Holding

The note is not arbitrary, the cut‑off date is reasonable, and the 1990 resolution does not curtail the 1989 resolution.

Summary

The respondents, teachers in aided non‑government colleges, sought to receive the revised University Grants Commission pay scales based on the State of Orissa's Resolution dated 6 October 1989, which covered all full‑time teachers in colleges covered or eligible under the direct‑payment scheme till 1 April 1989. A subsequent Resolution dated 6 November 1990 appended a note defining "colleges" as those that had obtained government concurrence and university affiliation for 3+ degree courses by that cut‑off date, thereby limiting the earlier coverage. The respondents challenged the note as arbitrary and unreasonable, and the Orissa High Court struck it down, granting them the higher pay. The Supreme Court held that the note merely clarified the earlier resolution, did not curtail its scope, and that the cut‑off date was a reasonable policy measure linked to grant‑in‑aid calculations. Consequently, the High Court’s decision was set aside and the writ petitions dismissed.

Issues considered

The note appended to paragraph 2(1) of the 6 November 1990 resolution is arbitrary or unreasonable.
The cut‑off date of 1 April 1989 for eligibility to grant‑in‑aid and revised pay scales is arbitrary or unreasonable.
Whether the 6 November 1990 resolution curtails the scope of the 6 October 1989 resolution.

Subjects

service lawpay scale revisiongrant-in-aidaided non‑government collegesarbitrarinesscut‑off dategovernment resolutionUniversity Grants Commission

Judgment

STATE OF ORISSA AND ANR.
v.
ASWINI KUMAR DASH AND ORS. ETC.

MARCH 17, 1998

B [MRS. SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]

Service Law :

Revision ofpay scale--Govt. resolutions dt. 6.10.1989 and 6.11.1990-
C Teachers-Aided non-Govt. Colleges-Note to paragraph 2(1) of Resolution
dt. 6.11.1990-Colleges affiliated on or before 1st ofApril 1989-Eligible for
benefit of revised pay scales-.On challenge, High Court struck down the
note to para 2(1) of the resolution dt. 6.11.1990-.0n appeal held, Resolution
of 6th November 1990 does not curtail the scope of the Resolution of
D 6.10.1989-Cut off date 1st ofApril 1989 fixed for grant of aid not arbitrary
or unresaonable-High Court not justified in striking down the note to para
.2(1) of Govt. Resolution dt. 6th November, 1990.

The respondents were teachers in aided non-Government Colleges/
Educational Institutions. By Resolution dt. 6th October, 1989, the appellant-
E State Government decided to revise the pay scales of teachel'li working in all
the affiliated Government Colleges and aided non-Government Colleges either
covered or eligible to be covered under direct payment scheme till 1st April,
1989. Thereafter, by a resolution dt. 6th November 1990 instructions were
issued to regulate the revision of pay scales of different categories of teachel'li
serving in non-aided Government Colleges of the State pursuant to its earlier
F Resolution of 6.10.1989. A note appended to para 2(1) of the Resolution dt.
6.11.1990 stated that colleges shall mean aided Colleges which were given
Government concurrence and Univel'liity affiliation for opening of 3+ Degree
Colleges by 1st of April 1989 and not thereafter. The respondents filed a writ
petition challenging the above note on the ground that the coverage which
G was given by the earlier resolution dt. 6.10.1989 was reduced as a result of
the note appended to paragraph 2(1) of the Resolution dt. 6.11.1990. The
~-
High Court while allowing the writ petitions struck down the note to paragraph
2(1) of the Government Resolution dt. 6.11.1990 and held that the respondents
were entitled to higher scales of pay. Hence the present appeals.

H Allowing the appeals, this Court
274
STATEv.A.K. DASH 275
HELD : 1.1. High Court erred in holding that the note to paragraph A
2(1) of the Govt. Resolution of 6th November, 1990 was arbitrary and
-~ unreasonable. (283-B]

1.2. The two Resolutions cover the same field and the Resolution of
;
6th November 1990 does not curtail the scope of the Resolution of 6th
B
October, 1989. The Resolution of 6th November 1990 which deals with
. ...; teachers serving in aided non-Government Colleges of the State provides in
paragraph 2 that the instructions in that Resolution shall apply to all
categories of full-time teachers working in all aided non-Government Colleges
either covered or eligible to be covered under direct payment schme till 1st
April 1989. This language is similar to the language in paragraph 3.1 of c
the Resolution of 6th October, 1989. The note states that colleges shall mean
aided colleges which have been given Government concurrence and University
affiliation for opening 3+ Degree Courses from 1st April, 1989 and not
thereafter. The note sets out specifically what is implied in paragraph 3.1
of the Resolution of 6th October, 1989, as also paragraph 2(1) of the Resolution D
>-
of 6th November, 1990 since both are couched in similar language. (280-F]

2. The cut off date of lst April, 1989 fixed for grant of aid cannot be
considered as arbitrary or unreasonable. In the instant case the State
Government has decided to provide grants-in-aid to cover the revised U.G.C.
E
scales of pay for those teachers in existing colleges which have recelved
C'.overnment concurrence and University affiliation on or before 1st April,
1989. The date has a direct nexus with the date of the decision to provide
for such higher pay scales in the grant-in-aid to be given to the concerned
colleges. Colleges which have secured Government concurrence or affiliation
-.<: F
from the University after 1st April, I 989, cannot claim any right to the
higher grant-in-aid contrary to the policy as laid down by the State. The
resolution of 6th November, 1990 cannot be challenged on the ground that
it deprives the teachers of +2 institutions or intermediate colleges of the
benefit of the resolution of 6th October, 1989 even though their colleges may
have received affiliation for degree colleges subsequent to 1st April, 1989. G
Neither of the two resolutions intended such colleges to have the benefit of
'·"'"' revised pay scales under those Resolutions. (282-H; 283-A]

3. The clarification dt. 22.8.1991 cannot apply to a college which had
merely applied for affiliation but had not received any kind of affiliation by H
276 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 1st April, 1989. The clarification issued by the Govt. of India, Education
Department in respect of the resolution of 6th November, 1990 states that ""r- -
the revised U.G.C. scales of pay, 1986 will be applicable to the teachers of
a Degree college which has received Government concurrence and University
affiliation by 1st April 1989, irrespective of whether it has got temporary/
B provisional/permanent concurrence/affiliation. Thus the Colleges which had
applied for affiliation prior to 1st April 1989 but received affiliation at a later
date cannot claim the benefit of revised U.G.C. scales under the two resolutions.
(282-A-B; 281-G)

C CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8256 of
1996 Etc.

From the Judgement and Order dated 4.11.94 of the Orissa High Court
in O.J.C. No. 4085of1993.

D P.N. Misra and S. Misra for the Appellants.
~-

Jana Kalyan Das and Ajit Pudussery for the Respondents.

The Judgment of the Court was delivered by

E MRS. SUJATA V. MANOHAR, J. Delay condoned.

Leave granted.

The respondents in these appeals are teachers in aided non-Government
colleges/educational institutions. They claimed the revised scales of pay
F f-
recommended by the University Grants Commission on the basis of
Government Resolutions of the State of Orissa in Education and Youth Services
Department dated 6th of October, 1989 and 6th of November, 1990. The
respondents objected to a note attached to paragraph 2 of the Government
Resolution of 6th of November, 1990 as a result of which the higher pay scales
G were given to full-time teachers in aided non-Government colleges which had
received Government concurrence and University affiliation for opening of 3 ._ ,
+ Degree course by Ist of April, 1989 and not thereafter. The writ petitions
of the respondents were allowed by the Orissa High Court. The High Court
struck down the note to paragraph 2 of the Government Resolution of 6th of
H November, 1990 and held that the respondents were entitled to higher scales
STATE v. A.K. DASH [SUJATA V. MANOHAR, J.] 277

of pay. The judgment of the High Court dated 4.11.1994 in O.J.C. No. 4085- A
• ---<; 4090 of 1993 which is the subject-matter of Civil Appeal No.8256 of 1996 has
been followed in the impugned High Court judgments in the other appeals.
· Hence all these appeals have been heard together.

The State of Orissa by its Resolution dated 6th of October, 1989,
B
decided to revise pay scales of teachers in colleges. In paragraph 2 of the
- -.(
Resolution it is stated that following the appointment of the Fourth Pay
Commission for Central Government Employees, the University Grants
C0mmission had appointed a Committee under the Chairmanship of Professor
R.C. Meherotra to examine the present structure of the emoluments. and
conditions of service of University and College Teachers. After considering
c
the recommendations 0f the Committee, the University Grants Commission
submitted its recommendations to the Government of India for their
consideration and implementation. The Government oflndia communicated its
decision on the recommendations of the University Grants Commission to the
State Government of Orissa by their letter dated 17th of June, 1987 and further D
clarifications on 17th September, 1987 and 22nd of July, 1988 and requested
the State to implement the scheme in the State after taking local conditions
into consideration. In paragraph 3 it stated that after careful consideration the
State Government has been pleased to decide to implement the scheme of
revision of pay scales for college teachers on the terms and conditions set E
out in that Resolution. Paragraph 3.1 of the Resolution is headed "coverage".
It provides as follows:-

"Coverage - The revised scales and other measures for improvement
k of standards in Higher Education shall be applicable to all categories
F
of full time Teachers working in all affiliated Government Colleges and
aided non-Government Colleges either covered or eligible to be covered
under direct payment schemes till the I st April 1989. The scheme will
also be extended to full time eligible Teachers working in the College
of Accountancy and Management Studies, Cuttack."
G
In paragraph 3.3 pay scales of different categories of teachers in colleges
~-"'
are laid down: Sub-paragraph A deals with general colleges. The designations
are of Lecturers. Lecturers (Senior Scale), Lecturers (Selection Grade), Reader,
Professor and Principals of colleges. The Principals of colleges are further
divided into (i) Degree Colleges, (ii) 3 post-graduate Colleges and (iii) Lead H
278 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Colleges situated at State and District Headquarters and Colleges having
post-graduate courses as per list appended. The list appended is of degree
colleges.

Thereafter by a Government Resolution dated 6th of November, 1990,
B issued by the Government of Orissa, Education & Youth Services Department,
the Government issued instructions to regulate the revision of scales of pay
of different categories of teachers serving in aided non-Government colleges
of the State pursuant to its earlier Resolution of 6th of October, 1989. Paragraph
2 of this Resolution is as follows:-

C "Category of teachers to whom these instructions shall apply-

( l) Save as otherwise provided by or under these instructions, these
instructions shall apply to all categories of full-time teachers working
in all aided non-Government Colleges either covered or eligible to be
covered under Direct payment scheme till the !st day of April, 1989.
D
NOTE -"Colleges" under these instructions shall mean aided Colleges
which have been given Government concurrence and University
affiliation for opening of 3+ Degree courses by the I st April, 1989 and
not thereafter."
E
Sub-paragraph 2 of paragraph 2 excludes from the purview of the Resolution
in clause (v), teachers who are appointed primarily in +2 institutions existing
as on ist April, 1989 including Intermediate Colleges converted +2 institUtions
and (vi) teachers appointed after 1st April, 1989 to teach in +2 courses in
existing Degree Colleges or +2 institutions.
F
The respondents contend that the coverage which was given to the
earlier Resolution of 6th of October, 1989 is reduced as a result of the note
which is appended to paragraph 2 (1) of the Resolution of 6th of November,
1990. However, under paragraph 3.1 of the Resolution of 6th of October, 1989
G which deals with the coverage of that Resolution, it is stated that the
Resolution will apply to full-time teachers working, inter alia, in all affiliated .._ __
aided non-Government colleges either covered or eligible to covered under
direct payment schemes till !st of April, 1989. The term 'affiliated' in paragraph
3.1 has a reference to the Orissa Universities Act, 1989 which came into force
H on 15th of November, 1988. Section 2(b) of the Orissa Universities Act, 1989
STATEv. A.K. DASH [SUJATA V. MANOHAR, J.] 279

defines affiliated institutions to mean a college or an institution affiliated to A
a University whether in whole or in part. While the term 'college' is defined
in Section 2(d) to mean an institution admitted to a University in accordance
with the provisions of this Act and the statutes and includes a college
managed by a University, but does not include a school whether it is an
independent institution or forms part of a college as defined herein. The B
Resolution of 6th of October, 1989, therefore, applied to those aided non-
Government colleges which were affiliated to a University.

The reference in paragraph 3.1 to colleges covered or eligible to be
covered under direct payment schemes till I st of April, 1989 has a reference C
to the scheme of the Government of Orissa for direct payment of salary by
the Government to the teaching and non-teaching staff of aided colleges. The
circular letter/order of 27.5.1978 covers those who have been appointed against
sanctioned posts and have completed five years from the date of the creation
of such posts provided the creation of such posts and the appointments
made against them have been duly approved by the competent authority. By D
a circular letter dated 17th of March, 1983, the Government of Orissa, Education
and Youth Services Department, had clarified the Government Order No.
19462-EYS dated 27.5.1978 to the effect that direct payment of full salary cost
of the teaching and non-teaching staff of non-Government colleges as
admissible according to the prescribed yardstick shall be payable to such E
colleges which have been accorded Government concurrence prior to the
academic session 1979-1980. The colleges who have received Government
concurrence with effect from the academic session 1979-1980 or thereafter
shall be governed by the new grant-in-aid principles which were as follows:-
F
(I) Colleges in advance areas will receive I/3rd of the deficit as
grant-in-aid after 5 years from the date of Government
concurrence (recognition), 2/3rd after 7 years and full deficit
after 9 years.

(2) In backward areas these periods will be 3, 5 and 7 years G
respectively.
--"-
For the purpose of computing qualifying period of 5 years for a college
to receive grant-in-aid the date with effect from which the college has been
accorded Government concurrence shall be taken into account. This
concurrence has a reference to Section 18(b) ofOrissa Universities Act, 1989, H
280 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Section 18 deals with admission of educational institutions as colleges i.e.
institutions admitted to a University vide definition Section 2(d). Sub-section
(I) provides that no educational institution shall be admitted as college unless 'r- -
the following conditions are complied with, namely, (a) it is a college recognised
by the Government as such, imparting higher education, (b) concurrence of
B the Government to the proposal has been obtained. There are other conditions
with which we are not concerned.

Paragraph 3.1, therefore, refers to only those aided non-Government
colleges which are affiliated to a University and are eligible to be covered
under direct payment schemes which also have a reference to colleges being
C admitted to University, prior to I st of April, 1989. Under the Resolution of 6th
of October, 1989, "plus two" institutions or Intermediate colleges were not to
be covered; as also those Degree colleges which obtained affiliation to the
University after I st of April, 1989.

D The Resolution of 6th of November, 1990 which deals with teachers
serving in aided non-Government colleges of the State provides in paragraph -L

2 that the instructions in that Resolution shall apply to all categories of full-
time teachers working in all aided non-Government colleges either covered or
eligible to be covered under direct payment scheme till !st of April, 1989. This
E language is similar to the language in paragraph 3.1 of the Resolution of 6th
of October, 1989. The. note states that colleges shall mean aided colleges
which have been given Government concurrence and University affiliation for
opening 3+ Degree courses from 1st of April, 1989 and not thereafter. In view
of what has been said in paragraph 3. I of the Resolution of 6th of October,
1989 as explained above, the note sets out specifically what is implied in
F
paragraph 3.1 of the Resolution of 6th of October, 1989, as also paragraph 2(1)
of the Resolution of 6th of November, 1990 since both are couched in similar
language. Sub-paragraphs 2 (v) and (vi) are also clarificatory in this context.
The Resolution of 6th of November, 1990 therefore, cannot be challenged on
the ground that it deprives the teachers of +2 institutions or Intern1ediate
G colleges of the benefit of the Resolution of 6th of October, 1989 even though
their colleges may have received affiliation for Degree courses subsequent to
!st of April, 1989. Neither of the two Resolutions intended such colleges to
have tpe benefit of revised pay scales under those Resolutions.

H Jn this context our attention was also invited to the Orissa Education
STATE v. A.K. DASH [SUJATA V. MANOHAR, J.] 281

Act, 1969 as amended with effect from 21st of August, 1989. Section 3(b) A
defines an aided educational institution to mean a private educationai institution
which is recognised by and is receiving aid from the State Government. A
college is defined under Section 3( d) to mean an educational institution
imparting instructions in higher general education leading to any degree
conferred by any of the Universities established under the Orissa Universities B
Act, 1989. Therefore, an aided college even under the Orissa Education Act
• -<: will be an institution where instructions in higher general education leading
to a University degree is imparted. For this purpose, such a college requires
to be affiliated to a University under the Orissa Universities Act, 1989. Section
7-D provides that no private educational institution which has not been C
recognised by the State Government under this Act shall be entitled to be
recognised by any of the Universities established under the Orissa Universities
Act, 1989 or to receive any aid from the State Government. Therefore, even
under the Orissa Education Act which covers all educational institutions
including colleges, the colleges require recognition under the Orissa Education D
Act. In order to be eligible to send up its students for a degree they require
affiliation to a University under the Orissa Universities Act and for the
purposes of grant-in-aid the private colleges require recognition by the State
Government under the Orissa Education Act. Although direct payment schemes
may apply not merely to Degree colleges but to other educational institutions E
including Intermediate colleges which do not require any affiliation to a
University, the Resolution of 6th of October, 1989 in paragraph 3.1 refers
expressly lo affiliated colleges. This affiliation has a reference to affiliation fo
a University for a Degree course. In respect of such colleges, the direct
payment scheme requires that the colleges should have concurrence from the
Government and University affiliation. Therefore, these two Resolutions cover F
. the same field and the Resolution of 6th November, 1990 does nqt curtail the
scope of the Resolution of 6th of October, 1989.

It is next contended by the respondents that the cut-off date of I st of
April, 1989 prescribed in these two Resolutions is arbitrary and irrational. It G
has deprived teachers of aided non-Government colleges who were affiliated
• ,,.(_ after 1st of April, 1989 from the benefit of the two Resolutions. In the case
of some of the teachers who are before us, the college 'In which they are
working had applied for affiliation prior to 1st of April, 1989 but received
affiliation at a later date. In case of other colleges, the application for affiliation H
282 SUPREME COURT REPORTS [1998] 2 S.C.R.

A as well as affiliation are from a later date. The respondents contend that at
least in the case of those colleges which had already applied for affiliation
prior to I st of April, 1989, the teachers should get the benefit of revised
U.G.C. scales under the two Resolutions. They rely upon a clarification issued
by the Government of Orissa~ Education Department, dated 22.8.1991 in respect
B of the Resolution of 6th of November, 1990 where it is stated that the revised
U.G.C. scales of pay 1986 will be applicable to the teachers ofa Degree college
which has received Government concurrence and University affiliation by I st
of April, 1989, irrespective of whether it has got temporary/provisional/
permanent concurrence/affiliation. The clarification, however, cannot apply to
C a college which had merely applied for affiliation but had not received any
kind of affiliation by !st of April, 1989.

The only other contention relates to the arbitrariness of the cut-off date
I st of April, I 989. In this connection, the appellants have pointed out that
the Resolutions deal with the quantum of grant-in-aid which the State will
D provide, inter alia, to aided non-Government colleges; and the basis on which
such grant-in-aid will be provided. For this purpose the State will provide for
revised scales of pay as per the University Grants Commission's
recommendation. The State Government has frained a scheme for such grant-
in-aid looking to its own financial resources and the number of educational
E institutions to which it will be required to give such grant. No educational
institution can claim grant-in-aid as a matter of right. This is a matter of policy
which the State Government will decide looking to its financial capacity and
other relevant circumstances. There may be, as a result, differences in the pay
scales of teachers of colleges affiliated prior to 1.4. I 989 and colleges affiliated
F subsequently, although neither of the Resolutions prevent the colleges from f.
giving higher pay scales if they so desire. In this context, the appellants have
pointed out that even the extent of grant-in-aid varies from college to college,
•
depending, for example, upon the number of years for which the college has
been functioning. Since the entire burden of providing grant-in-aid is now on
G the State, the State regulates by policy the extent of aid and the colleges to
which it will be given.

Jn the present case the State Government has decided to provide grants-
in-aid to cover the revised U .G.C. scales of pay for those teachers in existing
colleges which have received Government concurrence and University
H affiliation on or before I st of April, I 989. The date has a direct nexus with
STATE v. A.K. DASH [SUJATA V. MANOHAR. J.] 283
the date of the decision to provide for such higher pay scales in the grant- A
in-aid to be given to the concerned colleges. The date which is so fixed
cannot be considered as arbitrary or unreasonable. Colleges which have
secured Government concurrence or affiliation from the University after 1st
of April, 1989, therefore, cannot claim any right to the higher grant-in-aid
contrary to the policy as laid down by the State. The High Court was, B
therefore, not right in coming to the conclusion that the Note to paragraph
2(1) of the Government Resolution of 6th of November, 1990, was arbitrary
and unreasonable.

The appeals are, theref?re, allowed. The impugned judgments and orders
of the High Court are set aside and the writ petitions filed by the respondents C
before the High Court are dismissed. There will, however, be no order as to
costs.

S.V.K.I. Appeals allowed.

,.,