SECRETARY MAHATAMA GANDHI MISSION & ANOTHER versus BHARTIYA KAMGAR SENA & OTHERS
[2017] 2 S.C.R. 241, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
[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 
[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.) 
Maharashtra University Act, 1994: 
s. 8(3) - Maharashtra Non-Agricultural Universities and 
Affiliated Colleges Standard Code (Non Teaching Employees Revised 
Pay) Rules, 2009 - rr. 17, 2 - Rules made in respect of Sixth Pay 
Commission by State of Maharashtra in the year 2009 - Right of 
employees to receive pay and allowance in terms of Sixth Pay 
Commission - Appellant's case that Rules of 2009 revising the pay 
scales of non-teaching staff of only affiliated aided colleges and 
appellant being an unaided college, cannot be compelled to pay 
salary and allowances to its employees in terms of the 
recommendations of the Sixth Pay Commission - Sustainability of -
Held: No justification in excluding the non-teaching employees of 
the unaided educational institutions while extending the benefit of 
the revised pay scales to the non-teaching employees of the aided 
educational institutions - Such classification is clearly violative of 
Art. 14 - Objects sought to be achieved by the periodic revision of 
the pay-scales was to comply with the constitutional mandate 
emanating from Art. 43 of the Constitution, thus, the rationale behind 
the classification made by the State of the Maharashtra between 
aided and unaided colleges cannot be understood - GR dated 
12.8.2009 can be
safely construed to be one made in exercise of 
the power u!s. 8(3) conferring a legal right on the teaching staff of 
the affiliated colleges irrespective of the fact whether they are aided 
or not - Colleges run by the appellants are admittedly colleges 
affiliated to the Universities functioning under the Act - Thus, their 
teaching staff would be entitled to revised pay scales in terms of the 
GR - Constitution of India - Art. 14. 
Constitution of India: 
Art. 14 - Power of constitutional court to compel executive 
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to exercise statutory authority to make subordinate legislation 
consistent with Art. 14 - Held: If a law, whether primary or 
subordinate legislation, is found to be untenable on the touchstone 
of Art. 14 by the constitutional court, it can declare such law to be 
unconstitutional and strike the same - However, siriking down a 
I 
law, which confers some benefit on a class of people ignoring others 
who are othenvise similarly situated, is not to be done as a matter 
of course. 
Scheme of education system and employment under -
Explained. 
Dismissing the appeals, the Court 
HELD: 1.1 The Sixth Pay Commission appointed by the 
Government of India is only a body entrusted with the job of 
making an assessment of the need to revise the pay structure of 
the employees of the Government of India and to suggest 
appropriate measures for revision of the pay structure. The 
.recommendations of the pay commission are not binding on the 
Government of India, much less auy other body. They are only 
meant for administrative guidance of the Government of India. 
The Government of India may accept or reject the 
recommendations either fully or partly, though it has never 
happened that the recommendations are completely rejected by 
the Government so far. [Para 59] [270-D-E; 271-A] 
1.2 Once the Government of India accepted the 
recommendations of the pay commission and issued orders 
signifying its acceptance, it
became the decis.ion of the 
Government of India. That decision of the Government created 
a right in favour of its employees to receive pay in terms of the 
recommendations of the Sixth Pay Commission and the 
Government of India is obliged to pay. The fact that the 
Government of India accepted the recommendations of the Sixth 
Pay Commission (for that matter any pay commission) does not 
either oblige the States to follow the pattern of the revised pay 
stru_cture adopted by the Government of India or create any right 
in favour of the employees of the State or other bodi.es falling 
within the legislative authority of the State. [Paras 60,61] [271-
B-D]
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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BHARTIYA KAMGAR SENA & OTHERS 
1.3 The Government of India decided to extend the benefit 
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 
and other eqnivalent cadres of Library and Physical Education 
etc. in all the Central Universities and Colleges thereunder etc. 
The Government of India was not oblivious of the fact that various 
other categories of employees are working with those institutions. 
Therefore, it made a specific mention in the Scheme dated 
31.12.2008 that though the Scheme did not extend to the cadres 
of Registrar, Finance Officer, Controller of Examinations etc. 
[Para 62] [271-E-G] 
.1.4 The Government of India's decision to extend the 
revised pay scales even to the employees of the various 
educational .institutions established and administered by it or its 
instrumentalities, is a policy choice of Government of India. 
However, after adopting such a policy the Government of India 
thought it fit to suggest to the States by its communication dated 
31.12,2008 that the States may also adopt the policy of the 
Government of India if they so choose. As an incentive for the 
States to adopt the policy, the Government of India offered to
undertake a substantial portion of the financial burden of the States 
resulting from the adoption of such policy, for a period of five 
years. [Paras 63, 64] [272-D-F] 
1.5 Accepting the offer made under the scheme of the Union 
of India, the State of Maharashtra issued the GR dated 12.8.2009 
revising the pay scales of the cadres specified therein (essentially 
teaching staff) of the "universities' colleges and other higher 
educational institutions". By the said GR, the State of Maharashtra 
declared the revision of the pay scales of the teaching staff of the 
educational institutions. However, the universities were directed 
by the said GR to make appropriate amendments to the relevant 
subordinate legislative instruments of the various universities 
to provide, in the opinion of the State, requisite legal framework 
for the implementation of such policy decision. [Para 65] [272-F-
G; 273-C] 
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1.6 In view of the power u/s. 8(3) of the Maharashtra 
Universities Act authorizing the State to make rules dealing with 
the various aspects of the service of the employees of the 
universities aud other educational institutions, the authority, if 
any, of the universities to deal with the said subject would cease 
the moment the State Government chooses to make Rules. Ju 
view of tbe provisions in G.R. dated 12.08.2009 stipulating the 
pay scales of the teaching staff of the educational institutions, 
any further directions to the universities to make amendments 
to the subordinate legislative instruments is redundant. [Para 
65] [273-D-E] 
1. 7 From tbe language of sub-section (8) to Section 14 of 
the Act, the Vice-Chancellor could have issued such order if only 
the Universities Act authorised making of Statutes, Ordinance 
or Regulations dealing with the service conditions (including pay-
scales) of the employees of the affiliated colleges. No specific 
provision under the said Act which authorised making of either 
Statutes, Ordfoance or Regulations dealing with 'the service 
conditions including the pay-scales of the employees of the 
affiliated colleges is brought to the notice. On the other hand, 
. Section 8(3) expressly authorises the State Government to make 
rules with respect to the service conditions of the employees 
(teaching and non-teaching staff) of the affiliated colleges. 
Therefore,
the order of the Vice-Chancellor, Order No.214 dated 
29.08.2009 is superfluous and without any authority oflaw. [Para 
67] [274-B-D] 
1.8 While the GR dated 12.08.2009 is specific in its 
declaration that the elaborate Rules contained therein dealing 
with the pay scales of the various cadres of the teaching staff of 
the educational institutions mentioned therein, it does not make 
any distinction between aided and on-aided colleges. However, 
the GR does not purport to be one made in exercise of the power 
under Section 8(3). It is agreed that the expression "Government 
Resolution" in the Maharashtra Administrative jargon means a 
decision taken either in exercise of the authority of the State 
under Article 162 or in exercise of the authority under some 
statutory provision. No doubt the GR does not refer to the source 
which authorises the exercise of the power for revising the pay
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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 
Act is two-fold. Firstly, the statutory authority under Section 8(3) 
could be abrogated anytime by the legislature while the 
constitutional authority under Article 162 cannot be abrogated 
by the State Legislature. Secondly, the procedural requirements 
for the exercise of the power vary depending upon the nature of 
the source of the power, but the existence of power itself cannot 
be doubted. [Para 70] [275-B-C] 
1.10 The GR dated 12.8.2009 can be safely construed to 
be one made in exercise of the power under Section 8(3) of the 
Universities Act conferring a legal right on the teaching staff of 
the affiliated colleges irrespective of the fact whether they are 
aided or not. The colleges run by the appellants are admittedly 
colleges affiliated to the Universities functioning under the Act. 
Therefore, their teaching staff would be entitled to the revised 
pay scales in terms of the G.R. dated 12.08.2009. [Paras 71, 72] 
[275-C-D] 
1.11 Coming to the non-teaching staff working in the 
colleges run
by the appellant, the Rules of 2009 purport to be 
the rules revising the pay-scales of the non-teaching staff of only 
the affiliated aided colleges. Therefore, textually the colleges 
administered by the appellants are not governed by the rules. 
[Para 731 1275-EI 
. 
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1.12 The 1999 Rules, which extended the 5" pay 
commission recommendations to the non-teaching staff of the 
affiliated colleges, did not make any distinction between the aided 
and un-aided colleges. For the first time, that classification is 
sought to be made under the 2009 Rules. No doubt aided and 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 
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bear a nexus to the objects sought to be achieved. The objects 
sought to be achieved by the periodic revision of the pay-scales 
is obviously to comply with the constitutional mandate emanating 
from Article 43 of the Constitution. If that is the object, the 
rationale behind the classification made by the State of the 
Maharashtra between aided and unaided colleges cannot be 
understood. People employed in educational institutions ruu by 
non-State actors are not treated any more kindly by the market 
forces and the economy than the people employed either by the 
Government or its instrumentalities or institutions administered 
by non-State actors receiving the economic support of the State. 
[Paras 74, 75] [275-G-H; 276-A-B, C-D] 
1.13 The very fact that the Government of India thought 
it fit to revise the pay scales of its employees and also thought it 
fit to accept the suggestions of the UGC to revise the pay scales 
of various Universities and other bodies whose maintenance 
expenditure is met by the UGC (in other words virtually by the 
Union oflndia), shows that the Government oflndia is completely 
convinced that there is a definite need to revise the pay scales of 
not only its employees, but also the employees of its 
instrumentalities. The fact that the Government of India made 
an offer to the States that the Government of India is willing to 
shoulder a substantial portion of the financial
burden arising out 
of the adoption of revised pay scales in the event of the States 
choosing to adopt the revised pay scales, also indicates that the 
Government is fully convinced that having regard to various 
factors operating in the economy of the country there is a need 
to revise the pay scales of the personnel employed even by 
various States and their instrumentalities. Such a conclusion of 
the Union of India is endorsed by the State of Maharashtra. The 
decision of the State in issuing the two GRs revising the pay scales 
of the teaching staff of all the educational institutions and non-
teaching staff of the aided educational institution is proof of such 
endorsement. Therefore, there is no justification in excluding 
the non-teaching employees of the unaided educational institutions 
while extending the benefit of the revised pay scales to the non-
teaching employees of the aided educational institutions. Such a 
classification, is clearly violative of Article 14 of the Constitution. 
[Para 76] [276-D-H; 277-A-B)
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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 
situated, is not to be done as a matter of course. If the benefit 
sought to be conferred by such a law is not repugnant to the 
directive principles of the State policy, striking down the same 
would virtually amount to throwing away the baby with bath water. 
[Para 78] [277-C-EJ 
1.15 Notwithstanding the wholly unsatisfactory reasoning 
adopted by the High Court for allowing the claims of the writ 
petitioners-respondents, the conclusion of the High Court could 
be justified on basis of the principle enunciated in D.S. Nakara's 
case that it is possible to give an appropriate inductive relief by 
eliminating the factors, which creates the artificial classification 
leading to a discriminatory application oflaw. [Paras 80, 82) [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 
of the power allowable to it under Section 8(3) of the Maharashtra 
Universities Act, the question whether AICTE is the
competent 
body to regulate the service conditions of the employees of 
engineering colleges, is wholly irrelevant to the issne and 
academic. Even if the appellant's submissions in this regard were 
to be accepted, it only leads to the inevitable conclusion that the 
Maharashtra State legislature is the competent body to deal with 
the sµbject. It dealt with the subject under Section 8(3) of the 
Maharashtra Universities Act. Section 8(3) clearly authorises the 
State Government to frame rules dealing with the service 
conditions of the employees (both teaching and non-teaching) of 
various educational institutions. The power is duly exercised. 
While exercising such power is that State of Maharashtra drew 
an artificial distinction between aided and unaided educational 
institutions. [Para 84] [283-C-E] 
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1.17 Insofar as non-teaching staff are concerned, the 
appellants have no excuse for making a submission that they do 
not receive any financial aid from the State because in the earlier 
round of litigation the respondents-non-teaching employees of 
the appellants, though succeeded both before the High Court 
and this Court in obtaining appropriate directions to the appellant 
and other authorities to revise the pay scales of the employees 
in tune with the Fifth Pay commission, entered into a settlement 
dated 30" January, 2006. Under the said agreement, the 
management agreed to revise the pay scales from time to time in 
tune with the revision of the pay scales of the employees of the 
State. Even otherwise, if the appellants are obliged under law, as 
it is already concluded that they are in fact obliged, it is for the 
appellants to work out the remedies and find out the ways and 
means to meet the financial liability arising out of the obligation 
to pay the revised pay scales. [Paras 87, 88, 89] (284-C-G] 
Unni Krishnan, J.P. & Others v. State of Andhra 
Pradesh & Others [1993] 1 SCR 594 : (1993) 1 SCC 
645; E.P. Royappa v. State of Tamil Nadu & Another 
[1974] 2 SCR 348 : (1974) 4 SCC 3; Bennett Coleman 
& Co. and Others v. Union of India and Others 
(1973] 2 SCR 757 : (1972) 2 SCC 788; State of Tamil 
Nadu v. Adhiyaman Educational and Research 
Institution [1995] 2 SCR 1075 : (1995) 4 SCC 104;
Bharathidasan University v. AICTE [2001] 3 Suppl. 
SCR 253 : (2001) 8 SCC 676; T.MA. Pai Foundation 
& Others v. State of Karnataka & Others (2002] 3 
Suppl. SCR 587: (2002) 8 SCC 481; Islamic Academy 
of Education & Another v. State of Karnataka & 
Others [2003] 2 Suppl. SCR 474 : (2003) 6 SCC 697 
- referred to. 
Wisconsin v. Yoder 406 US 205 (1972) - referred to. 
Case Law Reference 
J1993J 1 SCR 594 
referred to 
Para36 
J1974J 2 SCR 348 
referred to 
Para 78 
J1983J 2 SCR 165 
referred to 
Para 79 
[1995] 2 SCR 1075 
referred to 
Para 83 
[2001] 3 Suppl. SCR 253 
referred to 
Para 83
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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BHARTIYA KAMGAR SENA & OTHERS 
[2002] 3 Suppl. SCR 587 
[2003] 2 Suppl. SCR 474 
referred to 
referred to 
Para 85 
Para 85 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11 5-
116 of2017. 
From the Judgment and Order dated 10.02.2012 & 06.07.2012 
of the High Court of Judicature at Bombay, Bench at Aurangabad in 
Writ Petition No. 11091 of2010 and Review Petition No. 191 of2012 in 
Writ Petition No. ll 091 of2010 
WITH 
A 
B 
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 
San jay Choukidar, Aditya Gaggar, Apoorv Shukla, Aj it Wagh, Sudhanshu 
S. Choudhari, Yogesh K. Ahirrao, Nishant Ramakantrao Katneshwarkar, 
Ms. Asha Gopalan Nair, Gaurav Sharma, C. G Solshe, T. R. Pasi, Satyapal 
Khushal Chand Pasi, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
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, 
one at Nanded and another at Aurangabad in the State of Maharashtra. 
The first respondent appears to be an
unregistered body of persons who 
are the employees of the first appellant. They are the staff of the 
abovementioned two engineering colleges belonging either to the category 
of teaching or non-teaching staff. The details of which are not necessary 
for the purpose of this case. 
3. In the year 2002, the first respondent and others (some 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 
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of Maharashtra) be directed to extend the benefits of the revised pay 
scales as recommended by the Fifth Pay Commission set up by the 
Government oflndia to the employees of the appellant herein. The said 
writ petition was allowed by a judgment dated 19'" December, 2003 by 
the Division Bench of the Bombay High Court' giving various directions 
to Dr. Babasaheb Ambedkar Marathwada University, Aurangabad 
(Respondent No. 5 in that Writ Petition). 
4. Aggrieved by the said judgment, the employer carried the 
matter to this Court in SLP(C) No. 19567-19568 of2004 which came to 
be dismissed by an order of this Court dated 24. I 0.2005. 
5. Subsequently, there was a settlement dated 30.1.2006 between 
the appellant and the petitioners in Writ Petition No. 333 of2002. The 
terms of the settlement were reduced to writing whereunder the 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 
January 1, 1996 to December 31, 2000. Correspondingly, the appellant 
herein undertook to implement future pay revisions'. 
6. The Sixth Pay Commission set up by the Government oflndia 
made its recommendations on 24.3.2008. The University Grants 
1 11. Considering the above, v:e arc of the opinion that the Petition will have to be 
allo\ved by issuing the following
directions. 
(I) Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, is directed, within 
a period of three months from today, to enforce the pay-scales in terms of the Rules, 
and on failure by Respondent No. 2, to make the payment to the non-teaching in tenns 
of the Rules so also to take steps according to law including withdrawal of recognition 
of the Respondent No. 2 as an affiliated college; 
(2) The Respondent No. 3, considering the Affidavit filed before this Court and the 
terms of recognition, within a period of three months from today, is directed to see that 
the Respondent No. 2 implements the recommendations of Fifth Pay Commission and 
on failure to do so, to take steps to withdraw the recognition according to law; 
Rule made absolute accordingly. There shall be no order as to costs. (Para 14 
of the Judgment) 
2 3) The management hereby agrees and admits that, the employees would be eligible for 
getting the pay and allowances revised regularly for the government employees by the 
government from time to time and the employees would be eligible for getting the pay 
and allowances arrived at having merged the 50% dearness allowance into the basic 
salary Pay of the employees from the month of July. 2006.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
Commission (UGC) (a statutory body) recommended extension of the 
benefit of the revised pay scales under the Sixth Pay Commission Report 
to the teaching staff of all the Central Universities, deemed universities 
and universities whose maintenance expenditure is borne by the UGC. 
Government of India accepted the recommendation and formulated a 
scheme. Under the said scheme, the Government oflndia had decided 
to revise the pay scales of the various classes ofteachers3 in the Central 
Universities and colleges thereunder subject to various terms and 
conditions stipulated in the scheme. The Government of India 
communicated its acceptance to UGC by its letter dated 31. 12.2008. 
It was also declared under the scheme:-
"(v) The Scheme may be extended to universities, Colleges and 
other higher educational institutions coming under the purview 
of State legislatures, provided State Governments wish to adopt 
and implement the Scheme subject to the following terms and 
conditions;" 
The scheme also provided that in the event of the extension of 
the scheme by any State government to Universities or colleges and 
other higher educational institutions coming under the purview of State 
legislatures, the Government of India would unde11ake to meet a part 
3 [Extract fron1 letter dated 31 11 Dece1nbcr. 20081 
"I am directed to say that the Government of India have decided. after
taking into 
consideration the recommendations made by the University Grants Com1nission (UGC) 
based on the decisions taken at the meeting of the Con1mission held on 7-8 October 
2008, to revise the pay scales of teachers in the Central Universities. The reYision 
of pay scales of teachers shall be subject to various provisions of the Scheme of 
revision of pay scales as contained in this letter, and Regulations to be framed by the 
UGC in this behalf in accordance with the Scheme given belo\v. The revised pay scales 
and other provisions of the Scheme are as under: 
(p) Applicability of the Scheme 
(i) This Scheme shall be applicable to teachers and other equiva\e1lt cadres of Library 
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and Physical Education in all the Central Universities and Colleges thereunder and the 
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Institutions Deemed to be Universities \Vhose maintenance expenditure is met by the 
UGC. The implementation of the revised scales shall be subject to the acceptance of all 
the conditions mentioned in this letter as \Veil as Regulations to be frained by the UGC 
in this behalf. Universities implementing this Scheme shall be advised by the UGC to 
a1nend their relevant statutes and ordinances in line \vith the UGC Regulations \vithin 
three months fro1n the date of issue of this letter." 
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of the financial burden resulting from the implementation of such scheme'. 
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Copy of the said letter was also forwarded to all the State 
Governments. 
7. The State of Maharashtra took note of the abovementioned 
developments and by a Government Resolution (hereafter "GR") dated 
12.8.2009 made a "scheme" revising the pay scales and the dearness 
allowances of all teachers and other equivalent cadres of the Universities, 
colleges and other higher educational institutions coming under the 
purview of the State legislature. Preamble to the said GR insofar as 
it is relevant reads: 
"Government of India vide. its letter dated 3 l" December, 2008 
referred to above has revised the pay scales of teachers and 
equivalent cadres in the Central Universities subject to various 
provisions of the scheme ofrevision of pay scales as contained 
in the said letter, and regulations to be framed by the UGC in this 
behalf. Government of India has mentioned in the said letter 
that scheme may be extended to Universities, Colleges and other 
higher education Institutions coming under the purview of State 
Legislatures, provided State Governments wish to adopt and 
implement the scheme. It has further been clarified by the 
Government of India that payment of central assistance for 
implementing this scheme is subjectto the condition that the entire 
scheme of revision of pay scales together with al I the conditions 
~ .. la)
Financial assistance from the Central Government to State Govern1nents opting 
to revise pay scales of teachers and other equivalent cadre covered under the Scheme 
shall be limited to the extent of 80o/o (eighty percent) of the additional expenditure 
involved in the implementation of the revision. 
{b) The State Government opting for revision of pay shall meet the ren1aining 20% 
(t\Yenty percent) of the additional expenditure from its o'vn sources. 
(c) Financial assistance referred to in sub-clause (a) above shall be provided for the 
period from 1.01.2006 to 31.03.2010. 
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( d) The entire liability on account of revision of pay scales etc. of university and 
college teachers shall be taken over by the State Government opting for revision of pay 
scales with effect from 1.04.2010. 
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(e) Financial assistance from the Central Government shall be restricted to revision of 
pay scales in re::;pect of only those posts which were in existence and had been filled up 
as on 1.01.2006."
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
etc. shall be implemented by the State Government as a composite 
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scheme without any modification etc. 
1.2. The question ofrevising the pay scales etc. of teachers and 
equivalent cadres in universities, college under State 
Legislature was under active consideration of the 
Government for some time. The Government after 
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: 
(i) This scheme shall be applicable to teachers and other 
equivalent carders of library and physical education in all the 
Universities, Colleges and other Higher educational 
Institutes coming under the purview of state legislature 
though (sic) the department of Higher and Technical Education 
of Maharashtra and governed by the rules of University Grant 
Commission. However, the unaided colleges will not be entitled 
for any financial assistance from the State Government and 
similarly in case of aided institutes of the Government assistance 
will
only be limited to the teachers who retired on or before 31" 
December 2005 and who worked on re-employment on that date, 
including those whose period of re employment was extended 
after that date. 
The implementation of the revised scales shall be subject to 
acceptance of all the conditions mentioned in this Resolution as 
well as Regulations to be framed by the UGC in this behalf. 
Universities implementing this Scheme shall amend their relevant 
statutes and ordinances in line with the Resolution and the UGC 
Regulations issued in this regard from time to time." 
9. Vice-Chancellorofthe third respondent University, issued order 
No. 214 dated 29.8.2009 in the purported exercise of power under Section 
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14(8)' of the Maharashtra University Act, 1994. The Order purported 
to extend the scheme propounded by the Government oflndia and adopted 
by the State by the GR dated 12.8.2009 to all the colleges affiliated to 
that university. The tenor of the order No. 214 makes it clear that the 
scheme is made applicable only to teachers and equivalent cadres of 
librarian and physical education.' There is some issue regarding the 
legality of the action of the Vice-Chancellor in resorting to the power 
under Section 14(8). We should deal with the same later. 
I 0. On 7'" October, 2009, the Government of Maharashtra made 
Rules invoking its power under the provisions of the various Universities' 
Acts', etc., "'prescribing a standard code providing for the terms and 
conditions of service" of the non-teaching employees of the various 
organizations described thereunder. The expression standard code is 
traceable to Section 8(3)8 of the Maharashtra Universities Act, 1994 
5 Section 14(8) Where any matter is required to be regulated by the Statutes, Ordinances 
or Regulations, but no Statutes, Ordinances or Regulations are made in that behalf the 
Vice-Chancellor may, for the time being, regulate matter by issuing such directions as he 
thinks necessary, and shall, at the earliest opportunity thereafter, place them before the 
Management Council or other authority or body concerned for approval. He may, at 
the same
time, place before such authority or body for consideration the draft of the 
Statutes, Ordinances or Regulations, as the case may be, required to be made in that 
behalC 
"I 1) The scheme of revision of pay scales as laid down in the GR. dated 12.8.2009 shall 
be made applicable to teachers and equivalent cadres of Librarian and Physical Education 
in the University, Colleges and other Higher Educational Institutes under the purview 
of the University and governed by the rules of the UGC. 
7 Exercising the authority conferred by the provisions in Maharashtra Universities Act, 
1994, Dr. Babasaheb Ambedkar Technical University Act, 1989, Smt. Nathibai Damodar 
Thakarsi Womens' University, 1974 and Kavi Kalguru Kalidas Sanskrit University 
AcL 1997 the Government of Maharashtra hereby makes the rules prescribing the 
Standard Code pro\'iding for the terms and conditions of the service of the 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 
notification in the Official Ga::.ette, prescribe a Standard Code proYiding for the 
classification, nianner and mode of selection and appointinent, absorption
of teachers 
and employees rendered surplus, reservation of posts in favour of members of the 
Scheduled Castes. Scheduled Tribes. Denotified Tribes (I /111ukra Jatis). Nomadic Tribes 
and Other Backward Classes, duties \VOrkload, pay, allowances, post retire1nent benefits, 
other benefits, conduct and disciplinary niatters and other conditions of service of the 
officers, teachers and other employees of the universities and the teachers and
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
which authorises the State to make rules providing for the various aspects 
of employment of officers, teachers and other employees of the 
Universities, affiliated colleges and recognised institutions. It further 
declares that when such Rules are made they would prevail over any 
other subordinate legislation made by any statutory authority functioning 
under the Act. 
11. Rule 2( 1) of the said Rules stipulates that those rules apply to 
the full time non-teaching employees of: (i) 12 specified non-agricultural 
universities, and (ii) the affiliated non-government aided colleges'. 
12. Under the said Rules elaborate provisions dealing with the 
pay structure of the non-teaching employees of the abovementioned 
two classes of educational institutions were made. The Rules did not 
apply to the non-teaching employees of the unaided non -government 
colleges. 
13. It is also necessary to take note of the fact that the All India 
Council for Technical Education(' AICTE', for short) made Regulations 
dated 05.03.2010 in the purported exercise of the powers under Sections 
10( I )(v) and 23(1) of the AICTE Act (52 of 1987). Those regulations 
deal with the pay scales and other service conditions of the teachers and 
other academic staff in technical institutions. Regulation 110 makes it 
other employees in the affiliated colleges and recognised institutions (other than 
those managed
and maintained by the State Government, Central Government and the 
local authorities). When such Code is prescribed, the provisions made in the Code shall 
prevail, and the provisions made in the Statutes, Ordinances, Regulations and Rules 
tnade under this Act, for matters included in the Code shall, to the extent to \Vhich they 
are inconsistent \Vi th the provisions of the Code. be invalid .. , 
9 2. Cadre of employees to \vhom these rules apply. 
(I) These rules \viii apply to the full time non teaching employees subject to the review 
of non teaching posts of the following 12 non agricultural universities and to the full 
time non teaching employees subject to the review of the non teaching posts in affiliated 
Non~Government Aided colleges other then those managed and maintained by the 
State Government and Local Authorities. 
111 I. Short Title, Application and Commencement. 
I. I These Regulations may be called the All India Council for Technical Education (Pay 
Scales, Service Conditions and Qualifications for the Teachers and other Academic staff 
in Technical Institutions (Degree) Regulations, 20 I 0. 
1.2 They shall apply to technical institutions and Universities including deemed 
Universities imparting technical education and such other courses/programs and areas 
as notified by the Council from time to time. 
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clear that these regulations are applicable only to the teachers and other 
academic staff of technical institutions. In other words, the regulations 
have no application to the non-teaching staff employed in the technical 
institutions though such technical institutions are run with the approval 
and under the superintendence of AICTE. 
14. It is in the background of the abovementioned rules and 
regulations the correctness of the judgment impugned in these appeals is 
required to be examined. 
15. By the impugned judgment, the Bombay High Court 
(Aurangabad Bench) disposed of four writ petitions, viz. writ petitions 
no.I 1091/2010, 8780/2010, 2035/2011 and 4443/2009. We are only 
concerned with the impugned judgment insofar as it dealt with the writ 
petitions no. I 1091/2010, 8780/2010 and 2035/2011 because these appeals 
before us are directed only against those writ petitions. 
16. There are numerous prayers in each of the writ petitions. It 
may not be necessary to extract all the prayers. But from the impugned 
judgment the main reliefs claimed in these three writ petitions and granted 
(insofar as they are relevant) can be culled out. 
17. Writ Petition No. I I 091/2010 was filed by the "teaching and 
non-teaching staff of the engineering college" atAurangabad run by the 
l" appellant. The main prayer is for recovery of the amount in respect 
of the pay scales fixed by the Fifth Pay Commission and
for the 
implementation of the pay scales fixed by the Sixth Pay Commission. 
The High Court declined to grant any relief with respect to the Fifth Pay 
Commission on the ground oflaches but allowed the petition insofar as it 
prayed for the implementation of the pay scales fixed by the Sixth Pay 
Commission 11 • 
18. Writ Petition No.8780/2010: It was filed by the "non-teaching 
staff' of the Engineering College, Nanded run by the I" appellant herein. 
They prayed that the management be directed to implement the Fourth, 
Fifth and Sixth Pay Commission Reports w.r.t. the petitioner/non-teaching 
staff. The High Court directed that the pay scales suggested by the 
Sixth Pay Commission for the non-teaching staff be given." 
19. Writ Petition No.2035/2011: The prayer in this writ petition 
(filed by a lone petitioner) is forthe implementation of the revision in the 
"See paras 25 and 29(ii) of the impugned judgment 
"See paras 26 and 29(iii) of the impugned judgment
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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 
judgment under appeal and the various grounds on which the same is 
challenged, we think it appropriate to note the reasons given by the High 
Court for the conclusion reached by it. 
22. The relevant paragraph containing "reasons" forthe decision 
is para 17 of the impugned judgment. 
"17. A copy of G.R. dated 4.2.1999 issued by the State 
- Government under section 8 of the Maharashtra Universities 
Act, 1994 shows that from 1.1.1996 the State Government 
provided Standard Code of 1999 and it made changes in the 
Standard Code Rules of 1984. The pay scales came to be 
revised for non-teaching staff of non-agricultural universities of 
Maharashtra and also for non-teaching staff working in affiliated 
colleges and recognised institutions. 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 
time it was specifically mentioned that the G.R. was issued for 
non teaching staff working in universities and colleges receiving
grants-in-aid from the Government. The aforesaid G.Rs. and 
Standard Code Rules 1984 show that both aided and unaided 
colleges must have hierarchical structure of clerical staff/ 
administrative staff as provided in Standard Code Rules. In view 
of Rules 16(2) of Rules of 1984, it further follows that the time-
scale of such staff and allowances shall be as prescribed by the 
State Government and as revised by the State Government from 
time to time. After every 10 years the State Government revises 
the pay scales and G.Rs. are issued in that regard. Though the 
notification or 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 
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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." 
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"). 
24. In exercise of the power under Section 8(3) of the 
Maharashtra Universities Act, the Government of Maharashtra made 
Rules known as the Maharashtra Non-Agricultural Universities and 
Affiliated Colleges Standard Code (revised pay of non-teaching 
employees) Rules, 1999 (hereafter "1999 Rules"). Under Rule 12 of 
the said Rules it is provided as follows: 
"Rule 12. Overriding Effect of Rules: 
The provisions of the Maharashtra Non-Agricultural Universities 
and Affiliated Colleges Standard Code (Terms and Conditions 
of Non-Teaching Employees) Rules, 1984, shall not, save as 
otherwise provided in these rules, apply to cases where pay is 
regulated under these rules. to the extent they are inconsistent 
with these rules." 
25. Though it is a little difficult to
interpret the meaning of the 
highlighted portion of the Rules in terms of the settled principles of the 
Interpretation of the Statutes, having regard to the context we believe 
that the Rule maker intended to declare that the 1984 Rules insofar as 
they are inconsistent with the 1999 Rules should give way to the latter. 
In other words, the 1984 Rules are not totally repealed. They still operate 
if they are not inconsistent with the 1999 Rules. 
26. The 1999 Rules provided for the revision of the pay scales of 
the non-teaching 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 ... ··
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
uniformly to both categories of affiliated colleges", while specifically 
excluding certain classes of employees. 
27. In the year 2009 the Government of Maharashtra framed 
another set of Rules known as Maharashtra Non-Agricultural Universities 
and Affiliated Colleges Standard Code (Non Teaching Employees 
Revised Pay) Rules, 2009 (hereafter "2009 Rules"). Rule 17 of the said 
Rules reads as follows: 
Rule 17. The overriding effect 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 
(Service and Conditions of the non-teaching employees) Rules, 
1984 if inconsistent with these rules then would not apply up to 
that limit. 
28. The language of the Rule once again suffers from the same 
problem as its predecessors. The drafting of the Rules leaves much to 
be desired. Giving due allowance for the inelegance of language and 
bad drafting, we are of the opinion that Rule 17 declares that 2009 Rules 
override the 1984 Rules but makes no reference to the 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 
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 
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 
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'" 
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with the same subject matter, the latest declaration of law would operate. 
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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: 
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 J those 
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 
and as revised by the State Government from time to time" and "As in 
view of Rule 16(2) of Rules of 1984, such policy decision changes the 
pay scales of different classes of staff provided in 1984 Rules, the scales 
automatically apply to unaided institutions also, though they are not 
specifically mentioned in the G.R. These institutions are also covered 
under the State Legislature and so they are bound by the policy decision 
taken by the State in this regard."- Some logic! 
30. We hasten to add that the
incoherence of the reasoning adopted 
by the High Court need not necessarily mean that the judgment under 
appeal is unsustainable. We, therefore, proceed to examine the legal 
rights of the parties on the basis of the material available on record. 
31. To determine the correctness or otherwise of the judgment 
under appeal, it is required to examine the legal 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 
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
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
33. Importance of the role of education in the life of human 
beings is well known to the society which invented the concept of 'Zero'. 
Even the colonial Rulers established educational institutions and 
encouraged the establishment of educational institutions by non-state 
actors by introducing a system of supporting them by providing financial 
aid to some extent. The very fact that the makers of the Constitution of 
India chose to refer to "aid out of State funds" to educational institutions 
in Article 29(2) 17 and "aid to educational institutions" in Article 30(2)18, 
is proof of the fact that the makers of the Constitution took note of the 
need to financially support educational institutions established even by 
non-state actors. 
34. Education is one of the most vital elements for preservation 
of the democratic system of Government. The Supreme Court of 
America in Wisconsin v. Yoder, 406 US 205 ( 1972) observed: 
" ... some degree of education is necessary to prepare citizens 
to participate effectively and intelligently in our open political 
system if we are to preserve freedom and independence. . .. " 
35. Education becomes a basic tool for individuals to lead an 
economically productive life. An economically productive life 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 
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 
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 
clause ( 1 ), the State shall ensure that the amount fixed by or determined under such law 
for the acquisition of such property is such as would not restrict or abrogate the right 
guaranteed under that clause. 
(2) The State _shall not, in granting aid to educational institutions, discriminate 
against any educational institution on the ground that it is under the management 
of a minority, whether based on religion or language. 
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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"". 
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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" 
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 
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 
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 
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 
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.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
38. Education is an important factor for maintaining democracy 
and the economic well-being of the society. Therefore, the Constitution 
of India bestows considerable attention to the field of education. It 
recognizes the need for regulating the various facets of activity of 
education and also the need for not only establishing and administering 
educational institutions but also providing financial support for the 
educational institutions run by private 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, 
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 
ii Thomas Babington Macaulay·s Minute of 1835 gave the impetus for introducing 
English educational syste1n in India. 
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22Universities 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) 
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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 
affiliation", Section 21 provided for the grant of affiliation by the university 
upon an application by a college (obviously not earlier affiliated to the 
university) and matters incidental thereto. Section 19 of the said Act 
declared that " .... no person shall be admitted as a candidate at any 
University examination ...... unless he produces certificate from a College 
affiliated to the University, ... that he has completed the course of 
instruction prescribed by regulation". 
40. Over a period of time, prior to the advent of the Constitution, 
number of Universities came into existence in various parts of the 
country. Each of them was created either by or under a statute. After 
the advent of the Constitution by virtue of the power under Article 246 
read with Entry 32 of List II of the Seventh Schedule legislative 
competence to 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 
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 
.. 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. 
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 
research and scientific and technical institutions."'
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
discernible pattern in the scheme of all these enactments. Each of these 
enactments prohibits the conferment of any degree on any person by 
any body other than by the University. Universities are authorised to (i) 
establish teaching colleges, (ii) grant affiliation to colleges established by 
non-State actors. Correspondingly, colleges established by non-State 
actors are obliged to secure affiliation to the Universities. Affiliated 
colleges are permitted to train students for examinations to be conducted 
by the University (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 
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 
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 
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 
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." 
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. 
265 
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subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III." 
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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 
c 
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46. Entry 32 of List II of the Seventh Schedule indicates that 
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 
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 
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 
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. 
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
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
the matter of public employment under Article 1630 • Article 309 declares 
that the appropriate legislature may regulate the recruitment and 
conditions of service of persons appointed to public services and posts in 
connection with the affairs of the Union or any State. The appropriate 
legislature would be Parliament in the context of employment under the 
Government oflndia and the concerned State Legislature in the context 
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 
emanating from the provisions of the Constitution and laws made 
thereunder. It is in the context of these constitutional provisions that this 
Court had repeatedly held that employment under State is a matter of 
status but not a matter of contract. 
50. Employment under the various instrumentalities of State, either 
statutory or non-statutory, is also subject to the discipline of Article 14 of 
which Article 16 is only a facet. This Court in innumerable cases held 
that though Part XIV of the Constitution (wherein Article 309 etc.
occur) 
is not applicable to such employment, some of the principles underlying 
the provisions of Part XIV still govern the employment under the 
instrumentalities of the State". 
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 
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 
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 
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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. 
E 
F 
G 
H 
55. The follo_wing principle submissions are made by the 
appellants: 
(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 
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 
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. 
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. 
56. On the other hand, it is submitted on behalf of the respondents-
employees that once the State Government decided to accept the 
suggestion of the Government of India to extend the benefits of the 
Sixth Pay Commission to the employees of the various educational 
institutions falling under the purview of the State Legislature, the State 
Government is not justified in directing the revision of the pay 
32 Written 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 
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 
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 
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. 
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[201 7] 2 S.C.R. 
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 
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 
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 
appellants to receive pay and allowances in terms of the recommendations 
of the Sixth Pay Commission is first required to be identified. 
59. The Sixth Pay Commission appointed by the Government of 
India is only a body entrusted with the job of making an assessment of 
the need to revise the pay structure of the employees of the Government 
of India and to suggest appropriate measures for revision of the pay 
structure. The
recommendations of the pay commission are not binding 
on the Government of India, much less any other body. They are only 
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 
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. 
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. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
meant for administrative guidance of the Government of India. The 
Government of India may accept or reject the recommendations either 
fully or partly, though it has never happened that the recommendations 
of the pay commission are completely rejected by the Government so 
far. 
60. Once the Government oflndia accepted the recommendations 
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. 
61. The fact that the Government of India accepted the 
recommendations of the Sixth Pay Commission (for that matter any pay 
commission) does not either oblige the States to follow the pattern of the 
revised pay structure adopted by the Government of India or create any 
right in favour of the employees of the State or other bodies falling within 
the legislative authority of the State. The Government of India has no 
authority either under the Constitution or under any law to compel the 
States or their instrumentalities to adopt the pay structure applicable to 
the employees of the Government oflndia. 
62. The Government of India decided to extend the benefit of 
revised pay scales to the employees of various central
universities etc. 
on the basis of the recommendations of the University Grants Commission 
- a statutory body. While accepting the recommendations of the UGC, 
the Government of India chose to extend the benefit of revised pay 
scales only to the teachers and other equivalent cadres of Library and 
Physical Education etc. in all the Central Universities and Colleges 
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. 
"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 
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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 
G 
H 
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 
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
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
of 6'h Pay Commission to teaching and non-teaching staff of 
government-run and government-aided educational institutions 
only. 
4. 
I say that the Government of Maharashtra has not taken any 
policy decision and/or issued any Government Resolution in 
respect of implementation of the recommendations made by 
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 
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 
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 
to the relevant subordinate
legislative instruments is wholly redundant. 
66. Order No.214 of the Vice-Chancellor dated 29.08.2009, 
purports to have been issued in exercise of the power conferred on the 
Vice-Chancellor under Section 14(8) of the Maharashtra Universities 
Act, 1994. Section 14(8) reads as follows: 
"Section 14. Powers and duties of Vice-Chancellor- (8) 
Where any matter is required to be regulated by the Statutes, 
Ordinances or Regulations, but no Statutes, Ordinances or 
Regulations are made in that behalf the Vice-Chancellor may, 
for the time being, regulate matter by issuing such directions as 
he thinks necessary, and shall, at the earliest opportunity 
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. 
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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." 
67. From the language of sub-section (8)to Section 14, the Vice-
Chancellor could have issued such order if only the Universities Act 
authorised making of Statutes, Ordinance or Regulations dealing with 
the service conditions (including pay-scales) of the employees of the 
affiliated colleges. No specific provision under the said Act which 
authorised making of either Statutes, Ordinance or Regulations dealing 
with the service conditions including the pay-scales of the employees of 
the affiliated colleges is brought to our notice. On the other hand, Section 
8(3) expressly authorises the State Government to make rules with respect 
to the service conditions of the employees (teaching and non-teaching 
staff) of the affiliated colleges. Therefore, in our opinion, the order of 
the Vice-Chancellor dated 29.08.2009 is superfluous and without any 
authority 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 
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 
that the elaborate Rules contained therein dealing with the pay scales of 
the various cadres of the teaching staff of the educational institutions 
mentioned therein, it does not make any distinction between aided and 
un-aided colleges. However, the GR does not purport to be one made in 
exercise of the power under Section 8(3) of the Universities Act. It is 
agreed on all hands at the Bar that the expression "Government 
Resolution" in the Maharashtra Administrative jargon means a decision 
taken either in exercise of the authority of the State under Article 162 of 
the Constitution oflndia or in exercise of the authority under some statutory 
provision. No doubt the GR does not refer to the source which authorises 
the exercise of the power for revising the pay scales of the teaching 
staff of the various educational institutions mentioned therein. The mere
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
absence of the recital of the source of power in our opinion cannot 
determine the legal status of the instrument or deprive the instrument of 
its efficacy. 
70. The difference between the authority of the State flowing 
from Article 162 of the Constitution or Section 8(3) of the Maharashtra 
Universities Act is two-fold. Firstly, the statutory authority under Section 
8(3) could be abrogated anytime by the legislature while the constitutional 
authority under Article 162 cannot be abrogated by the State Legislature. 
Secondly, the procedural requirements for the exercise of the power 
vary depending upon the nature of the source of the power, but the 
existence of power itself cannot be doubted. 
71. In our opinion, the GR dated 12.8.2009 can be safely construed 
to be one made in exercise of the power under Section 8(3) of the 
Universities Act conferring a legal right on the teaching staff of the 
affiliated colleges irrespective of the fact whether they are aided ornot. 
72. The colleges run by the appellants are admittedly colleges 
affiliated to the Universities functioning under the Act. Therefore, their 
teaching staff would be entitled to the revised pay scales in terms of the 
· G.R. dated 12.08.2009. 
73. Coming to the non-teaching staff working in the colleges run 
by the appellant, the Rules of2009 purport to be the rules revising the 
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 
State shall not deny to any person equality before the law or the equal 
protection of the laws within the territory of India" is required to be 
examined. If the answer to the question is in the negative, the further 
question would be what would be the legal remedy available to the 
aggrieved person/s. 
74. At the outset, it must be remembered that the 1999 Rules, 
which extended the 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 
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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 
required to be examined whether the classification made bears. any 
reasonable nexus to such object. 
75. The objects sought to be achieved by the periodic revision of 
the pay-scales is obviously to comply with the constitutional mandate 
emanating from Article 43 of the Constitution of India. If that is the 
object, we fail to understand the rationale behind the classification made 
by the State of the Maharashtra between aided and unaided colleges. 
People employed in educational institutions run by non-State actors are 
not treated any more kindly by the market forces and the economy than 
the people employed either by the Government or its instrumentalities or 
institutions administered by non-State actors receiving the economic 
support of the State. 
76. The very fact that the Government of India thought it fit to 
revise the pay scales of its employees and also thought it fit to accept 
the suggestions of the UGC to revise the pay scales of various Universities 
and other
bodies whose maintenance expenditure is met by the UGC 
(in other words virtually by the Union oflndia), shows that the Government 
of India is completely convinced that there is a definite need to revise 
the pay scales of not only its employees, but also the employees of its 
instrumentalities. The fact that the Government of India made an offer 
to the States that the Government of India is willing to shoulder a 
substantial portion of the financial burden arising out of the adoption of 
revised pay scales in the event of the States choosing to adopt the revised 
pay scales, also indicates that the Government is fully convinced that 
having regard to various factors operating in the economy of the country 
there is a need to revise the pay scales of the personnel employed even 
by various States and their instrumentalities. Such a conclusion of the 
Union 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.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
Therefore, we see 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, in our opinion, is 
clearly violative of Article 14 of the Constitution oflndia. 
77. Next, we need to examine the question, whether a 
constitutional court could compel the executive to exercise its statutory 
authority to make subordinate legislation in a manner which would be 
consistent with the command of Article 14 and other provisions of the 
Constitution. In the alternative, whether the executive could be compelled 
to ignore the letteroflaw and enforce the law even against bodies which 
are not covered by the text of the subordinate legislation either by an 
injunctive or declaratory relief. 
78. !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 
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 
baby with bath water. 
The doctrine of equality has many a facet. Law laid down by 
this Court on the interpretation of Article 14 in the last 70 years illuminated 
some of them. In a series of judgments commencing from E.P. Royappa 
v. State of Tamil Nadu & Another, (1974) 4 SCC 3, the orientation of 
this Court in dealing with article 14 has been dynamic. Justice Mathew 
in his dissenting Judgment in Bennett Coleman & Co. and Others v. 
Union of India and Others, ( 1972) 2 SCC 78836 very precisely identified 
36Para 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 
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 
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A 
the question, which this Court should address while interpreting Article 
14: 
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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 
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 
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 
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 
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." 
Para J 63. 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 
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.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
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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 
applicable to government servants who were in service on March 
31, 1979 and retire from service on or after that date ('specified 
date', for short) ... 
6. ... Consequently those who retired prior to the specified date 
would not be entitled to the benefits of the liberalized pension 
formula." 
This Court made an elaborate examination of the concept of 
pension and its legal implications; the obligations of State under the 
Constitution oflndia flowing from the directive principles and a host of 
other factors. The Court
recorded a conclusion. 
"43. Further the classification is wholly arbitrary because we do 
not find a single acceptable or persuasive reason for this division. 
This arbitrary action violated the guarantee of Article 14. The 
next question is what is the way out?" 
D 
E 
F 
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 
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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 
attempt is made to include them in the scheme it is not cutting 
down the class or the scope but enlarge the ambit of the scheme 
which is impermissible even under the doctrine of severability. 
In this context it was lastly submitted that there is not a single 
case in India or elsewhere where the court has included some 
category within the scope of provisions of a law to maintain its 
constitutionality." 
This court rejected the submission based on the lack of precedent, 
holding: 
"41. The last submission, the absence of precedent need not deter 
us for a moment. Every new norm of socio-economic justice, 
every new measure of social justice commenced for the first 
time at some point of history. !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 
shed. To be pragmatic is not to be unconstitutional. In its onward 
march law as an institution ushers in socio-economic justice. In 
fact, social security in old
age commended itself in earlier stages 
as a moral concept but in course of time it acquired legal 
connotation. The rules of natural justice owed their origin to 
ethical and moral code. Is there any doubt that they have become 
the integral and inseparable parts of rule of law of which any 
civilised society is proud? Can anyone be bold enough to assert 
that ethics and morality are outside the field oflegal formulations? 
Socio-economic justice stems from the concept of social morality 
coupled with abhorrence for economic exploitation. And the 
advancing society converts in course of time moral or ethical 
code into enforceable legal formulations. Overemphasis on 
precedent furnishes an insurmountable road-block to the onward 
march towards promised millennium. An overdose of precedents 
is the bane of our system which is slowly getting stagnant, 
stratified and atrophied. Therefore, absence of a precedent on
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 
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 
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 
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. 
... Omitting the
unconstitutional part it is declared that all 
pensioners governed by the 1972 Rules and Army Pension 
Regulations shall be entitled to pension as computed under the 
liberalised pension scheme from the specified date, irrespective 
of the date of retirement. Arrears of pension prior to the specified 
date as' per fresh computation is not admissible. Let a writ to 
that effect be issued. 
But in the circumstances of the case, 
there will be no order as to costs." 
80. When Justice Mathew declared that Article 14 interdicts the 
State from creating inequalities, he was stressing the obvious. Further, 
he articulated the remedial measures the State has been enjoined to take 
recourse to: eliminate the existing inequalities through positive~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 
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inequalities are created either by the legislation or executive action ? 
Traditionally, this Court and the High Courts have been declaring any 
law, which created inequalities to be unconstitutional, but in Nakara's 
case this Court realised that such a course of action would not meet 
with the obligations emanating from a combined reading of the directive 
principles and Article 14. Therefore, this Court emphatically laid down 
in Nakara's case that it is possible to give an appropriate inductive 
relief by eliminating the factors, which creates the artificial classification 
leading to a discriminatory application 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 
examined with due regard decisions of the American Supreme Court on 
questions of constitutional law. In a comparable situation, American courts 
did exercise jurisdiction by granting appropriate injunctive orders 
compelling the State to comply with the constitutional mandate by ignoring 
the legislative command and extending the benefit provided under a 
legislation to a certain class of people who were expressly excluded 
from receiving that benefit 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 
respondents herein), we are convinced that the conclusion of the High 
Court could be justified on basis of the principle enunciated in D.S. 
Nakara's case. 
83. We must at this stage mention that the appellants made 
elaborate submissions during the course of the arguments regarding the 
inter play between Entry 66 of the List I and Entry 25 of the List III of 
the Seventh Schedule and the judgments of this Court in the line of 
"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 
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.
SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 
BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] 
judgments commencing from St(lte of T(lmi/ N(ldu v. Adltiy(lm{ln 
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 
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 
is the competent body to regulate the service conditions of the employees 
of engineering colleges in our opinion is wholly irrelevant to the issue 
and academic. 
Even if the appellant's submissions in this regard were to be 
accepted, it only leads to the inevitable conclusion that the Maharashtra 
State legislature is the competent body to deal with the subject. 
It did deal with the subject under Section 8(3) of the Maharashtra 
Universities Act. Section 8(3) clearly authorises the State Government 
to frame rules dealing with the service conditions of the employees (both 
teaching and non-teaching) of various
educational institutions. The power 
is duly exercised. While exercising such power is that State of 
Maharashtra drew an artificial distinction between aided and unaided 
educational institutions. 
85. Another submission of the appellants that is required to be 
dealt with is that since the appellant does not receive any financial aid 
from the State, calling upon the appellants to pay its employees in 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. 
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 69739• Therefore, if they are 
'"See Paras 56 to 58 and 161 
39 See Paras 6, 7 and 19 
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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. 
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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 
Regulatory Committee and such a body is bound under law and does in 
fact take into account the various relevant factors in determining the fee 
structure. It is, therefore, submitted that it is always open to the 
managements to make an appropriate application before the Fee 
Regulatory Committee bringing all the relevant factors to the notice of 
the body competent to determine the fee structure and raise appropriate 
revenue. 
87. At the outset, we make it clear that at least insofar as non-
teaching staff are concerned, the appellants have no excuse for making 
such a submission because in the earlier round oflitigation the respondents 
- non-teaching employees of the appellants, though succeeded both before 
the High Court and this Court in obtaining appropriate directions to the 
appellant and other authorities to revise the pay scales of the employees 
in tune with the Fifth Pay commission, entered into a settlement dated 
30'h January, 2006, the terms of which have already been taken note in 
this judgment at para 5. 
88. Under the said agreement, the management
agreed to revise 
the pay scales from time to time in tune with the revision of the pay 
scales of the employees of the State. Therefore, the submission of the 
management in this regard is liable to be rejected on that ground alone. 
89. Even otherwise, if the appellants are obliged under law, as 
we have already come to the conclusion that they are in fact obliged, it 
is for the appellants to work out the remedies and find out the ways and 
means to meet the 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 
with no ordei; as to costs. 
Nidhi Jain 
Appeals dismissed.