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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

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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

Court1 giving various directions to Dr. Babasaheb Ambedkar 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)

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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 revisions2.

6. The Sixth Pay Commission set up by the Government of 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.

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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  teachers3 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.

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 [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.”

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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 scheme4.

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

4 “(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.”

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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.

1.2. 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

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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

5 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.

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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’ Acts7, 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, 6 (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. 7 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. 8

 “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

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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 colleges9.  

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

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.”

9 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.

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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 110 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

10  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.

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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 Commission11.   11  See paras 25 and 29(ii) of the impugned judgment

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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.   12  See paras 26 and 29(iii) of the impugned judgment 13  See para 27 of the impugned judgment

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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

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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

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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  employees14 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 colleges15,  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

14 “Government of Maharashtra hereby makes the rules prescribing the Standard Code providing for the  revised pay scales of the non-teaching employees…” 15 “Rule 2: Categories of employees to whom the rules apply

(i) 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

(ii) These rules shall not apply to  (a) Employees not in the whole time employment (b) Employees on consolidated rates of pay (c) Employees appointed on contract except where the contract provides otherwise (d) Employees paid out of contingencies (e) Daily rated employees (f) 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”

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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:  

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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 Court16, 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

16 See Para 17 of the Judgment

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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

17 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

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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

State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

18 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.

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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 4120 “to 19 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. 20 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

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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.  

disablement, and in other cases of undeserved want. § By the Constitution 86th Amendment Act 2002 w.e.f. 01-04-2010.

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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 System21 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 provinces22 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

21  Thomas Babington Macaulay’s Minute of 1835 gave the impetus for introducing English educational  system in India. 22

 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. 23 “…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)

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was followed by the Indian Universities  Act,  1904.    Under

Section  3  of  the  Act,  Universities  were  enabled  to  instruct

students24.   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

24 Section 3.   The University shall  be ………..incorporated  for the purpose (among others)  of  making provision for the instruction of students,…..

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establish  universities  vested  exclusively25 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

25 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.”

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(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 6626 (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 26 See Footnote No. 25

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education came to be substituted27.  

43. By the 42nd amendment of the Constitution, Entry 11 of

List II28 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 27  Entry 25 of List III prior to the 42nd Amendment. – “Vocational and technical training of labour.” 28 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.”

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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

Constitution29 (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

29 Article 30 confers a fundamental right on (minorities both religious and linguistic non-state actors) to establish and administer educational institutions of their choice

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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

1630.  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

30 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.

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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 State31.    

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 31 Managing Director, ECIL, Hyderabad & Others v. B. Karunakar & Others  (1993) 4 SCC 727

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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

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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:

(ι) 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

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whether teaching staff or non-teaching staff in

accordance  with  the  pay  structure

recommended by the Sixth Pay Commission.   

(ii) A law creating such statutory obligation must

be express.

(iii) 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.  

(iv) 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

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institutions  governed  by  the  respective  State

legislations  dealing  with  education  and

universities32.

(v) 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

32 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.  

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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   3833  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.

33  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.

34  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;

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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.

 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.

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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

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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:

(ii) 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.

(iii) 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.

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(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

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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

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institutions, the authority, if any35, 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.”

35  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.

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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

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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.

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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

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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

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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

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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

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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.

78. 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

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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 78836

36 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 :  

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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:

"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.

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“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

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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

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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

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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

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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 37  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.  

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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

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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  48138 and  Islamic  Academy  of

Education  & Another  v.  State  of  Karnataka & Others,

(2003) 6 SCC 69739.  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

38  See Paras 56 to 58 and 161 39  See Paras 6, 7 and 19

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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

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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

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