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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