrate
the content of the right to education flowing from Article 21” and the fact
that “the right to free education is available only to children until they
complete the age of 14 years. Thereafter, the obligation of the State to
provide education is subject to the limits of its economic capacity and
development”. Finally, this Court held that “the right to education is
implicit in the right to life because of its inherent fundamental
importance” and therefore an aspect of Article 21 of the Constitution.
Parliament endorsed the conclusion of this Court and amended the
Constitution to make an express declaration of the fundamental right to
education by inserting Article 21A§.
38. Education is an important factor for maintaining democracy and the
economic well-being of the society. Therefore, the Constitution of India
bestows considerable attention to the field of education. It recognizes
the need for regulating the various facets of activity of education and
also the need for not only establishing and administering educational
institutions but also providing financial support for the educational
institutions run by private / non-state actors.
39. A brief sketch of the development of the system of college education
in this country would certainly help to understand the problem on hand.
Establishment of colleges imparting education based on the English
Education System[21] predated the establishment of universities in this
country. Colleges were and are still being established by individuals,
societies, trusts, etc. (hereinafter collectively referred to as “non-State
actors”) apart from the Governments or other instrumentalities of State.
Universities were established in the provinces[22] of British India in
imitation of London University as it then was. They all began as purely
examining bodies with the power to confer degrees.[23] They were not
teaching universities. In 1902, the Indian Universities Commission was
appointed. It was followed by the Indian Universities Act, 1904. Under
Section 3 of the Act, Universities were enabled to instruct students[24].
Sections 20 and 21 thereof authorised the Universities to affiliate
colleges. While Sec. 20 declared that colleges affiliated to any University
prior to the 1904 Act “continue to exercise the rights conferred upon it by
such affiliation”, Section 21 provided for the grant of affiliation by the
university upon an application by a college (obviously not earlier
affiliated to the university) and matters incidental thereto. Section 19
of the said Act declared that “….no person shall be admitted as a candidate
at any University examination ……unless he produces certificate from a
College affiliated to the University, … that he has completed the course of
instruction prescribed by regulation”.
40. Over a period of time, prior to the advent of the Constitution,
number of Universities came into existence in various parts of the country.
Each of them was created either by or under a statute. After the advent of
the Constitution by virtue of the power under Article 246 read with Entry
32 of List II of the Seventh Schedule legislative competence to establish
universities vested exclusively[25] with the State Legislatures. Many
universities came to be established by or under various enactments made by
the different State Legislatures. There is a discernible pattern in the
scheme of all these enactments. Each of these enactments prohibits the
conferment of any degree on any person by any body other than by the
University. Universities are authorised to (i) establish teaching
colleges, (ii) grant affiliation to colleges established by non-State
actors. Correspondingly, colleges established by non-State actors are
obliged to secure affiliation to the Universities. Affiliated colleges are
permitted to train students for examinations to be conducted by the
University (to which college is affiliated) for the purpose of the
conferment of degrees in a given discipline. Universities are vested with
considerable power to regulate the administration of the affiliated
colleges. In exercise of such power, Universities have been making
subordinate legislation stipulating the terms and conditions subject to
which colleges could be administered and seek affiliation, etc.
41. Under the Constitution of India, both the Parliament and the
Legislative Assemblies of the States are conferred with the power to
legislate upon various aspects of education. The power to legislate with
respect to the field of education vested basically with the State
Legislatures under Article 246 (3) read with Entry 11 of List II of the
Seventh Schedule as it stood prior to the Constitution 42nd Amendment.
Parliament is exclusively authorised under Article 246(1) to make laws with
respect to various educational institutions specified under Entries 63 to
66[26] (both inclusive) of List I.
42. Original Entry 25 of the List III indicated the concurrent field of
legislative authority (of the Parliament as well as the State Legislature)
with reference to certain aspects of the education came to be
substituted[27].
43. By the 42nd amendment of the Constitution, Entry 11 of List II[28]
was omitted and Entry 25 of List III was substituted. Entire field of
legislation with regard to education became the subject matter of
Concurrent List. Entry 25 now reads:
“Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of
List I; vocational and technical training of labour.”
44. The availability of such legislative authority to the States (both
before and after the 42nd Amendment) necessarily carried with it co-
extensive executive authority which authorised the States to establish and
administer colleges.
45. Parliament also made laws exercising its exclusive authority over the
field indicated under Entries 63, 64 and 65 of List I of the Seventh
Schedule to the Constitution. By the said laws, educational institutions
were established and their administration was entrusted to either the
Government of India or some other authority
46. Entry 32 of List II of the Seventh Schedule indicates that State
legislatures have exclusive legislative competence to make laws dealing
with “incorporation, regulation and winding up of…universities”. In
exercise of such legislative authority, laws are made by the State
Legislatures bringing into existence Universities.
47. Various non-state actors including minorities established large
number of colleges and other educational institutions in this country, both
before and after the advent of the Constitution[29] (spanning over a period
of about 200 years). Certain aspects of establishment and administration
of colleges by non-state actors have always been regulated by the
legislature. Various enactments (by or under which universities are
established) command that colleges should secure affiliation to an
appropriate university. However, after the 42nd Amendment, Parliament also
became competent to regulate the activity of education. Some of the laws
made by the Parliament do regulate. The All India Council for Technical
Education Act (AICTE Act) is one such.
48. Employment is essentially a contractual relationship between the
employer and the employee. Employment in colleges could be employment by
State, or its instrumentalities or by non-state actors, because there exist
colleges conducted either by State or its instrumentalities or non-state
actors. Therefore, the nature of the legal relationship of employment
varies depending upon the employer.
49. The basic norms (employment under State) are regulated by the
Constitution. The Constitution guarantees equality of opportunity in the
matter of public employment under Article 16[30]. Article 309 declares
that the appropriate legislature may regulate the recruitment and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the Union or any State. The appropriate
legislature would be Parliament in the context of employment under the
Government of India and the concerned State Legislature in the context of
employment under any of the States within Union of India. Article 311
stipulates that no civil servant employed either by the Government of India
or by any State shall either be dismissed or removed from the service
except in accordance with the procedure stipulated thereunder. Therefore
though employment even by State is essentially contractual relationship,
such relationship is encumbered by the legal obligations emanating from the
provisions of the Constitution and laws made thereunder. It is in the
context of these constitutional provisions that this Court had repeatedly
held that employment under State is a matter of status but not a matter of
contract.
50. Employment under the various instrumentalities of State, either
statutory or non-statutory, is also subject to the discipline of Article 14
of which Article 16 is only a facet. This Court in innumerable cases held
that though Part XIV of the Constitution (wherein Article 309 etc. occur)
is not applicable to such employment, some of the principles underlying the
provisions of Part XIV still govern the employment under the
instrumentalities of the State[31].
51. The expression ‘education’ occurring under Entry 25 of List III to
the Seventh Schedule of the Constitution takes within its sweep the
authority to legislate with respect to every aspect of education including
establishment and administration of educational institutions such as
schools, colleges etc. Administration of an educational institution has
mainly two facets (i) imparting of knowledge, and (ii) maintaining the
necessary infrastructure for providing the venue and other facilities for
imparting of knowledge. To perform the twin functions, manpower is
required. Such manpower consists of two classes of persons, teaching staff
and non-teaching staff.
52. Therefore Entry 25 must necessarily take within its sweep inter alia
the power to regulate the activity of employment by educational
institutions, whether they are established by the State, or its
instrumentalities or non-State actors.
53. In view of the fact Entry 25 occurs in the Concurrent List of the
Seventh Schedule, both the Parliament and State legislatures are competent
to make laws regulating inter alia the establishment and administration of
colleges either by the governments (Union or State) or their
instrumentalities or by non-State actors (private sector).
54. As of now, there is no law made by the Parliament regulating the
entire activity of education either in public sector or private sector.
Only certain areas of education such as medical education and technical
education in some of the aspects are regulated by the laws made by the
Parliament. For the purpose of the present case we are only concerned with
technical education. AICTE Act is the relevant law made by the Parliament
in the context of the present case.
55. The following principle submissions are made by the appellants:
The rights and obligations arising out of the relationship of employment
between the appellants and their employees (whether teaching or non-
teaching) is purely contractual. Such rights and obligations can be
modified by law. But there is no statutory obligation (law) compelling the
appellant to pay anything more than what is agreed to at the time of
employing each one of the employees.
According to the appellants, there is no law which obliges the appellants
to pay the salaries and other allowances to its employees whether teaching
staff or non-teaching staff in accordance with the pay structure
recommended by the Sixth Pay Commission.
A law creating such statutory obligation must be express.
2009 Rules made under Section 8(3) of the Maharashtra Universities Act,
1994 only deal with the service conditions of the non-teaching employees
that too of aided colleges. Therefore, the appellant which is an unaided
college cannot be compelled to pay the salary and other allowances to its
employees in terms of the recommendations of the Sixth Pay Commission in
the absence of any express statutory obligation to make such payment.
The AICTE Regulations dated 05.03.2010 though textually apply to the
teaching and other academic staff etc. imparting technical educations in
the technical institutions and universities do not ipso facto apply to the
institutions governed by the respective State legislations dealing with
education and universities[32].
The AICTE Act does not authorise the AICTE to regulate the service
conditions of the employees of technical institutions.
56. On the other hand, it is submitted on behalf of the respondents-
employees that once the State Government decided to accept the suggestion
of the Government of India to extend the benefits of the Sixth Pay
Commission to the employees of the various educational institutions falling
under the purview of the State Legislature, the State Government is not
justified in directing the revision of the pay scales of only the
employees of those institutions which are either directly under
the control of the State Government or its instrumentalities and
private aided institutions. The non- extension of the same benefits
to the employees of the unaided educational institutions which
otherwise function under the control and supervision of the State
Government would be a dereliction of the Constitutional mandate
under Article 38[33] and Article 39(d)[34] and violative of Article
14 on the ground that the law is ‘under inclusive’. In other words, it
makes an artificial classification between the teaching and non-teaching
staff of the educational institutions and further between the employees of
aided and unaided educational institutions without there being any nexus
between such classification and the purpose sought to be achieved by the
pay revision.
57. We shall now examine the various submissions mentioned above.
58. The source of the rights, if any, of the employees* of the appellants
to receive pay and allowances in terms of the recommendations of the Sixth
Pay Commission is first required to be identified.
59. The Sixth Pay Commission appointed by the Government of India is only
a body entrusted with the job of making an assessment of the need to revise
the pay structure of the employees of the Government of India and to
suggest appropriate measures for revision of the pay structure. The
recommendations of the pay commission are not binding on the Government of
India, much less any other body. They are only meant for administrative
guidance of the Government of India. The Government of India may accept or
reject the recommendations either fully or partly, though it has never
happened that the recommendations of the pay commission are completely
rejected by the Government so far.
60. Once the Government of India accepted the recommendations of the pay
commission and issued orders signifying its acceptance, it became the
decision of the Government of India. That decision of the Government of
India created a right in favour of its employees to receive pay in terms of
the recommendations of the Sixth Pay Commission and the Government of India
is obliged to pay.
61. The fact that the Government of India accepted the recommendations of
the Sixth Pay Commission (for that matter any pay commission) does not
either oblige the States to follow the pattern of the revised pay structure
adopted by the Government of India or create any right in favour of the
employees of the State or other bodies falling within the legislative
authority of the State. The Government of India has no authority either
under the Constitution or under any law to compel the States or their
instrumentalities to adopt the pay structure applicable to the employees of
the Government of India.
62. The Government of India decided to extend the benefit of revised pay
scales to the employees of various central universities etc. on the basis
of the recommendations of the University Grants Commission - a statutory
body. While accepting the recommendations of the UGC, the Government of
India chose to extend the benefit of revised pay scales only to the
teachers and other equivalent cadres of Library and Physical Education etc.
in all the Central Universities and Colleges thereunder etc. The
Government of India was not oblivious of the fact that various other
categories of employees are working with those institutions. Therefore,
it made a specific mention in the Scheme dated 31.12.2008 that though the
Scheme did not extend to the cadres of Registrar, Finance Officer,
Controller of Examinations etc., the revision of pay scales of such
categories of employees was in contemplation.
“Scheme of the Government of India
[Extract from Letter dated 31.12.20018:
This Scheme does not extend to the cadres of Registrar, Finance Officer and
Controller of Examinations for which a separate Scheme is being issued
separately.
This Scheme does not extend to the Accompanists, Coaches, Tutors and
Demonstrators. Pay and Grade Pay of the said categories of employees shall
be fixed in the appropriate Pay Bands relative to their existing Pay in
each university/institution corresponding to such fixation in respect of
Central Government employees as approved by the Central Government on the
basis of the recommendations of 6th Central Pay Commission.
(iv) This Scheme does not extend to the posts of professionals like
System Analysts, Senior Analysts, Research Officers etc. who shall be
treated at par with similarly qualified personnel in research/scientific
organizations of the Central Government.”
63. The Government of India’s decision to extend the revised pay scales
even to the employees of the various educational institutions established
and administered by it or its instrumentalities, is a policy choice of
Government of India.
64. However, after adopting such a policy the Government of India thought
it fit to suggest to the States by its communication dated 31.12.2008 that
the States may also adopt the policy of the Government of India if they so
choose. As an incentive for the States to adopt the policy, the Government
of India offered to undertake a substantial portion of the financial burden
of the States resulting from the adoption of such policy. However, such an
undertaking is limited only for a period of five years.
65. Accepting the offer made under the scheme of the Union of India, the
State of Maharashtra issued the GR dated 12.8.2009 revising the pay scales
of the cadres specified therein (essentially teaching staff) of the
“universities’ colleges and other higher educational institutions”. By the
said GR, the State of Maharashtra declared the revision of the pay scales
of the teaching staff of the educational institutions. It is stated in the
counter affidavit filed before this Court on behalf of the State:
“3. I say that as things stand today, the Government of Maharashtra has
taken a policy decision to implement the recommendations of 6th Pay
Commission to teaching and non-teaching staff of government-run and
government-aided educational institutions only.
4. I say that the Government of Maharashtra has not taken any policy
decision and/or issued any Government Resolution in respect of
implementation of the recommendations made by 6th Pay Commission for
teaching and non-teaching staff in un-aided private educational
institutions. …”
However, the universities were directed by the GR dated 12.08.2009 to make
appropriate amendments to the relevant subordinate legislative instruments
of the various universities to provide, in the opinion of the State,
requisite legal framework for the implementation of such policy decision.
Whether such amendments are really required is a separate issue. In
view of the power under Section 8(3) of the Maharashtra Universities Act
authorizing the State to make rules dealing with the various aspects of the
service of the employees of the universities and other educational
institutions, the authority, if any[35], of the universities to deal with
the said subject would cease the moment the State Government chooses to
make Rules. In view of the elaborate provisions in the G.R. dated
12.08.2009 stipulating the pay scales of the teaching staff of the
educational institutions, any further directions to the universities to
make amendments to the relevant subordinate legislative instruments is
wholly redundant.
66. Order No.214 of the Vice-Chancellor dated 29.08.2009, purports to
have been issued in exercise of the power conferred on the Vice-Chancellor
under Section 14(8) of the Maharashtra Universities Act, 1994. Section
14(8) reads as follows:
“Section 14. Powers and duties of Vice-Chancellor— (8) Where any matter is
required to be regulated by the Statutes, Ordinances or Regulations, but no
Statutes, Ordinances or Regulations are made in that behalf the Vice-
Chancellor may, for the time being, regulate matter by issuing such
directions as he thinks necessary, and shall, at the earliest opportunity
thereafter, place them before the Management Council or other authority or
body concerned for approval. He may, at the same time, place before such
authority or body for consideration the draft of the Statutes, Ordinances
or Regulations, as the case may be, required to be made in that behalf.”
67. From the language of sub-section (8) to Section 14, the Vice-
Chancellor could have issued such order if only the Universities Act
authorised making of Statutes, Ordinance or Regulations dealing with the
service conditions (including pay-scales) of the employees of the
affiliated colleges. No specific provision under the said Act which
authorised making of either Statutes, Ordinance or Regulations dealing with
the service conditions including the pay-scales of the employees of the
affiliated colleges is brought to our notice. On the other hand, Section
8(3) expressly authorises the State Government to make rules with respect
to the service conditions of the employees (teaching and non-teaching
staff) of the affiliated colleges. Therefore, in our opinion, the order of
the Vice-Chancellor dated 29.08.2009 is superfluous and without any
authority of law.
68. We are now left only with the GR dated 12.08.2009 which laid down the
policy of the Government of Maharashtra to adopt the pay-scales stipulated
by the Government of India in its Scheme dated 31.12.2008 insofar as the
teaching staff of the various affiliated colleges are concerned and the
rules framed by the Government of Maharashtra dated 07.10.2009 in exercise
of the power under Section 8(3) insofar as the non-teaching staff are
concerned.
69. While the GR dated 12.08.2009 is specific in its declaration that the
elaborate Rules contained therein dealing with the pay scales of the
various cadres of the teaching staff of the educational institutions
mentioned therein, it does not make any distinction between aided and un-
aided colleges. However, the GR does not purport to be one made in
exercise of the power under Section 8(3) of the Universities Act. It is
agreed on all hands at the Bar that the expression “Government Resolution”
in the Maharashtra Administrative jargon means a decision taken either in
exercise of the authority of the State under Article 162 of the
Constitution of India or in exercise of the authority under some statutory
provision. No doubt the GR does not refer to the source which authorises
the exercise of the power for revising the pay scales of the teaching staff
of the various educational institutions mentioned therein. The mere
absence of the recital of the source of power in our opinion cannot
determine the legal status of the instrument or deprive the instrument of
its efficacy.
70. The difference between the authority of the State flowing from
Article 162 of the Constitution or Section 8(3) of the Maharashtra
Universities Act is two-fold. Firstly, the statutory authority under
Section 8(3) could be abrogated anytime by the legislature while the
constitutional authority under Article 162 cannot be abrogated by the State
Legislature. Secondly, the procedural requirements for the exercise of
the power vary depending upon the nature of the source of the power, but
the existence of power itself cannot be doubted.
71. In our opinion, the GR dated 12.8.2009 can be safely construed to be
one made in exercise of the power under Section 8(3) of the Universities
Act conferring a legal right on the teaching staff of the affiliated
colleges irrespective of the fact whether they are aided or not.
72. The colleges run by the appellants are admittedly colleges
affiliated to the Universities functioning under the Act. Therefore, their
teaching staff would be entitled to the revised pay scales in terms of the
G.R. dated 12.08.2009.
73. Coming to the non-teaching staff working in the colleges run by the
appellant, the Rules of 2009 purport to be the rules revising the pay-
scales of the non-teaching staff of only the affiliated aided colleges.
Therefore, textually the colleges administered by the appellants are not
governed by the rules.
However, the question – whether such Rules are sustainable in view of the
mandate of Article 14 of the Constitution of India that “The State shall
not deny to any person equality before the law or the equal protection of
the laws within the territory of India” is required to be examined. If the
answer to the question is in the negative, the further question would be
what would be the legal remedy available to the aggrieved person/s.
74. At the outset, it must be remembered that the 1999 Rules, which
extended the 5th pay commission recommendations to the non-teaching staff
of the affiliated colleges, did not make any distinction between the aided
and un-aided colleges. For the first time, that classification is sought
to be made under the 2009 Rules. No doubt aided and un-aided colleges
ostensibly fall under two separate categories. But for the purpose of
Article 14, every classification does not automatically become permissible.
Second requirement of the doctrine of reasonable classification is that
such classification must bear a nexus to the objects sought to be achieved.
Therefore, the object sought to be achieved by the 2009 Rules is required
to be identified and that it is required to be examined whether the
classification made bears any reasonable nexus to such object.
75. The objects sought to be achieved by the periodic revision of the pay-
scales is obviously to comply with the constitutional mandate emanating
from Article 43 of the Constitution of India. If that is the object, we
fail to understand the rationale behind the classification made by the
State of the Maharashtra between aided and unaided colleges. People
employed in educational institutions run by non-State actors are not
treated any more kindly by the market forces and the economy than the
people employed either by the Government or its instrumentalities or
institutions administered by non-State actors receiving the economic
support of the State.
76. The very fact that the Government of India thought it fit to revise
the pay scales of its employees and also thought it fit to accept the
suggestions of the UGC to revise the pay scales of various Universities and
other bodies whose maintenance expenditure is met by the UGC (in other
words virtually by the Union of India), shows that the Government of India
is completely convinced that there is a definite need to revise the pay
scales of not only its employees, but also the employees of its
instrumentalities. The fact that the Government of India made an offer to
the States that the Government of India is willing to shoulder a
substantial portion of the financial burden arising out of the adoption of
revised pay scales in the event of the States choosing to adopt the revised
pay scales, also indicates that the Government is fully convinced that
having regard to various factors operating in the economy of the country
there is a need to revise the pay scales of the personnel employed even by
various States and their instrumentalities. Such a conclusion of the
Union of India is endorsed by the State of Maharashtra. The decision of
the State in issuing the two GRs revising the pay scales of the teaching
staff of all the educational institutions and non-teaching staff of the
aided educational institution is proof of such endorsement.
Therefore, we see no justification in excluding the non-teaching employees
of the unaided educational institutions while extending the benefit of the
revised pay scales to the non-teaching employees of the aided educational
institutions. Such a classification, in our opinion, is clearly violative
of Article 14 of the Constitution of India.
77. Next, we need to examine the question, whether a constitutional court
could compel the executive to exercise its statutory authority to make
subordinate legislation in a manner which would be consistent with the
command of Article 14 and other provisions of the Constitution. In the
alternative, whether the executive could be compelled to ignore the letter
of law and enforce the law even against bodies which are not covered by the
text of the subordinate legislation either by an injunctive or declaratory
relief.
If a law (whether primary or subordinate legislation) is found to be
untenable on the touchstone of Article 14 by the constitutional court, one
clear option for a constitutional court is that it can declare such law to
be unconstitutional and strike down the law. But, striking down a law,
which confers some benefit on a class of people ignoring others who are
otherwise similarly situated in our opinion is not to be done as a matter
of course. If the benefit sought to be conferred by such a law is not
repugnant to the directive principles of the State policy, striking down
the same would virtually amount to throwing away the baby with bath water.
The doctrine of equality has many a facet. Law laid down by this
Court on the interpretation of Article 14 in the last 70 years illuminated
some of them. In a series of judgments commencing from E.P. Royappa v.
State of Tamil Nadu & Another, (1974) 4 SCC 3, the orientation of this
Court in dealing with article 14 has been dynamic. Justice Mathew in his
dissenting Judgment in Bennett Coleman & Co. and Others v. Union of India
and Others, (1972) 2 SCC 788[36] very precisely identified the question,
which this Court should address while interpreting Article 14:
The crucial question today, as regards Article 14, is whether the command
implicit in it constitutes merely a bar on the creation of inequalities
existing without any contribution thereto by State action.
His Lordship went on to say:
It has been said that justice is the effort of man to mitigate the
inequality of men. The whole drive of the directive principles of the
Constitution is toward this goal and it is in consonance with the new
concept of equality.
79. In a similar situation, a Constitution Bench of this Court has in
D.S. Nakara & Others v. Union of India (1983) 1 SCC 305 adopted a more
innovative procedure of directing the State to fill up the lacuna by
extending the benefit uniformly to all the people who are otherwise
similarly situated.
The facts of D.S. Nakara’s case are:
“5. On May 25, 1979, Government of India, Ministry of Finance, issued
Office Memorandum No. F-19(3)-EV-79 whereby the formula for computation of
pension was liberalized but made it applicable to government servants who
were in service on March 31, 1979 and retire from service on or after that
date (‘specified date’, for short) …
6. ... Consequently those who retired prior to the specified date would
not be entitled to the benefits of the liberalized pension formula.”
This Court made an elaborate examination of the concept of pension and its
legal implications; the obligations of State under the Constitution of
India flowing from the directive principles and a host of other factors.
The Court recorded a conclusion.
“43. Further the classification is wholly arbitrary because we do not
find a single acceptable or persuasive reason for this division. This
arbitrary action violated the guarantee of Article 14. The next question
is what is the way out?”
The Court was then confronted with a question whether the court could grant
any relief by enlarging the ambit of the scheme. Incidentally this Court
had to deal with a submission that such a course of action was
unprecedented:
“40. … Alternatively, it was also contended that where a larger class
comprising two smaller classes is covered by a legislation of which one
part is constitutional, the court examines whether the legislation must be
invalidated as a whole or only in respect of the unconstitutional part.
It was also said that severance always cuts down the scope of legislation
but can never enlarge it and in the present case the scheme as it stands
would not cover pensioners such as the petitioners and if by severance an
attempt is made to include them in the scheme it is not cutting down the
class or the scope but enlarge the ambit of the scheme which is
impermissible even under the doctrine of severability. In this context it
was lastly submitted that there is not a single case in India or elsewhere
where the court has included some category within the scope of provisions
of a law to maintain its constitutionality.”
This court rejected the submission based on the lack of precedent,
holding:
“41. The last submission, the absence of precedent need not deter us for a
moment. Every new norm of socio-economic justice, every new measure of
social justice commenced for the first time at some point of history. If at
that time it is rejected as being without a precedent, the law as an
instrument of social engineering would have long since been dead and no
tears would have been shed. To be pragmatic is not to be unconstitutional.
In its onward march law as an institution ushers in socio-economic justice.
In fact, social security in old age commended itself in earlier stages as a
moral concept but in course of time it acquired legal connotation. The
rules of natural justice owed their origin to ethical and moral code. Is
there any doubt that they have become the integral and inseparable parts of
rule of law of which any civilised society is proud? Can anyone be bold
enough to assert that ethics and morality are outside the field of legal
formulations? Socio-economic justice stems from the concept of social
morality coupled with abhorrence for economic exploitation. And the
advancing society converts in course of time moral or ethical code into
enforceable legal formulations. Overemphasis on precedent furnishes an
insurmountable road-block to the onward march towards promised millennium.
An overdose of precedents is the bane of our system which is slowly getting
stagnant, stratified and atrophied. Therefore, absence of a precedent on
this point need not deter us at all. We are all the more happy for the
chance of scribbling on a clean slate.”
and the Court finally concluded as follows:
“65. That is the end of the journey. With the expanding horizons of socio-
economic justice, the Socialist Republic and welfare State which we
endeavour to set up and largely influenced by the fact that the old men who
retired when emoluments were comparatively low and are exposed to vagaries
of continuously rising prices, the falling value of the rupee consequent
upon inflationary inputs, we are satisfied that by introducing an arbitrary
eligibility criterion: “being in service and retiring subsequent to the
specified date” for being eligible for the liberalised pension scheme and
thereby dividing a homogeneous class, the classification being not based on
any discernible rational principle and having been found wholly unrelated
to the objects sought to be achieved by grant of liberalised pension and
the eligibility criteria devised being thoroughly arbitrary, we are of the
view that the eligibility for liberalised pension scheme of “being in
service on the specified date and retiring subsequent to that date” in
impugned memoranda, Exs. P-1 & P-2, violates Article 14 and is
unconstitutional and is struck down. Both the memoranda shall be enforced
and implemented as read down. ... Omitting the unconstitutional part it is
declared that all pensioners governed by the 1972 Rules and Army Pension
Regulations shall be entitled to pension as computed under the liberalised
pension scheme from the specified date, irrespective of the date of
retirement. Arrears of pension prior to the specified date as per fresh
computation is not admissible. Let a writ to that effect be issued. But
in the circumstances of the case, there will be no order as to costs.”
80. When Justice Mathew declared that Article 14 interdicts the State from
creating inequalities, he was stressing the obvious. Further, he
articulated the remedial measures the State has been enjoined to take
recourse to: eliminate the existing inequalities through positive-
affirmative-action, rather than passive neutrality.
What is the remedy open to the citizen and the corresponding
obligation of the judiciary to deal with such a situation, where the
inequalities are created either by the legislation or executive action ?
Traditionally, this Court and the High Courts have been declaring any law,
which created inequalities to be unconstitutional, but in Nakara’s case
this Court realised that such a course of action would not meet with the
obligations emanating from a combined reading of the directive principles
and Article 14. Therefore, this Court emphatically laid down in Nakara’s
case that it is possible to give an appropriate inductive relief by
eliminating the factors, which creates the artificial classification
leading to a discriminatory application of law.
81. Though this Court is not bound by the law declared by the municipal
courts of other countries, this court in the last 70 years always examined
with due regard decisions of the American Supreme Court on questions of
constitutional law. In a comparable situation, American courts did exercise
jurisdiction by granting appropriate injunctive orders compelling the State
to comply with the constitutional mandate by ignoring the legislative
command and extending the benefit provided under a legislation to a certain
class of people who were expressly excluded from receiving that benefit
provided by the legislation. [See: James Plyler v. J. and R. DOE et al.
(supra)[37]]
82. Notwithstanding the wholly unsatisfactory reasoning adopted by the
High Court for allowing the claims of the writ petitioners, (the
respondents herein), we are convinced that the conclusion of the High Court
could be justified on basis of the principle enunciated in D.S. Nakara’s
case.
83. We must at this stage mention that the appellants made elaborate
submissions during the course of the arguments regarding the inter play
between Entry 66 of the List I and Entry 25 of the List III of the Seventh
Schedule and the judgments of this Court in the line of judgments
commencing from State of Tamil Nadu v. Adhiyaman Educational and Research
Institution, (1995) 4 SCC 104, Bharathidasan University v. AICTE, (2001) 8
SCC 676 etc. in a bid to demonstrate that the Council constituted under the
AICTE Act would be incompetent to regulate the service conditions of the
employees of the engineering colleges and therefore the Regulations of 2010
dated 05.03.2010 made by the AICTE purporting to give effect to the
recommendations of the Sixth Pay Commission are without any authority of
law.
84. In view of our conclusion that the State of Maharashtra has taken a
decision in exercise of the power allowable to it under Section 8(3) of the
Maharashtra Universities Act, the question whether AICTE is the competent
body to regulate the service conditions of the employees of engineering
colleges in our opinion is wholly irrelevant to the issue and academic.
Even if the appellant’s submissions in this regard were to be accepted, it
only leads to the inevitable conclusion that the Maharashtra State
legislature is the competent body to deal with the subject.
It did deal with the subject under Section 8(3) of the Maharashtra
Universities Act. Section 8(3) clearly authorises the State Government to
frame rules dealing with the service conditions of the employees (both
teaching and non-teaching) of various educational institutions. The power
is duly exercised. While exercising such power is that State of
Maharashtra drew an artificial distinction between aided and unaided
educational institutions.
85. Another submission of the appellants that is required to be dealt
with is that since the appellant does not receive any financial aid from
the State, calling upon the appellants to pay its employees in terms of the
revised pay scales would be compelling them to perform an impossible task.
The appellants submitted that their only source of revenue is the fee
collected from the students. Their right to collect fee is regulated
pursuant to judgments of this Court in incoherence T.M.A. Pai Foundation &
Others v. State of Karnataka & Others, (2002) 8 SCC 481[38] and Islamic
Academy of Education & Another v. State of Karnataka & Others, (2003) 6 SCC
697[39]. Therefore, if they are compelled to pay their staff higher
salaries they would be without any financial resources as they do not
receive any aid from the State.
86. On the other hand it is argued by the respondent that the
determination of the fee structure and the amount of the fee that could be
collected by the appellants from the students is made by the Fee Regulatory
Committee and such a body is bound under law and does in fact take into
account the various relevant factors in determining the fee structure. It
is, therefore, submitted that it is always open to the managements to make
an appropriate application before the Fee Regulatory Committee bringing all
the relevant factors to the notice of the body competent to determine the
fee structure and raise appropriate revenue.
87. At the outset, we make it clear that at least insofar as non-teaching
staff are concerned, the appellants have no excuse for making such a
submission because in the earlier round of litigation the respondents - non-
teaching employees of the appellants, though succeeded both before the High
Court and this Court in obtaining appropriate directions to the appellant
and other authorities to revise the pay scales of the employees in tune
with the Fifth Pay commission, entered into a settlement dated 30th
January, 2006, the terms of which have already been taken note in this
judgment at para 5.
88. Under the said agreement, the management agreed to revise the pay
scales from time to time in tune with the revision of the pay scales of the
employees of the State. Therefore, the submission of the management in
this regard is liable to be rejected on that ground alone.
89. Even otherwise, if the appellants are obliged under law, as we have
already come to the conclusion that they are in fact obliged, it is for the
appellants to work out the remedies and find out the ways and means to meet
the financial liability arising out of the obligation to pay the revised
pay scales.
90. In the result, the appeals being devoid of merit are dismissed with
no order as to costs.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
January 5, 2017
-----------------------
[1] 11. Considering the above, we are of the opinion that the Petition
will have to be allowed by issuing the following directions.
(1) Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, is
directed, within a period of three months from today, to enforce the pay-
scales in terms of the Rules, and on failure by Respondent No. 2, to make
the payment to the non-teaching in terms of the Rules so also to take steps
according to law including withdrawal of recognition of the Respondent No.
2 as an affiliated college;
(2) The Respondent No. 3, considering the Affidavit filed before
this Court and the terms of recognition, within a period of three months
from today, is directed to see that the Respondent No. 2 implements the
recommendations of Fifth Pay Commission and on failure to do so, to take
steps to withdraw the recognition according to law;
Rule made absolute accordingly. There shall be no order as to
costs. (Para 14 of the Judgment)
[2] 3) The management hereby agrees and admits that, the employees would
be eligible for getting the pay and allowances revised regularly for the
government employees by the government from time to time and the employees
would be eligible for getting the pay and allowances arrived at having
merged the 50% dearness allowance into the basic salary Pay of the
employees from the month of July, 2006.
[3]
[4] [Extract from letter dated 31st December, 2008]
“I am directed to say that the Government of India have decided,
after taking into consideration the recommendations made by the University
Grants Commission (UGC) based on the decisions taken at the meeting of the
Commission held on 7-8 October 2008, to revise the pay scales of teachers
in the Central Universities. The revision of pay scales of teachers shall
be subject to various provisions of the Scheme of revision of pay scales as
contained in this letter, and Regulations to be framed by the UGC in this
behalf in accordance with the Scheme given below. The revised pay scales
and other provisions of the Scheme are as under:
xxx xxx xxx
(p) Applicability of the Scheme
(i) This Scheme shall be applicable to teachers and other
equivalent cadres of Library and Physical Education in all the Central
Universities and Colleges thereunder and the Institutions Deemed to be
Universities whose maintenance expenditure is met by the UGC. The
implementation of the revised scales shall be subject to the acceptance of
all the conditions mentioned in this letter as well as Regulations to be
framed by the UGC in this behalf. Universities implementing this Scheme
shall be advised by the UGC to amend their relevant statutes and ordinances
in line with the UGC Regulations within three months from the date of issue
of this letter.”
[5] “(a) Financial assistance from the Central Government to State
Governments opting to revise pay scales of teachers and other equivalent
cadre covered under the Scheme shall be limited to the extent of 80%
(eighty percent) of the additional expenditure involved in the
implementation of the revision.
(b) The State Government opting for revision of pay shall meet the
remaining 20% (twenty percent) of the additional expenditure from its own
sources.
(c) Financial assistance referred to in sub-clause (a) above shall
be provided for the period from 1.01.2006 to 31.03.2010.
(d) The entire liability on account of revision of pay scales etc.
of university and college teachers shall be taken over by the State
Government opting for revision of pay scales with effect from 1.04.2010.
(e) Financial assistance from the Central Government shall be
restricted to revision of pay scales in respect of only those posts which
were in existence and had been filled up as on 1.01.2006.”
[6] Section 14(8) Where any matter is required to be regulated by the
Statutes, Ordinances or Regulations, but no Statutes, Ordinances or
Regulations are made in that behalf the Vice-Chancellor may, for the time
being, regulate matter by issuing such directions as he thinks necessary,
and shall, at the earliest opportunity thereafter, place them before the
Management Council or other authority or body concerned for approval. He
may, at the same time, place before such authority or body for
consideration the draft of the Statutes, Ordinances or Regulations, as the
case may be, required to be made in that behalf.
[7] (1) The scheme of revision of pay scales as laid down in the G.R.
dated 12.8.2009 shall be made applicable to teachers and equivalent cadres
of Librarian and Physical Education in the University, Colleges and other
Higher Educational Institutes under the purview of the University and
governed by the rules of the UGC.
[8] Exercising the authority conferred by the provisions in Maharashtra
Universities Act, 1994, Dr. Babasaheb Ambedkar Technical University Act,
1989, Smt. Nathibai Damodar Thakarsi Womens’ University, 1974 and Kavi
Kalguru Kalidas Sanskrit University Act, 1997 the Government of Maharashtra
hereby makes the rules prescribing the Standard Code providing for the
terms and conditions of the service of the Non-Teaching employees of the
Non-Agricultural Universities in the Maharashtra State (including its
officers) and of those of the affiliated colleges and recognised
institutions other than those manager and maintained by the State
Government and Local Authorities.
[9]
[10] “Section 8 (3) The State Government may in accordance with the
provisions contained in this Act, for the purpose of securing and
maintaining uniform standards, by notification in the Official Gazette,
prescribe a Standard Code providing for the classification, manner and mode
of selection and appointment, absorption of teachers and employees rendered
surplus, reservation of posts in favour of members of the Scheduled Castes,
Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and
Other Backward Classes, duties workload, pay, allowances, post retirement
benefits, other benefits, conduct and disciplinary matters and other
conditions of service of the officers, teachers and other employees of the
universities and the teachers and other employees in the affiliated
colleges and recognised institutions (other than those managed and
maintained by the State Government, Central Government and the local
authorities). When such Code is prescribed, the provisions made in the
Code shall prevail, and the provisions made in the Statutes, Ordinances,
Regulations and Rules made under this Act, for matters included in the Code
shall, to the extent to which they are inconsistent with the provisions of
the Code, be invalid.”
[11] 2. Cadre of employees to whom these rules apply.
(1) These rules will apply to the full time non teaching employees
subject to the review of non teaching posts of the following 12 non
agricultural universities and to the full time non teaching employees
subject to the review of the non teaching posts in affiliated Non-
Government Aided colleges other then those managed and maintained by the
State Government and Local Authorities.
[12] 1. Short Title, Application and Commencement.
1.1 These Regulations may be called the All India Council for
Technical Education (Pay Scales, Service Conditions and Qualifications for
the Teachers and other Academic staff in Technical Institutions (Degree)
Regulations, 2010.
1.2 They shall apply to technical institutions and Universities
including deemed Universities imparting technical education and such other
courses/programs and areas as notified by the Council from time to time.
[13] See paras 25 and 29(ii) of the impugned judgment
[14] See paras 26 and 29(iii) of the impugned judgment
[15] See para 27 of the impugned judgment
[16] “Government of Maharashtra hereby makes the rules prescribing the
Standard Code providing for the revised pay scales of the non-teaching
employees…”
[17] “Rule 2: Categories of employees to whom the rules apply
These rules shall apply to all full-time non-teaching employees of
the Non-Agricultural Universities and affiliated colleges, other than those
managed and maintained by the State Government and local authorities,
appointed on time-scale of pay
These rules shall not apply to
Employees not in the whole time employment
Employees on consolidated rates of pay
Employees appointed on contract except where the contract provides
otherwise
Employees paid out of contingencies
Daily rated employees
Employees who retired on or before 31st December, 1995 and who were
on re-employment on that date including those whose period of re-employment
extended after that date”
[18] See Para 17 of the Judgment
[19] Article 29. Protection of interests of minorities.—(1) Any section
of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the
right to conserve the same.
(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.
[20] Article 30. Right of minorities to establish and administer
educational institutions.—(1) All minorities, whether based on religion or
language, shall have the right to establish and administer educational
institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of
any property of an educational institution established and administered by
a minority, referred to in clause (1), the State shall ensure that the
amount fixed by or determined under such law for the acquisition of such
property is such as would not restrict or abrogate the right guaranteed
under that clause.
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or language.
[21] Para 180. Before proceeding further, we think it right to say this:
We are aware that “education is the second highest sector of budgeted
expenditure after the defence. A little more than three per cent of the
Gross National Product is spent in education”, as pointed out in para 2.31
of Challenge of Education. But this very publication says that “in
comparison to many countries, India spends much less on education in terms
of the proportion of Gross National Product” — and further “in spite of the
fact that educational expenditure continues to be the highest item of
expenditure next only to defence the resource gap for educational needs is
one of the major problems. Most of the current expenditure is only in the
form of salary payment. It hardly needs to be stated that additional
capital expenditure would greatly augment teacher productivity because in
the absence of expenditure on other heads even the utilisation of staff
remains low.” We do realise that ultimately it is a question of resources
and resources-wise this country is not in a happy position. All we are
saying is that while allocating the available resources, due regard should
be had to the wise words of the Founding Fathers in Articles 45 and 46. Not
that we are not aware of the importance and significance of higher
education. What may perhaps be required is a proper balancing of the
various sectors of education.
[22] Article 41. Right to work, to education and to public assistance in
certain cases.—The State shall, within the limits of its economic capacity
and development, make effective provision for securing the right to work,
to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
§ By the Constitution 86th Amendment Act 2002 w.e.f. 01-04-2010.
[23] Thomas Babington Macaulay’s Minute of 1835 gave the impetus for
introducing English educational system in India.
[24]
[25] Universities of Madras, Bombay and Calcutta are the earliest
Universities established in 1857 by different enactments specifically made
for the purpose of establishing Universities. Certain amendments were made
to those various enactments by the Universities Act 1904.
[26] “…the modern universities were established, more than a hundred
years ago, as exotic institutions created in imitation of the London
University as it then was. The earliest of these were the Universities of
Bombay, Calcutta and Madras – all founded in 1857 – and the University of
Allahabad, founded in 1887. They all began as purely examining bodies and
continued to be so till the opening of the present century when the Indian
Universities Commission was appointed (1902) and the Indian Universities
Act was passed (1904). As Lord Curzon observed: ‘How different is India!
Here the university has no corporate existence in the same (i.e., as in
Oxford or Cambridge) sense of the term; it is not a collection of
buildings, it is scarcely even a site. It is a body that controls courses
of study and sets examination papers to the pupils of affiliated colleges.
They are not part of it. They are frequently not in the same city,
sometimes not in the same province (Lord Curzon in India, Vol. II, p.35).
The Government Resolution on Educational Policy (1913) accepted the need
for establishing more universities. It said ‘The day is probably far
distant when India will be able to dispense altogether with the affiliating
universities. But it is necessary to restrict the area over which the
affiliating universities have control by securing, in the first instance, a
separate university for each of the leading provinces in India and secondly
to create new local teaching and residential universities within each of
the provinces in harmony with the best modern opinion as to the right road
to educational efficiency….” (Kothari Commission Report at page 275)
[27] Section 3. The University shall be ………..incorporated for the
purpose (among others) of making provision for the instruction of
students,…..
[28] Exceptions being Article 371 E
“371E. Establishment of Central University in Andhra Pradesh -
Parliament may by law provide for the establishment of a University in the
State of Andhra Pradesh”
and the educational institutions mentioned in Entries 63 to 66
“63. The institutions known at the commencement of this Constitution
as the Benares Hindu University, the Aligarh Muslim University and the
Delhi University; the University established in pursuance of article 371E;
any other institution declared by Parliament by law to be an institution of
national importance.
64. Institutions for scientific or technical education financed by
the Government of India wholly or in part and declared by Parliament by law
to be institutions of national importance.
65. Union agencies and institutions for—
(a) professional, vocational or technical training, including the
training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or
detection of crime.
66. Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions.”
[29] See Footnote No. 25
[30] Entry 25 of List III prior to the 42nd Amendment. – “Vocational and
technical training of labour.”
[31] Entry 11 of List II prior to the 42nd Amendment. – “Education
including universities, subject to the provisions of entries 63, 64, 65 and
66 of List I and entry 25 of List III.”
[32] Article 30 confers a fundamental right on (minorities both religious
and linguistic non-state actors) to establish and administer educational
institutions of their choice
[33] Article 16. Equality of opportunity in matters of public employment.
-- (1) There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
[34] Managing Director, ECIL, Hyderabad & Others v. B. Karunakar & Others
(1993) 4 SCC 727
[35] Written Submissions of the Appellants:
Para 25. That is why the AICTE notification dated 05.03.2010 itself
even in the context of central funding, preserves the authority of the
state Government to extend the notification to institutions falling within
the State legislations. This is on the premise that the conditions of
service of employees of institutions governed by university legislations is
a matter to be dealt within the terms of such a legislation.
Para 26. It is, therefore, submitted that AICTE notification does
not ipso-facto become applicable to all and every institutions governed by
respective State legislation dealing with education and universities.
Para 27. Conditions of service of employees, even though matters of
contract can still be regulated by law. Such a law can fall under entry –
25 List III. But the law must expressly deal with such subject and not by
any implication. As the law stands today private unaided institutions as
far as various aspects of education are concerned including the aspect of
conditions of service are governed only and exclusively by legislation
relating to universities.
Para 28. As the Government of Maharashtra has not exercised its
statutory power under sub-section (3) of section 8 of the 1994 Act and
since the notification issued by it on 25.08.2010 omits to deal with
private unaided institutions, they cannot be compelled to abide by AICTE
notification. It is well settled that the writ of mandamus is not a
creative writ but only enforces statutory duties or rights.
Para 29. The issue of conditions of service of employees within the
scope of universities legislation can always be dealt with in terms with
such a law in the absence of any such determination by the State
Government, on principles of parity alone, the court will not issue a writ
of mandamus.
[36] Article 38. State to secure a social order for the promotion of
welfare of the people-- (1) The State shall strive to promote the welfare
of the people by securing and protecting as effectively as it may a social
order in which justice, social, economic and political, shall inform all
the institutions of the national life.
(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different
vocations.
[37] 39. Certain principles of policy to be followed by the State --
The State shall, in particular, direct its policy towards securing—
xxx xxx xxx
(d) that there is equal pay for equal work for both men and women;
* We have already taken note of the fact that the writ petitioners
(respondents herein), employees of the appellants fall into two categories
i.e. teaching staff and non-teaching staff.
[38] We say “if any” only because we have neither examined the complete
scheme of the Maharashtra Universities Act, nor any submission made by any
one of the parties – with regard to the competence of the University or its
authorities to regulate the service conditions of the employees of the
affiliated colleges whether aided or not.
[39] Para 162. It has been said that in the scheme of distribution of
news- print, unequals have been treated equally and therefore, the
Newsprint Policy violates Art' 14 of the Constitution. To decide this
question regard must be had to the criteria to be adopted in distributing
the material resources of a community. Arguments about equality in this
sphere are really arguments about the criteria of relevance. The
difficulties involved in developing such criteria have occupied
philosophers for centuries. Despite the refinements that distinguish the
theories of various philosophers, most such theories represent variations
on two basic notions of equality : numerical equality and proportional
equality. The contrast between the two notions is illustrated by the
difference between the right to an equal distribution of things and the
equal- right with respect to a distribution of such things. According to
the former, each individual is to receive numerically identical amounts of
the benefit being distributed or the burden imposed in the public sector,
whereas the latter means only that all will receive the same consideration
in the distributional decision, but that the numerical amounts distributed
may differ. Proportional equality means equality in the distribution
according to merit or distribution- according to need (see Developments-
Equal Protection). (2) But the Supreme Court of U.S.A. has departed froth
this traditional approach in the matter of equality and has adopted a more
dynamic concept as illustrated by the decision in Griffin v. Illinois(")
and Douglas v. California. (4) In these cases it was held that the State
has an affirmative duty to make compensatory legislation in order to make
men equal who are really, unequal has undergone radical other words, the
traditional doctrine that the Court is concerned with formal equality
before the law and is not concerned to make men equal who are really
unequal has under gone radical change in the recent years as illustrated by
these cases. Justice Harlan dissented both in Griffin's case and Douglas'
case and his dissenting opinion in the former case reveals the traditional
and the hew approaches and also highlights the length to which the majority
has, gone :
"The Court thus holds that, at least in this area of criminal
appeals, the Equal Protection Clause imposes on the States an affirmative
duty to lift the handicaps flowing from differences in economic
circumstances. That holding produces the anomalous result that a
constitutional admonition to the States to treat all persons equally means
in this instance that Illinois must give to some what is requires others to
pay for.... It may as accurately be said that the real issue in this case
is not whether Illinois has discriminated but whether it has a duty to
discriminate."
Para 163. The crucial question today, as regards Art. 14, is whether
the command implicit in it constitutes merely a ban on the creation of
inequalities by the State, or, a command, as well, to eliminate
inequalities existing without any contribution thereto by State action. The
answer to this question, has already been given in the United States under
the equal protection clause in the two cases referred to, in certain areas.
The Court, in effect, has began to require the State to adopt a standard
which takes into account the differing economic and social conditions of
its citizens, whenever these differences stand in the way of equal access
to the exercise of their basic rights. It has been said that justice is the
effort of man to mitigate the inequality of men. The whole drive of the
directive principles of the Constitution is toward this goal and it is in
consonance with the new concept of equality. The, only norm which the
Constitution furnishes for distribution of the material resources of the
community is the elastic norm of the common good [see Art. 39 (b) 1] 1 do
not think I can say that the principle adopted for the distribution of
newsprint is not for the common good.
[40] The facts of James PLYLER are as follows:
The Texas Legislature revised its education laws to withhold from
local school districts any state funds for the education of children who
were not “legally admitted” into the United States. A class action was
brought on behalf of certain school-age children of Mexican origin who
could not establish that they had been legally admitted into the United
States, complaining of discrimination. The District Court held that the
children were entitled for the protection of the Fourteenth Amendment
(Equal Protection Clause) and injuncted the State from denying the funds
for their education. On appeal, the Court of Appeals for the Fifth Circuit
upheld the injunction. Eventually, the matter reached the Supreme Court of
the United States, which affirmed the injunction.
[41] See Paras 56 to 58 and 161
[42] See Paras 6, 7 and 19
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