# 2 S.C.R. 241 SECRETARY MAHATAMA GANDID MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS

- **Citation:** [2017] 2 S.C.R. 241
- **Court:** Supreme Court of India
- **Decided:** 2017-01-05
- **Case number:** Civil Appeal Nos. 115-116 of2017
- **Bench:** J. Chelameswar, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-241-secretary-mahatama-gandid-mission-another-v-bhartiya-kamgar-sena-31808
- **Pages:** 44

## Headnote

Maharashtra University Act, 1994:
s. 8(3) - Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Non Teaching Employees Revised
Pay) Rules, 2009 - rr. 17, 2 - Rules made in respect of Sixth Pay
Commission by State of Maharashtra in the year 2009 - Right of
employees to receive pay and allowance in terms of Sixth Pay
Commission - Appellant's case that Rules of 2009 revising the pay
scales of non-teaching staff of only affiliated aided colleges and
appellant being an unaided college, cannot be compelled to pay
salary and allowances to its employees in terms of the
recommendations of the Sixth Pay Commission - Sustainability of -
Held: No justification in excluding the non-teaching employees of
the unaided educational institutions while extending the benefit of
the revised pay scales to the non-teaching employees of the aided
educational institutions - Such classification is clearly violative of
Art. 14 - Objects sought to be achieved by the periodic revision of
the pay-scales was to comply with the constitutional mandate
emanating from Art. 43 of the Constitution, thus, the rationale behind
the classification made by the State of the Maharashtra between
aided and unaided colleges cannot be understood - GR dated
12.8.2009 can be safely construed to be one made in exercise of
the power u!s. 8(3) conferring a legal right on the teaching staff of
the affiliated colleges irrespective of the fact whether they are aided
or not - Colleges run by the appellants are admittedly colleges
affiliated to the Universities functioning under the Act - Thus, their
teaching staff would be entitled to revised pay scales in terms of the
GR - Constitution of India - Art. 14.
Constitution of India:
Art. 14 - Power of constitutional court to compel executive
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to exercise statutory authority to make subordinate legislation
consistent with Art. 14 - Held: If a law, whether primary or
subordinate legislation, is found to be untenable on the touchstone
of Art. 14 by the constitutional court, it can declare such law to be
unconstitutional and strike the same - However, siriking down a
I
law, which confers some benefit on a class of people ignoring others
who are othenvise similarly situated, is not to be done as a matter
of course.
Scheme of education system and employment under -
Explained.
Dismissing the appeals, the Court
HELD: 1.1 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 auy 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 are completely rejected by
the Government so far. [Para 59] [270-D-E; 271-A]
1.2 Once the Government of India accepted the
recommendations of the pay commission and issued orders
signifying its acceptance, it became the decis.ion of the
Government of India. That decision of the Government 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. 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
stru_cture adopted by the Government of India or create any right
in favour of the employees of the State or other bodi.es falling
within the legislative authority of the State. [Paras 60,61] [271B-D]
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
243
BHARTIYA KAMGAR SENA & OT

## Text

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[2017) 2 S.C.R. 241
SECRETARY MAHATAMA GANDID MISSION & ANOTHER
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v.
BHARTIYA KAMGAR SENA & OTHERS
(Civil Appeal Nos. 115-116 of2017)
JANUARY 05, 2017
[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.)
Maharashtra University Act, 1994:
s. 8(3) - Maharashtra Non-Agricultural Universities and
Affiliated Colleges Standard Code (Non Teaching Employees Revised
Pay) Rules, 2009 - rr. 17, 2 - Rules made in respect of Sixth Pay
Commission by State of Maharashtra in the year 2009 - Right of
employees to receive pay and allowance in terms of Sixth Pay
Commission - Appellant's case that Rules of 2009 revising the pay
scales of non-teaching staff of only affiliated aided colleges and
appellant being an unaided college, cannot be compelled to pay
salary and allowances to its employees in terms of the
recommendations of the Sixth Pay Commission - Sustainability of -
Held: No justification in excluding the non-teaching employees of
the unaided educational institutions while extending the benefit of
the revised pay scales to the non-teaching employees of the aided
educational institutions - Such classification is clearly violative of
Art. 14 - Objects sought to be achieved by the periodic revision of
the pay-scales was to comply with the constitutional mandate
emanating from Art. 43 of the Constitution, thus, the rationale behind
the classification made by the State of the Maharashtra between
aided and unaided colleges cannot be understood - GR dated
12.8.2009 can be safely construed to be one made in exercise of
the power u!s. 8(3) conferring a legal right on the teaching staff of
the affiliated colleges irrespective of the fact whether they are aided
or not - Colleges run by the appellants are admittedly colleges
affiliated to the Universities functioning under the Act - Thus, their
teaching staff would be entitled to revised pay scales in terms of the
GR - Constitution of India - Art. 14.
Constitution of India:
Art. 14 - Power of constitutional court to compel executive
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to exercise statutory authority to make subordinate legislation
consistent with Art. 14 - Held: If a law, whether primary or
subordinate legislation, is found to be untenable on the touchstone
of Art. 14 by the constitutional court, it can declare such law to be
unconstitutional and strike the same - However, siriking down a
I
law, which confers some benefit on a class of people ignoring others
who are othenvise similarly situated, is not to be done as a matter
of course.
Scheme of education system and employment under -
Explained.
Dismissing the appeals, the Court
HELD: 1.1 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 auy 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 are completely rejected by
the Government so far. [Para 59] [270-D-E; 271-A]
1.2 Once the Government of India accepted the
recommendations of the pay commission and issued orders
signifying its acceptance, it became the decis.ion of the
Government of India. That decision of the Government 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. 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
stru_cture adopted by the Government of India or create any right
in favour of the employees of the State or other bodi.es falling
within the legislative authority of the State. [Paras 60,61] [271B-D]
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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BHARTIYA KAMGAR SENA & OTHERS
1.3 The Government of India decided to extend the benefit
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of revised pay scales to the employees of various central
universities etc. on the basis of the recommendations of the
University Grants Commission - a statutory body. While accepting
the recommendations of the UGC, the Government of India chose
to extend the benefit of revised pay scales only to the teachers
and other eqnivalent 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.
[Para 62] [271-E-G]
.1.4 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.
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, for a period of five
years. [Paras 63, 64] [272-D-F]
1.5 Accepting the offer made under the scheme of the Union
of India, the State of Maharashtra issued the GR dated 12.8.2009
revising the pay scales of the cadres specified therein (essentially
teaching staff) of the "universities' colleges and other higher
educational institutions". By the said GR, the State of Maharashtra
declared the revision of the pay scales of the teaching staff of the
educational institutions. However, the universities were directed
by the said GR 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. [Para 65] [272-FG; 273-C]
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1.6 In view of the power u/s. 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 aud other educational institutions, the authority, if
any, of the universities to deal with the said subject would cease
the moment the State Government chooses to make Rules. Ju
view of tbe provisions in 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 subordinate legislative instruments is redundant. [Para
65] [273-D-E]
1. 7 From tbe language of sub-section (8) to Section 14 of
the Act, 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 payscales) of the employees of the affiliated colleges. No specific
provision under the said Act which authorised making of either
Statutes, Ordfoance or Regulations dealing with 'the service
conditions including the pay-scales of the employees of the
affiliated colleges is brought to the 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, the order of the Vice-Chancellor, Order No.214 dated
29.08.2009 is superfluous and without any authority oflaw. [Para
67] [274-B-D]
1.8 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 on-aided colleges. However,
the GR does not purport to be one made in exercise of the power
under Section 8(3). It is agreed 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 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
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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BHARTIYA KAMGAR SENA & OTHERS
scales of the teaching staff of the various educational institutions
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mentioned therein. The mere absence of the recital of the source
of power cannot determine the legal status of the instrument or
deprive the instrument of its efficacy.[Para 69] [274-F-H; 275-A]
1.9 The difference between the authority of the State
flowing from Article 162 of the Constitution or Section 8(3) of the
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. [Para 70] [275-B-C]
1.10 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. 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. [Paras 71, 72]
[275-C-D]
1.11 Coming to the non-teaching staff working in the
colleges run by the appellant, the Rules of 2009 purport to be
the rules revising the pay-scales of the non-teaching staff of only
the affiliated aided colleges. Therefore, textually the colleges
administered by the appellants are not governed by the rules.
[Para 731 1275-EI
.
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1.12 The 1999 Rules, which extended the 5" 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 unaided colleges ostensibly fall under two separate categories. But
for the purpose of Article 14, every classification does not
automatically become permissible. Second requirement of the
doctrine of reasonable classification is that such classification must
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bear a nexus to the objects sought to be achieved. 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. If that is the object, the
rationale behind the classification made by the State of the
Maharashtra between aided and unaided colleges cannot be
understood. People employed in educational institutions ruu 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.
[Paras 74, 75] [275-G-H; 276-A-B, C-D]
1.13 The very fact that the Government of India thought
it fit to revise the pay scales of its employees and also thought it
fit to accept the suggestions of the UGC to revise the pay scales
of various Universities and other bodies whose maintenance
expenditure is met by the UGC (in other words virtually by the
Union oflndia), shows that the Government oflndia 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 nonteaching staff of the aided educational institution is proof of such
endorsement. Therefore, there is no justification in excluding
the non-teaching employees of the unaided educational institutions
while extending the benefit of the revised pay scales to the nonteaching employees of the aided educational institutions. Such a
classification, is clearly violative of Article 14 of the Constitution.
[Para 76] [276-D-H; 277-A-B)
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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1.14 If a law (whether primary or subordinate legislation)
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is found to be untenable on the touchstone of Article 14 by the
constitutional court, one clear option for a constitutional court is
that it can declare such law to be unconstitutional and strike down
the law. But, striking down a law, which confers some benefit on
a class of people ignoring others who are otherwise similarly
situated, 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.
[Para 78] [277-C-EJ
1.15 Notwithstanding the wholly unsatisfactory reasoning
adopted by the High Court for allowing the claims of the writ
petitioners-respondents, the conclusion of the High Court could
be justified on basis of the principle enunciated in D.S. 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 oflaw. [Paras 80, 82) [282B, E]
D.S. Nakara & Others v. Union of India 1983 (2) SCR
165 : (1983) 1 sec 305 - relied on.
1.16 The State of Maharashtra took 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, is wholly irrelevant to the issne 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 sμbject. It dealt with the subject under Section 8(3) of the
Maharashtra Universities Act. Section 8(3) clearly authorises the
State Government to frame rules dealing with the service
conditions of the employees (both teaching and non-teaching) of
various educational institutions. The power is duly exercised.
While exercising such power is that State of Maharashtra drew
an artificial distinction between aided and unaided educational
institutions. [Para 84] [283-C-E]
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1.17 Insofar as non-teaching staff are concerned, the
appellants have no excuse for making a submission that they do
not receive any financial aid from the State 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 30" January, 2006. Under the said agreement, the
management agreed to revise the pay scales from time to time in
tune with the revision of the pay scales of the employees of the
State. Even otherwise, if the appellants are obliged under law, as
it is already concluded 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. [Paras 87, 88, 89] (284-C-G]
Unni Krishnan, J.P. & Others v. State of Andhra
Pradesh & Others [1993] 1 SCR 594 : (1993) 1 SCC
645; E.P. Royappa v. State of Tamil Nadu & Another
[1974] 2 SCR 348 : (1974) 4 SCC 3; Bennett Coleman
& Co. and Others v. Union of India and Others
(1973] 2 SCR 757 : (1972) 2 SCC 788; State of Tamil
Nadu v. Adhiyaman Educational and Research
Institution [1995] 2 SCR 1075 : (1995) 4 SCC 104;
Bharathidasan University v. AICTE [2001] 3 Suppl.
SCR 253 : (2001) 8 SCC 676; T.MA. Pai Foundation
& Others v. State of Karnataka & Others (2002] 3
Suppl. SCR 587: (2002) 8 SCC 481; Islamic Academy
of Education & Another v. State of Karnataka &
Others [2003] 2 Suppl. SCR 474 : (2003) 6 SCC 697
- referred to.
Wisconsin v. Yoder 406 US 205 (1972) - referred to.
Case Law Reference
J1993J 1 SCR 594
referred to
Para36
J1974J 2 SCR 348
referred to
Para 78
J1983J 2 SCR 165
referred to
Para 79
[1995] 2 SCR 1075
referred to
Para 83
[2001] 3 Suppl. SCR 253
referred to
Para 83
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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BHARTIYA KAMGAR SENA & OTHERS
[2002] 3 Suppl. SCR 587
[2003] 2 Suppl. SCR 474
referred to
referred to
Para 85
Para 85
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11 5116 of2017.
From the Judgment and Order dated 10.02.2012 & 06.07.2012
of the High Court of Judicature at Bombay, Bench at Aurangabad in
Writ Petition No. 11091 of2010 and Review Petition No. 191 of2012 in
Writ Petition No. ll 091 of2010
WITH
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C.A.Nos.117-118and 119-120of2017.
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R. Venkataramani, Sr. Adv., Vikram Kadam, Yashraj Singh
Bundela, Ms. Astha Deep, Ms. V. Vijaya Lakshmi, Ms. Neelam Singh,
Brij Kishor Shah, Shivaji M. Jadhav, Sachin Patil, Sanjay Kharde, Sunil
Kumar Verma, Advs. for the Appellants.
Kuna! A. Cheema, Addi. Govt. Adv., B. H. Marlapalle, Sr. Adv.,
D
San jay Choukidar, Aditya Gaggar, Apoorv Shukla, Aj it Wagh, Sudhanshu
S. Choudhari, Yogesh K. Ahirrao, Nishant Ramakantrao Katneshwarkar,
Ms. Asha Gopalan Nair, Gaurav Sharma, C. G Solshe, T. R. Pasi, Satyapal
Khushal Chand Pasi, Advs. for the Respondents.
The Judgment of the Court was delivered by
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CHELAMESWAR, J. 1. Leave granted.
2. Th~ first appellant in all these three appeals is a charitable
trust registered under the Bombay Public Trusts Act, 1950. The first
appellant established and has been administering two engineering colleges,
one at Nanded and another at Aurangabad in the State of Maharashtra.
The first respondent appears to be an unregistered body of persons who
are the employees of the first appellant. They are the staff of the
abovementioned two engineering colleges belonging either to the category
of teaching or non-teaching staff. The details of which are not necessary
for the purpose of this case.
3. In the year 2002, the first respondent and others (some nonteaching members in the employment of the appellant) approached the
Bombay High Court by way of a Writ Petition No. 333 of2002 praying
that the respondent therein (which included the authorities of the State
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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 oflndia to the employees of the appellant herein. The said
writ petition was allowed by a judgment dated 19'" December, 2003 by
the Division Bench of the Bombay High Court' giving various directions
to Dr. Babasaheb Ambedkar Marathwada University, Aurangabad
(Respondent No. 5 in that Writ Petition).
4. Aggrieved by the said judgment, the employer carried the
matter to this Court in SLP(C) No. 19567-19568 of2004 which came to
be dismissed by an order of this Court dated 24. I 0.2005.
5. Subsequently, there was a settlement dated 30.1.2006 between
the appellant and the petitioners in Writ Petition No. 333 of2002. The
terms of the settlement were reduced to writing whereunder the nonteaching staff(petitioners in W.P. 333 of2002) of the appellant agreed
to waive their right to claim arrears of pay calculated in terms of the
recommendation of the Fifth Pay Commission for the period between
January 1, 1996 to December 31, 2000. Correspondingly, the appellant
herein undertook to implement future pay revisions'.
6. The Sixth Pay Commission set up by the Government oflndia
made its recommendations on 24.3.2008. The University Grants
1 11. Considering the above, v:e arc of the opinion that the Petition will have to be
allo\ved by issuing the following directions.
(I) 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 tenns
of the Rules so also to take steps according to law including withdrawal of recognition
of the Respondent No. 2 as an affiliated college;
(2) The Respondent No. 3, considering the Affidavit filed before this Court and the
terms of recognition, within a period of three months from today, is directed to see that
the Respondent No. 2 implements the recommendations of Fifth Pay Commission and
on failure to do so, to take steps to withdraw the recognition according to law;
Rule made absolute accordingly. There shall be no order as to costs. (Para 14
of the Judgment)
2 3) The management hereby agrees and admits that, the employees would be eligible for
getting the pay and allowances revised regularly for the government employees by the
government from time to time and the employees would be eligible for getting the pay
and allowances arrived at having merged the 50% dearness allowance into the basic
salary Pay of the employees from the month of July. 2006.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]
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 oflndia had decided
to revise the pay scales of the various classes ofteachers3 in the Central
Universities and colleges thereunder subject to various terms and
conditions stipulated in the scheme. The Government of India
communicated its acceptance to UGC by its letter dated 31. 12.2008.
It was also declared under the scheme:-
"(v) The Scheme may be extended to universities, Colleges and
other higher educational institutions coming under the purview
of State legislatures, provided State Governments wish to adopt
and implement the Scheme subject to the following terms and
conditions;"
The scheme also provided that in the event of the extension of
the scheme by any State government to Universities or colleges and
other higher educational institutions coming under the purview of State
legislatures, the Government of India would unde11ake to meet a part
3 [Extract fron1 letter dated 31 11 Dece1nbcr. 20081
"I am directed to say that the Government of India have decided. after taking into
consideration the recommendations made by the University Grants Com1nission (UGC)
based on the decisions taken at the meeting of the Con1mission held on 7-8 October
2008, to revise the pay scales of teachers in the Central Universities. The reYision
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 belo\v. The revised pay scales
and other provisions of the Scheme are as under:
(p) Applicability of the Scheme
(i) This Scheme shall be applicable to teachers and other equiva\e1lt cadres of Library
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and Physical Education in all the Central Universities and Colleges thereunder and the
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Institutions Deemed to be Universities \Vhose 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 \Veil as Regulations to be frained by the UGC
in this behalf. Universities implementing this Scheme shall be advised by the UGC to
a1nend their relevant statutes and ordinances in line \vith the UGC Regulations \vithin
three months fro1n the date of issue of this letter."
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of the financial burden resulting from the implementation of such scheme'.
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Copy of the said letter was also forwarded to all the State
Governments.
7. The State of Maharashtra took note of the abovementioned
developments and by a Government Resolution (hereafter "GR") dated
12.8.2009 made a "scheme" revising the pay scales and the dearness
allowances of all teachers and other equivalent cadres of the Universities,
colleges and other higher educational institutions coming under the
purview of the State legislature. Preamble to the said GR insofar as
it is relevant reads:
"Government of India vide. its letter dated 3 l" 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 ofrevision 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 subjectto the condition that the entire
scheme of revision of pay scales together with al I the conditions
~ .. la) Financial assistance from the Central Government to State Govern1nents opting
to revise pay scales of teachers and other equivalent cadre covered under the Scheme
shall be limited to the extent of 80o/o (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 ren1aining 20%
(t\Yenty percent) of the additional expenditure from its o'vn 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.
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( 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.
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(e) Financial assistance from the Central Government shall be restricted to revision of
pay scales in re::;pect of only those posts which were in existence and had been filled up
as on 1.01.2006."
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]
etc. shall be implemented by the State Government as a composite
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scheme without any modification etc.
1.2. The question ofrevising 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
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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;"
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8. From the tenorof para 8(E) of the GR it is clear that the State
of Maharashtra did not direct the revision of the pay scales of the nonteaching 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 31"
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-Chancellorofthe third respondent University, issued order
No. 214 dated 29.8.2009 in the purported exercise of power under Section
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14(8)' of the Maharashtra University Act, 1994. The Order purported
to extend the scheme propounded by the Government oflndia and adopted
by the State by the GR dated 12.8.2009 to all the colleges affiliated to
that university. The tenor of the order No. 214 makes it clear that the
scheme is made applicable only to teachers and equivalent cadres of
librarian and physical education.' 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.
I 0. On 7'" October, 2009, the Government of Maharashtra made
Rules invoking its power under the provisions of the various Universities'
Acts', etc., "'prescribing a standard code providing for the terms and
conditions of service" of the non-teaching employees of the various
organizations described thereunder. The expression standard code is
traceable to Section 8(3)8 of the Maharashtra Universities Act, 1994
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
behalC
"I 1) The scheme of revision of pay scales as laid down in the GR. 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
AcL 1997 the Government of Maharashtra hereby makes the rules prescribing the
Standard Code pro\'iding for the terms and conditions of the service of the NonTeaching 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.
H··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 Ga::.ette, prescribe a Standard Code proYiding for the
classification, nianner and mode of selection and appointinent, absorption of teachers
and employees rendered surplus, reservation of posts in favour of members of the
Scheduled Castes. Scheduled Tribes. Denotified Tribes (I /111ukra Jatis). Nomadic Tribes
and Other Backward Classes, duties \VOrkload, pay, allowances, post retire1nent benefits,
other benefits, conduct and disciplinary niatters and other conditions of service of the
officers, teachers and other employees of the universities and the teachers and
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]
which authorises the State to make rules providing for the various aspects
of employment of officers, teachers and other employees of the
Universities, affiliated colleges and recognised institutions. It further
declares that when such Rules are made they would prevail over any
other subordinate legislation made by any statutory authority functioning
under the Act.
11. Rule 2( 1) of the said Rules stipulates that those rules apply to
the full time non-teaching employees of: (i) 12 specified non-agricultural
universities, and (ii) the affiliated non-government aided colleges'.
12. Under the said Rules elaborate provisions dealing with the
pay structure of the non-teaching employees of the abovementioned
two classes of educational institutions were made. The Rules did not
apply to the non-teaching employees of the unaided non -government
colleges.
13. It is also necessary to take note of the fact that the All India
Council for Technical Education(' AICTE', for short) made Regulations
dated 05.03.2010 in the purported exercise of the powers under Sections
10( I )(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
other employees in the affiliated colleges and recognised institutions (other than
those managed and maintained by the State Government, Central Government and the
local authorities). When such Code is prescribed, the provisions made in the Code shall
prevail, and the provisions made in the Statutes, Ordinances, Regulations and Rules
tnade under this Act, for matters included in the Code shall, to the extent to \Vhich they
are inconsistent \Vi th the provisions of the Code. be invalid .. ,
9 2. Cadre of employees to \vhom these rules apply.
(I) These rules \viii 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.
111 I. Short Title, Application and Commencement.
I. I 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, 20 I 0.
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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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.I 1091/2010, 8780/2010, 2035/2011 and 4443/2009. We are only
concerned with the impugned judgment insofar as it dealt with the writ
petitions no. I 1091/2010, 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. I I 091/2010 was filed by the "teaching and
non-teaching staff of the engineering college" atAurangabad run by the
l" 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 oflaches but allowed the petition insofar as it
prayed for the implementation of the pay scales fixed by the Sixth Pay
Commission 11 •
18. Writ Petition No.8780/2010: It was filed by the "non-teaching
staff' of the Engineering College, Nanded run by the I" 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."
19. Writ Petition No.2035/2011: The prayer in this writ petition
(filed by a lone petitioner) is forthe implementation of the revision in the
"See paras 25 and 29(ii) of the impugned judgment
"See paras 26 and 29(iii) of the impugned judgment
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v.
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BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]
pay scales in tenns of the Fourth, Fifth and Sixth Pay Commission Reports.
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The High Court opined that relief could be granted only with reference
to the Sixth Pay Commission Report but not the other two Pay
Commission Reports in view of laches. 13
20. Hence, these appeals by the employers.
21. Before we proceed to examine the correctness of the
judgment under appeal and the various grounds on which the same is
challenged, we think it appropriate to note the reasons given by the High
Court for the conclusion reached by it.
22. The relevant paragraph containing "reasons" forthe 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.