Holding

The exclusion of non‑teaching staff of unaided colleges from the Sixth Pay Commission pay scales is unconstitutional as it violates Article 14, and the State must extend the revised pay scales to all affiliated college staff.

Summary

The Supreme Court considered whether the Maharashtra Government could, under the Maharashtra Universities Act, extend the Sixth Pay Commission pay scales to non‑teaching staff of unaided engineering colleges affiliated to state universities. The appellants, two unaided colleges, argued that the 2009 Rules applied only to aided colleges and that they were not bound to implement the revised pay scales. The respondents, the teaching and non‑teaching staff, contended that the classification between aided and unaided institutions violated Article 14 because the object of the pay revision was to fulfil the constitutional mandate of Article 43. The Court held that the Government Resolution of 12‑8‑2009 was made under Section 8(3) of the Maharashtra Universities Act and conferred a legal right on all teaching staff, irrespective of aid status, and that the exclusion of unaided non‑teaching staff was an unreasonable classification infringing Article 14. Consequently, the Court dismissed the appeals, affirming the High Court’s order directing the implementation of the Sixth Pay Commission scales for all staff of the affiliated colleges.

Issues considered

Whether the 2009 Rules under the Maharashtra Universities Act validly exclude non‑teaching staff of unaided colleges from the Sixth Pay Commission benefits.
Whether the classification between aided and unaided colleges is a reasonable classification under Article 14 of the Constitution.
Whether the State can be compelled to implement the Sixth Pay Commission recommendations for employees of unaided institutions under Section 8(3) of the Maharashtra Universities Act.

Legislation cited

Maharashtra Universities Act, 1994s. 14(8), s. 8(3)

Subjects

Article 14Equality before lawSixth Pay CommissionNon‑teaching staffAided vs unaided collegesMaharashtra Universities ActConstitutional classificationDirective PrinciplesEmployment lawEducation policy

Judgment

[2017) 2 S.C.R. 241

SECRETARY MAHATAMA GANDID MISSION & ANOTHER A
v.
BHARTIYA KAMGAR SENA & OTHERS
(Civil Appeal Nos. 115-116 of2017)
JANUARY 05, 2017 B

[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 c
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
D
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 E
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
F
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 G
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
H
241
242 SUPRf:ME COURT REPORTS [2017] 2 S.C.R.

A 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
B
who are othenvise similarly situated, is not to be done as a matter
of course.
Scheme of education system and employment under -
Explained.
c 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
D 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
E 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
F 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
G 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] [271-
B-D]
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 243
BHARTIYA KAMGAR SENA & OTHERS

1.3 The Government of India decided to extend the benefit A
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
B
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 c
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 D
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 E
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 F
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 G
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-F-
G; 273-C]
H
244 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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
B
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]
c 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 pay-
scales) of the employees of the affiliated colleges. No specific
D 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
E (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
F 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
G 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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 245
BHARTIYA KAMGAR SENA & OTHERS

scales of the teaching staff of the various educational institutions A
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 B
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 c
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 D
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] E
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. F
[Para
. 731
- 1275-EI
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 G
sought to be made under the 2009 Rules. No doubt aided and un-
aided colleges ostensibly fall under two separate categories. But
for the purpose of Article 14, every classification does not
automatically become permissible. Second requirement of the
doctrine of reasonable classification is that such classification must
H
246 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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
8
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.
c [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
D 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
E
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
F 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
G 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 non-
teaching employees of the aided educational institutions. Such a
classification, is clearly violative of Article 14 of the Constitution.
H [Para 76] [276-D-H; 277-A-B)
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 247
BHARTIYA KAMGAR SENA & OTHERS

1.14 If a law (whether primary or subordinate legislation) A
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
B
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 c
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 D
leading to a discriminatory application oflaw. [Paras 80, 82) [282-
B, 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 E
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 F
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 G
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]
H
248 SUPREME COURT REPORTS (2017) 2 S.C.R.

A 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
B
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
c 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]
D 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
E 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
F 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.
G 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
H [2001] 3 Suppl. SCR 253 referred to Para 83
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. -249
BHARTIYA KAMGAR SENA & OTHERS

[2002] 3 Suppl. SCR 587 referred to Para 85 A
[2003] 2 Suppl. SCR 474 referred to Para 85
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11 5-
116 of2017.
From the Judgment and Order dated 10.02.2012 & 06.07.2012
B
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
C.A.Nos.117-118and 119-120of2017. c
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
Sanjay 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 E
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,
F
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. G
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 of2002 praying
that the respondent therein (which included the authorities of the State
H
250 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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
B
(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.

c 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 non-
teaching 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
D 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

E 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
F 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
G 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.

H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 251
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

Commission (UGC) (a statutory body) recommended extension of the A
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
B
to revise the pay scales of the various classes ofteachers 3 in the Central
Universities and colleges thereunder subject to various terms and
conditions stipulated in the scheme. The Government of India
communicated its acceptance to UGC by its letter dated 31. 12.2008.
It was also declared under the scheme:-
c
"(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;"
D
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 E
"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 F
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
and Physical Education in all the Central Universities and Colleges thereunder and the G
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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252 SUPREME COURT REPORTS [2017] 2 S.C.R.

A of the financial burden resulting from the implementation of such scheme'.
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
B 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:
c "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
E 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
F 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.
G (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 re::;pect of only those posts which were in existence and had been filled up
as on 1.01.2006."
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 253
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

etc. shall be implemented by the State Government as a composite A
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 B
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;" c
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 non-
teaching staff of the educational institutions mentioned therein.
"Para 8(E). Applicability of the Scheme:
D
(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 E
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,
F
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.
G
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
H
254 SUPREME COURT REPORTS [20 I 7] 2 S.C.R.

A 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
B
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
c 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
D 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
E 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
F 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 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.
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
G 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
H officers, teachers and other employees of the universities and the teachers and
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 255
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

which authorises the State to make rules providing for the various aspects A
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.
B
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 c
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 D
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
E
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. F
(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. G
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 I0.
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.
H
256 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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.
B 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
c 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
D 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
E 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 •
F
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
G
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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 257
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

pay scales in tenns of the Fourth, Fifth and Sixth Pay Commission Reports. A
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 B
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. c
"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 D
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 ofnotification 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 E
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 F
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 G
notification or GRs. 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
13
See para 27 of the impugned judgment
H
258 SUPREME COURT REPORTS [201 7] 2 S.C.R.

A 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 pol icy decision
taken by the State in this regard."
B 23. The service conditions of the non-teaching employees of the
affiliated colleges in the State of Maharashtra were earlier governed by
a set of Rules known as the Maharashtra Non-Agricultural Universities
and Affiliated Colleges Standard Code (Terms and Conditions of Service
of Non-teaching employees) Rules, 1984(hereafter"1984 Rules").
c 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:
D
"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
E 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
F
that the Rule maker intended to declare that the 1984 Rules insofar as
they are inconsistent with the 1999 Rules should give way to the latter.
In other words, the 1984 Rules are not totally repealed. They still operate
if they are not inconsistent with the 1999 Rules.
26. The 1999 Rules provided for the revision of the pay scales of
G
the non-teaching employees" of the non-agricultural universities and
affiliated colleges. They did not make any distinction between employees
ofaided affiliated colleges and non-aided affiliated colleges. They apply
14
'·Government of Maharashtra hereby makes the rules prescribing the Standard Code
providing for the revised pay scales of the non-teaching employees ... ··
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 259
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

uniformly to both categories of affiliated colleges", while specifically A
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 B
Rules reads as follows:
Rule 17. The overriding effect ofrules- Barring unless otherwise
provided for in these rules in cases where pay has been regulated
as per these rules the provisions in the Maharashtra Non-
Agricultural Universities and Affiliated Colleges Standard Code c
(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 D
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 l 999 Rules.
29. lfthe content of the 1999 Rules is in any way inconsistent
with the 2009 Rules, to the extent of the inconsistency the 2009 Rules E
ought to prevail over the 1999 Rules. Because one of the settled principles
of interpretation is that ifthere is any inconsistency between two laws
made by the same law making body at different points of time dealing

15
"Rule 2: Categories of employees to 'vhom the rules apply
(i) These rules shall apply to all full-tinle non-teaching employees of the F
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) En1ployees not in the \vhole time employment
(b) Employees on consolidated rates of pay
(c) Employees appointed on contract ·except \vhere the contract G
provides olhen.vise
(d) Employees paid out of contingencies
(e) Daily rated employees
(f) E1nployees \Yho retired on or before 31 si Decemher. 1995 and \Yho
\Vere on re-employ111ent on that date including those ,,·hose period
of re-employment extended after that date'"
H
260 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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:
B
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 Jthose
c managed and maintained by the State Government and Local
Authorities."
However, according to the High Court 16 , from Rule 16(2) of the
1984 Rules, "it ... follows ... that the time scale of' the non-teaching
staff and " ... allowances shall be as prescribed by the State Government
D 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
E 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 ofthe 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.
F
31. To determine the correctness or otherwise of the judgment
under appeal, it is required to examine the legal right of the teaching and
other academic staff on one hand and the non-teaching staff on the
other hand of the two unaided engineering colleges administered by the
l" appellant to receive pay in terms of the recommendations of the Pay
G
Commission set up by the Union oflndia.
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 oflndia.
ir, See Para 17 of the Judgment
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 261
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

33. Importance of the role of education in the life of human A
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
B
India chose to refer to "aid out of State funds" to educational institutions
in Article 29(2) 17 and "aid to educational institutions" in Article 30(2) 18 ,
is proof of the fact that the makers of the Constitution took note of the
need to financially support educational institutions established even by
non-state actors.
34. Education is one of the most vital elements for preservation
c
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. . .. " D

35. Education becomes a basic tool for individuals to lead an
economically productive life. An economically productive life of the
individual not only improves the quality oflife 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 E

17
Article 29. Protection of interests of minorities.-( I) Any section of the citizens
residing in the territory of India or any part thereof having a distinct language, script or
culture of its O\vn shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on .grounds only of F
religion, race, caste, language or any of them.
18
Article 30. Right of minorities to establish and administer educational
institutions.-{ I) All minorities. ,,·hether based on religion or language. shall ha\'e the
right to establish and administer educational institutions of their choiCe.
(IA) 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 G
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.
H
262 SUPREME COURT REPORTS (2017] 2 S.C.R.

A 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
Andlira Pradesh & Others, (1993) 1 SCC 645, took note of the fact
B 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"".
3 7. This Court took note of the mandate of Article 41 ' 0 "to
illustrate the content of the right to education flowing from Article 21"
c 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 rightto life because of its inherent fundamental importance"
and therefore an aspect of Article 21 of the Constitution. Parliament
D endorsed the conclusion of this Court and amended the Constitution to
make an express declaration of the fundamental right to education by
inserting Article 21 A'.
19 Para 180. Before proceeding further. \Ve 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
E
pointed out in para 2.31 of Challenge of Education. But this Yer~· publication says that
"in comparison to many countries, India spends much less on education in tenns 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
F additional capital expenditure would greatly augment teacher productivity because in
the absence of expenditure on other heads even the utilisation of statl'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 vlhile 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
G sectors of education.
20
Article 41. Right to work, to education and to public assistance in certain
cases.-The State shall. \Yithin the limits of its economic capacity and de,·elopment.
make effective provision for securing the right to ''"ork. to education and to public
assistance in cases of unemployment. old age, sickness and disablement, and in other
cases of undeserved \Vant.
'By the Constitution 86'" Amendment Act 2002 11.e.f. 01-04-2010.
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 263
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

38. Education is an important factor for maintaining democracy A
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
B
educational institutions run by private I non-state actors.
39. A brief sketch of the development of the system of college
education in this country would certainly help to understand the problem
on hand. Establishment of colleges imparting education based on the
English Education System" predated the establishment of universities in
this country. Colleges were and are still being established by individuals,
c
societies, trusts, etc. (hereinafter collectively referred to as "non-State
actors") apart from the Governments or other instrumentalities of State.
Universities were established in the provinces" 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." They were not D
ii Thomas Babington Macaulay·s Minute of 1835 gave the impetus for introducing
English educational syste1n 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 \Vere n1ade to those various enactments by the
Universities Act 1904. E
23 " ... the 1nodern universities \Vere established, more than a hundred years ago. as
exotic institutions created in in1itation of the London University as it then was. The
earliest of these \Vere 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 '"'hen
the Indian Universities Commission \Vas appointed ( 1902) and the Indian Universities F
Act was passed (1904). As Lord Curzon observed: 'How different is India! Herc the
university has no corporate existence in the saine (Le .. as in Oxford or Can1bridge) 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 afti\iatcd colleges.
They are not part of it. They are frequently not in the san1e city, sometimes not in the
same province (Lord Curzon in India, Vol. IT, p.35). The Govem1ncnt Resolution on
Educational Policy ( 1913) accepted the need for.establishing more universities. It said G
'The day is probably far distant \vhen India \Viii be able to dispense altogether \Vith the
affiliating universities. But it is necessary to restrict the area over \Vhich 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 ne\v local teaching and
residential universities within each of the provinces in harmony \Vith the best niodern
opinion as to the right road to educational efficiency .... ,. (Kothari Co1nn1ission Report
at page 275) H
264 SUPREME COURT REPORTS [2017] 2 S.C.R.

A teaching universities. In 1902, the Indian Universities Commission was
appointed. It was followed by the Indian Universities Act, 1904. Under
Section 3 of the Act, Universities were enabled to instruct students".
Sections 20 and 21 thereofauthorised 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
B
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
c 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
D the advent of the Constitution by virtue of the power under Article 246
read with Entry 32 of List II of the Seventh Schedule legislative
competence to establish universities vested exclusively'; with the State
Legislatures. Many universities came to be established by or under
various enactments made by the different State Legislatures. There is a

E 2
~ Section 3. The University shall be ...... ..... incorporated for the purpose (among
others) of making provision for the instruction of students, .....
25
Exceptions being Article 371 E
"371E. Establishment of Central University in Andhra Pradesh· Parliament may by
Jaw provide for the establishment of a University in the State of Andhra Pradesh"
and the educational institutions mentioned in Entries 63 to 66
F .. 63. The institutions kno,vn at the corn1nencement of this Constitution as the Benares
Hindu University. the Aligarh Muslim University and the Delhi Uni\'ersity: the
University established in pursuance of article 371E; any other institution declared by
Parliament by la\v to be an institution of national importance.
64. Institutions for scientific or technical education financed by the Government of
India \Vholly or in part and declared by Parliament by Jaw to be institutions of national
importance.
G 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. Cowordination and determination of standards in institutions for higher education or
H research and scientific and technical institutions."'
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 265
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

discernible pattern in the scheme of all these enactments. Each of these A
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
B
colleges are permitted to train students for examinations to be conducted
by the University (to which college is affiliated) for the purpose of the
conferment of degrees in a given discipline. Universities are vested with
considerable power to regulate the administration of the affiliated
colleges. In exercise of such power, Universities have been making
subordinate legislation stipulating the tenns and conditions subject to which c
colleges could be administered and seek affiliation, etc.
41. Under the Constitution oflndia, 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 D
Legislatures under Article 246 (3) read with Entry 11 of List II of the
Seventh Schedule as it stood prior to the Constitution 42"' Amendment.
Parliament is exclusively authorised under Article 246(1) to make laws
with respect to various educational institutions specified under Entries
63 to 66" (both inclusive) of List I.
42. Original Entry 25 of the List llI indicated the concurrent E
field of legislative authority (of the Par! iament as well as the State
Legislature) with reference to certain aspects of the education came to
be substituted".
43. By the 42"' amendment of the Constitution, Entry 11 of List
IP was omitted and Entry 25 of List Ill was substituted. Entire field of F
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 oflabour." G
26
See Footnote No. 25
27
Entry 25 of List Ill prior to the 42nd Amendment. - '·Vocational and technical training
of labour."
28
Entry 11 of List II prior to the 42°d Amendment. - '·Education including universities.
subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III." H
266 SUPREME COURT REPORTS [201 7] 2 S.C.R.

A 44. The availability of such legislative authority to the States
(both before and after the 42"' 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
B 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
c State legislatures have exclusive legislative competence to make laws
dealing with "incorporation, regulation and winding up of. .. universities".
In exercise of such legislative authority, laws are made by the State
L('gislatures bringing into existence Universities.
47. Various non-state actors including minorities established large
D number of colleges and other educational institutions in this country, both
before and after the advent of the Constitution" (spanning over a period
ofabout 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
E appropriate university. However, after the 42"' 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 (AlCTE Act) is one such.
48. Employment is essentially a contractual relationship between
F the employer and the employee. Employment in colleges could be
employment by State, or its instrumentalities or by non-state actors,
because there exist colleges conducted either by State or its
instrumentalities or non-state actors. Therefore, the nature of the legal
relationship of employment varies depending upon the employer.
G 49. The basic norms (employment under State) are regulated by
the Constitution. The Constitution guarantees equality of opportunity 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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 267
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

the matter of public employment under Article 1630 • Article 309 declares A
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 oflndia and the concerned State Legislature in the context
B
of employment under any of the States within Union oflndia. Article
311 stipulates that no civil servant employed either by the Government
of India or by any State shall either be dismissed or removed from the
service except in accordance with the procedure stipulated thereunder.
Therefore though employment even by State is essentially contractual
relationship, such relationship is encumbered by the legal obligations c
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 D
statutory or non-statutory, is also subject to the discipline of Article 14 of
which Article 16 is only a facet. This Court in innumerable cases held
that though Part XIV of the Constitution (wherein Article 309 etc. occur)
is not applicable to such employment, some of the principles underlying
the provisions of Part XIV still govern the employment under the
instrumentalities of the State". E
51. The expression 'education' occurring under Entry 25 of List
III to the Seventh 'Schedule of the Constitution takes within its sweep
the authority to legislate with respect to every aspect of education including
establishment and administration of educational institutions such as
schools, colleges etc. Administration of an educational institution has F
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

'"Article 16. Equality of opportunity in matters of public employment. - (I)
There shall be equality of opportunity for all citizens in matters relating to G
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.
31
Managing Director. ECIL, Hyderabad & Others v. B. Karunakar & Others ( 1993) 4
sec 121
268 SUPREME COURT REPORTS [20 l 7] 2 S.C.R.

A 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
B 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
c their instrumentalities or by non-State actors (private sector).
54. As ofnow, there is no law made by the Parliament regulating
the entire activity of education either in public sector or private sector.
Only certain areas of education such as medical education and technical
education in some of the aspects are regulated by the laws made by the
D 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 follo_wing principle submissions are made by the
appellants:
E (i) 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
F
employing each one of the employees.
According to the appellants, there is no law which obliges
the appellants to pay the salaries and other allowances to its
employees whether teaching staff or non-teaching staff in
accordance with the pay structure recommended by the Sixth
G Pay Commission.
(ii) A Jaw 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.
H Therefore, the ~ppellant which is an unaided college cannot
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 269
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

be compelled to pay the s~lary and other allowances to its A
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 B
technical educations in the technical institutions and
universities do not ipso facto apply to the institutions governed
by the respective State legislations dealing with education
and universities".
(v) The AICTE Act does not authorise the AICTE to regulate the
service conditions of the employees of technical institutions. c
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 D
Government is not justified in directing the revision of the pay
32Written Submissions of the Appellants:
Para 25. That is \vhy 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
E
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
\Vith education and universities. '
Para 27. Conditions of ser\'ice of, employees. e\'en though matters of contract can still
be regulated by law. Such a law can fall under entry - 25 List Ill. But the law must F
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 GoYernment of Maharashtra has not exercised its statutory po,ver
under sub-section.(3) of section 8 of the IQ94 Act and since the notification issued by G
it on 25.08.2010 omits to deal \Vi th private unaided institutions, they cannot be compelled
to abide by AJCTE notification. It is well settled that the \Vrit of mandamus is not ·a
creative \\Tit 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 \Vi th such a law in the absence of any such
detennination by the State Government, on principles of parity alone, the court will
not issue a \Vrit of mandamus. H
270 SUPREME COURT REPORTS [201 7] 2 S.C.R.

A 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 institu(jons. 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
B
mandate under Article 38" and Article 39(d)" and violative of
Article 14 on the ground that the law is 'under inclusive'. Jn 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
c being any nexus between such classification and the purpose sought to
be achieved by the pay revision.
57. We shall now examine the various submissions mentioned
above.
58. The source of the rights, if any, of the employees' of the
D 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
E 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
33 Article 38. State to secure a social order for the promotion of 'velfare of the people-

( I) The State shall strive to promote the welfare of the people by securing and protecting
F 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.
3~39. Certain principles of policy to be followed by the State - The State shall.
G
in particular, direct its policy to\vards securing-
xxx xxx xxx
(d) that there is equal pay for equal \York for both men and 'vomen:
•We have already taken note of the fact that the writ petitioners (respondents herein),
employees of the appellants fall into t\vo categories i.e. teaching staff and non-teaching
H staff.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 271
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

meant for administrative guidance of the Government of India. The A
Government of India may accept or reject the recommendations either
fully or partly, though it has never happened that the recommendations
of the pay commission are completely rejected by the Government so
far.
60. Once the Government oflndia accepted the recommendations B
of the pay commission and issued orders signifying its acceptance, it
became the decision of the Government oflndia. That decision of the
Government oflndia created a right in favour of its employees to receive
pay in terms of the recommendations of the Sixth Pay Commission and
the Government oflndia is obliged to pay.
c
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 D
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 oflndia.
62. The Government of India decided to extend the benefit of
revised pay scales to the employees of various central universities etc. E
on the basis of the recommendations ofthe 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 F
thereunder etc. The Government oflndia 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. G
"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
H
272 SUPREME COURT REPORTS [2017] 2 S.C.R.

A separate Scheme is being issned 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/
·B institution corresponding to such fixation in respect of Central
Government employees as approved by the Central
Government on the basis of the recommendations of 6'h
Central Pay Commission.
(iv) This Scheme does not extend to the posts of professionals
c 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
D 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
E 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 oflndiaoffered 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.
F
65. Accepting the offer made under the scheme of the Union of
India, the State of Maharashtra issued the GR dated 12.8.2009 revising
the pay scales of the cadres specified therein (essentially teaching staff)
of the "universities' colleges and other higher educational institutions".
By the said GR, the State of Maharashtra declared the revision of the
G 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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 273
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

of 6'h Pay Commission to teaching and non-teaching staff of A
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 B
6"' 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 c
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 powerunder Section 8(3) of the Maharashtra Universities
Act authorizing the State to make rules dealing with the various aspects D
of the service of the employees of the universities and other educational
institutions, the authority, ifany3', 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 E
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: F

"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 G
he thinks necessary, and shall, at the earliest opportunity

3
~ 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 \Vhether aided or not. H
274 SUPREME COURT REPORTS [201 7] 2 S.C.R.

A 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."
B 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
c 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
D the Vice-Chancellor dated 29.08.2009 is superfluous and without any
authority oflaw.
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
E 3 I .12.2008 insofar as the teaching staff of the various affiliated colleges
are concerned and the rules framed by the Government of Maharashtra
dated 07 .10.2009 in exercise of the power under Section 8(3) insofar as
the non-teaching staff are concerned.
69. While the GR dated 12.08.2009 is specific in its declaration
F 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
G 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 oflndia or in exercise ofthe 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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 275
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

absence of the recital of the source of power in our opinion cannot A
determine the legal status of the instrument or deprive the instrument of
its efficacy.
70. The difference between the authority of the State flowing
from Article 162 of the Constitution or Section 8(3) of the Maharashtra
Universities Act is two-fold. Firstly, the statutory authority under Section B
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.
c
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 ornot.
72. The colleges run by the appellants are admittedly colleges D
affiliated to the Universities functioning under the Act. Therefore, their
teaching staff would be entitled to the revised pay scales in terms of the
· G.R. dated 12.08.2009.
73. Coming to the non-teaching staff working in the colleges run
by the appellant, the Rules of2009 purport to be the rules revising the E
pay-scales of the non-teaching staff ofonly 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 oflndia that "The
F
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.
G
74. At the outset, it must be remembered that 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
H
276 SUPREME COURT REPORTS [2017] 2 S.C.R.

A aided and un-aided colleges ostensibly fall under two separaie categories.
But for the purpose of Article 14, every classification does not
automatically become permissible. Second requirement of the doctrine
ofreasonable 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 he identified and that it is
B
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
c 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
D institutions administered by non-State actors receiving the economic
support of the State.
76. The very fact that the Government of India thought it fit to
revise the pay scales of its employees and also thought it fit to accept
the suggestions of the UGC to revise the pay scales of various Universities
E and other bodies whose maintenance expenditure is met by the UGC
(in other words virtually by the Union oflndia), 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
F 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
G by various States and their instrumentalities. Such a conclusion of the
Union oflndia is endorsed by the State ofMaharashtra. 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.
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 277
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

Therefore, we see no justification in excluding the non-teaching A
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 oflndia.
77. Next, we need to examine the question, whether a B
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 letteroflaw and enforce the law even against bodies which
are not covered by the text of the subordinate legislation either by an
c
injunctive or declaratory relief.
78. !fa 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 D
down a law, which confers some benefit on a class of people ignoring
others who are otherwise similarly situated in our opinion is not to be
done as a matter of course. If the benefit sought to be conferred by
such a law is not repugnantto the directive principles of the State policy,
striking down the same would virtually amount to throwing away the E
baby with bath water.
The doctrine of equality has many a facet. Law laid down by
this Court on the interpretation ofArticle 14 in the last 70 years illuminated
some of them. In a series ofjudgments commencing from E.P. Royappa
v. State of Tamil Nadu & Another, (1974) 4 SCC 3, the orientation of F
this Court in dealing with article 14 has been dynamic. Justice Mathew
in his dissenting Judgment in Bennett Coleman & Co. and Others v.
Union ofIndia and Others, ( 1972) 2 SCC 788 36 very precisely identified
36 Para 162. It has been said that in the scheme of distribution ofne\VSw print, unequals
have been treated equally and therefore, the Newsprint Policy violates Art' 14 of the G
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
H
278 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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

proportional equality. The contrast between the t\VO notions is illustrated by the
B
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 \Viii receive the
same consideration in the distributional decision, but that the numerical amounts
distributed may differ. Proportional equality means equality in the distribution according
c 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
decisiofl'in Griffin v. Illinois(") and Douglas v. California. (4) In these cases it \Vas held
that the State has an affirmative duty to make con1pensatory legislation in order to
make men equal \Vho are really, unequal has undergone radical other\vords, the traditional
doctrine that the Court is concerned with formal equality betbre the law and is not
D concerned to make men equal who are really unequal has under gone radical change in
the recent years as illustrated by these cases. Justice Harlan dissented both in Griffin's
case and Douglas' case and his dissenting opinion in the former case reveals the traditional
and the hew approaches and also highlights the length to which the majority has, gone:
·'The Court thus holds that. at least in this area of criminal appeals.
the Equal Protection Clause imposes on the States an affirmative
duty to lift the handicaps tlo\Ying from differences in economic
E
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 "·hat is requires
others to pay for.... It may as accurately be said that the real issue in
this case is not ,.,.-hether Illinois has discriminated but \Yhether it has a
duty to discriminate."
F Para J63. The crucial question today, as regards Art. 14. is \Yhether the command
implicit in it constitutes merely a ban on the creation of inequalities by the State, or, a
co1nmand, 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 eft'ect, 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
G differences stand in the way of equal access to the exercise of their basic rights. It has
been said that justice is the eftbrt 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 fsee Art.. 39 Jb) l1 1 do not think I can say that the principle
adopted for the distribution of ne,vsprint is not for the common good.
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SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 279
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR J.]

inequalities existing without any contribution thereto by State A
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 t0ward this goal and it is in consonance with B
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) l SCC 305 adopted
a more innovative procedure of directing the State to fi.11 up the lacuna
by extending the benefit uniformly to all the people who are otherwise C
similarly situated.
The facts of D.S. Nakara's case are:
"5. On May 25, 1979, Govemmentof!ndia, Ministry offinance,
issued Office Memorandum No. F-19(3)-EV-79 whereby the
formula for computation of pension was liberalized but made it D
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
E
formula."
This Court made an elaborate examination of the concept of
pension and its legal implications; the obligations of State under the
Constitution oflndia flowing from the directive principles and a host of
other factors. The Court recorded a conclusion.
F
"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 G
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 H
280 SUPREME COURT REPORTS [2017) 2 S.C.R.

A 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 oflegislation 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
B
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
c 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
D 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. !fat 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
E 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
F 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 oflegal formulations?
Socio-economic justice stems from the concept of social morality
coupled with abhorrence for economic exploitation. And the
G 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
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 281
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

this point need not deter us at all. We are all the more happy for A
the chance of scribbling on a clean slate."
and the Court finally concluded as follows:
"65. That is the end of the journey. With the expanding horizons
of socio-economic justice, the Socialist Republic and welfare
State which we endeavour to set up and largely influenced by B
the fact that the old men who retired when emoluments were
comparatively low and are exp9sed 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 c
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 pensiorr and the
eligibility criteria devised being thoroughly arbitrary, we are of D
the view thatthe eligibility for liberalised pension scheme of"being
in service on the specified date and retiring subsequent to that
date" in impugned memoranda, Exs. P-l & P-2, violates Article
14 and is unconstitutional and is struck down. Both the
memoranda shall be enforced and implemented as read down. E
... 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 F
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 G
recourse to: eliminate the existing inequalities through positive~affinnative
action, rather than passive neutrality.
What is the remedy open to the citizen and the corresponding
obligation of the judiciary to deal with such a situation, where the
H
282 SUPREME COURT REPORTS (2017] 2 S.C.R.

A 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
B
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 oflaw.
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
c 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
D legislation to a certain class of people who were expressly excluded
from receiving that benefit provided by the legislation. [See: James
Plyler 1'. J. and R. DOE et al. (supra)"
82. Notwithstanding the wholly unsatisfactory reasoning adopted
by the High Court for allowing the claims of the writ petitioners, (the
E 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
F 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

"The facts of J<1mes 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
G 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.
H
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 283
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

judgments commencing from St(lte of T(lmi/ N(ldu v. Adltiy(lm{ln A
Etf(/C(ltion(I/ (Ind Rese(lrclt Institution, ( 1995) 4 SCC I 04,
Bltaratltid(ISan University v. AICTE, (200 I) 8 SCC 676 etc. in a bid to
demonstrate that the Council constituted under the AICTE Act would
be incompetent to regulate the service conditions of the employees of
the engineering colleges and therefore the Regulations of 20 I 0 dated
B
05.03.20 I 0 made by the AICTE purporting to give effect to the
recommendations of the Sixth Pay Commission are without any authority
of law.
84. ln 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 c
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 D
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 E
is duly exercised. While exercising such power is that State of
Maharashtra drew an artificial distinction between aided and unaided
educational institutions.
85. Another submission of the appellants that is required to be
dealt with is that since the appellant does not receive any financial aid F
from the State, calling upon the appellants to pay its employees in term§'"
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. G
Pai Foundation & Otlters v. St(lte of Karnataka & Otlters, (2002) 8
SCC 481 38 and lsf(lmic Academy of Education & Anotlter v. State of
Karnataka & Others, (2003) 6 SCC 697 39 • Therefore, if they are

'"See Paras 56 to 58 and 161
39
See Paras 6, 7 and 19
H
284 SUPREME COURT REPORTS [2017] 2 S.C.R.

A compelled to pay their staff higher salaries they would be without any
financial res~mrces as they do not receive any aid from the State.
86. On the other hand it is argued by the respondent that the
determination of the fee structure and the amount of the fee that could
be collected by the appellants from the students is madti by the Fee
B 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
c 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 oflitigation the respondents
- non-teaching employees of the appellants, though succeeded both before
D 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'h January, 2006, the terms of which have already been taken note in
this judgment at para 5.
E 88. Under the said agreement, the management agreed to revise
the pay scales from time to time in tune with the revision of the pay
scales of the employees of the State. Therefore, the submission of the
management in this regard is liable to be rejected on that ground alone.
89. Even otherwise, if the appellants are obliged under law, as
F 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 financ-ial liability arising out of the obligation to pay
the revised pay scales.
90. In the result, the appeals being devoid of merit are dismissed
G with no ordei; as to costs.

Nidhi Jain Appeals dismissed.