NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

COMMON LAW METHOD – FIRST TRIMESTER PROJECT

AN ANALYSIS OF

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

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

DECIDED ON: 05/01/2017

BENCH TYPE: DIVISION BENCH

JUDGES: J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.

SUBMITTED BY: SUBMITTED TO:

NIPUNJ NIKET PROF. (DR.) GHAYUR ALAM

ROLL NO. – 2017B.A.LL.B.24
SECTION- A (FIRST YEAR)
ENROLLMENT NO. – A-1800
 TABLE OF CONTENTS

SI.NO. PARTICULARS PAGE NO.

1. CONCRETE FACTS OF THE CASE 3

2. MATERIAL FACTS OF THE CASE 6

3. QUESTIONS OF LAW INVOLVED 7

4. ANSWERS TO THOSE QUESTIONS 8

5. CONCRETE JUDGMENT OF THE COURT 9
6. RATIO DECIDENDI 10

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 CONCRETE FACTS OF THE CASE

1. The first appellant is a charitable trust registered under the Bombay Public Trusts Act, 1950 and the first
respondent is an unregistered body of persons who are employees of the first appellants.

2. The first appellant has two colleges, one at Nanded and another at Aurangabad in Maharashtra, where the
first respondents are working either as teaching or non-teaching staff.

3. The first respondent and others approached the Bombay High Court in the year 2002 by a way of writ
petition. They pleaded that the appellants herein and authorities of the State of Maharashtra be directed
to extend the benefits of revised pay scale as recommended by the Fifth Pay Commission.

4. The Bombay High Court allowed the plea of respondents and directed the appellants and the State
Government authorities to implement the recommendations of the Fifth Pay Commission to the
respondents.

5. The appellants took the matter to the Supreme Court in the year 2004 and the court dismissed the
matter in 2005.

6. A settlement-dated 30.01.2006 was undertaken between the appellants herein and the respondents.

7. The non-teaching staff (one of the respondents herein), by the way of settlement agreed to waive their
rights to claim arrears for the pay and the appellants undertook to implement pay revision.

8. The Sixth Pay Commission made recommendations for pay revision on 24.03.2008.

9. UGC as an instrumentality of the Union Government recommended to implement the recommendation

of the Sixth Pay Commission for the teaching staffs of all the Central Universities, deemed universities
and universities whose expenditure is borne by the UGC to which the Union Government agreed.

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10. Government of India proposed for extension of scheme (by way of letter to each State Government) to
the Universities and colleges and higher educational Institutes, which came under purview of various
State Legislatures.

11. Government of India imposed a condition, that the scheme must be implemented as a composite
scheme without any changes. The Union Government also agreed to meet 80% of the financial burden
on the States for a period of 5 years.

12. The State of Maharashtra by the was of a Government Resolution dated 12.08.2009 made a scheme to
extend the benefits of recommendations to all the teachers and other equivalent cadres of library and
physical education in all the Universities, colleges and Higher educational Institutes coming under the
purview of the State Legislature. This scheme was not extended to the non-teaching staff of the
institutes mentioned above.

13. Vice Chancellor of third respondent University issued an order in exercise of power under Section
14(8) of the Maharashtra University Act, 1994 extending benefits of the scheme propounded by the
Government of India to all the colleges affiliated to that University.

14. On 7th October, 2009 the Government of Maharashtra made rules (the 2009 Rules) prescribing a
standard code of terms and condition of service for the non-teaching staff of: (i) 12 specified non-
agricultural Universities, and (ii) the affiliated non-government aided colleges. [Rules similar to the
2009 Rules were made in 1984 (the 1984 Rules) and 1999 (the 1999 Rules)].

15. Elaborate provisions were made by the 2009 Rules relating to pay structure of non-teaching
employees of the two categories of institutions was provided thereunder. Non-teaching staffs of un-
aided private institutions were left out.

16. All India Council for Technical Education (AICTE) made Regulations dated 05.03.2010 dealing with
the pay scale and other service conditions of the teachers and other academic staff in technical
institutions. Regulations had no application to non-teaching staff.

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17. These appeals filed by the appellants (employers) are directed towards three out of four writ petitions
(W.P.) filed in the Bombay High Court.

18. W.P. No. 11091/2010 was filed by the teaching and non-teaching staffs of the college run by the 1st
appellant at Aurangabad and they prayed for recovery of amounts in respect of pay scales fixed by the
Fifth Pay Commission and the Sixth Pay Commission. Petition was allowed in respect of the Sixth Pay
Commission but any relief was not given as far as the Fifth Pay Commission recommendations were
concerned due to laches.

19. Non-teaching staff of the college of appellant at Nanded filed W.P. No. 8780/2010. They prayed for
the implementation of recommendations of Fourth, Fifth and Sixth Pay Commission. Prayer in respect
of Sixth Pay Commission was accepted.

20. A lone petitioner praying for implementation of recommendations of the Fourth, Fifth and Sixth Pay
Commission filed a similar petition, W.P. No. 2035/2011. Prayer was granted in respect of the Sixth
Pay Commission.

MATERIAL FACTS OF THE CASE

1. The appellants approached the Supreme Court in the year 2004 to get the judgment of the Bombay
High Court, to extend the benefits of recommendations of the Fifth Pay Commission to the
respondents, reversed but the appeal was dismissed.
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2. The Union Government agreed to the recommendation of the UGC to implement the recommendations
of the Sixth Pay Commission. The benefits were extended to the teaching staff of the various colleges
that came under purview of UGC.

3. The Government of India offered to extend the benefits to the various States. The Government of
Maharashtra agreed to implement the scheme of the Union Government. The State Government issued
a Government Resolution dated 12.08.2009 notifying the same. The Resolution directed the various
Universities to make rules for it and extending the benefits to the teaching employees of aided
colleges.

4. The Vice-Chancellor of the third respondent University made a rule exercising powers granted to him
under the Section 14(8) of the Maharashtra University Act, 1994 to extend the benefits of the
Government of India scheme to the teaching and equivalent cadres of the affiliated colleges.

5. A set of rules was made by the State Government dated 07.10.2009 prescribing a standard code of
terms and condition of service for the non-teaching staff of: (i) 12 specified non-agricultural
Universities, and (ii) the affiliated non-government aided colleges.

6. The non-teaching staffs of the affiliated non-aided private colleges were not made the beneficiaries of
the scheme of the Government dated 07.10.2009.

7. All India Council for Technical Education (AICTE) made Regulations dated 05.03.2010 dealing with
the pay scale and other service conditions of the teachers and other academic staff in technical
institutions.

8. Four Writ Petitions were filed in the Bombay High Court. Out of which in three Writ Petitions the
Bombay High Court agreed to extend the benefits of the recommendations of the Sixth Pay
Commission to the Petitioners.

QUESTIONS OF LAW INVOLVED

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1. There are some issues of legality in the action of the Vice Chancellor under Section 14(8) of the
Maharashtra University Act (1994), in extending the extending benefits of the scheme propounded
by the Government of India to all the colleges affiliated to that University.

2. Sources of rights, if any, of the employees of the appellants to receive pay and allowances in terms
of the recommendations of the Sixth Pay Commission need to be determined.

3. The 2009 rules, which regulate the payments of the non-teaching staff explicitly deal with the
inconsistency of the 1984 Rules but say nothing of the 1999 Rules. There is an issue of resolving
inconsistency, it any arises in future.

4. The logic by which the Bombay High Court extended the benefit of the revision of pay scale, stating
that though the policy decision of the Government of Maharashtra (under the Rules of 1984) don’t
mention the inclusion of un-aided private colleges it still includes this category of institutions, is
flawed.

ANSWERS TO THOSE QUESTIONS

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1. Answer to the Question 1: Under Section 14(8) of the Maharashtra University Act, 1994
Powers and Duties of Vice-Chancellor are mentioned. Under the Section there is no provision
that empowers the Vice-Chancellor to make any such rule dealing with service conditions and
pay scales of the employees of the affiliated colleges. Hence the order of the Vice-Chancellor is
superfluous and without any authority of law.

2. Answer to the Question 2: As far as the teaching staff of the appellants are concerned, the
Government Resolution explicitly creates a right in favor of them to get the benefits of the pay
scale recommended by the Sixth Pay Commission. Classification of the non-teaching
employees of the aided and un-aided private institutions while extending the benefits of
revised pay scale is clearly violative of Article 14 of the Constitution. The benefit must be
extended to such employees.

3. Answer to the Question 3: It is a settled principle of interpretation that if there is an

inconsistency between two laws made by the same law making body at different points of
time dealing with the same subject matter, then the latest declaration of law operates. Hence
the 1999 Rules, to the extent of inconsistency, will be void.

4. Incoherence of the reasoning adopted by the High Court need not necessarily mean that the
judgment under appeal in unsustainable. Hence the Supreme Court is right in proceeding to
examine the legal rights of various parties.

CONCRETE JUDGMENT OF THE COURT

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The division bench [of judges J. Chelameswar and Abhay Manohar Sapre, JJ.] dismissed the appeal
and concluded in the relevant paragraphs of the judgment as follows:

65: “the universities were directed by the GR dated 12.08.2009 to make appropriate amendments
to the relevant subordinate legislative instruments…directions to the universities to make
amendments to the relevant subordinate legislative instruments is wholly redundant”.

67: “the order of the Vice-Chancellor dated 29.08.2009 is superfluous and without any authority of
law”.

83: “the Council constituted under the AICTE Act would be incompetent…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”.

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”.

76: “we see no justification in excluding the non-teaching employees of the unaided educational
institutions while extending the benefit of the revised pay scales…Such a classification, in our
opinion, is clearly violative of Article 14 of the Constitution of India”. 80: “therefore…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”.

89: “appellants are obliged under law…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”.

RATIO DECIDENDI

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1. In the matter of employment under the Government of India the appropriate legislature to
regulate the requirements and conditions of service is the Parliament and in case of
employment under any State it is the State Legislature.

2. Employment under the State is a matter of status but not a matter of contract.

3. Entry 25 of List III (concurrent list) to the Seventh Schedule of the Constitution includes
power to regulate the activity of employment by educational institutions, whether State, or its
instrumentalities or non-state actors establish them.

4. The decision of the Government of India to implement the recommendations of the Sixth Pay
Commission does not bind the State Government to accept the same.

5. The mere absence of referral to the source of power cannot determine the legal status of the
instrument or deprive the instrument (in the present case instrument refers to the
Government Resolution dated 12.08.2009) of its efficacy.

6. Artificial classification leading to discriminatory application of a law can be corrected by

eliminating the factors that create such classification.

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