No Acts & Articles mentioned in this case
1 wp2022.2020.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION 2022 OF 2020
1. Rutesh s/o. Shamrao Lonkar,
aged about 36 years, Occ. Service,
r/o. Duplex No. KW-11, Orbital
Empire, Jaitala, Nagpur
2. Vivek s/o. Rameshrao Barwat,
aged about 32 years, Occ. Service,
r/o. Flat No. 201, “Vaishnav Supernova”
Apartment, Plot No. 23,
Patil Layout, Indraprastha Nagar,
Nagpur 440 027
3. Ashwini d/o. Shrihari Gawarle,
aged about 39 years, Occ.Service,
R/o. 101, “Shreekamal” Apartment,
88,Saket Nagar, Near Suyog Nagar,
Nagpur 440 027 .....PETITIONERS
...V E R S U S...
1. The State of Maharashtra,
Department of Technical Education,
Mantralaya, Mumbai 400 032,
through its Secretary,
2. The Directorate of Technical
Education, Mahanagar Palika Marg,
Mumbai
3. All India Council for Technical
Education, Nelson Mandela Marg,
Vasant Kunj, New Delhi 110 070
4. Lokmanya Tilak Jankalyan Shikshan
Sanstha, Nagpur, Campus of
Priyadarshini College of Engineering,
Digdoh Hillsa, Hingna, District Nagpur
Through its Secretary,
5. Priyadarshini Indira Gandhi College
of Engineering, Digdoh Hills, Hingna, ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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District Nagpur, Through its Principal.
6. Rashtrasant Tukdoji Maharaj
Nagpur University, Nagpur, through
its Registrar, Jamnalal Bajaj Administrative
Building, Ambazari, Bye Pass Road,
Nagpur – 33
7. Fees Regulatory Authority (FRA),
305, Government Polytechnic Building,
49, Kherwadi, Ali Awar Jang Marg,
Bandra (East), Mumbai 400 051,
through its Secretary. ..RESPONDENTS
--------------------------------------------------------------------------------------------
Mr. R.L. Khapre, senior counsel a/b Mr. P.B. Patil, for petitioners.
Mrs. N.S. Rao, AGP for respondents 1 & 2/State.
Mr. N. P. Lambat, counsel for respondent 3.
Mr. M.G. Bhangde, senior counsel a/b Mr. H.D. Dangre,
counsel for respondents 4 and 5.
Mr. J.J. Chandurkar, counsel for respondent 6.
Mr. A.J. Gilda, counsel for respondent 7.
-------------------------------------------------------------------------------------
CORAM:- ROHIT B. DEO & Y.G. KHOBRAGADE, J J.
DATE : 31.07.2023
JUDGMENT (Per: Rohit B. Deo, J.)
Rule.
With consent of parties, the petition is finally heard.
The question which falls for consideration is whether the
petitioners are entitled to the benefit of the recommendations of the
6
th
and the 7
th
Pay Commissions?
A) Pleadings in the petition:
A.1) Petitioners are working as Assistant Professors with the
fifth respondent, which is one of the many educational institutions ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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administered by the fourth respondent which is a society registered
under the provisions of the Societies Registration Act, 1860 and the
Maharashtra Public Trust Act, 2016.
A.2) The fifth respondent – college is recognized by the All
India Council for Technical Education (“AICTE”) and is affiliated to
Rashtra Sant Tukdoji Maharaj, Nagpur University, (“University”).
A.3) The service conditions of the petitioners are inter alia
governed by the provisions of the Maharashtra Public Universities
Act, 2016 (“Universities Act of 2016”) and the statutes and
ordinances framed thereunder, the All India Council for Technical
Education Act, 1987 (“AICTE Act”) and the regulations framed
thereunder and the regulations framed under the University Grants
Commission Act, 1956 (“UGC Act”).
A.4) The first petitioner holds Bachelors degree in Electronics
and Masters degree in Electronic Communication from the
University. The first petitioner worked as lecturer in Electronics
Department in Krishnarao Pandav College, Umred Road, Bahadura,
Nagpur in the academic session 2008-2009 and as lecturer in
Department of Electronics in Umred College of Engineering in the
academic session 2009-2010. The first petitioner applied for the
post of lecturer in Electronic Engineering on the establishment of the
fifth respondent pursuant to the advertisement dated 14.7.2010 and
was selected and appointed vide order dated 16.7.2010 on ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
4 wp2022.2020.
consolidated salary of Rs.8,000/- per month.
A.5) The engagement of the first petitioner was terminated on
29.3.2011, another advertisement was issued by the fourth and the
fifth respondents on 7.4.2011, the first petitioner was interviewed,
selected and appointed as Assistant Professor in Electronics and
Communication Engineering, on consolidated salary of Rs. 20,000/-
per month, only to be orally terminated on 31.3.2012.
A.6) The third advertisement was issued on 17.5.2012, and
the first petitioner was again selected and appointed as Assistant
Professor in Electronics and Communication Engineering, on
consolidated salary of Rs. 30,000/- per month. The employment
was continued for the academic session 2013-14 on consolidated
salary of Rs. 28,000/- per month.
A.7) The 4
th
advertisement was issued on 18.6.2014. The first
petitioner applied pursuant to the said advertisement, he was
interviewed by duly constituted Selection Committee of the
University and was selected and appointed as Assistant Professor in
Electronics and Communication Engineering vide appointment order
dated 8.7.2014. The pay scale which was assigned to the first
petitioner was Rs. 15,600 – 39100/- with AGP of Rs.6,000/-. The
appointment was on probation for two years. The first petitioner
completed the probation period satisfactorily and attained the status
of confirmed employee. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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A.8) The second petitioner holds Bachelor of Engineer degree
in Electronics and Telecommunications and Masters degree in
Electronic Engineering (Communications) and was appointed as
Assistant Professor in the fifth respondent - college on 11.7.2022.
The second petitioner was terminated on 31.3.2012 and re-
appointed on 30.6.2012. He was again terminated on 31.3.2013.
The fourth and the fifth respondents published advertisement dated
18.6.2014. The second petitioner applied for the post of Assistant
Professor, he was duly selected by the Selection Committee and was
appointed on probation for two years vide order dated 8.7.2014.
The University approved the appointments of the first and the
second petitioners vide order dated 23.12.2014.
A.9) The third petitioner also holds Bachelor of Engineering
degree in Electronics and Masters degree in Electronics and
Communication. He was first appointed as Assistant Professor
pursuant to advertisement dated 14.7.2010, issued by the fourth
and the fifth respondents, on consolidated salary of Rs. 35,000/- per
month. The post was re-advertised on 7.4.2011, the third petitioner
applied for the post of Assistant Professor in Electronics and
Communication Engineering, he was duly selected by the Selection
Committee and was appointed as Assistant Professor vide order
dated 29.4.2011, which appointment is approved by the University
vide order dated 31.3.2012. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
6 wp2022.2020.
A.10) Petitioners contend that the first and the second
respondents accepted and adopted the recommendations of the 6
th
Pay Commission by Government Resolution dated 12.8.2009. The
petitioners refer to the judgment of the Supreme Court in Secretary,
Mahatma Gandhi Mission and Another..Vs. Bhartiya Kamgar Sena
and Others
1
, and contend that the Supreme Court has
authoritatively held, that in view of the provisions of section 8(3) of
the Universities Act of 1994 the power of the University to regulate
the service conditions of the employees of the University and the
affiliated educational institutions would cease with the State
Government issuing the Government Resolution dated 12.8.2009.
Petitioners further contend that in view of direction 45/2012, issued
by the University, the fifth respondent – affiliated college is
obligated to implement the recommendations of the 7
th
Pay
Commission.
A.11) Petitioners then refer to paragraph 71 in Mahatma
Gandhi and contend that the Supreme Court has categorically held
that the Government Resolution dated 12.8.2009 can be construed
as issued in exercise of power under section 8(3) of the Universities
Act of 2016. Petitioners contend that the fifth respondent – college,
which is conducting courses approved by the AICTE is bound by the
AICTE and UGC regulations.
1(2017)4 SCC 449 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
7 wp2022.2020.
A.12) Petitioners contend that while pay scale is assigned, the
petitioners are not receiving the benefits such as Grade Pay,
Dearness Allowance, House Rent Allowance and CLA. Petitioners
contend that the recommendations of the 7
th
Pay Commission are
accepted by the Government of Maharashtra by issuing Government
Resolution dated 11.9.2019, in exercise of power under section 8(3)
of the Universities Act of 2016. The Government Resolution dated
11.9.2019 is applicable to all teachers working in government and
non-government aided institutions imparting technical education
and other courses approved by AICTE.
A.13) Petitioners submit, in the alternate, that if it is assumed
that the Government Resolution dated 11.9.2019 carves out a
distinction between aided and un-aided colleges, to that extent,
Government Resolution is discriminatory, and falls foul of Articles
14, 38 and 39(d) of the Constitution of India.
A.14) Petitioners aver that the University has accepted the
recommendations of the 7
th
Pay Commission by issuing direction
45/2019 dated 21.9.2019. The petitioners reiterate that the
decision of the State Government is in exercise of power under
Section 8(3) of the Universities Act of 2016 and is, in any event, in
exercise of the execution of power under Article 162 of the
Constitution of India and the said decision applies with equal vigor
to the teaching staff of aided and un-aided educational institutions. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
8 wp2022.2020.
A.15) Petitioners claim entitlement to salary and other
monetary benefits in accordance with the recommendations of the
7
th
Pay Commission with effect from 1.1.2016, petitioners aver that
despite several representations, the fourth and the fifth respondents
not only refused to pay the admissible salary, the salary of the
petitioners was reduced by 15% from October 2019 and by 50%
from April 2020 on the pretext of the outbreak of the Covid-19
pandemic. Petitioners claim to be receiving salary which is lesser
than the salary received by class-IV employees.
A.16) In view of certain developments during the pendency of
the petition, the petitioners amended the petition. Referring to the
affidavit in response dated 1.9.2021 filed by the fourth and the fifth
respondents, petitioners state that the sixth respondent – University
issued letter dated 9.9.2021 directing the fourth and the fifth
respondents to withdraw the show cause notices and suspension
orders issued to the petitioners.
A.17) Petitioner contend that the fees which the fourth and the
fifth respondents can legitimately charge from the students, is
determined by the seventh respondent – Fees Regulatory Authority
(“FRA”) and in the fee fixation proceedings, the fourth and the fifth
respondents have falsely claimed to be paying salary which is
significantly higher than the salary actually paid. Petitioners
contend that the fourth and the fifth respondents have rendered
themselves liable for punitive action under the relevant provisions of ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
9 wp2022.2020.
the Government of Maharashtra Act 28 of 2015 read with section 4
of the Maharashtra Educational Institution (Prohibition of Capitation
of Fees) Act 1987.
A.18) By amending the prayer clause, the petitioners seek
direction that the sixth respondent – University shall implement the
communication dated 9.9.2021, if necessary, by initiating coercive
action against the fourth and the fifth respondents, and further
appropriate penal action be initiated in view of the false statements
made in the fees fixation proceeding.
A1) Response of the first respondent – State of Maharashtra
and the second respondent – Director of Technical Education.
A1.1) The first respondent and the second respondents
(collectively referred to as the “State”) submit that the fifth
respondent – institution is a private and permanently unaided
educational institution and the service conditions of the employees
are not under the purview of the State. The State states in the
affidavit in response dated 19.6.2021 that it is the responsibility of
the fourth and the fifth respondents to implement the pay scales and
clear the arrears of salary. Referring to the provisions of sections 13
and 14 of the Maharashtra Unaided Private Professional Educational
Institutions (Regulations of Admissions and Fees) Act, 2015, (“Act of
2015”) the State states that the tuition fees are fixed by the FRA,
inter alia considering the expenditure incurred, including the salary
burden. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
10 wp2022.2020.
A1.2) The State extracts paragraph 86 in Mahatma Gandhi and
submits that the Supreme Court has held that it is the responsibility
of the unaided institution to pay salary in accordance with the
revised pay scales and to find the means to discharge the said
obligation.
A1.3) Referring to the Government Resolution dated 20.8.2010
and Government Resolution dated 11.9.2019, the State asserts that
the policy decision to implement the recommendations of the 6
th
and
the 7
th
Pay Commissions is restricted to government aided
educational institutions.
A1.4) The affidavit in response dated 19.6.2021 concludes with
the assertion that the State is neither responsible for implementing
the pay commission recommendations nor is the State vested with
the power to secure the implementation of the recommendations
and it is the AICTE which is the authority to initiate action against
the educational institutions which do not comply with the directions
issued by the AICTE.
A2. Response of the All India Council for Technical
Education:-
A2.1) The AICTE has filed affidavits in response dated
6.7.2020, 15.9.2020 and 17.2.2023 articulating its response. The
affidavit in response dated 6.7.2020 spells out the object underlying ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
11 wp2022.2020.
the enactment and referring to Section 10 of the AICTE Act
emphasizes that it is the duty of the AICTE to take all necessary
steps as it may think fit for ensuring coordinated and integrated
development of technical education and maintenance of standards.
AICTE states that in order to discharge its statutory duties, AICTE
has framed regulations for grant of approval for starting new
technical institutions, introduction of courses or programmes and
variation of the intake capacity. AICTE states that the approval
process lays down the procedure and the minimum conditions which
the institution must fulfill in order to secure approval for starting
new technical institution or courses or programmes or increase or
variation of the intake capacity.
A2.2) AICTE refers to the instructions issued to educational
institutions on 15.4.2020 addressing the concerns of the faculty and
staff members, who did not receive the salary or were terminated
during the Covid-19 pandemic.
A2.3) Affidavit dated 16.9.2022 filed by the AICTE is filed to
bring on record that the directions issued by the High Court on
5.4.2022 and 6.5.2022 are complied with and a decision is taken to
extend the approval for the academic year 2022-23 with an overall
reduction of 10% of the approved intake capacity of the fifth
respondent.
A2.4) The last affidavit in response dated 17.2.2023 articulates ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
12 wp2022.2020.
a more structured response to the grievance of the petitioners, and
we may extract the relevant paragraphs in said affidavit in response:
“2. I respectfully submit that, section 10 of the AICTE
Act prescribes the functions of the council and
mandates that it shall be the duty of the Council to
take all necessary steps as it may think fit for ensuring
coordinated and integrated development of technical
education and maintenance of standards.
3. I respectfully submit that, on the recommendations
of the 6
th
and 7
th
central Pay Commission, the revision
of pay scale of Central Govt. employees, AICTE
constituted the Pay Review Committee to revise the
pay scale for teachers and other academic staff degree
level technical institutions including Architecture,
Town Planning, Pharmacy and Applied Arts and
Crafts Institution etc. under the purview of AICTE.
The Pay Review Committee submitted its report to
AICTE.
4. I respectfully submit that the report of the 7
th
Pay
Review Committee constituted by the AICTE was
deliberated in the Executive Committee Meeting on
17.2.2017, on acceptance of the recommendation, the
same was forwarded to the Ministry of Human
Resource Development for decision of the Govt. of
India. On acceptance of the recommendations with
the approval of the competent authority the
notification got notified in the Gazette of India on
1.3.2019. A copy of the Gazette Notification dated
1.3.2019 is annexed herewith as Annexure No.1.
5. I respectfully submit that the answering respondent
vide letter No. 37-03/legal/AICTE/2019 dated
7/13.3.2019 has sent the said notification to Ministry
of Human Resource Development, Department of
Higher Education, New Delhi, for placing them before ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
13 wp2022.2020.
the both the houses of the parliament as per the
provisions of Section 24 of AICTE Act, 1987. The
copy of the said letter is annexed herewith as
Annexure No. 2.
6. I respectfully submit that Annual Report 2018-
2019, by the Govt. of All India Council for Technical
Education, New Delhi for the year 2018-2019 along
with the audited accounts, in the said report, para
5.10 stipulates 7
th
Pay Commission Notification for
diploma and degree level institution which is
incorporated in the said report, the said papers laid
on the table of the house on 3.2.2020. A copy of the
information received from National Informatics’
Centre showing the papers laid on the table of the
house which was downloaded from the official
website of the Parliament of India on 23
rd
January
2023 alongwith Annual Report 2018-2019 is annexed
herewith as Annexure No. 3.
7.I respectfully submit that, the notification of
Pay Scale has already been sent to all States including
the State of Maharashtra. All states have been urged
to implement the pay scale and it is for the concerned
State Government to implement the revised pay scale
and claim central assistance from the Govt. of India as
per the extant guidelines on the subject. It is
therefore for the State Government to ensure
implementation of the revised pay scale by the
concerned institutions. In fact, it is mandatory for the
AICTE approved technical institution that it will have
adhere to the pay scales prescribed by AICTE and in
case of non-fulfillment of the same it will be liable to
any one or more of the following punitive actions by
the Council:-
. Suspension of Approval for NRI and
supernumerary seats, if any, for one
Academics Year. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
14 wp2022.2020.
. Reduction in “Approved Intake”
No admission in respective course(s) for
one Academic year.
. Withdrawal of approval in the respective
course(s)
. Withdrawal of approval of the Institution.
The council may initiate penal action for
not regularizing and ensuring the timely
and full payment of the salary of the staffs
Electronic Clearing Service (ECS) by
nationalized banks.
8.I respectfully submit that, so far as the
information regarding the notification of dated
5.3.2010 of Pay Scales, Service conditions and
Qualifications for the Teachers and other Academic
Staff in Technical Institution (Diploma) Regulations,
2010 are not available on the website of Lok Sabha,
Parliament of India. The information is available only
from 20.6.2019 to 20.7.2022 for the papers laid on
the table of the House.
9. I respectfully submit that, the answering
respondent is taking all the efforts form the Ministry
of Human Resource Development and gather the
information of the placing of the notification dated
5.3.2010/Annual Report placed before the Houses of
the Parliament.
A3) Response of the fourth and fifth respondents:
A3.1) The first response by the fourth and the fifth respondents
(hereinafter collectively referred to as the Management), is ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
15 wp2022.2020.
interesting. The Management did not question the entitlement of
the petitioners to receive the salary claimed. The Management stated
in the first affidavit in response dated 23.8.2020, that in view of the
Covid pandemic and the consequent financial crisis, the Management
could not pay the entire salary to its employees, and while most of
the employees have cooperated with the Management, the
petitioners were impatient. We may extract paragraph 13 of the
affidavit in response dated 23.8.2020:
“13. As submitted above, in view of the Covid – 19
pandemic crisis the respondent No. 5 college has paid
80% of existing monthly salary to non-teaching staff
and 50% of existing monthly salary to teaching staff
for the period from April 2020 onwards. The balance
salary payable to the employees for the said period
i.e. April 2020 to July 2020 is Rs. 35,91,274/-, which
shall be paid to the employees after resuming
normalcy and after receipt of sufficient further
amount receivable, as stated above through students
fees. At present approx amount of Rs. 22,00,000/- is
balance left and available with the respondent No. 5
college”.
A3.2) In fairness to the Management, we note that the
Management presumably did not respond to the prayer seeking
implementation of the recommendations of the pay commissions on
the premise that the notice issued by the High Court was restricted
to the reduction of the salary during the Covid pandemic. We may
extract paragraph 16 of the affidavit in response dated 23.8.2020:
“16. Although this Hon’ble Court as on date did not
issue notice on other alleged grievances more
particularly with respect to the service conditions qua ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
16 wp2022.2020.
the salary structure of the petitioners, in this regard
the answering respondents submit that they are
minority institute (linguistic) protected by Article 30
of the Constitution of India. It is most pertinent and
vital to note that the petitioners are serving with
respondent No. 5 college since 06 years as Assistant
Professors as stated in their respective appointment
orders. The petitioners without any demur and
gratuitously accepted the terms and conditions
including their salary structure while accepting their
respective appointments. From last 6 years the
petitioners did not raise any grievance regarding their
salary structure. However, now during this Covid-19
pandemic crisis period the petitioners have preferred
this luxurious litigation for alleged cause of action,
which had arisen before 6 years.”
A3.3) The next response of the Management is articulated in
affidavit in response dated 1.9.2021. A preliminary objection to the
maintainability of the petition is raised contending that the
Management is not State within the meaning of Article 12 of the
Constitution of India and is not amenable to writ jurisdiction.
A3.4) The Management states that the fifth respondent is an
unaided minority private college and by virtue of the provisions of
Article 19(1) (g) read with Articles 29 and 30 of the Constitution of
India, the Management has the right to administer educational
institutions, and implicit in such right is the privilege to frame rules
regulating the service conditions of employees. The affidavit in
response dated 1.9.2021 then deals with the grievance of the
petitioners that the salary is reduced during Covid pandemic and an
assurance is given that the arrears shall be cleared on further ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
17 wp2022.2020.
improvement in the cash flow.
A3.5) The affidavit in response dated 1.9.2021 deals with the
grievance of the petitioners as regards the salary structure thus;
“11. In so far as grievance of the petitioners with
respect to their salary structure is concerned, it is
submitted that they accepted their appointments
without any demure. The petitioners were being paid
the salary as were agreed in their respective
appointment orders governing their service
conditions. As has been pointed out in forgoing
paragraphs, the respondent No. 5 is “Minority Private
Unaided College” and thus the service conditions
more particularly that of the salary as prescribed and
provided in appointment orders are legally binding
upon the petitioners. They are thus estopped from
claiming any other salary structure contrary to what
was provided in their appointment orders. Even
otherwise, the basic salary structure / pay band of the
teaching staff with the respondent No. 5 College was
at par with recommendations of the 6
th
Pay
Commission.
12. In so far as the grievance of the petitioners with
respect to grade pay is concerned it is submitted that
the petitioners being Assistant Professors were paid
grade pay of Rs.6000/- as part of basic salary.
13. In so far as the grievance of the petitioners with
respect to dearness allowance is concerned it is
submitted that the petitioners were paid benefit of
dearness allowance @ 60 % of basic salary on the
basis of their length of service and they being
Assistant Professors. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
18 wp2022.2020.
14. In so far as grievance of the petitioners with
respect to HRA is concerned it is submitted that they
were paid HRA @ 20 % of their basic salary.
15. In so far as the grievance of the petitioners with
respect to TRA (TA) is concerned it is submitted that
they were paid fixed TA of Rs. 800/- pm.
16. In so far as the grievance of the petitioners with
respect to CLA is concerned it is submitted that the
same is not applicable now to any of the employees.”
A3.6) Responding to the averment in the petition, that the
Management misrepresented to the FRA and claimed expenditure on
salaries paid to the employee, higher than the actual payment, the
Management, while accepting the difference or discrepancy, justified
the same, thus:
“19. In so far as financial data alleged to have been
obtained by the petitioners from FRA is concerned,
the same is matter of record. The answering
respondents submit that nothing adverse can be
attributed to them from the said data. Secondly, the
said data nowhere gives a picture that the respondent
No. 5 College is having sound financial position
contrary to what has been stated by the answering
respondents in their earlier and present reply.
20. In so far as the allegation made by the petitioners
that the answering respondents have shown the salary
of the petitioners more than that which was actually ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
19 wp2022.2020.
paid is concerned, it is submitted that the difference if
any was because of the interest which the
College/Society was required to pay on the amount
borrowed for payment of salary to the staff. In this
regard it is further clarified that sometime the
Colleges are required to borrow the money on interest
for payment of salary to their staff. Only for
accounting purposes this interest burden is distributed
equally and proportionately over the actual salary
paid to the staff. Thus, the salary to a particular
employee for accounting purposes is actual salary
paid to him plus the interest burden so distributed for
payment of the salary if paid by borrowing the
money. The petitioners however without
understanding the data from the accounting
perspectives, choose to make wild, untrue and false
allegations against the answering respondents just
with a view to cause prejudice to the case of
answering respondents and to fetch sympathy of this
Hon’ble Court”.
A3.7) The additional affidavit in response dated 22.4.2022
deals with the grievance of the petitioners that the University is not
implementing its directive to revoke the suspension orders, and we
need not dilate much on the said issue, which is a peripheral issue in
the context of the seminal issue involved in the petition as regards
the entitlement of the petitioners and similarly situated employees
to the pay scales recommended by the 6
th
and the 7
th
Pay
Commissions.
A3.8) The further affidavit dated 5.5.2022 filed by the
Management deals with the constitution of the Internal Grievance ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
20 wp2022.2020.
Redressal Committee, and referring to the provisions of Section 79
of the Universities Act of 2016, asserts that the grievance of the
petitioners can be adjudicated by the University Grievance
Committee and the decision of the Grievance Committee is
appealable under Section 81 of the Universities Act of 2016. The
Management asserts that in view of the alternative efficacious
remedy available, the petition is not maintainable.
A3.9) The next affidavit in response dated 29.8.2022
summarizes the contentions of the Management articulated in the
earlier affidavits and while reiterating that the status of the minority
institution confers right to administer the educational institutions as
per choice, the Management asserts that even otherwise, the basic
salary structure/pay band of the petitioners is at par with the
recommendations of the pay commission. It would be apposite to
extract certain paragraphs in the affidavit in response dated
29.8.2022:
“2(vii) Whether the petitioners are eligible / entitled
for revised pay scales as per Sixth and Seventh Pay
Commission, which are sought to be implemented by
Government Resolutions, dated 12/08/2009 and
11/09/2019 respectively qua their respective
educational qualifications, experience, research work,
paper publications, etc is also debatable question.
2.(viii)It is legally and practically impermissible to
revise pay scales retrospectively.
2.(ix)Claim of petitioners for arrears of salaries on the
basis of the recommendations of Sixth and Seventh ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Pay Commission, which are sought to be implemented
by Government Resolutions, dated 12/08/2009 and
11/09/2019 respectively, is hopelessly barred by the
prescribed period of limitation of 3(three) years.
2.(x) Contention of the petitioners that their case is
squarely covered by the judgment in the matter of- (i)
Secretary, Mahatma Gandhi Mission Vs. Bhartiya
Kamgar Sena, reported in 2017(4) SCC 449 and (ii)
Manorama Khandekar Vs. State of Maharashtra &
Ors, reported in 2020(4) MhLJ 410 and (iii) Mahadeo
Morey Vs. State of Maharashtra, reported in 2014(5)
MHLJ 877 is ill-founded for the reasons stated in
Additional submissions dated, 28/04/2022.
3. Without prejudice to the said submissions, the
respondent Nos. 4 and 5 have also pointed out that
they are paying the salaries as per the pay scales at
par with the recommendations made by 6
th
Pay
Commission.
4. That, looking to the larger implications over the
institutions, if the result of the present petition goes
adverse to the stand taken as above and to set
controversy at rest, the respondent No.4 management
at their own deliberated over the said issues and
examined the strength and viability of the respondent
No.5 college qua the financial burden and
implication, if they apply the revised pay scales at par
with the recommendations of the 7
th
Pay Commission.
The respondent No.4 management took into
consideration the following factors related to
respondent No. 5 college for their purpose-
(i)Sanctioned intake of the students.
(ii)Number and percentage of actual admission
of students from last 5 years and estimated
admission in forthcoming years. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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(iii)Practical limitations in the process of
determination of student fees for particular
academic year by Fees Regulating
Authority.
(iv)Cash inflow through the only source of
income i.e. fees to be received from
students directly as well as through
reimbursement by Social Welfare
Department.
(v)Delay and difficulties faced in
reimbursement of student fees through
Social Welfare Department.
(vi)Present cash outflow for salaries,
compulsory expenses, recurring expenses
for infrastructural development and
maintenance.
(vii)Overall financial implications if pay scales
are revised as per recommendations of 7
th
pay commission.
5.After the deliberations as aforesaid, the
respondent No.4 management in sum and substance
reached to the conclusion / decision that-
“The respondent No.4 Management would be able to
consider to revise pay scales for teaching staff of
respondent No.5 College on par with
recommendations of 7
th
pay commission only in
phased manner and by reassessing the strength and
viability of the said college after two admission cycles
and strictly subject to certain concessions, limitations
and conditions alike waiver of arrears, the eligibility of
the individual employee as per concerned Govt.
Resolutions for revised pay scales etc and by framing
proper scheme in detail for application and
implementation thereof and only with the aid of
proper co-operation from the employees. In the event
of immediate and forced application and
implementation thereof, there would be no option ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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except to proceed to close the respondent No. 5
College by following the process as per law”.
A3.10) We may now consider the response of the Management
as is articulated in the additional affidavit dated 19.1.2023 which is
prefaced with the statement that the Management recently engaged
Senior Counsel and is advised to file the affidavit in response dated
19.1.2023 to bring on record the correct factual and legal position.
A3.11) The Management asserts that the applicable Government
Resolution is Government Resolution dated 20.8.2010 and not the
Government Resolution dated 12.8.2009.
A3.12) The Management contends that the AICTE regulations
were not placed before the Parliament as is required by Section 24
of the AICTE Act, and do not have legal or binding force.
A3.13) The Management reiterates that the State Government
has no power to prescribe the service conditions of staff of unaided
minority engineering college.
A3.14) The Management submits that it is held by the Supreme
Court that the right to establish and administer educational
institution is a fundamental right under Article 19(1)(g) of the
Constitution of India, and while reasonable restrictions can be
imposed on the exercise of such right, the same can be done only by ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
24 wp2022.2020.
“Law”. The Management submits that the State Government has not
enacted any law regulating the service conditions of the staff of the
fifth respondent – college and similarly situated institutions, and the
Government Resolutions dated 20.8.2010 and 11.9.2019 are not
“Law” and cannot curtail the right of the Management to prescribe
the pay scales.
A3.15) The Management submits that Article 14 cannot be
invoked by the petitioners to claim parity in pay scales with
government aided colleges since a minority institution is not “State”
as defined under Article 12 of the Constitution.
A3.16) Distinguishing the judgment in Mahatma Gandhi, the
Management emphasizes that the Supreme Court was not dealing
with unaided minority institutions.
A3.17) The Management contends that neither AICTE
regulations, which are subordinate legislations nor the Government
Resolutions which are executive instructions, can have retrospective
effect.
A3.18) The Management contends that the petition suffers from
delay and latches. The recommendations of the 6
th
Pay Commission
pertain to the period 1.1.2006 to 31.12.2015 and the petition is filed
on 19.6.2020. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
25 wp2022.2020.
A3.19) The Management then contends that since the
petitioners undertook to publish at least two research papers in
national/international journals in an academic year, which
undertaking is not fulfilled, the petitioners are not entitled to claim
revised pay scales.
A3.20) Dealing with the AICTE Regulations of 2010, the
Management contends that the application of the said regulations is
subject to adoption by the State Government. The State Government
has adopted the said regulations by Government Resolution dated
20.8.2010 only for government and aided institutions and not for
unaided private minority institutions, and the petitioners are
therefore, not entitled to the benefit of the 6
th
Pay Commission
recommendations. The Management then contends that the
petitioners did not comply with the conditions prescribed by the
Government Resolution dated 11.9.2019, and are not entitled to
claim the revised pay scale.
A3.21) The Management deals with the applicability and
implication of the AICTE regulations, thus:
“15. That in so far as the AICTE Regulations, 2019 are
concerned they also do not apply automatically to the
staff working with the respondent no. 5 collgeg. For
the period from 1.1.2016 till 31.3.2019, the Central
Government is required to provide financial assistance
equal to 50% of the additional expenditure. The
balance 50% of the additional expenditure towards ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
26 wp2022.2020.
arrears for the aforesaid period is required to be
provided by respective State Government. Further,
the entire liability on account of revision of pay scales
etc w.e.f. 1.4.2019 is required to be taken over by the
State Government opting for revision of pay scales for
colleges run by unaided minority institutions.
Therefore, AICTE Regulations, 2019 are not at all
applicable. Though the State Government has issued
G.R. dated 11.9.2019, the same is not applicable to
unaided minority institutions. In the alternative, it is
submitted that if the G.R. dated 11.9.2019 is held
applicable to colleges run by unaided minority
institutions, the liability to meet the additional
expenditure on account of revision of pay scales is of
the Central Government and State Government as
made clear above. In so far as the respondent nos. 4
and 5 are concerned, they are not liable in the matter.
16. In the alternative, it is submitted that AICTE
Regulations are not applicable to respondent nos. 4
and 5, the same cannot be enforced under Article 226
of the Constitution of India, firstly because they are
not statutory provisions but only the statutory
prescribed conditions of service, and secondly the
respondent nos. 4 and 5 are not State within the
meaning of Article 12 of the Constitution of India.
17. The answering respondents submit that the
financial condition of respondent no. 5 is not sound
and if the claim of the petitioners is granted, the
respondent no. 4 may be required to close the
respondent no. 5 college. A chart showing summary
of the balance sheet is annexed herewith as Annexure
No. 7.
18. The answering respondents further submit that
the AICTE has no power under the provisions of the
AICTE Act, 1987 to prescribe conditions of service of ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
27 wp2022.2020.
the unaided colleges run by the minority institution.
At any rate, the regulations of AICTE are re-
commendatory/advisory in nature and as such not
binding upon the answering respondent”.
A3.22) The last affidavit in response dated 20.2.2023 which is
filed by the Management refers to the first affiliation received by the
fifth respondent – college and the subsequent extensions and states
that while the copy of the initial application submitted by the fifth
respondent and the applications seeking extension are not readily
available, copy of the application submitted by the Priyadarshini
College of Engineering which is administered by the fourth
respondent seeking continuation of affiliation for existing courses for
the academic session 2012-13 is placed on record. The Management
states that the said college applied online for continuation of
affiliation for the academic session 2022-23. The Management while
placing on record the copy of the application and accompanying
affidavit, states that the formats of the application, undertaking and
affidavit are prescribed by the University.
A3.23) The Management refers to the Government Resolution
dated 11.9.2019 and after extracting clause 1.1 of the Government
Resolution, asserts that since the fifth respondent – college is neither
autonomous college nor autonomous institution nor is under the
purview of AICTE for the purposes of service
conditions, the Government Resolution dated 11.9.2019 is not ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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applicable.
A3.24) The sixth respondent – University has restricted the
response to prayer clause (e-1) which seeks direction that the letter
dated 9.9.2021 be implemented, and action be initiated against the
Management. The University refers to the provisions of the
Universities Act of 2016, and states:
“8. The Management Council called a meeting of 10
engineering colleges against which complaints had
been received by the respondent 6 University; which
include the four colleges under the respondent 4
Society. In the said meeting it was agreed upon by
the colleges as well as the management Council that
they must approach the State Machinery and the
Minister for Higher and Technical Education for aid.
It was suggested to the colleges that they should
approach and tender their grievance to the Minister
for Higher and Technical Education since it was
related to the salary grant of the colleges. The
minutes of the said meeting dated 16.10.2021 is filed
at Annexure R6-C.
9. The R. 6 University then sent a communication
dated to the Director of the R.4 society in reply to the
letter dated 17.1.2021. In the said communication
the R. 6 University has stated that it was the duty of
the R. 4 society to comply compulsorily with the
provisions of the Act, Statute, Ordinances and
Regulations since the R. 4 Society is an affiliated
institution; and hence the action taken on part of the
University are proper and cannot be withdrawn. The
said communication dated 13.11.2021 is filed at
Annexure R. 6.-D.
10. The R. 6 University then sent a communication ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
29 wp2022.2020.
dated 28.2.2022 to the R5 College with regard to the
earlier meetings and complaints of arrears in
payments of salaries. The R. 6 University asked the R.
5 college vide the said letter to submit the current
situation in relation to the arrears in salaries of the
teaching as well as non-teaching staff. The said
communication dated 28.2.2022 is filed at Annexure
R.6-E.
11. It is thus submitted that, action can be taken by
the present respondent under the said Uniform
Statute and the Act of 2016 against the erring
affiliated college or a recognized institution or a
management”.
B) Submissions:
B.1) The learned senior counsel Mr. R.L. Khapre, who led the
arguments on behalf of the petitioners, would submit that the
objection to the maintainability of the writ petition is misconceived
in the teeth of the well entrenched position of law that the discharge
of the duty of imparting education involves element of public
interest. In support of the said submission, Mr. Khapre would rely
on the decision of the Supreme Court in K. Krishnamacharyulu and
Others Vs. Sri Venkateshwara Hindu College of Engineering and
Another
2
and the decisions of the Coordinate Bench of this Court in
Mahadeo Morey Vs. State of Maharashtra
3
and Manorama
Khandekar Vs. State of Maharashtra & Ors
4
.
B.2) Mr. Khapre would submit that an unaided minority
2(1997) 3 SCC 571
32014(5) Mh.L.J. 877
42020(4) Mh.L.J. 410 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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institution is obligated to implement the pay structure which is
specified or prescribed by the AICTE or the State Government or the
University, as the case may be, and neither Article 19(1)(g) nor
Article 30(1) of the Constitution of India exempts an unaided
minority institution from the obligation to pay salary to the teachers
as may be specified or prescribed. Mr. Khapre submits that right to
administer within the meaning of Article 30(1) of the Constitution
of India is not the right to maladminister and an unaided minority
institution cannot be heard arguing that implicit in the right to
administer the institution is the right to decide the salary structure
of the employees as per the sweet will of the Management. Mr.
Khapre would press in service the decisions in RE the Kerala
Education Bill, 1957 Reference under Article 143(1) of the
Constitution of India
5
, The Ahmedabad St. Xavier College Society
and another etc Vs. State of Gujrat and another
6
, Frank Anthony
Public School Employees Association Vs. Union of India and Others
7
(“Frank Anthony Public School”), and T.M.A. Pai Foundation Vs.
State of Karnataka
8
.
B.3) Mr. Khapre submits that the fifth respondent is affiliated
to the University. Section 108 of the Universities Act of 2016 deals
with conditions of affiliation or recognition. Sub-section (1)
mandates that the affiliation is subject to the Management giving the
undertaking and complying with the conditions prescribed in Sub-
5AIR 1958 SC 956
6AIR 1974 SC 1389
71987 Mh.L.J.1
82002 (8) SCC 481 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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clauses (a) to (k). Sub clause (f) provides that the emoluments and
the terms and conditions of the teaching and non-teaching employee
of the affiliated colleges and recognized institutions shall be such as
may be specified by the University and the State Government. Mr.
Khapre would submit that the expression employed in Sub-clause (f)
is “specified” in contradistinction with the expression “prescribed”
used in the Maharashtra University Act, 1994 (“Universities Act of
1994”). Mr. Khapre would submit that the pay scales which the
petitioners are claiming, are specified by the University and the State
Government, and the entitlement of the petitioners to the pay scales
prescribed by the 6
th
and 7
th
Pay Commission is statutorily
recognized.
B.4) Referring to the provisions of the Act of 2015,
Mr. Khapre would submit that Section 15 mandates that the FRA
shall determine the reasonableness of the fee structure proposed by
every unaided institution, in respect of the provisional courses
concerned, considering the factors referred to in Sub-clauses (i) to
(xiv). Sub-clause (vi) envisages that the expenses on the prescribed
salaries of the teaching and non-teaching staff shall be a factor
which the FRA shall consider. Mr. Khapre submits that the
Management has admitted that while seeking determination of the
reasonableness of the fee structure, the amount expended on
payment of salary is shown higher than the actual payment, and
justification that the difference is due to the calculation of the
interest, is specious and untenable. The extension of the submission ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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is that the right of the Management to determination of fee
structure, inter lia considering the amount expended on prescribed
salaries creates a corresponding statutory obligation to pay the
employees, the prescribed salary.
B.5) In continuation with the submission supra, Mr. Khapre
emphasizes that the Management submitted undertaking on
affidavit to the effect that the salaries to the employee are paid as
per the norms of the AICTE, the State Government and the
University, as the case may be. Mr. Khapre would submit that the
undertaking which is submitted to comply with the statutory
requirement creates a corresponding right in favour of the
employees to enforce the undertaking, and any other view shall
militate against public policy.
B.6) Referring to the provisions of the AICTE Act, Mr. Khapre
submits that AICTE has framed regulations dated 5.3.2010 in
exercise of power conferred under Sub-section (1) of Section 23
read with Section 10(g) (h) and (i) of the AICTE Act which
regulations are accepted and implemented by the State Government
by issuing Government Resolution dated 20.8.2010. Mr. Khapre
would then refer to the AICTE Regulations of Pay Scales 2019
(“Regulations of 2019”) and submit that the fifth respondent is
irrefutably a degree level technical institution imparting technical
education and courses approved by AICTE, within the ambit of ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
33 wp2022.2020.
clause 1.2 of the Regulations of 2019 and the revised pay scales
which are prescribed by the Regulations of 2019 w.e.f. 1.1.2016 are
payable by the fifth respondent to its employees.
B.7) Mr. Khapre submits that the Government Resolution
dated 11.9.2019 is applicable to every affiliated college, aided or
unaided including unaided minority institutions. Referring to the
provisions of clause 1.1 of the Government Resolution dated
11.9.2019, Mr. Khapre submits that the fifth respondent is an
affiliated institution which is conducting engineering courses under
the purview of AICTE, and the State Government having accepted
and implemented the recommendations of the 7
th
Pay Commission,
the Management is statutorily bound to implement the
recommendations of the 7
th
Pay Commission.
B.8) Responding to the contention of the Management that
the AICTE Regulations dated 5.3.2010 and 8.3.2019 were not laid
before the parliament, and have no legal force, Mr. Khapre would
submit relying on the Constitution Bench judgment of the Supreme
Court in Jan Mohammad Noor Vs. State of Gujrati
9
, the decision of
the three Judge Bench of the Supreme Court in M/s. Atlas Cycle
Industries vs. State of Haryana
10
and the decision in Prohibition &
Excise Superintendent., A.P. and Others Vs. Toddy Tappers Coop.
Society, Marredpally and Others
11
that the regulations come into
9AIR 1966 SC 385
101979 (2) SCC 196
112003 (12) SCC 738 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
34 wp2022.2020.
force with immediate effect and continue to hold the field unless the
regulations are modified or nullified by the Legislature. Mr. Khapre
would submit relying on the decision of the Supreme Court in Vinit
Agrawal vs. Union of India and others
12
that the requirement of
laying before the Houses of Parliament is directory.
B.9) Mr. Khapre would heavily rely on the decision in
Mahatma Gandhi
Supra
in support of the submission that the
Government Resolutions dated 20.8.2010 and 11.9.2019 are issued
by the State Government in exercise of power under Section 8(3) of
the Universities Act of 1994 or the Universities Act of 2016 and have
statutory flavour. Relying on the decision of the Supreme Court in
Ballabhadas Mathurdas Lakhani and Others Vs. Municipal
Committee, Malkapur
13
, and Dr. Subramaninan Swamy Vs. State of
Tamil Nadu and Others
14
Mr. Khapre reminds us that the High Court
cannot ignore the decision in Mahatma Gandhi on the premise that
the Supreme Court did not consider the relevant provisions or that
the decision of the Supreme Court is not an authority in view of the
ineffective arguments or consideration or fallacious reasoning.
B.10) Mr. Khapre submits that the legitimate claim of the
petitioners cannot be defeated on the ground either that the claim is
barred by limitation or is delayed. Reliance is placed on the
decisions in Narayanrao s/o. Ramchandra Watkar and another Vs.
12(2007)7 SCC 116
13(1970)2 SCC 267
14(2014)5 SCC 75 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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State of Maharashtra and Others
15
, D.Y. Patil College of Engineering
vs. AICTE
16
and Kiran Manikrao Bhusare vs. State of Maharashtra
17
.
Mr.Khapre submits relying on the decision of the Supreme Court in
M.R. Gupta..vs.. Union of India
18
that the cause of action is
recurring.
B.11) Mr. M.G.Bhangde, the learned senior counsel, who led the
arguments on behalf of the Management submits that the writ
petition is not maintainable. Elaborating the said submission, Mr.
Bhangde would submit that the fifth respondent which is an unaided
minority institution is not State within the meaning of Article 12 of
the Constitution of India. Reliance is placed on the decision of the
decision of the Supreme Court in Satimbla Sharma and Others Vs.
St. Paul’s Senior Secondary School
19
.
B.12) Mr. Bhangde would submit, that even if it is assumed
arguendo that the fifth respondent is amenable to writ jurisdiction,
the pay scales of the petitioners are in the realm of contract and in
the absence of any statutory provision which entitles the petitioners
to claim a particular pay scale, there is no element of public Law
involved. Mr. Bhangde draws support from the decisions of the
Supreme Court in Sushmita Basu & Ors. Vs. Ballyqunge Siksha
Samity & Ors
20
and St. Mary’s Education Society and Another Vs.
152015(4) Mh.L.J. 369
162019 (2) Mh.L.J. 86
172018(4) Mh.L.J. 852
181995(5) SCC 628
19(2011) 13 SCC 760
20(2006)7 SCC 680 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Rajendra Prasad Bhargava & Ors
21
. Mr. Bhangde would also draw
support from the Full Bench decision of the Madras High Court in
The Correspondent/Principal Arokiamada Matriculation Higher
Secondary School Vs. Tmt. Sourubarani
22
.
B.13) Distinguishing the decision in K. Krishnamacharyulu and
Others
Supra
which the petitioners have pressed in service, Mr.
Bhangde would submit that the said decision does not deal with
minority institutions. Responding to the reliance placed by the
petitioners on the decision of the Supreme Court in K.K. Saksena Vs.
International Commission on Irrigation and Drainage and Others
23
which relies on the decision in Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and
Others..Vs. V.R. Rudani and Others
24
, Mr. Bhangde would submit
that the Supreme Court was considering the grievance of employees
of aided institution whose service conditions were statutorily
regulated.
B.14) Mr. Bhangde would submit that the decision of the
Coordinate Bench in Manorama Khandekar
Supra
does not notice the
decision of the Supreme Court in Satimbla Sharma
Supra
, and the
reasons recorded do not accord with the view of the subsequent
212022(12) SCALE 364
222015-LW-544
23(2015)4 SCC 670
24(1989)2 SCC 691 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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decision of the Supreme Court in St. Mary’s Education Society
Supra
.
B.15) Mr. Bhangde would distinguish the decision of the
Coordinate Bench of this Court in Mahadeo Morey
Supra
by submitting
that the Coordinate Bench has held that unless and until the scales
of pay are incorporated in Schedule ‘C’ appended to the 1981 Rules,
direction to extend the benefit of the pay scales cannot be issued.
B.16) Mr. Bhangde submits that the Government has no power
to frame rules and regulations governing the service condition of
unaided minority institutions, which have the right to establish and
administer educational institution of their choice under Article 30(1)
of the Constitution of India.
B.17) Extensively referring to the enunciation of the Supreme
Court in T.M.A. Pai Foundation
Supra
, Mr. Bhangde would emphasize
that the Supreme Court has held that the right to establish and
administer includes:
“(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching)
(e) to take action if there is dereliction of duty on the part of
any employees”
Mr. Bhangde would further submit that the right to appoint ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
38 wp2022.2020.
staff includes the right to determine their service conditions and to
insist that the salary structure of the employees can only be the
salary structure which is contractually provided in the appointment
order.
B.18) Mr. Bhangde submits that one of the questions which fell
for consideration in T.M.A. Pai Foundation
Supra,
was question 5(c)
which was whether the statutory provisions which regulate the
facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and principal including their service conditions
and regulation of fees, etc. would interfere with the right of
administration of minorities?
Mr. Bhangde submits that answering question 5(c), the
Supreme Court observed that in case of an unaided minority
educational institution, the regulatory measures of control should be
minimal and while the conditions of recognition as well as the
conditions of affiliation to an University or Board have to be
complied with, in matters of day to day management like
appointment of staff, and administrative control over the staff,
teaching and non-teaching, the Management should have the
freedom and there should not be any external controlling agency.
Mr. Bhangde would emphasize that T.M.A. Pai Foundation
unambiguously articulates that regulations can be framed governing ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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service conditions for teaching and other staff for whom aid is
provided by the State, without interfering with the overall
administrative control of the Management.
B.19) Mr. Bhangde submits that the Government Resolutions
issued by the State Government and the regulations framed by the
AICTE cannot be interpreted in a manner so as to be made
applicable to the unaided minority institutions, since such
interpretation would militate against the constitutional philosophy
enshrined in Article 30 and 19(1)(g) of the Constitution of India.
Mr. Bhangde would press in service the order dated 11.3.2003
rendered by the Supreme Court in Andheri Education Society and
another Vs. State of Maharashtra
25
and the decision of the Full
Bench of The Madras High Court in The Correspondent/Principal
Arokiamada Matriculation Higher Secondary School
Supra
.
B.20) Mr. Bhangde submits that right to establish and
administer an educational institution is guaranteed under Article
19(1)(g) of the Constitution of India, and this right can be regulated
or restricted only in accordance with Article 19(6) of the
Constitution of India which mandates that the restriction shall be
imposed only by making a “Law” and in the interest of the general
public. It is submitted that the revision of pay scales of employees of
unaided colleges and its imposition is neither a reasonable
restriction nor is such restriction in the interest of the general public
25WP (c) 2469/1982 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
40 wp2022.2020.
nor are Government Resolutions “Law” within the meaning of Article
19(6) of the Constitution of India.
B.21) Mr. Bhangde would emphasize that in St. Mary’s
Education Society
Supra
it is held that while a private unaided
educational institution may be performing a public function,
contractual matters governing service conditions of the employees
are not within the public domain and are not amenable to writ
jurisdiction.
B.22) Mr. Bhangde submits that the reliance placed by the
petitioners on the decision in Express Newspapers Pvt. Ltd. Vs.
Union of India
26
is misplaced inasmuch as the said decision relies on
the view of the Supreme Court in the case of A.K. Gopalan Vs. State
of Madras
27
, which is expressly overruled by the Eleven Judge Bench
in R.C. Cooper Vs. Union of India
28
. Similarly no reliance can be
placed on the decision of the Supreme Court in ABP Pvt. Ltd. And
another Vs. Union of India and Others
29
since the said decision
heavily relies on Express Newspapers Pvt. Ltd
Supra
.
B.23) Mr. Bhangde submits that in Express Newspapers Pvt.
Ltd the Supreme Court read into the provisions of the Working
Journalists and Other Newspaper Employees (Conditions of Service)
26AIR 1958 SC 578
271950 SCR 88
28(1970)1 SCC 248
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and Miscellaneous Provisions Act, 1955, the duty of the wage board
to consider the capacity of the industry to pay wages, while fixing
the wages. Mr. Bhangde argues that neither AICTE nor the State
Government have undertaken such an exercise and have stipulated a
rigid pay structure.
B.24) Mr. Bhangde would argue that Frank Anthony Public
School
Supra
is considered in Satimbla Sharma
Supra
and does not take
the case of the petitioners any further. Mr. Bhangde would further
submit that reliance placed by the petitioners on P.A. Inamdar & Ors
vs State Of Maharashtra & Ors
30
is not apt since the question of
service conditions of private unaided minority institutions was not
involved. Similarly, the issue regarding service conditions of the
employees of minority unaided institutions did not fall for
consideration in Islamic Academy of Education and Another Vs.
State of Karnataka and Others
31
.
B.25) Inviting our attention to the provisions of the AICTE Act
and Regulations framed, Mr. Bhangde would submit that none of
the provisions of the AICTE Act empowers the AICTE to prescribe
the pay scales of employees. Section 10(i) of the AICTE Act restricts
the power to frame regulations touching “staff pattern” and “quality
instructions”, which do not cover service conditions of the staff. The
power of the AICTE under Section 10 is circumscribed by clauses (a)
30(2005)6 SCC 537
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to (v) and the measures which the AICTE can take can only be in
order to ensure coordinated and integrated development of technical
education, maintenance of standards of technical education and to
perform its functions. AICTE is not vested with general or residuary
power to frame regulations or take measures de hors the aspects
covered in clauses (a) to (v) of Section 10 of the AICTE Act.
B.26) Mr. Bhangde submits that neither the regulations dated
5.3.2010 nor the regulations dated 1.3.2019 could have been
framed in exercise of powers conferred under Section 23(1) read
with Section 10(i) and (v) of the AICTE Act or Section 23 read with
Section 10(g)(h) and (i) of the said Act, as is contended by the
AICTE in the affidavit in response. Mr. Bhangde would reiterate
that none of the stated purposes or objects of the AICTE Act
envisage determination of the service conditions of the staff of
technical institutions, and it is only the University Grants
Commission (UGC) which is empowered to frame regulations for
determination and maintenance of standards of teaching,
examination and research in universities.
B.27) Mr. Bhangde submits that the limited right or power of
the AICTE is to be consulted in the matter of determination of
standards of teaching etc in the process of the UGC prescribing or
framing the regulations. Mr. Bhangde draws support from clause
1.1.1 of the UGC Regulations, 2010. Mr. Bhangde emphasizes that
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in consultation with the AICTE.
B.28) Mr. Bhangde would submit that upon affiliation, the role
of AICTE vis a vis the fifth respondent college is reduced to
recommendatory body, as is held by the Supreme Court in
Association of Management of Private Colleges Vs. All India Council
for Technical Education
32
. AICTE Regulations dated 5.3.2010 and
1.3.2009 do not apply by their own force, and are required to be
adopted and made applicable to unaided affiliated colleges, by the
State Government by “Law” or in accordance with “Law”. Mr.
Bhangde argues that the State Government has not enacted any Law
prescribing the pay scales recommended by the AICTE.
B.29) Mr. Bhangde submits that the fact that the Management
has obtained the approval of the AICTE would not clothe AICTE with
powers which are not available in terms of the statutory provisions.
Referring to the provisions of Section 24 of the AICTE Act, 1987, it
is argued that the requirement that the regulations framed shall be
laid before each house of the Parliament is mandatory and inasmuch
as the regulations dated 5.3.2010 and 1.3.2019 are not laid before
each house of the Parliament, the regulations are not legally
enforceable in view of the law declared by the Supreme Court in
Association of Management of Private Colleges. Mr. Bhangde draws
support from the decision of the Supreme Court Krishna Kumar
Singh and Another Vs. State of Bihar and Others
33
. Mr. Bhangde
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would distinguish the decision of the Supreme Court in Jan
Mohammad Noor
Supra
on the premise that the findings recorded by
the Supreme Court are in view of the peculiar facts of the case. Mr.
Bhangde would further argue that Vineet Agrawal
Supra
is clearly
distinguishable since the regulations were as a fact, laid before the
Parliament and the question involved was whether the requirement
to lay the papers before both the house for a period of 30 days was
mandatory. It is argued that the decision in Bank of India Vs. OP
Swarnkar and Others
34
is contrary to the law laid down by the
Seven Judge Bench in Krishna Kumar Singh
Supra
, and is not a
binding precedent.
B.30) In response to the submission canvassed by Mr. Khapre
that the Management is obligated to pay emoluments as may be
specified by the University and the State Government in view of the
mandate of Section 108 of the Universities Act, 2016 and the
corresponding provision of Universities Act, 1994 which deal with
conditions of affiliation and recognition, Mr. Bhangde would submit
that the conditions of affiliation are matters between the
Management and University and do not create any enforceable right
in favour of the employees. Referring to the provisions of Section 81
of the Universities Act, 1994, which broadly corresponds with
Section 108 of the Universities Act of 2016, Mr. Bhangde submits
that clause (f) of Section 81 provides that the emoluments of the
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staff of affiliated colleges shall be such as prescribed by the
University, which has not prescribed the pay scales on the basis of
the 6
th
Pay Commission. Referring to the provisions of Clause (f) of
Section 108 of the Universities Act of 2016, Mr. Bhangde submits
that clause (f) is not the source of power for the University or the
State Government to prescribe the emoluments and the terms and
conditions of service of staff of affiliated colleges and recognized
institutions, and such power flows from Section 8(3) of the
Universities Act of 2016, which power to frame rules regulating the
service condition is not exercised.
B.31) Mr. Bhangde submits that notwithstanding the coming
into force of the Universities Act of 2016 w.e.f. 1.3.2017, the
University continued to accept undertakings in the format prescribed
under the Universities Act of 1994, which undertakings refer to the
emoluments which may be prescribed by the University. It is
submitted that there is no undertaking given by the Management
that the instructions of the State Government regarding service
conditions shall be abided by. Mr. Bhangde further submits that the
expression “specified” in clause (f) of Section 108 of the Universities
Act of 2016 must be understood as “specified” as per the provisions
of the Universities Act of 2016, and if so understood, specified
means rules framed by the State Government in exercise of power
under Section 8(3) of the Universities Act of 2016 and not executive
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B.32) Mr. Bhangde submits that the Government Resolutions
dated 20.8.2010 and 11.9.2019 are policy decisions of the State
Government and do not apply to unaided minority institutions. It is
submitted that even if it is assumed arguendo that the Government
Resolutions dated 20.8.2010 and 11.9.2019 specify service
conditions and emoluments, the Government Resolutions do not
partake the character of statutory conditions or law. Mr. Bhangde
would argue that since the Government Resolutions are not
published in the official gazette, the Government Resolutions do not
have binding force. Reliance is placed on the decision of the
Supreme Court in Gulf Goans Hotels Company Limited and Another
Vs. Union of India and Others
35
.
B.33) Mr. Bhangde would submit that the Government
Resolutions dated 20.8.2010 and 11.9.2019 are executive
instructions issued in exercise of power under Article 162 of the
Constitution of India and cannot restrict or regulate the fundamental
rights of the Management. Reliance is placed on the decision of the
Supreme Court in Sita Ram and Others Vs. State of Uttar Pradesh
36
.
It is further submitted that the conditions of affiliation must pass the
muster of Article 19(6) of the constitution of India, and must be
imposed by law in the interest of general public, which test is not
satisfied by the conditions of affiliation. Reliance is also placed on
the decision of the Supreme Court in Bharat Cooking Coal Vs. State
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of Bihar
37
.
B.33) In support of the submission that the restrictions on
rights specified in Article 19(1)(g) of the Constitution of India must
satisfy the criteria under Article 19(6), Mr. M.G. Bhangde relies on
the decisions of the Supreme Court in Akadasai Padhan Vs. State of
Orissa and Others
38
, Bennet Coleman and Co. and Others Vs. Union
of India and Others
39
and Bijoy Emmanuel and Others Vs. State of
Kerala
40
.
B.34) In support of the submission that fundamental rights
under Article 30(1) and 19(1)(g) of the Constitution of India can be
restricted only by Law, reliance is placed on the decision in T.M.A.
Pai Foundation and Satimbla Sharma.
B.35) It is submitted that reliance placed by the petitioners on
Islamic Academy is not apt, since even in the said decision, it is held
that the fundamental rights of minority institutions can be restricted
only in accordance with rules and regulations.
B.36) Mr. Bhangde submits that the reliance placed by the
petitioners on Clause 46 of Ordinance 24 (“College Code”) and the
submission that the Government Resolutions dated 20.8.2010 and
37(1990) 4 SCC 557
38AIR 1963 SC 1047
39(1972)2 SCC 788
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11.9.2019 are issued in exercise of power under Clause 46 of the
College Code is not supported by pleadings and in any event, the
said provision does not empower the State Government to determine
the pay scales of the staff of affiliated unaided colleges.
B.37) Responding to the submission canvassed by
Mr. Khapre that the decision in Mahatma Gandhi answers the issue
involved, Mr. Bhangde submits that in Mahatma Gandhi, the
Government Resolution dated 12. 8. 2009, which was considered,
was issued pursuant to the UGC Regulations and was not applicable
to technical institutions. It is submitted that during the course of
hearing, the petitioners have conceded that the Government
Resolution dated 12.8.2009 is inapplicable to technical institutions,
with the result that the claim to entitlement on the basis of the
recommendations of the 6
th
Pay Commission merits rejection.
B.38) It is argued that the Government Resolution dated
20.8.2010 and Government Resolution dated 11.9.2019 which are
issued pursuant to the AICTE Regulations, are policy decisions of the
State Government, as is accepted by the State Government, and are
not issued in exercise of legislative power. Mr. Bhangde submits
that Mahatma Gandhi is not applicable since in the present case, the
Government Resolutions are not issued in exercise of power under
Section 8(3) of the Universities Act of 1994 or the Universities Act of
2016. It is submitted that in Mahatma Gandhi, the revision of pay
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and further the AICTE Regulations are not considered.
B.39) Mr. Bhangde submits that Mahatma Gandhi is not law
declared by the Supreme Court under Article 141 of the Constitution
of India. The decision is based upon concession made at the Bar and
no submissions were advanced on the question whether the
Government Resolution dated 12.8.2009 was issued in exercise of
power under Section 8(3) of the Universities Act of 1994, and no
reasons are recorded by the Supreme Court to hold that the
Government Resolution dated 12.8.2009 is issued in exercise of
Power under Section 8(3) of the Universities Act of 1994. Reliance
is placed on the decisions of the Supreme Court in Ravinder Kaur
Grewal and Others Vs. Manjit Kaur and Others
41
and Secretary to
Government of Kerala, Irrigation Department and Others Vs. James
Varghese and Others
42
B.40) Mr. Bhangde submits that Mahatma Gandhi did not
notice previous binding precedents and the findings recorded do not
accord with the view expressed in A.K. Bindal & Another Vs. Union
of India
43
, T.M. Sampat & Others Vs. Secretary, Ministry of Water
Resources & Others
44
, State of U. P. Vs. Virendra Kumar & Others
45
.
Mr. Bhandge submits that while Mahatma Gandhi relies on the
decision in D.S. Nakara & Others Vs. Union of India
46
the said
41(2019)8 SCC 729
42(2022)9 SCC 593
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44(2015)5 SCC 333
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decision is watered down in the subsequent decisions. Reliance is
placed on Himachal Road Transport Corporation and Another Vs.
Himachal Road Transport Corporation
47
. It is submitted, relying on
the decision of this Court in Vasant Narayan Phulkar Vs. Sumanbai
Laxman Mairal
48
which decision relies on Superintendent and
Rememberance of Legal Affairs, West Bengal Vs. Girish Kumar
Navlakha and Others
49
, that under – inclusiveness cannot be the
basis of challenge to a provision on the touchstone of Article 14 of
the Constitution of India. It is submitted that the reliance placed by
Mr. Khapre on the decisions Ballabhadas Mathurdas Lakhani
Supra
and Dr. Subramaninan Swamy
Supra
in support of the submission
that Mahatma Gandhi is a binding precedent, is misconceived since
in the said decision, the Supreme Court considered the decision
where the issue was contested.
B.41) Mr. Bhangde submits that the Government Resolution
dated 12.8.2009 on which the petitioners have relied upon is not
applicable to technical institutions, and the petitioners have not
pleaded that they are entitled to the pay structure recommended by
the 6
th
Pay Commission in view of the notifications issued by the
AICTE or any other Government Resolution, and submission
canvassed without factual foundation in pleadings, cannot be
entertained. Reliance is placed on Ritesh Tiwari and another..vs..
47(2021)4 SCC 502
481987 Mh.L.J.202
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State of Uttar Pradesh and Others
50
.
B.42) Mr. Bhangde submits that the AICTE Regulations dated
5.3.2010 do not apply on their own force and have to be adopted by
the State Government for technical institutions coming within the
purview of the State Legislature. The Government Resolution dated
20.8.2010 issued by the State Government extends the AICTE
scheme only to Governmental and Non-Governmental aided
institutions. It is submitted that in the absence of any challenge to
the Government Resolution dated 20.8.2010 on the ground that the
Government Resolution is discriminatory or under – inclusive, the
petitioners are not entitled to claim the pay structure recommended
by the 6
th
Pay Commission.
B.43) Mr. Bhangde submits that the petitioners have not
pleaded that the Government Resolution dated 11.9.2019 is issued
by the State Government in exercise of power under Section 8(3) of
the Universities Act of 2016 and in the absence of pleadings and
proof, no inference can be drawn that the said Government
Resolution is issued in exercise of power of statutory power.
Reliance is placed on Ritesh Tiwari.
Supra
Mr. Bhangde submits that
the Government Resolution dated 11.9.2019 is not applicable to
unaided minority institutions. The said Government Resolution is
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not assailed on the ground of invidious discrimination or as under –
inclusive. Mr. Bhangde submits that inasmuch as the Government
Resolution dated 11.9.2009 does not create any right in favour of
the petitioners, the claim to be entitled to pay structure
recommended by the 7
th
Pay Commission also merits rejection.
B.44) Referring to the applicability of clause 1.1 of
Government Resolution dated 11.9.2019, Mr. Bhangde submits that
clause (e) takes within its sweep an institution which is affiliated to
the university and is autonomous. The extension of the submission
is that while the fifth respondent is affiliated to the University, it is
not an autonomous institute and the twin test is not satisfied. Mr.
Bhangde draws support from the separate definitions of “College” in
Sec. 2(12) and “Institution” in Sec. 2(34) in the Universities Act of
2016. Mr. Bhangde invites our attention to the definition of
“Autonomous college” in Sec.2(6) of the Universities Act of 2016
and to the provisions of Clause 4(5) of the Uniform Statute 3 of the
2019 issued by the State Government to buttress the submission
that since “affiliated” and “autonomous” are not mutually exclusive
terms, the expression “and” has to be read conjunctively and not
disjunctively. The alternate submission is that clause 1.1 of
Government Resolution dated 11.9.2009 makes the revised pay scale
applicable only to those institutions which are conducting
professional degree courses coming under the purview of the AICTE,
and since the role of the AICTE in respect of university affiliated
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not come under the purview of AICTE. It is further submitted, that
even if it is assumed arguendo that the Government Resolution
dated 11.9.2019 is applicable to the fifth respondent, the liability to
bear the financial burden of the revised pay scales is that of the
State Government in view of clause (c) of the AICTE notification
dated 1.3.2019.
B.45) Mr. Bhangde concludes with the submission that the
claim in the petition is hit by delay and latches, and in any event,
the claim of arrears of salary will have to be restricted to three years
preceding the filing of the petition. Reliance is placed on the
decisions of the Supreme Court in Shiv Das Vs. Union of India
51
,
Union of India vs. Tarsem Singh
52
and the order dated 29.8.2022, in
Writ Petition 3489/2020 Mr. Milind Kumar s/o. Sitaramji Jibhakate
Vs. State of Maharashtra and Others. Mr. Bhangde would
distinguish the decision in Narayanrao s/o. Ramchandra Watkar and
another, D.Y. Patil College of Engineering,
Kiran Manikrao Bhusare
and M.R. Gupta, on facts.
C. Consideration:
C1. Rights of the minorities under Article 19(1)(g) and
30(1) of the Constitution of India
C1.1) It is inevitable that the cogitation of the
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submissions canvassed must start with analysis of the content
and the contours of the rights of the minorities which are
enshrined in Articles 29 and 30 of the Constitution of India.
C1.2) Article 29(1) provides that any section of the citizens
residing in the territory of India or any part thereof having
distinct language, script or culture of its own shall have the right to
conserve the same. Clause (2) is negatively worded and mandates
that 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 or any of them.
C1.3) It is observed by the Supreme Court in Bal Patil &
another Vs. Union of India & Others
53
, that Articles 25 to 30 were
included in the backdrop of the traumatic partition, to allay the
apprehension and fear in the minds of the minorities. The object of
Article 30(1) is to ensure that the minorities feel secure and
confident in view of the constitutional guarantee to the right to
profess, practice and propagate religion to religious minorities and
to conserve their language, script and culture by establishing and
administering educational institutions of their choice.
C1.4) The predominant judicial view is that the object of
conferring the rights on minorities under Article 30 is to ensure
equality between the majority and the minority, and not to put the
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minorities on higher footing than non-minorities.
C1.5) Addressing the interplay between Article 29(1) and
Article 30(1), in Rev. Father W. Proost and Ors Vs. The State Of
Bihar & Ors
54
, the Supreme Court observes that the width of Article
30 could not be whittled down on the touchstone of the
considerations on which Article 29(1) is based. Article 29(1) is a
general protection given to sections of citizens to conserve their
language, script or culture. Article 30(1) is a special right to
minorities to establish educational institutions of their choice.
C1.6) In contradistinction with Article 19, the right to establish
and administer educational institutions by minorities is not made
subject to any reasonable instructions. Any law or executive
direction which adversely affects the substance of the right, may not
withstand the scrutiny of law. However, as is held by the Six Judge
Bench of the Supreme Court in Sidharajbhai Vs. State of Gujrat
55
, it
is open to the State to regulate the exercise of the right. Regulations
made in the interests of efficiency of instructions, discipline, health,
sanitation, morality, public order and like are held by the Supreme
Court not to be restrictions on the substance of the right, since such
regulatory measures secure the proper functioning of the institution
in matters of education. In RE the Kerala Education Bill
Supra
, the
Supreme Court rejected the contention that the protection of Article
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30(1) to minority educational institutions was in terms absolute,
and observed that the right to administer did not include the right to
maladminister.
C1.7) One of the questions considered by the Nine Judge
Bench of the Supreme Court in The Ahmedabad St. Xavier College
Society and another
Supra
was whether the religious and linguistic
minorities, who have the right to establish and administer
educational institutions of their choice, have a fundamental right to
affiliation. The Supreme Court observes that when a minority
institution applies to university to be affiliated, it expresses its choice
to participate in the system of general education and courses of
instruction prescribed by the university. All institutions of general
secular education whether established by the minorities or the non-
minorities, must impart to their students education not only for their
intellectual development but also for enabling them to pursue useful
career. Affiliation mainly pertains to the academic and educational
character of the institution. The Supreme Court held that measures
which regulate the courses of study, the qualifications and
appointment of teachers, the conditions of employment of teachers,
the health and hygiene of students, facilities for libraries and
laboratories are all matters germane to affiliation of minority
institution and do not violate the right of the minority institution
under Article 30. It would be apposite to extract paragraphs 30 and
31 in The Ahmedabad St. Xavier College Society and another
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thus:
“30. Educational institutions are temples of learning.
The virtues of human intelligence are mastered and
harmonized by education. Where there is complete
harmony between the teacher and the taught, where
the teacher imparts and the student receives, where
there is complete dedication of the teacher and the
taught in learning, where there is discipline: between
the teacher and the taught, where both are
worshipers of learning, no discord or challenge will
arise. An educational institution runs smoothly when
the teacher and the taught are engaged in the,
common ideal of pursuit of knowledge. It is,
therefore, manifest that the appointment of teachers
is an important part in educational institutions. The,
qualifications and the character of the teachers are
really important. The minority institutions have the
right to administer institutions. This right implies the
obligation and duty of the minority institutions, to
render the very best to the students. In the right of
administration, checks and balances in the shape of
regulatory measures are required to ensure the
appointment of good teachers d their conditions of
service. The right to administer is to be tempered
with regulatory measures to facilitate smooth
administration. The best administration will reveal
no trace or colour of minority. A minority institution
should shine in exemplary eclectic in the
administration of the institution. The best
compliment that can be paid to a minority institution
is that it does not rest on or Proclaim its minority
character.
31. Regulations which will serve the interest of the
students, regulations which will serve the interests of
the teachers are of paramount importance in good
administration. Regulations in the interest of
efficiency of teachers, discipline and fairness in
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among affiliated institutions”.
C1.8) In Unni Krishnan, J.P. and Others. etc. .. vs.. State of Andhra
Pradesh and Ors
56
, a Five Judge Bench of the Supreme Court held that
there is no fundamental right under Article 19(1)(g) to establish an
educational institution, if recognition or affiliation is sought for such an
educational institution. Unni Krishnan, also addresses the question
whether recognition or affiliation makes the educational institution an
instrumentality of the State. The Supreme Court found it difficult to hold
that a private educational institution either by recognition or affiliation
to the university could be treated as an instrumentality of State. The
Supreme Court then considered the inevitable question as to what is
the nature of the functions discharged by such institutions, which
seek and secure recognition or affiliation. The Supreme Court held
that the institutions discharge a public duty and their actions could
be scrutinized on the touchstone of Article 14. Analyzing the
decision in Andi Mukta Sadguru, the Supreme Court held that while
the said decision emphasizes the nature of duty imposed on the
institution and explains the meaning of authority under Article 226
in contradistinction with the expression “authority” in Article 12,
irrespective of the educational institution receiving aid it should be
held that the duty discharged is a public duty, and the absence of
aid does not detract from the nature of duty.
C1.9) In T.M.A. Pai Foundation
Supra
, the Eleven Judge Bench of
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the Supreme Court considered and answered several seminal
questions touching the rights of the minority institutions under
Article 30 of the Constitution of India.
C1.10) The central theme of the submissions canvassed is
premised on the pivotal and crucial question formulated in T.M.A.
Pai Foundation, which is question 5(c) which we extract:
Q5(c) Whether the statutory provisions which regulate
the facets of administration like control over educational
agencies, control over governing bodies, conditions of
affiliation including recognition/withdrawal thereof, and
appointment of staff, employees, teachers and Principal
including their service conditions and regulation of fees,
etc. would interfere with the right of administration of
minorities?
Both Mr. Khapre and Mr. Bhangde would draw support
from the answer to the question, which we extract;
A. So far as the statutory provisions regulating the facets
of administration are concerned, in case of an unaided
minority educational institution, the regulatory measure
of control should be minimal and the conditions of
recognition as well as the conditions of affiliation to an
university or board have to be complied with, but in the
mater of day-to- day management like the appointment
of staff, teaching and non-teaching, and administrative
control over them, the management should have the
freedom and there should not be any external
controlling agency. However, a rational procedure for
the selection of teaching staff and for taking disciplinary
action has to be evolved by the management itself. For
redressing the grievances of employees of aided and
unaided institutions who are subjected to punishment or
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evolved, and in our opinion, appropriate tribunals could
be constituted, and till then, such tribunals could be
presided over by a Judicial Officer of the rank of District
Judge. The State or other controlling authorities,
however, can always prescribe the minimum
qualification, experience and other conditions bearing on
the merit of an individual for being appointed as a
teacher or a principal of any educational institution.
C1.11) While Mr. Bhangde would emphasize that the Supreme
Court categorically held that in case of an unaided minority
educational institution, the regulatory measure of control should be
minimal, Mr. Khapre would insist that the Supreme Court has
authoritatively enunciated that an unaided minority educational
institution has to comply with, the conditions of recognition as well
as conditions of affiliation to a University or Board.
C1.12)T.M.A. Pai Foundation, was understood by the Union of
India, various State Governments and educational institutions in
different perspectives. Different statutes and regulations were
enacted and framed by different State Governments. Various
Government orders were issued in exercise of power under Article
162 of the Constitution of India. AICTE, the UGC and the Medical
Council of India issued adhoc guidelines in the light of the majority
judgment in T.M.A. Pai Foundation
Supra
and the result was spate of
litigations, in which, interim orders were passed, which were
assailed before the Supreme Court. At the request of the parties, the
Supreme Court placed the matters before a bench of five judges. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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(Islamic Academy ).
C1.13) The petitioners in Islamic Academy were mostly unaided
professional educational institutions, minorities and non-minorities,
who questioned the fixation of management seats by the State
Governments and further asserted complete autonomy as regards
the admission of students and determination of their own fee
structure. In Islamic Academy, the questions framed for
consideration were -
“(1) whether the educational institutions are entitled
to fix their own fee structure;
(2) whether minority and non minority educational
institutions stand on the same footing and have the
same rights;
(3) whether private unaided professional colleges are
entitled to fill in their seats, to the extent of 100%,
and if not to what extent; and
(4) whether private unaided professional colleges are
entitled to admit students by evolving their own
method of admission”
C1.14) In Islamic Academy, the Supreme Court observes that
questions 3 and 4 pertain to private unaided professional colleges.
The Supreme Court reproduces and analyzes the observations and
findings recorded in paragraph 68 in T.M.A. Pai Foundation and
holds that sub-heading “Private Unaided Professional Colleges”
includes both minority as well as non-minority professional colleges.
The Supreme Court further holds that paragraph 68 in T.M.A. Pai
Foundation however, distinguishes between minority and non- ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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minority professional colleges to the extent a different percentage
can be prescribed for unaided minority institutions as regards the
seats reserved for admission by the management.
C1.15) In PA Inamdar, the Seven Judge Bench was constituted
to resolve the conundrum posed in view of the perception that the
decision in T.M.A. Pai Foundation raises mere questions than
provides answers. Such perception was articulated in the Annual
Survey of Indian Law, 2002 which observed that the principles laid
down by the majority in T.M.A. Pai Foundation are so broadly
formulated that they provide sufficient leeway to subsequent Courts
in applying those principles while the lack of clarity allows judicial
creativity. The Supreme Court found that the prophecy in the
survey came true and despite the decision in Islamic Academy of
Education, certain questions remained unsettled.
C1.16) In PA Inamdar, Supreme Court notes that in RE the
Kerala Education Bill, minority institutions were classified into three
categories (i) those which do not seek either aid or recognition from
the State, (ii) those which want aid, and (iii) those which want only
recognition but not aid.
PA Inamdar considers the decision in RE the Kerala
Education Bill
, thus:
“103. To establish an educational institution is a
Fundamental Right. Several educational institutions
have come up. In Kerala Education Bill, 'minority
educational institutions' came to be classified into ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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three categories, namely, (i) those which do not seek
either aid or recognition from the State; (ii) those
which want aid; and (iii) those which want only
recognition but not aid. It was held that the first
category protected by Article 30(1) can "exercise
that right to their hearts' content" unhampered by
restrictions. The second category is most significant.
Most of the educational institutions would fall in that
category as no educational institution can, in modern
times, afford to subsist and efficiently function
without some State aid. So is with the third category.
An educational institution may survive without aid
but would still stand in need of recognition because
in the absence of recognition, education imparted
therein may not really serve the purpose as for want
of recognition the students passing out from such
educational institutions may not be entitled to
admission in other educational institutions for higher
studies and may also not be eligible for securing jobs.
Once an educational institution is granted aid or
aspires for recognition, the State may grant aid or
recognition accompanied by certain restrictions or
conditions which must be followed as essential to the
grant of such aid or recognition. This Court clarified
in Kerala Educational Bill that 'the right to establish
and administer educational institutions' conferred
by Article 30(1) does not include the right to mal-
administer, and that is very obvious. Merely because
an educational institution belongs to minority it
cannot ask for aid or recognition though running in
unhealthy surroundings, without any competent
teachers and which does not maintain even a fair
standard of teaching or which teaches matters
subversive to the welfare of the scholars. Therefore,
the State may prescribe reasonable regulations to
ensure the excellence of the educational institutions
to be granted aid or to be recognized. To wit, it is
open to the State to lay down conditions for ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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recognition such as, an institution must have a
particular amount of funds or properties or number
of students or standard of education and so on. The
dividing line is that in the name of laying down
conditions for aid or recognition the State cannot
directly or indirectly defeat the very protection
conferred by Article 30(1) on the minority to
establish and administer educational institutions.
Dealing with the third category of institutions, which
seek only recognition but not aid, their Lordships
held that 'the right to establish and administer
educational institutions of their choice' must mean
the right to establish real institutions which will
effectively serve the needs of the community and
scholars who resort to these educational institutions.
The dividing line between how far the regulation
would remain within the constitutional limits and
when the regulations would cross the limits and be
vulnerable is fine yet perceptible and has been
demonstrated in several judicial pronouncements
which can be cited as illustrations. They have been
dealt with meticulous precision coupled with brevity
by S.B. Sinha, J. in his opinion in Islamic Academy.
The considerations for granting recognition to a
minority educational institution and casting
accompanying regulation would be similar as
applicable to a non-minority institution subject to
two overriding considerations: (i) the recognition is
not denied solely on the ground of the educational
institution being one belonging to minority, and (ii)
the regulation is neither aimed at nor has the effect
of depriving the institution of its minority status”.
C1.17) Extensively extracting the relevant passages in T.M.A.
Pai Foundation, the Supreme Court considered the rights and
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institutions asking for affiliation or recognition, thus:
“121. Affiliation or recognition by the State or the
Board or the University competent to do so, cannot
be denied solely on the ground that the institution is
a minority educational institution. However, the
urge or need for affiliation or recognition brings in
the concept of regulation by way of laying down
conditions consistent with the requirement of
ensuring merit, excellence of education and
preventing mal-administration. For example,
provisions can be made indicating the quality of the
teachers by prescribing the minimum qualifications
that they must possess and the courses of studies
and curricula. The existence of infrastructure
sufficient for its growth can be stipulated as a pre-
requisite to the grant of recognition or affiliation.
However, there cannot be interference in the day-to-
day administration. The essential ingredients of the
management, including admission of students,
recruiting of staff and the quantum of fee to be
charged, cannot be regulated. (para 55, Pai
Foundation)
122. Apart from the generalized position of law that
right to administer does not include the right to mal-
administer, an additional source of power to
regulate by enacting condition accompanying
affiliation or recognition exists. A balance has to be
struck between the two objectives: (i) that of
ensuring the standard of excellence of the
institution, and (ii) that of preserving the right of
the minority to establish and administer its
educational institution. Subject to a reconciliation of
the two objectives, any regulation accompanying
affiliation or recognition must satisfy the triple tests:
(i) the test of resonableness and rationality, (ii) the
test that the regulation would be conducive to
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education for the minority community or other
persons who resort to it, and (iii) that there is no in-
road into the protection conferred by Article 30(1)
of the Constitution, that is, by framing the
regulation the essential character of the institution
being a minority educational institution, is not taken
away. (para 122, Pai Foundation) .”
C1.18) In Modern Dental College and Research Centre and
Others...vs..State of Madhya Pradesh and others
57
, the Five Judge
Bench of the Supreme Court observes thus:
“55. It would be necessary to clarify the position in
respect of educational institutions run by minorities.
Having regard to the pronouncement in T.M.A. Pai
Foundation, with lucid clarifications to the said
judgment given by this Court in P.A. Inamdar, it
becomes clear that insofar as such regulatory
measures are concerned, the same can be adopted
by the State in respect of minority run institutions as
well. Reliance placed by the appellants in St.
Stephen's College v. University of Delhi may not be
of much help as that case did not concern with
professional educational institutions”.
C1.19) The analysis of the decisions supra impels us to hold that
wide as the rights of the minority institutions, particularly, unaided
minority institutions are, a minority institution, aided or unaided,
which seeks and secures recognition or affiliation from the
university or the Board or the regulatory body, is obligated to
comply with the conditions of recognition and affiliation, and cannot
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be heard saying that such conditions dilute much less obliterate the
substance of the right under Article 30(1) of the Constitution of
India. We are further not impressed by the submission canvassed by
Mr. Bhangde, that the conditions of affiliation are matters between
the University and the Affiliated Institutions and do not confer a
corresponding right on the employees. A condition of recognition or
affiliation that mandates that the management shall pay
emoluments as per the norms of the AICTE or the State Government
or the University or the Board or any regulatory body, as the case
may be, does create corresponding right in the employees and writ
of mandamus can be, and must necessarily be, issued to compel the
management to comply with the conditions of affiliation having
statutory flavour.
C1.20) Before we conclude the analysis of the right of the
minority institutions under Article 30(1) of the Constitution of India,
we must note the decision of the Supreme Court in Frank Anthony
Public School Employees Association Vs. Union of India and
Others
58
. More than three decades ago, it was argued that implicit
in the right of the management to appoint members of staff is the
right to stipulate their salaries and allowances, which could not be
taken away. It was further argued that if the institutions have to
pay higher scales of salary and allowances, they may have to close
down. The Supreme Court considers the submission, thus:
“16. The excellence of the instruction provided
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by an institution would depend directly on the
excellence of the teaching staff, and in turn, that
would depend on the quality and the contentment
of the teacher. Conditions of service pertaining to
minimum qualifications of teachers, their
salaries, allowances and other conditions of
service which ensure security, contentment and
decent living standards to teachers and which
will consequently enable them to render better
service to the institution and the pupils cannot
surely be said to he violative of the
fundamental right guaranteed by Article 30(1) of
the Constitution. The management of a minority
Educational institution cannot be permitted
under the guise of the fundamental right
guaranteed by Article 30(1) of the Constitution,
to oppress or exploit its employees any more than
any other private employee. Oppression or
exploitation of the teaching staff of an
educational institution is bound to lead,
inevitably, to discontent and deterioration of the
standard of instruction imparted in the institution
affecting adversely the object of making the
institution an effective vehicle of education for
the minority community or other persons who
resort to it. The management of minority
institution cannot complain of invasion of the
fundamental right to administer the institution
when it denies the very object of Article 30(1)
which is to make the institution an effective
vehicle of education”.
“23.We must refer to the submissions of Mr.
Frank Anthony regarding the excellence of the
institution and the fear that the institution may
have to close down if they have to pay higher
scales of salary and allowances to the members
of the staff. As we said earlier the excellence of ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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the institution is largely dependent on the
excellence of the teachers and it is no answer to
the demand of the teachers for higher salaries to
say that in view of the high reputation enjoyed
by the institution for its excellence, it is
unnecessary to seek to apply provisions like
Section 10 of the Delhi School Education Act to
the Frank Anthony Public School. On the other
hand, we should think that the very contribution
made by the teachers to earn for the institution
the high reputation that it enjoys should spur the
management to adopt at least the same scales of
pay as the other institutions to which Section 10
applies. Regarding the fear ex- pressed by Shri
Frank Anthony that the institution may have to
close down we can only hope that the
management will do nothing to the nose to spite
the face, merely to 'put the teachers in their
proper place'. The fear expressed by the
management here has the same ring as the fear
expressed invariably by the management of every
industry that disastrous results would follow
which may even lead to the closing down of the
industry if wage scales are revised”.
C1.21) We may now consider the submission canvassed by Mr.
Bhangde on the touchstone of Article 19(1)(g) of the Constitution of
India which guarantees to all the citizens the right to practice any
profession or to carry out any occupation, trade or business. Clause
(6) of Article 19 saves the power of the State to make law imposing,
in the interest of general public, reasonable restrictions on the
exercise of the right conferred by sub-clause (g). The rights
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available to every citizen, whether belonging to the minority or the
majority community. Mr. Bhangde is right in submitting that the
restrictions are required to be imposed by law in the interests of
general public and must be reasonable. To us, the submission
accords with the well entrenched legal position and we are
refraining from burdening the judgment by dealing with the
plethora of decisions placed in service by the parties.
C1.22)The crucial question however is whether any right which
is guaranteed under Article 19(1)(g) is restricted, as would trigger
the mandate of Article 19(6) which is that reasonable restrictions
can be imposed only by law and in public interest. The right to
carry on occupation indeed includes the right to establish an
educational institution. However, an institution, aided or non-aided,
minority or majority, has no fundamental right to insist on recognition
or affiliation from the State, University, Board or the regulatory
body. The right to establish educational institution with the
recognition of the State or the regulatory body cannot be claimed on
the touchstone of Article 19(1)(g) of the Constitution of India. The
right is dependent on the State or the regulatory body permitting the
starting of the educational institution and granting recognition
subject to the educational institution fulfilling the terms and
conditions prescribed under statutory provisions or specified in
exercise of executive power. The fifth respondent is a technical
institution which is affiliated to the University and is recognized by
the AICTE. Unni Krishnan has held, and the view is not watered ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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down in any of the Larger Bench decisions, that there is no
fundamental right to establish an educational institution with the
recognition of the State. We may extract the relevant passage in
Unni Krishnan.
“72. Accordingly, it is held that there is no fundamental
right under Article 19(1)(g) to establish an educational
institution, if recognition or affiliation is sought for such
an educational institution. It may be made clear that any
one desirous of starting an institution purely for the
purposes of educating the students he could do so but
Sections 22 and 23 of the University Grants Commission
Act which prohibits the award of degrees except by a
University must be kept in mind.
If there is no fundamental right to establish an educational
institution with recognition or affiliation, a fortiori – the pay scales
which are prescribed or specified, by the AICTE or the State
Government, and which the fifth respondent undertook to
implement as a condition of recognition and affiliation, are not
restrictions on the right guaranteed under Article 19(1)(g).
C2) Conditions of recognition and affiliation
C2.1) It is common ground that the fifth respondent college is
a technical institution which is recognized by the AICTE. The AICTE
permitted the fourth respondent institution to start the fifth
institution college subject to the condition that the teachers shall be
paid salary and allowances in accordance with the norms of the
State government and the AICTE, as is discernible from the
communication dated 18.10.2008 which grants the permission. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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C2.2) It is argued by Mr. Bhangde that none of the
provisions of the AICTE empowers the AICTE to prescribe the pay
scales of employees. We have considered the statutory scheme of
the AICTE Act, particularly, the functions of the AICTE as prescribed
in Section 10, and having done so, we are inclined to hold that the
submission that the AICTE lacks the power to prescribe pay scales
deserves rejection. AICTE is tasked with the function of laying down
norms and standards for courses, the infrastructural facilities, staff
pattern and qualifications, quality instructions, assessment and
examinations.
We understand the term, “infrastructure” to encompass not
only the equipments, laboratories, buildings and the like, but also
the teaching and non-teaching staff. Excellence in imparting higher
and professional education is dependent on qualified and competent
teaching and non-teaching staff. There is no gainsaying that AICTE
is empowered to prescribe qualifications which would sub-serve
merit and excellence, and implicit in the duty to ensure that
excellence in higher and professional education is achieved, is the
duty and the power to prescribe pay scales which sufficiently reward
the teaching and non-teaching employees, who are qualified and
competent. Pay scales commensurate with qualifications, experience
and the nature of the duty which the teaching and the non-teaching
staff is expected to discharge, is necessary to incentivise merit.
Section 23 of the AICTE empowers the AICTE to make
regulations consistent with the provisions of the Act and the Rules,
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under Section 23 read with Section 10(i) and (v), the AICTE has
framed Regulations dated 22.1.2010 prescribing the pay scales,
service conditions and qualifications for the teachers and other
academic staff in technical institutions (Degree) (“The 2010
Regulations”). The 2010 Regulation apply to technical institutions
and universities including deemed universities imparting technical
education, and such other courses/programs and areas as notified by
the Council. Technical education is defined in section 2(g) of the
AICTE, thus:
2(g) - “technical education” means programmes of
education, research and training in engineering
technology, architecture, town planning,
management, pharmacy and applied arts and crafts
and such other programme or areas as the Central
Government may, in consultation with the Council,
by notification in the Official Gazette, declare;
Sub-section (h) defines technical institution, thus:
2(h) - “technical institution” means an institution, not
being a University, which offers courses or programmes
of technical education, and shall include such other
institutions as the Central Government may, in
consultation with the Council, by notification in the
Official Gazette, declare as technical institution; ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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C2.3) The fifth respondent is a technical institution which is
started pursuant to the permission granted by the AICTE, and is
recognized by the AICTE, and it appears to be us, that the fifth
respondent college is obligated to scrupulously implement the pay
scales and other service conditions prescribed in the AICTE
Regulations, supra.
C2.4) The Coordinate Bench decisions of this Court have
recognized the power of AICTE to prescribe pay scales. In D.Y. Patil
College of Engineering
Supra
, the Coordinate Bench has observed that
the AICTE is empowered to prescribe the pay structure of the
teaching staff of degree and diploma level technical institutions.
Rangnath Vishnu Raskar Vs. State of Maharashtra
59
, which is a
decision of a Coordinate Bench at Aurangabad considered a similar
issue in the context of the AICTE Regulations dated 5.3.2010 which
pertains to diploma courses.
C2.5) The fifth respondent institution is affiliated to the
University. Relevant statutes are the Universities act of 1994 and
the Universities Act of 2016 which came into effect from 11.1.2017.
C2.6) Section 81of the Act of 1994 reads thus:
81. Conditions for affiliation and recognition.
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(1) The management applying for affiliation or recognition,
and management whose college or institution has been
granted affiliation or recognition, shall give and comply with
the following undertaking.
(a) that the provisions of the Act and Statutes,
Ordinances and Regulations thereunder and the standing
orders and directions of the university shall be observed;
(b) that there shall be a separate local managing
committee provided for an affiliated college as provided
by section 85.
(c) that the number of students admitted for courses of
study shall not exceed the limits prescribed by the
university and the State Government from time to time;
(d) that there shall be suitable and adequate physical
facilities such as buildings, laboratories, libraries, books,
equipment required for teaching and research, hostels,
gymnasium, as may be prescribed;
(e) that the financial resources of the college or
institution shall be such as to make due provision for its
continued maintenance and working:
(f) that the strength and qualification of teaching and
non- teaching staff of the affiliated colleges and
recognised institutions and the emoluments and the
terms and conditions of service of the staff of affiliated
colleges shall be such as prescribed by the university and
which shall be sufficient to make due provision for
courses of study, teaching or training or research,
efficiently;
(g) that the services of all teaching and non-teaching
employees and the facilities of the college to be affiliated
shall be made available for conducting examinations [. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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and evaluation.] and for promoting other activities of
the university;
(h) that the directions, and orders issued by the
Chancellor, Vice-Chancellor and other officers of the
university in exercise of the powers conferred on them
under the provisions of the Act, Statutes, Ordinances and
Regulations shall be complied with;
(i) that there shall be no change or transfer of the
management without previous permission of the
university;
(j) that the college or institution shall not be closed
without previous permission of the university;
(k) that in the event of disaffiliation or derecognition or
closure of the college or institution under section 92 all
the assets of the college or institution including building
and equipment which have been constructed or created
out of the amount paid as a grant-in-aid by the State
Government or the University Grants Commission shall
vest in the State Government.
(2) No college which is part of another university shall be
considered for affiliation unless a "no objection certificate" is
given by the parent university.
C2.7) Clause (f) of Sub-section (1) of Section 81 provides that
the emoluments and terms and conditions of the teaching and non-
teaching staff of affiliated colleges shall be such as prescribed by
University.
C2.8) The corresponding provision in the Universities Act of
2016 is section 108, which reads thus: ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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“108. Conditions of affiliation and recognition.
(1) The management applying for affiliation or recognition,
and the management whose college or institution has been
granted affiliation or recognition, shall give the following
undertaking and shall comply with the following conditions, -
(a) that the provisions of the Act and Statues,
Ordinances, and Regulations made thereunder and the
standing orders and directions of the university and State
Government shall be complied with;
(b) that there shall be a separate College Development
Committee provided for an affiliated college as provided
by section 97 of the Act;
(c) that the number of students admitted for courses of
study shall not exceed the limits prescribed by the
university and the State Government, from time to time;
(d) that there shall be suitable and adequate physical
facilities such as buildings, laboratories, libraries, books,
equipment required for teaching and research, hostels,
gymnasium, etc. as may be prescribed;
(e) that the financial resources of the college or
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continued maintenance and working;
(f) that the strength and qualifications of teachers and
non teaching employees of the affiliated colleges and
recognized institutions and the emoluments and the
terms and conditions of service of the staff of affiliated
colleges and recognized institution shall be such as may
be specified by the university and the State Government
and which shall be sufficient to make due to provision
for courses of study, teaching or training or research,
efficiently;
(g) that the services of all teachers and non teaching
employees and the facilities of the college to be affiliated
shall be made available for conducting examinations and
evaluation and for promoting other activities of the
university;
(h) that the directions and orders issued by the
Chancellor, Vice-Chancellor and other officers of the
university in exercise of the powers conferred on them
under the provisions of this Act, Statutes, Ordinances
and Regulations shall be mandatorily complied with;
(i) that there shall be no change or transfer of the
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institution, without prior permission of the university;
(j) that the college or institution shall not be closed
without prior permission of the university;
(k) that in the event of disaffiliation or de-recognition or
closure of the college or institution under section 121,
the management shall abide by and execute the decision
of Academic Council regarding the damages or
compensation to be recovered from management.
(2)No college or institution of higher learning which is part
of another university shall be considered for affiliation or
recognition, as the case may be, unless a “no objection
certificate” is given by the parent university.
C2.9) Clause (f) of Sub-section (1) of Section 108 is similar to
the corresponding provision in the Act of 1994, except that the
emoluments and the conditions of service of affiliated colleges shall
be as may be specified by the University and the State Government.
C2.10) It is argued by Mr. Bhangde that while the fifth
respondent college did submit the undertakings, even after coming
into force of the Act of 2016 the University continued to accept the
undertaking in the old format with the result that the undertakings
do not refer to the emoluments specified by the State Government.
This submission need not detain us for long. The duty of the ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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institution seeking affiliation to pay the emoluments as may be
prescribed or specified, by the University or the State Government,
as the case may be, is not dependent on the submission of the
undertakings, much less on the form thereof. The statutory duty is
absolute. Neither the factum of submission nor the form of the
affidavits is decisive. An institution seeking and securing affiliation
cannot be heard saying that the undertaking was not submitted or
that the undertaking was in the old format. The duty cast on the
educational institution creates a corresponding right in favor of the
employees, which can be the basis for seeking writ of mandamus.
C2.11) The crucial question is however, whether the State
Government or the University has specified the pay structure, which
we shall address in the paragraphs to follow.
C2.12) In our view, the well entrenched position of law is that
even an unaided minority institution which seeks recognition from
the regulatory body is bound by the terms and conditions of the
recognition unless the terms and conditions of recognition are such
as destroy or obliterate the substance of the right to administer
educational institutions of choice, which is guaranteed under Article
30(1) of the Constitution of India.
C2.13) We shall refer to and consider the specific regulations
and notifications issued by the AICTE, the relevant Government
Resolutions and the effect and implication of the conditions of
affiliation, in the paragraphs to follow in which we would be ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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considering separately the claim of the petitioners to be entitled to
the pay structure recommended by the 6
th
Pay Commission and the
7
th
Pay Commission.
C-3) The significance and legal implication of the
affidavits submitted by the management in the fees
determination proceedings.
C3.1) Section 11 of the Act of 2015, constitutes Fees
Regulating Authority (FRA). The mandate of FRA is to exercise
powers conferred, and discharge the functions assigned to it under
the Act of 2015.
C3.2) Section 13 provides that the FRA shall inter alia
determine the reasonableness of fees levied by unaided institutions
on the basis of the factors specified in section 15. In discharge of its
functions and for the purpose of making any enquiry, the FRA is
conferred with all the powers of a Civil Court under the Code of Civil
Procedure, 1908, in respect of the following matters.
“13(4)(i) the summoning and enforcing the attendance
of any witness and examining him on oath;
(ii) the discovery and production of any document;
(iii) the reception of evidence on affidavits;
(iv) -the issue of commission for the examination of the
witness”.
C3.4) Section 14 lays down the procedure to be followed by the
management of the unaided institution while seeking determination of
the reasonableness of fee structure. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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C3.5) Section 15 is the pivotal provision which spells out the
factors which shall be considered by the FIR while determining the
reasonableness of the fee structure. One factor is the expenditure on
the prescribed salaries of the teaching and non-teaching staff.
C3.6) It is admitted, and in any event incontrovertible, that in
the fees determination proceedings, the management submitted
affidavits stating that the salaries to the employees are paid as per
the norms of the AICTE, the State Government and the University.
C3.7) It is further not in dispute that the employees are as a
fact not paid the salary which is claimed by the management in the
affidavits and the supporting material, submitted in the fee
determination proceedings.
C3.8) It is not even argued that an unaided minority institution
is not amenable to the mandate of Act of 2015. The management
sought and obtained the approval of the FRA inter alia on the basis
of certain solemn representations on oath. Mr. Bhangde did make
an attempt to persuade us to hold, that the discrepancy or variance
is not of relevance inasmuch as a matter of accounting practice, the
interest etc on the finance availed to discharge the liability of the
salary payment, was factored in the affidavits and supporting
material submitted to the FRA. We are not impressed by the
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C3.9) It appears to us on principle, that an institution which
has secured the fees determination from the FRA on the basis of
certain representations, must as a matter of public policy, be held
bound by the solemn statements on oath. Any other view, would be
destructive of the efficacy of the statutory regime of determination
of the reasonableness of the fee structure.
C4.) Are the regulations framed by the AICTE not
enforceable in law in view of the provisions of Section 24 of
the AICTE?
C4.1) Section 24 of the AICTE reads thus:
24. Rules and regulations to be laid before
Parliament. - Every rule and every regulation made
under this Act shall be laid, as soon as may be after
its made, before each House of Parliament, while it
is in session, for a total period of thirty days which
may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the
session immediately following the session or the
successive session aforesaid, both Houses agree in
making any modification in the rule or regulation or
both Houses agree that the rule or regulation should
not be made, the rule or regulation shall thereafter
have effect only in such modified form or be of no
effect, as the case may be; so, however, that any
such modification or annulment shall be without
prejudice to the validity of anything previously done
under that rule or regulation.
C4.2) We may note the stand of the AICTE as regards the
laying down condition. Referring to the notification dated 5.3.2010, ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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AICTE states thus:
“8.I respectfully submit that, so far as the
information regarding the notification of dated
5.3.2010 of Pay Scales, Service conditions and
Qualifications for the Teachers and other Academic
Staff in Technical Institution (Diploma) Regulations,
2010 are not available on the website of Lok Sabha,
Parliament of India. The information is available only
from 20.6.2019 to 20.7.2022 for the papers laid on
the table of the House.
9. I respectfully submit that, the answering
respondent is taking all the efforts form the Ministry
of Human Resource Development and gather the
information of the placing of the notification dated
5.3.2010/Annual Report placed before the Houses of
the Parliament”.
C4.3) Referring to the notification dated 1.3.2019, the stand of
the AICTE is that the said notification was, as a fact, placed before
the Parliament as is discernible from paragraphs 5 & 6, which we
extract.
“5. I respectfully submit that the answering
respondent vide letter No. 37-03/legal/AICTE/2019
dated 7/13.3.2019 has sent the said notification to
Ministry of Human Resource Development,
Department of Higher Education, New Delhi, for
placing them before the both the houses of the
parliament as per the provisions of Section 24 of
AICTE Act, 1987. The copy of the said letter is
annexed herewith as Annexure No. 2.
6. I respectfully submit that Annual Report 2018-
2019, by the Govt. of All India Council for Technical
Education, new Delhi for the year 2018-2019 along ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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with the audited accounts, in the said report, para
5.10 stipulates 7
th
Pay Commission Notification for
diploma and degree level institution which is
incorporated int eh said report, the said papers laid
on the table of the house on 3.2.2020. A copy of the
information received from National Informatics’
Centre showing the papers laid on the table of the
house which was downloaded from the official
website of the Parliament of India on 23
rd
January
2023 alongwith Annual Report 2018-2019 is annexed
herewith as Annexure No. 3”.
C4.4) Mr. Bhangde argues that since it is not shown that the
AICTE Regulations were as a fact, laid before both the Houses of the
Parliament, the Regulations do not have the force of law. In Jan
Mohd Noor Mohd. Bagwan the Constitution Bench of the Supreme
Court considered the submission that the rules framed by the
Provincial Government in exercise of power conferred under Section
26(1) of the Bombay Agricultural Produce Markets Act have no legal
validity as they were not laid before the each of the Houses of
Provincial Legislature at the session next following, as is provided by
sub-section (5) of Section 26. The Constitution Bench rejected the
submission and upheld the validity of the rules. We extract the
relevant observations of the Constitution Bench, thus:
"The rules under Act 22 of 1939 were framed by the
Provincial Government of Bombay in 1941. At that
time there was no Legislature in session, the
Legislature having been suspended during the
emergency arising out of World War II. The session
of the Bombay Legislative Assembly was convened
for the first time after 1941 on May 20, 1946 and
that session was prorogued on May 24, 1946. The ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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second session of the Bombay Legislative Assembly
was convened on July 15, 1946 and that of the
Bombay Legislative Council on September 3, 1946
and the rules were placed on the Assembly Table in
the second session before the Legislative Assembly
on September 1, 1946 and before the Legislative
Council on September 13, 1946. Section 26(5) of
Bombay Act 22 of 1939 does not prescribe that the
rules acquired validity only from the date on which
they were placed before the Houses of Legislature.
The rules are valid from the date on which they are
made under s. 26(1) . It is true that the Legislature
has prescribed that the rules shall be placed before
the Houses of Legislature, but failure to place the
rules before Houses of Legislature does affect the
validity of the rules, merely because they have not
been placed before the Houses of the Legislature.
Granting that the provisions of sub-s. (5) of S. 26 by
reason of the failure to place the rules before the
Houses of Legislature were violated, we are of the
view that Sub-s. (5) of S. 26 having regard to the
purposes for which it is made, and in the context in
which it occurs, cannot be regarded as mandatory.
(Emphasis supplied). The rules have been in
operation since the year 1941 and by virtue of s. 64
of the Gujarat Act 20 of 1964 they continue to
remain in operation”.
C4.5) Relying on the decision of the Constitution Bench in Jan
Mohd Noor Mohd. Bagwan, a Three Judge Bench of the Supreme
Court in M/s. Atlas Cycle Industries held that the use of the word
“shall” is not decisive and the requirement that the orders issued by
the Central Government in exercise of power conferred under sub-
section (1) of section 3 of the Essential Commodities Act, 1955 shall
be laid before both the Houses of Parliament as soon as may be, ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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after it is made, is directory and not mandatory. In M/s. Atlas
Cycle Industries, the Supreme Court noted that there are three kinds
of laying which are generally used by the Legislature, which are
described in Craies of Statute Law, as under:
(i) laying without further procedure,
(ii) laying subject to negative resolution,
(iii) laying subject to affirmative resolution.
(i) Simple laying. The most obvious example is
in section 10(2) of the 1946 Act. In earlier days, before
the idea of laying in draft had been introduced, there
was a provision for laying rules etc., for a period during
which time they were not in operation and could be
thrown out without ever having come into operation
(compare Merchant Shipping Act, 1894, s. 417;
Inebriates Act 1898, s. 21) but this is not used now.
(ii) Negative resolution. Instruments so laid have
immediate operative effect but are subject to annulment
within forty days without prejudice to a new instrument
being made. The phraseology generally used is "subject
to annulment in pursuance of a resolution of either
House of Parliament." This is by far the commonest form
of laying. It acts mostly as a deterrent and sometimes
forces a Minister (in Sir Cecil Carr's phrase) to "buy off
opposition" by proposing some modification.
(iii) Affirmative resolution. The phraseology here is
normally "no order shall be made unless a draft has been
laid before Parliament and has been approved by a
resolution of each House of Parliament. Normally, no
time limit is fixed for obtaining approval none is
necessary because the Government will naturally take
the earliest opportunity of bringing it up for approval -
but section 16(3) of the Housing (Financial
and Miscellaneous Provisions) Act, 1946 did impose a ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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limit of forty days. An old form (not much used
nowadays) provided for an order to be made but not to
become operative until a resolution of both Houses of
Parliament had been obtained. This form was used in
section 10(4) of the Road Traffic Act, 1930 (cf. Road
Traffic Act, 1960, s.19 (3) . ..
The affirmative resolution procedure necessitates a
debate in every case. This means that one object of
delegation of legislation (viz. saving the time of
Parliament) is to some extent defeated. The procedure
therefore is sparingly used and is more or less reserved
to cases where the order almost amounts to an Act, by
effecting changes which approximate to true legislation
(e.g. where the order is the meat of the matter, the
enabling Act merely outlining the general purpose) or
where the order replaces local Acts or provisional orders
and, most important of all, where the spending, etc. of
public money is affected.
C4.6) The Supreme Court noted that the condition of laying
did not provide that the order issued shall be subject to the negative
or the affirmative resolution by either House of Parliament nor is it
provided that it shall be open to the Parliament to approve or
disapprove the order made under section 3 of the Act. The
requirement as to the laying of the order is not condition precedent
but subsequent to the making of the order. The Supreme Court held
that the requirement as to the laying falls within the category of
“simply laying”.
C4.7) M/s. Atlas Cycle Industries considers a case of “simply
laying”. Another Three Judge Bench decision of the Supreme Court ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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in Prohibition & Excise Superintendent., A.P. and Others has
however, considered sub-section (4) of Section 72 of the Andhra
Pradesh Excise Act which is worded identically as section 24 of the
AICTE Act.
C4.8) Sub-section (4) of Section 72 of the Andhra Pradesh
Excise Act reads thus:
(4) Every rule made under this Act, shall,
immediately after it is made be laid before each
House of the State Legislature if it is in session and if
it is not in session, in the session immediately
following for a total period of fourteen days which
may be comprised in one session or in two
successive sessions and if before the expiration of
the session in which it is so laid or the session
immediately following both Houses agree in making
any modification in the rule or in the annulment of
the rule, the rule shall, from the date on which the
modification or annulment is notified, have effect
only in such modified form or shall stand annulled,
as the case may be, so however that any such
modification or annulment shall be without
prejudice to the validity of any thing previously done
under that rule.
C4.9) The partly concurring opinion of His Lordship Sinha J.,
distinguishes the decision in Union Of India Vs. National
Hydroelectric Power Corpn. Ltd. and Others.
60
which considered
sub-section(2) of section 16 of the Water (Prevention and Control of
Pollution) Cess Act, 1977. His Lordship noted that the condition of
60(2001)6 SCC 307 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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laying of the rules before both the Houses was held subject to
affirmative resolution. Said observation is in the context of the
requirement of sub-section (2) of section 16 that Central
Government shall seek the approval of the Parliament. His Lordship
Sinha J., further observed that in National Hydro Electric Power
Corporation, the effect of the directory nature of such provision was
not considered.
C4.10) The Two Judge Bench of the Supreme Court in Veneet
Agrawal...Vs.. Union of India and Others
61
, considered Section 31 of
the Securities and Exchange Board of India Act, 1992, which reads
thus:
31. Rules and regulations to be laid before Parliament. --
Every rule and every regulation made under this Act shall
be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one
session or in two or more successive sessions, and if,
before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses
agree in making any modification in the rule of regulation
or both Houses agree that the rule or regulation should
not be made, the rule or regulation shall thereafter have
effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that rule or regulation.
C4.11)The submission canvassed was that while the rules and
61(2007)13 SCC 116 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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regulations were laid before the Loksabha on 27.11.1992 and the
Rajyasabha on 16.12.1992, the rules were not laid before both the
Houses for a total period of thirty days as is the mandate of Section
31. Apart from not accepting the submission on facts, the Supreme
Court observes thus;
“15. This apart the issue relating to the laying down
of rules/regulations on the table of the Houses for
the period provided under the statute under which
they are so framed has been dealt with by this Court
in various cases. Some of these cases are Jan
Mohammad Noor Mohammad Bagban V. The State
of Gujarat & Another, 1966 (1) SCR 505, M/s. Atlas
Cycle Industries Limited & Others V. The State of
Haryana, 1979 (2) SCC 196, Hukum Chand V.
Union of India, 1972 (2) SCC 601, and Bank of India
etc. etc. V. O.P. Swarnakar & Others etc. etc., 2003
(2) SCC 721. In a recent judgment, this Court
followed the view taken in M/s. Atlas Cycle
Industries Limiteds case (supra) and Prohibition &
Excise Suptd., A.P. & Ors. V. Toddy Tappers Cooperative Society,
Marredpally and Others, 2003 (12) SCC 738.
16. In all these cases, the issue relating to laying
down and interpretation of the said regulation was
examined. It has been held in all these cases that the
laying of the rule before both the Houses of Parlia-
ment is merely a directory rule and not mandatory.
In the Case of O.P. Swarnakar & Others (Supra), the
provision providing for laying the rules before the
Legislative was exactly similar to Section 31 of the
SEBI Act. It was also held by this Court that the said
provision was directory and not mandatory. The
non-compliance with the laying of the rule before
the Parliament was not a sufficient ground to de-
clare the rules/regulations framed under the statute
as to be ultra vires. In Toddy Tappers Cooperative
Societys case (supra) Honble Mr. Justice Sinha in his ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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concurring judgment following the decision in Atlas
Cycle Industries Limiteds case (supra) and Quarry
Owners Association V. State of Bihar, 2000 (8) SCC
655 and various other judgments, distinguishing the
judgment in Union of India V. National Hydro elec -
tric Power Corporation Limited, 2001 (6) SCC 307,
(which has been relied upon by counsel for the ap-
pellant before us as well) has held as under:-
“32. The said observations, thus, must be held
to be confined to the fact of the matter obtaining
therein. In that case it was found as of fact that the
rule had never been placed before the Legislature
and, thus, there was even no substantial compliance
with the law. The Bench, however, did not consider
the effect of the directory nature of such a provision,
in the light of the decision of this Court in Atlas Cy-
cle Industries (supra) and Quarry Owners' Associa-
tion (supra). The Court further did not notice the
difference between the expressions 'approval' and
'permission'. Section 16 of the Water Act, construc-
tion whereof was in question did not use the expres-
sion 'prior approval'. The word 'approval' indicates
an Act which has already been made and is required
to be approved whereas in the case of 'permission',
the situation would be different. This aspect of the
matter has been considered by this Court in High
Court of Judicature for Rajasthan v. P.P. Singh and
Anr, 2003 (4) SCC 239 stating : (SCC p. 255, para
40)
"40. When an approval is required, an action
holds good. Only if it is disapproved it losses its
force. Only when a permission is required, the deci-
sion does not become effective till permission is ob-
tained. (See U.P. Avas Evam Vikas Parishad and Anr.
v. Friends Coop. Housing Society Ltd and Anr.
(1995) Supp (3) SCC 456], In the instant case both
the aforementioned requirements have been ful-
filled." ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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17. It was observed that provision was merely direc-
tory and not mandatory and even if the rules were
not laid before the House at all even then the non-
compliance with the laying down of the rules before
the Parliament could not be a ground to declare the
rules/regulations framed under the statute as ultra
vires”.
C4.12) The Three Judge Bench of the Supreme Court in OP
Swarnkar considered sub-section(4) of section 19 of the Banking
Companies (Acquisition and Transfer of Undertaking) Act, 1970,
which reads thus:
“ 4. Every regulation shall, as soon as may be after it
is made under this Act by the Board of Directors of a
corresponding new bank, be forwarded to the
Central Government and that Government shall
cause a copy of the same to be laid before each
House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one
session or in two or more successive sessions, and if,
before the expiry of the session immediately
following the session or the successive sessions
aforesaid, both Houses agree in making any
modification in the regulation or both Houses agree
that the regulation should not be made, the
regulation shall thereafter have effect only in such
modified form or be of no effect, as the case may be,
so, however, that any such modification or
annulment shall be without prejudice to the validity
of anything previously done under that regulation."
C4.13) Considering above extracted provision, which is pari
materia with Section 24 of the AICTE, the Supreme Court ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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summarized its conclusions thus:
“122. We may now deal with that part of the order
of the Punjab & Haryana High Court whereby it has
been held that the entire scheme is ultra vires being
violative of Clause 4 of the 1970 Act.
123. We do not agree with the decision of the High
Court on that count for more than one reason.
124. Firstly, the scheme is not a part of the statutory
regulation. It was in the realm of contract. That
being so it was not necessary for the Central
Government to place the same before the
Parliament.
125. Secondly, even if the same was a regulation,
the laying down rule is merely a directory one and
not mandatory. (emphasize supplied)
C4.15) A Two Judge Bench decision of the Supreme Court,
however, held in Association of Management of Private Colleges that
since the amended regulations were not placed on the floor of the
Houses of Parliament as is required under Section 24 of the AICTE
Act, the same are vitiated. None of the decisions of the Larger
Benches of the Supreme Court were brought to the notice of the
Two Judge Bench.
C4.16) Mr. Bhangde argues that the decision in OP Swarnkar is
not good law and is not in conformity with the decision of the Seven
Judge Bench in Krishna Kumar Singh.
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considering that the tabling of an ordinance before the Legislature
enables the Legislature to act in furtherance of its constitutional
power of supervision and control, and the Legislature is entitled to
determine whether an ordinance should be disapproved, the failure
to place an ordinance before the Legislature constitutes a serious
infraction of constitutional obligation which the executive has to
discharge by placing the Ordinance before the Legislature.
Significantly, Krishna Kumar Singh articulates that the requirement
of an ordinance being laid before the Legislature cannot be equated
with the laying of subordinate legislation. We extract the relevant
passage in Krishna Kumar Singh.
“99.The requirement of an Ordinance being laid
before the legislature cannot be equated with the
laying of subordinate legislation. An Ordinance is
made in the exercise of the legislative power of the
Governor which is subordinate to and not a stream
which runs parallel to the power of law making which
vest in the State Legislatures and Parliament. Any
breach of the constitutional requirement of laying an
Ordinance before the legislature has to be looked upon
with grave constitutional disfavour. The Constitution
uses the expression “cease to operate” in the context
of a culmination of a duration of six weeks of the
reassembling of the legislature or as a result of a
resolution of disapproval. The Framers introduced a
mandatory requirement of an Ordinance being laid
before the legislature upon which it would have the
same force and effect as a law enacted by the
legislature, subject to the condition that it would
cease to operate upon the expiry of a period of six
weeks of the reassembling of the legislature or
earlier, if a resolution of disapproval were to be
passed. The “cease to operate” provision is hence ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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founded on the fundamental requirement of an
Ordinance being placed before the legislature. If the
executive has failed to comply with its unconditional
obligation to place the Ordinance before the
legislature, the deeming fiction attributing to the
Ordinance the same force and effect as a law
enacted by the legislature would not come into
existence. An Ordinance which has not been placed
before the legislature at all cannot have the same
force and effect as a law enacted and would be of no
consequence whatsoever”.
C4.18) Considering the distinction drawn by the Seven Judge
Bench decision in Krishna Kumar Singh between laying of delegated
legislation and an ordinance, we are not inclined to align with the
submission of Mr. Bhangde that the decision in OP Swarnkar does
not accord with the view in Krishna Kumar Singh.
C4.19) Significantly, in Association of Management of Private
Colleges, AICTE did not dispute that the amended regulations were
not placed before the Parliament. In the present case, the stand of
the AICTE is that the Regulations of 2019 were as a fact, placed
before the Parliament. The AICTE contends that no information
is available on the Website of the Loksabha as to the status of the
Regulations of 2010. We accept the affidavit of AICTE that
Regulations of 2009 were as a fact placed before the Parliament.
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material on record, and the picture is blurred, we note that the
AICTE Regulations of 2010 are either referred to or relied upon in
catena of decisions holding the field since 2010, and in view of the
presumption that the procedural requirements of the subordinate or
plenary legislation are presumed to have been complied with unless
shown to the contrary, we are not persuaded to record a finding that
the Regulations of 2010 are invalid since the same were not placed
before both the Houses of Parliament, apart from the fact that we
are respectfully bound by the Larger Bench decisions of the Supreme
Court which have held similar provisions to be directory.
C5) Maintainability of the petition:
C5.1) The submission that the petition is not maintainable has
twin facets. The absence of statutory provision governing the pay
scales of the petitioners, and the premise that an unaided minority
institution is not State within the meaning of Article 12 of the
Constitution of India. Heavy reliance is placed by Mr.Bhangde on
the decisions in Sitambla Sharma and St. Mary’s Education Society.
C5.2) The factual matrix in Sitambla Sharma was that the
teachers of an unaided minority school approached the High Court
of Himachal Pradesh seeking parity with the teachers of government
and government aided schools in the matters of salary and
allowances. The learned Single Judge allowed the petition and in ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Letters Patent Appeal, the Division Bench set aside the judgment and
dismissed the writ petition. The teachers approached the Supreme
Court which disposed of the appeal holding that the Division Bench
was right in rejecting the claim to salary at par with the teachers of
government and government aided schools.
C5.3) The Supreme Court observes that the teachers of
Government schools are paid out of government fund whereas the
teachers of private unaided minority schools are paid out of the fees
and other resources of the private schools. The Supreme Court then
holds that unaided private minority schools over which the
government has no administrative control because of their
autonomy under Article 30(1) of the Constitution, are not State
within the meaning of Article 12 of the Constitution, and right to
equality under Article 14 cannot be claimed against unaided private
minority schools. The Supreme Court further holds that since a
private unaided minority school is not State within the meaning of
Article 12 of the Constitution, such school is not under any duty to
ensure equal pay for equal work. The Supreme Court enunciates
that mandamus could not be issued to a private unaided school to
pay the salary and allowances equal to the salary and allowances
payable to teachers of government schools inasmuch as the
emoluments of teachers of a private unaided school is a matter of
contract between the school and the teacher and is not within the
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C5.4) Considering the submission that the conditions of
provisional affiliation of schools prescribed by the Council for the
Indian School Certificate Examination stipulate that the salary and
allowances and other benefits of the staff of the affiliated school
must be comparable to that prescribed by the State Department of
Education, the Supreme Court holds that since the conditions of
provisional affiliation are neither statutory provisions nor executive
instructions, which are enforceable in law, the same cannot be
enforced by issuing a mandamus. (emphasize supplied)
C5.5) In our considered view, the Two Judge decision in
Sitambla Sharma is not an authority for the proposition that writ
petition against an unaided minority school is not maintainable.
The observation that an unaided private minority school is not State
within the meaning of Article 12 of the Constitution is in the context
of the right of the teachers to invoke Article 14 of the Constitution.
C5.6) We may notice paragraphs 15 to 20 in Andi Mukta
Sadguru, which read thus:
“15. If the rights are purely of a private character
no mandamus can issue. If the management of the
college is purely a private body with no public
duty mandamus will not lie. These are two
exceptions to Mandamus. But once these are
absent and when the party has no other equally
convenient remedy, mandamus cannot be denied.
It has to be appreciated that the appellants trust
was managing the affiliated college to which
public money is paid as Government aid. Public ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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money paid as Government aid plays a major role
in the control, maintenance and working of
educational institutions. The aided institutions like
government institutions discharge public function
by way of imparting education to students. They
are subject to the rules and regulations of the
affiliating University. Their activities are closely
supervised by the University authorities.
Employment in such institutions, therefore, is not
devoid of any public character. So are the service
conditions of the academic staff. When the
University takes a decision regarding their pay
scales, it will be binding on the management. The
service conditions of the academic staff are,
therefore, not purely of a private character. It has
super-added protection by University decisions
creating a legal right-duty relationship between
the staff and the management. When there is
existence of this relationship, mandamus can not
be refused to the aggrieved party.
16. The Law relating to mandamus has made the
most spectacular advance. It may be recalled that
the remedy by prerogative writs in England started
with very limited scope and suffered from many
procedural disadvantages. To overcome the
difficulties, Lord Gardiner (the Lord Chancellor) in
pursuance of Section 3(1)(e) of the Law
Commission Act, 1965, requested the Law
Commission "to review the existing remedies for
the judicial control of administrative acts and
omission with a view to evolving a simpler and
more effective procedure." The Law Commission
made their report in March 1976 (Law
Commission Ewpoer No. 73). It was implemented
by Rules of Court (Order 53) in 1977 and given
statutory force in 1981 by Section 31of the
Supreme Court Act 1981. It combined all the
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Judicial Review. Lord Denning explains the scope
of this "judicial review":
"At one stroke the courts could grant
whatever relief was appropriate. Not only
certiorari and mandamus, but also declaration and
injunction. Even damages. The procedure was
much more simple and expeditious. Just a
summons instead of a writ. No formal pleadings.
The evidence was given by affidavit. As a rule no
cross-examination, no discovery, and so forth. But
there were important safeguards. In particular, in
order to qualify, the applicant had to get the leave
of a judge.
The Statute is phrased in flexible terms. It
gives scope for development. It uses the words
"having regard to". Those words are very
indefinite. The result is that the courts are not
bound hand and foot by the previous law. They are
to “have regard to” it. So the previous law as to
who are-- and who are not--public authorities, is
not absolutely binding. Nor is the previous law as
to the matters in respect of which relief may be
granted. This means that the judges can develop
the public law as they think best. That they have
done and are doing."
17.There, however, the prerogative writ of
mandamus is confined only to public authorities to
compel performance of public duty. The “public
authority” for them means every body which is
created by statute--and whose powers and duties
are defined by statute. So Government
departments, local authorities, police authorities,
and statutory undertakings and corporations, are
all “public authorities”. But there is no such
limitation for our High Courts to issue the writ “in
the nature of mandamus”. Article 226 confers ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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wide powers on the High Courts to issue writs in
the nature of prerogative writs. This is a striking
departure from the English law. Under Article 226,
writs can be issued to "any person or authority". It
can be issued "for the enforcement of any of the
fundamental rights and for any other purpose".
18. Article226 reads:
"226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32, every
High Court shall have power, throughout the
territories in relation to which it exercises
jurisdiction to issue to any person or authority
including in appropriate cases, any Government,
within those territories directions, orders or writs,
including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, or any of them for the enforcement of
any of the rights conferred by Part III and for any
other purpose.
19. The scope of this Article has been explained by
Subba Rao, J., in Dwarkanath v. Income Tax
Officer (SCR pp. 540-41):
"This article is couched in comprehensive
phraseology and it ex-facie confers a wide power
on the High Courts to reach injustice wherever it is
found. The Constitution designedly used a wide
language in describing the nature of the power, the
purpose for which and the person or authority
against whom it can be exercised. It can issue writs
in the nature of prerogative writs as understood in
England; but the scope of those writs also is
widened by the use of the expression "nature", for
the said expression does not equate the writs that
can be issued in India with those in England, but
only draws an analogy from them. That apart, ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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High Courts can also issue directions, orders or
writs other than the prerogative writs. It enables
the High Courts to mould the reliefs to meet the
peculiar and complicated requirements of this
country. Any attempt to equate the scope of the
power of the High Court under Article 226 of the
Constitution with that of the English Courts to
issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over the
years in a comparatively small country like
England with a unitary form of Government into a
vast country like India functioning under a federal
structure. Such a construction defeats the purpose
of the article itself."
20. The term "authority" used in Article 226, in the
context, must receive a liberal meaning unlike the
term in Article 12. Article 12 is relevant only for
the purpose of enforcement of fundamental rights
under Art. 32. Article 226 confers power on the
High Courts to issue writs for enforcement of the
fundamental rights as well as non fundamental
rights. The words "Any person or authority" used
in Article 226 are, therefore, not to be confined
only to statutory authorities and instrumentalities
of the State. They may cover any other person or
body performing public duty. The form of the body
concerned is not very much relevant. What is
relevant is the nature of the duty imposed on the
body. The duty must be judged in the light of
positive obligation owed by the person or authority
to the affected party. No matter by what means the
duty is imposed, if a positive obligation exists
mandamus cannot be denied”.
In Andi Mukta Sadguru
Supra
, the Supreme Court
articulated that the term “authority” used in Article 226 must receive ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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a liberal meaning unlike the same term in Article 12. The Supreme
Court held that Article 12 is relevant only for the purpose of
enforcement of fundamental rights under Article 32, whereas Article
226 confers power on the High Courts to issue writs for enforcement
of the fundamental rights as well as non-fundamental rights. The
words “any person or authority” used in Article 226 are, therefore,
not to be confined only to statutory authorities and instrumentalities
of the State.
C5.7) In Andi Mukta Sadguru, the Supreme Court emphasized
that the form of the body concerned is not of much relevance and
what is relevant is the nature of the duty imposed on the body. If a
positive obligation exists, mandamus cannot be denied. Referring to
the articulation in Andi Mukta Sadguru, the Five Judge Bench in
Unni Krishnan, held that a private educational institution which
seeks recognition or affiliation from the university discharges public
duty and its actions must confirm with the right of equality
guaranteed under Article 14 of the Constitution of India. The
Supreme Court further observes that while in Andi Mukta Sadguru,
the meaning of authority under Article 226 was explained,
distinguishing the same term from Article 12, the emphasize is on
the nature of the duty and on the same principle, it must be held
that the educational institutions which are unaided also discharge
public duty, and absence of aid does not detract from the nature of
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C5.8) In Sitambla Sharma what weighed with the Supreme
Court was the absence of any statutory provision supporting the
right to parity and the fact that the conditions of provisional
affiliation were neither statutory nor were laid down by enforceable
executive instructions.
C5.9) In St. Mary’s Education Society the question considered
was whether writ petition filed by an office employee of a private
unaided minority educational institution challenging the termination
from service is maintainable in law.
C5.10) In paragraph 68, which we extract below, the Supreme
Court summarized the final conclusions, thus:
“68. We may sum up our final conclusions as under:-
(a) An application under Article 226 of the
Constitution is maintainable against a person or a
body discharging public duties or public functions.
The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the
person must be shown to owe that duty or obligation
to the public involving the public law element.
Similarly, for ascertaining the discharge of public
function, it must be established that the body or the
person was seeking to achieve the same for the
collective benefit of the public or a section of it and
the authority to do so must be accepted by the
public.
(b) Even if it be assumed that an educational
institution is imparting public duty, the act
complained of must have a direct nexus with the
discharge of public duty. It is indisputably a public ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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law action which confers a right upon the aggrieved
to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual
wrongs or breach of mutual contracts without having
any public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions
or the employer had the status of “State” within the
expansive definition under Article 12 or it was found
that the action complained of has public law
element.
(c) It must be consequently held that while a body
may be discharging a public function or performing a
public duty and thus its actions becoming amenable
to judicial review by a Constitutional Court, its
employees would not have the right to invoke the
powers of the High Court conferred by Article 226 in
respect of matter relating to service where they are
not governed or controlled by the statutory
provisions. An educational institution may perform
myriad functions touching various facets of public
life and in the societal sphere. While such of those
functions as would fall within the domain of a
"public function" or "public duty" be undisputedly
open to challenge and scrutiny under Article 226 of
the Constitution, the actions or decisions taken solely
within the confines of an ordinary contract of service,
having no statutory force or backing, cannot be
recognised as being amenable to challenge
under Article 226 of the Constitution. In the absence
of the service conditions being controlled or
governed by statutory provisions, the matter would
remain in the realm of an ordinary contract of
service.
(d) Even if it be perceived that imparting education
by private unaided the school is a public duty within ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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the expanded expression of the term, an employee of
a non-teaching staff engaged by the school for the
purpose of its administration or internal
management is only an agency created by it. It is
immaterial whether “A” or “B” is employed by school
to discharge that duty. In any case, the terms of
employment of contract between a school and non-
teaching staff cannot and should not be construed to
be an inseparable part of the obligation to impart
education. This is particularly in respect to the
disciplinary proceedings that may be initiated against
a particular employee. It is only where the removal
of an employee of non-teaching staff is regulated by
some statutory provisions, its violation by the
employer in contravention of law may be interfered
by the court. But such interference will be on the
ground of breach of law and not on the basis of
interference in discharge of public duty.
(e) From the pleadings in the original writ petition it
is apparent that no element of any public law is
agitated or otherwise made out. In other words, the
action challenged has no public element and writ of
mandamus cannot be issued as the action was
essentially of a private character”.
C5.11) The employee whose writ petition was held not
maintainable was an office employee, which led the Supreme Court
to observe that the terms of employment of contract between a
school and non-teaching staff cannot, and should not be construed
as an inseparable part of the obligation to impart education.
C5.12) In sub-paragraphs (a) and (b), the Supreme Court
observed that the public duty cast may either be statutory or ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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otherwise, and where the public duty is otherwise, the body or the
person against whom writ jurisdiction is invoked, must be shown to
owe that duty or obligation to the public, involving public law
element. The Supreme Court then observed that even assuming that
an educational institution is discharging public duty, the act
complained of must have a direct nexus with the discharge of public
duty. The Supreme Court noted that wherever the Courts have
intervened under Article 226, the service conditions were statutorily
regulated or the employer had the status of “State” within the
meaning of Article 12 or it was found that the action complained of
has public law element. The observations in paragraph 68(c) cannot
be read in isolation, de hors the observations and conclusions
recorded in the other sub-paragraphs of paragraph 68. What is
emphasized is that if the service conditions are purely contractual,
with no element of public law involved, writ would not lie against
the institution.
C5.13) In Manorama Khandekar
Supra
, the lecturer was an
employee of the very institution which is the fifth respondent in the
present petition. She was superannuated on completion of age of 50
years. The lecturer contended that age of retirement is 60 years.
On behalf of the fifth respondent – college, it was argued that being
a minority institution, the college is entitled to have own Service
Rules and Conditions and writ petition would not be maintainable as
the fifth respondent institution was not a State within the meaning
of Article 12 of the Constitution of India. While the decision in ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Sitambla Sharma was not brought to the notice of the Coordinate
Bench, after considering several other decisions of the Supreme
Court including the decision in Andi Mukta Sadguru, the Coordinate
Bench held that since the fifth respondent is recognized by the
Department of Higher and Technical Education of the State
Government, is also affiliated to the Nagpur University, and is
imparting higher education, the fifth respondent college is
discharging a public function and is amenable to writ jurisdiction.
C5.14)We are more than satisfied, that the 5
th
respondent
college is discharging public duty. We have already held that the
fifth respondent is bound not only to fulfill the conditions of
recognition and affiliation, the fifth respondent is also bound by the
solemn statements on affidavit submitted to the FRA on the basis of
which the fees came to be determined in exercise of statutory power.
While the fifth respondent may not be a State within the meaning of
Article 12 of the Constitution of India, the fifth respondent is
certainly an authority within the meaning of Article 226 of the
Constitution of India and is amenable to writ jurisdiction.
C5.15) We reject the objection that the writ petition is not
maintainable.
D) Binding force of Mahatma Gandhi
D.1) The response of Mr. Bhangde to the ponderous reliance ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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placed by Mr. Khapre on the decision of the Supreme Court in
Mahatma Gandhi is a valiant attempt to persuade us to hold, that
Mahatma Gandhi is not a binding precedent and the articulation
therein is not ‘law’ declared by the Supreme Court within the
meaning of Article 141 of the Constitution of India.
D2) Mr. Bhangde submits that Mahatma Gandhi considers
the Government Resolution dated 12.8.2009 which was issued
pursuant to the UGC Regulations and was not applicable to colleges
imparting technical education. During the course of the arguments,
the learned counsel for the petitioners has conceded that the said
Government Resolution dated 12.8.2009 is not applicable, is the
submission. The Government Resolution dated 12.8.2010 and
11.9.2019 are admitted by the State Government to be the policy
decisions of the State Government, and the decision in Mahatma
Gandhi, which holds that Government Resolution dated 12.8.2009 is
issued in exercise of power under Section 8(3) of the Universities
Act of 1994, is not applicable.
D.3) Mr. Bhangde submits that Mahatma Gandhi was not
considering the revision of pay scales of unaided minority
institutions. The decision in Mahatma Gandhi is based upon
concession made at the bar. In view of the concession, no
submissions were advanced by the parties on the question whether
Government Resolution dated 12.8.2009 can be said to have been
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Act of 1994, and therefore, the findings recorded in Mahatma
Gandhi is not law declared by the Supreme Court. Reliance is
placed on the decisions of the Supreme Court in Ravinder Kaur
Grewal and Secretary to Government of Kerala(supra).
D.4) Mr. Bhangde would then submit that the Government
Resolution dated 20.8.2010 and Government Resolution dated
11.9.2019 have not been published in the official gazette, and
therefore, it cannot be said that the said Government Resolutions
have been issued in exercise of statutory power. Reliance is placed
on the decision of the Supreme Court in;
a) I.T.C. Bhadrachalam Paperboards and another Vs.
Mandal Revenue Officer and Others
62
b) Rajendra Agriculture University Vs. Ashok Kumar
Prasad and Others
63
c) Municipal Corporation of Greater Mumbai Vs. Anil
64
d) Gulf Goan Hotels Company Limited and another Vs.
Union of India and Others
(Supra)
Mr. Bhangde would submit that Mahatma Gandhi did
not notice previous binding precedents. Reliance is placed on the
decisions of the Supreme Court in;
a) A.K. Bindal & Another Vs. Union of India
Supra
b) T.M. Sampath & Others vs. Secretary, Ministry of
62(1996)6 SCC 634
63(2010)1 SCC 730
64(2016)15 SCC 726 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Water Resources & Others
65
c) State of U.P. & Others Vs. Virendra Kumar & Others
Supra
D.5) Mr. Bhangde would argue that Mahatma Gandhi relies
on certain decisions, the ratio of which is watered down.
Distinguishing the decision in Ballabhadas Mathurdas Lakhani and
Dr. Subramaninan Swamy
Supra
on which Mr. Khapre relies, it is
submitted that the said decisions consider the judgment of the
Supreme Court which was rendered in contested matter.
D.6) In rebuttal, Mr. Khapre would submit that decision of
Supreme Court binds the High Court and it could not be ignored
because the High Court muses that the relevant provisions were not
brought to the notice of the Court. Support is drawn from the
decision in Ballabhadas Mathurdas Lakhani. Relying on Dr.
Subramaninan Swamy, Mr. Khapre submits that the decision of the
Supreme Court would not lose its authority merely because it was
badly argued, inadequately considered or fallaciously reasoned.
D.7) Learned counsel Mrs. Gauri Venkatraman, who appears
in connected matter, has invited our attention to the decision of the
Supreme Court in Suganthi Suresh Kumar Vs. Jagdeeshan
66
, and in
particular, to paragraph 9, which reads thus:
“9. It is impermissible for the High Court to overrule the
decision of the Apex Court on the ground that Supreme
65(2015)5 SCC 333
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Court laid down the legal position without considering
any other point. It is not only a matter of discipline for
the High Courts in India, it is the mandate of the
Constitution as provided in Article 141 that the law
declared by the Supreme Court shall be binding on all
courts within the territory of India. It was pointed out
by this Court in Anil Kumar Neotia v. Union of India,
that the High Court cannot question the correctness of
the decision of the Supreme Court even though the
point sought before the High Court was not
considered by the Supreme Court”.
D.8) We have given earnest consideration to the decisions
cited at the bar, and having done so, we are not inclined to accept
the submission canvassed by Mr. Bhangde, erudite and tenacious as
the presentation was, that Mahatma Gandhi is not law declared
within the meaning of Article 141 of the Constitution of India.
D.9) Mahatma Gandhi is not based upon concession of the
parties as is argued. The observation in Mahatma Gandhi, which
according to Mr. Bhangde evidences the concession reads thus- “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 of India or in exercise of the
authority under some statutory provision. All that the respective
counsel for the parties agreed was that Government Resolution may
reflect the decision taken in exercise of executive power under
Article 162 of the Constitution of India or exercise of statutory
power. It appears to us to be well settled that the nomenclature is ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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not decisive and a Government Resolution may well be considered
to have been issued in exercise of statutory power.
D.10) Mahatma Gandhi was heavily relied by the Coordinate
Bench in Rangnath Vishnu Raskar Vs. State of Maharashtra (WP
8949/2016). Mr. Rangnath Vishnu Raskar claimed to be entitled to
salary in accordance with the recommendations of the 6
th
Pay
Commission as prescribed under Government Resolution dated
12.8.2009, which is considered in Mahatma Gandhi. Mr. Raskar
further relied on the AICTE notification dated 5.3.2010. The
institution concerned was an unaided engineering college. The
Co-ordinate Bench held thus:
“10. In a writ petition filed by the Management
bearing No. 6508 of 2013, three members
committee appointed by this court has submitted the
report to the effect that the petitioner was ready to
rejoin and it was the Management who was not
allowing the petitioner to rejoin the duties. It is also
not disputed that till the date of retirement the
petitioner has been paid consolidated amount per
month. It also appears that the petitioner has not
been paid the salary as per 6
th
Pay Commission
recommendations.
11. The issue that the Assistant Professors/Lecturers
of private colleges are entitled for affiliation to the
University, are entitled for the payment of salary as
per 6
th
Pay Commission recommendations is no
longer res integra. The Apex Court in Civil Appeal
No. 115-116 of 2017 upholding the Judgment of this
court has observed that the Government Resolution
dated 12.8.2009 confers a legal right on the teaching
staff of the affiliated colleges irrespective of the fact ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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whether they are aided or not for payment as per the
recommendations of the 6
th
Pay Commission. In
view of that, there would be no difficulty in holding
that the petitioner would be entitled for the salary as
per the 6
th
Pay Commission recommendation.
12. Though the petitioner it appears had made
application to the Institution however had not
ventilated his grievance before the court of law and
for the first time on or about 13.10.2015 made an
application before the College Tribunal for payment
of salary in accordance with the recommendations of
the 6
th
Pay Commission. It would appear that the
petitioner has already retired from service on
attaining the age of superannuation on 31.5.2014
and till his retirement has not approached the
judicial or quasi judicial forum for redressal of his
grievance to grant the benefit of 6
th
Pay Commission.
It would be too inequitable to grant benefit to the
petitioner from 1.1.2006 and put the respondent to
hardship”.
D.11) It appears that the decision in Rangnath Raskar was
assailed before Supreme Court by both the employee and the
management. The employee was presumably aggrieved by the
direction of the High Court that the monetary relief shall be
restricted to three years prior to the application filed before the
college tribunal.
D.12) The Supreme Court allowed the Special Leave Petition
filed by Mr. Raskar and held that the relief to payment of salary in
accordance with the report of the 6
th
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1.1.2006.
The Supreme Court further observed thus:
Having heard learned counsel for both parties in
both appeals, we are of the view that the impugned
judgment dated 19.12.2017 correctly referred to this
court’s judgment reported in Secretary, Mahatma Gandhi
Mission and Another Vs. Bhartiya Kamgar Sena and
Others (2017)4 SCC 449 (if we may add, paragraphs
Nos. 73 and 74, in particular).
Therefore, there can be no doubt that the
petitioner in SLP(c) No. 8124/2018, has a legal right to
be paid in accordance with the Report of the Six Pay
Commission”.
D.13) It is of some significance that Mr. Raskar, who was a
lecturer on the establishment of an engineering college was granted
relief by the High Court on the basis of the Government, Resolution
dated 12.8.2009 issued by the State Government which is the same
Government Resolution considered in Mahatma Gandhi, and the
AICTE notification dated 5.3.2010, which view is confirmed by the
Supreme Court by speaking order which refers to the decision in
Mahatma Gandhi. The decision of the Coordinate Bench which is
rendered on the basis of Mahatma Gandhi having received the
imprimatur of the Supreme Court, we are not inclined to consider
the submission of Mr. Bhangde that Mahatma Gandhi did not
consider earlier binding precedents or that reliance is placed on
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decisions of the Supreme Court. Even de hors the imprimatur of the
Supreme Court, it would be impermissible for us, as a matter of
judicial discipline, to consider such submissions.
DD) Entitlement of the petitioners to pay structure rec-
ommended by the 6
th
Pay Commission and the 7
th
Pay Com-
mission-
DD.1) We have considered and rejected the submission
canvassed by Mr. Bhangde that the enunciation in Mahatma Gandhi
is not law declared within the meaning of Article 141 of the
Constitution of India.
DD.2) Inevitably, we must analyze the said decision on which
heavy reliance is placed by the petitioners in support of the
submission that the pay scales recommended by the 6
th
and the 7
th
Pay Commission are applicable.
DD.3) Mahatma Gandhi Mission is a public trust administering
engineering colleges at Nanded and Aurangabad in the State of
Maharashtra, and is an unaided institution. The UGC recommended
extension of the benefit of the revised pay scales under the 6
th
Pay
Commission report to the teaching staff of all central universities,
deemed universities and universities whose maintenance
expenditure is borne by UGC. UGC recommendations were accepted
by the Union of India which formulated a scheme, which declared
that the scheme may be extended to universities, colleges and other ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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higher educational institutions coming under the purview of State
Legislature, subject to the conditions stipulated. The State of
Maharashtra issued Government Resolution dated 12.8.2009
revising the pay scales and dearness allowances of all teachers and
other equivalent cadre of the universities, colleges and other higher
educational institutions coming under the purview of the State
Legislature.
DD.4) The teaching and non-teaching staff of the engineering
colleges at Aurangabad and Nanded approached the High Court,
seeking the benefit of the revision of pay scales, which allowed the
petition.
DD.5) The Supreme Court noted that the AICTE made
regulations dated 5.3.2010 dealing with the pay scales and service
conditions for the teachers and other academic staff in technical
institutions. The Supreme Court observed that the AICTE
Regulations are applicable, only to teachers and other academic staff
of technical institutions and do not apply to the non-teaching staff.
We are not concerned in the present petition with non-teaching
staff, and to the extent Mahatma Gandhi deals with the entitlement
of the non-teaching staff to the revised pay scale, we may not refer
to or consider the articulation therein.
DD.6) It is apposite to note the submissions which were
canvassed, and which we extract; ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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“55 (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.
55(ii) A law creating such statutory obligation must be
express.
55(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 appellant which is
an unaided college cannot be compelled to pay the
salary and other allowances to its employees in terms of
the recommendations of the Sixth Pay Commission in
the absence of any express statutory obligation to make
such payment.
55(iv) The AICTE Regulations dated 05.03.2010 though
textually apply to the teaching and other academic staff
etc. imparting 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.
55(v) The AICTE Act does not authorise the AICTE to ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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regulate the service conditions of the employees of
technical institutions”.
DD.7) The Supreme Court held that the Government Resolution
dated 12.8.2009 does not make any distinction between aided and
unaided colleges. Noting that the Government Resolution does not
purport to be one made in the exercise of power under Section 8(3) of
the Universities Act of 2016, the Supreme Court held that mere
absence of the recital of the source of power cannot determine the legal
status of the instrument. The Supreme Court then proceeded to hold
that Government Resolution 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 of 1994 and confers a legal right on the teacher staff of
the affiliated colleges irrespective of the fact whether they are aided or
not.
DD.8)Mahatma Gandhi is relied upon by several Coordinate
Benches. We may only refer to Kiran Manikrao Bhusare, D.Y. Patil
College of Engineering, and Rangnath Vishnu Raskar which
judgment is modified by the Supreme Court only to the extent that
the relief granted to the employee by the High Court is enlarged.
We have further considered the decisions rendered by the
Coordinate Bench in Writ Petition 11259/2017 (Vinayak s/o.
Laxmanrao Gadhekar Vs. State of Maharashtra & Others, Writ
Petition 481/2019 (Ms. Veena d/o. Kewalram Katankar & Ors...Vs.
State of Maharashtra and Others), Writ Petition 3489/2020 (Mr.
Milind Kumar s/o. Sitaram Jibhakate and Others Vs. State of ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Maharashtra and Others) to which decision, one of us (Rohit B. Deo,
J.) was a party.
DD.9) While Mr. Bhangde did argue that the petitioners
conceded that the Government Resolution which is considered by
Mahatma Gandhi is not applicable, we are not inclined to delve
deeper in the said submission.
DD.10)The petition asserts that the said Government Resolution
is applicable, and in any event, in view of the authoritative
pronouncement of the Supreme Court in Mahatma Gandhi, we are
not inclined to attach much significance to the concession, if any,
made by the petitioners. In our considered view, the Supreme Court
having held that the Government Resolution dated 12.8.2009 is
issued is issued in exercise of statutory power under Section 8(3) of
the Universities Act of 1994 and applies with equal vigor to unaided
institutions, the said Government Resolution applies also to unaided
minority institution.
DD.11) We do not find it necessary to consider the implication of
the AICTE Regulations of 2010, which though noted in Mahatma
Gandhi, do not appear to have been considered in any detail. We
have opined supra, that a technical institution is bound by the norms
of the AICTE. However, independent of the AICTE Regulations of
2010, the right of the petitioners to the benefit of the
recommendations of the 6
th
Pay Commission stands crystallized in ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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view of the Government Resolution dated 12.8.2009, which the
Supreme Court has held to have been issued in exercise of statutory
power.
DD.12) We may now consider the claim of the petitioners to
entitlement to the benefit of the recommendations of the 7
th
Pay
Commission. The AICTE Regulations of 2019 are applicable to all
degree level technical institutions and universities including deemed
public universities imparting technical education and other courses/
programmes approved by AICTE. The fifth respondent is irrefutably
a degree level technical institution which is imparting technical
education and courses approved by AICTE.
DD.13) The State of Maharashtra issued Government Resolution
dated 11.9.2019, the preamble of which Government Resolution
reads thus:
“The 6
th
Pay Commission pay scales in accordance
with the recommendations of All India Council for
Technical Education for teachers and other academic
staff in degree level technical institutions were
implemented in the State vide Government
Resolution mentioned in Reference No.1,2,3 above
and Recruitment Rules published vide Government
Resolution mentioned in reference No. 4 above.
Ministry of Human Resource Development,
Government of India, has communicated the decision
of Government of India to All India Council for
Technical Education Vide its Letter No.
1-37/2016/TS II dated 18
th
January, 2019, regarding
revision of pay scales of Engineering and Technical ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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Institution under preview of AICTE. After the
approval received from Government of India, All
India council for Technical Education revised the pay
structure of teachers and other academic staff in
degree level technical institutions as per the 7
th
pay
commission recommendation vide its notification
mentioned in Reference No. 6 above. AICTE also
communicated to State Government vide its letter
mentioned in Reference NO. 7 to take appropriate
action to implement the recommendations contained
in the notification dated 1
st
March 2019 issued by
AICTE.
The scheme announced by the All India
Council for Technical Education is applicable to all
degree level technical institutions and Universities,
including deemed to be Universities imparting
technical education and such other
courses/programs approved by AICTE and areas as
notified by AICTE from time to time.
The scheme announced by All India Council for
Technical Education for the Revision of Pay Scales,
Minimum Qualifications for the appointment, Career
Advancement Schemes, Terms and Conditions of
Teachers and other academic staff such as Library
and equivalent cadre in Degree Level Technical
Education as per AICTE Scheme (7
th
Pay
Commission) to Dr. Babasaheb Ambedkar
Technological institutes conducting Professional
Degree Courses such as Engineering and Technology,
Pharmacy, Architecture, Hotel Management and
Catering Technology etc. was under consideration of
Government”.
DD.14) It is laboriously urged that the Government Resolution
dated 11.9.2019 is not applicable to unaided institutions, and we
therefore, reproduce clause 1.1 of the Government Resolution ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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verbatim.
1.1 The revised pay scales together with conditions
mentioned in this Government Resolution shall
apply to teachers and other academic staff in Dr.
Babasaheb Ambedkar Technological University,
Lonere, Institute of Chemical Technology,
Government Deemed University, Matunga Mumbai,
All Government and Non-Government Aided
Institutes, Universities affiliated and Autonomous
institutes conducting Professional Degree Courses
such as Engineering and Technology, Pharmacy,
Architecture and such other courses/programs under
the preview of AICTE.
DD.15) Edifice of the submission canvassed by Mr. Bhangde is
that word “and” between “university affiliated and autonomous
institute” must be read conjunctively and not disjunctively. In sum
and substance, the contention is that an unaided institution must
satisfy the twin test of affiliation and autonomy. Mr. Bhangde
would submit that if the word “and” is read as “or” then word
“autonomous” will be rendered redundant.
DD.16)It is common ground that every autonomous institute
should necessarily be affiliated to the university. Accepting the
submission canvassed by Mr. Bhangde would render the word
“university affiliated” redundant and otiose. The anomalous and
incongruous result of accepting such an interpretation would be that
while an unaided autonomous institute affiliated to the university
shall be covered by the Government Resolution dated 11.9.2019, an ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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unaided affiliated institute which is not autonomous shall stand
excluded. Considering that the Government Resolution dated
11.9.2019 is issued in view of the directive issued by the AICTE to
the State Government to take appropriate action to implement the
recommendation contained in the AICTE Regulations of 2019, we
are not inclined to align with the interpretation put by Mr. Bhangde
on the applicability clause.
DD.17) In our considered view, the fifth respondent – college is
covered by the applicability clause of both the AICTE Regulations of
2019 and the Government Resolution dated 11.9.2019 and the
petitioners and similarly situated employees are entitled to the
benefit of the pay scales recommended by the 7
th
Pay Commission.
The entitlement of the petitioners further flows from the
corresponding right created in their favour by the solemn statements
on affidavits submitted by the management in the fees
determination proceedings and the undertaking that the salary paid
is and shall be as per the norms of the AICTE/Department of
Technical Education/Government/University. WE have held supra
that as a matter of public policy, the management must be held
bound by the solemn statements on the basis of which the
reasonableness of the fees structure proposed by the management is
determined.
DD.18) Every institution, including unaided minority institution
is obligated to fulfill and comply with the conditions of recognition ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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and affiliation. The condition of recognition, and as a fact,
condition of the permission for starting the 5
th
respondent college is
that the teachers shall be paid salary in accordance with the norms
fixed by the AICTE. WE have held that considering the provisions of
the AICTE Act holistically, the submission that AICTE cannot
stipulate the salary structure of the teaching staff, is unacceptable.
The conditions of affiliation provide that the employees shall be paid
in accordance with the emoluments specified by the University and
the State Government. While the Universities Act of 1994 refers to
the emoluments prescribed by the University, the submission that
the University did not prescribe the emoluments need not detain us
since it is held in Mahatma Gandhi that the Government Resolution
dated 12.8.2009 is issued in exercise of statutory power under
Section 8(3) and applies with equal vigor to unaided institutions.
While Mr. Bhangde is right in submitting that Mahatma Gandhi was
not considering the case of an unaided minority institution, in our
considered view, the ratio of the decision equally applies to an
unaided minority institution. The Act of 2016 refers to the
emoluments specified by the State Government, which are as a fact,
specified by the State Government by Government Resolution dated
11.9.2019. The said Government Resolution may also be construed,
for reasons articulated in Mahatma Gandhi as an exercise of power
under Section 8(3) of the Universities Act of 2016.
DD.19) In any event, considering that Section 108(f) provides
that as a condition of affiliation, the emoluments specified by the ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:48 :::
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State Government shall be paid to the teachers, the right of the
teachers to claim entitlement to the emoluments specified by the
State Government has statutory flavour. Mr. Bhangde would submit
that the conditions of affiliation must also be statutory, in the sense,
the State Government is required to specify the emoluments by
exercising statutory power. We have already held that the
emoluments have been fixed in exercise of statutory power.
Assuming that the emoluments have been specified in exercise of
owner under Article 162 of the Constitution of India, we are not
inclined to accept the submission that the expression “specified by
the Government” must be understood as “emoluments statutorily
prescribed”.
DD.20)We may now consider the submission that neither a rule
framed in exercise of delegated legislative power nor executive
decision taken in exercise of power under Article 162 of the
constitution of India can be given retrospective effect. The fixation
of the date of effect of the implementation of the recommendations
of the Pay Commissions is attacked on such premise. It is fairly well
settled, and we refrain from dealing with the catena of decisions on
which reliance is placed, that the delegatee must be vested with the
power to give retrospective effect to the delegated legislation or the
executive power under Article 162 of the Constitution of India. To
this extent, we have no difficulty in accepting the submission
canvased by Mr. Bhangde. We may however hem in the said broad
statement of law by adding that the power may either be express or ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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inferable by necessary implication. Considering the power to frame
rules to regulate the conditions of service under the proviso to
Article 309 of the Constitution of India, the Supreme Court held that
the said power necessary implies the power to amend or alter the
rules with retrospective effect. We may only refer to the decisions in
B.S. Vadhera Vs. Union of India
67
and T.R. Kapur Vs. State of
Haryana
68
.
We are conscious that the decisions rendered considering the
proviso to Article 309 of the Constitution of India, are in view and
context of the language of the proviso and the constitutional
scheme. We however note that the existence of implied power in
provisons other than the proviso to Article 309 of the constitution is
recognized by the Supreme Court, in the Constitution Bench
decision in Dr. Indramani Pyarelal Gupta vs W. R. Nathu and
Others
69
. Federation of Indian Mineral Industries Vs. Union of India
and Others
70
which Mr. Bhangde presses in service also recognizes
that the authority to make a subordinate legislation having
retrospective effect may be conferred expressly or by necessary
implication.
DD.21) Section 108 of the Universities Act of 2016 provides that
the terms and conditions of service of the staff of the affiliated
colleges and recognized institutions shall be such as may be
specified by the University and the State Government. A power to
67(1968) 3 SCR 575
681968 Supp. SCC 584
691963 AIR 274
70(2017)16 SCC 186 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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specify the emoluments and the terms and conditions of service
confers by necessary implication power to give effect to the
emoluments specified from an interior date. While vested rights
cannot be diluted much less obliterated and the exercise of
delegated legislative power or executive power under Article 162 of
the Constitution of India can always be subjected to judicial scrutiny
on recognized parameters, giving effect to the pay scales from a date
anterior to the issuance of the notification does not affect any vested
right or the management. The pay scales are specified by the State
Government pursuant to the directions or suggestions of AICTE and
the pay scales are given effect to from the date the recommendations
of the Pay Commission are accepted by the Government for its
employees.
E)Whether the petition is hit by delay and latches, and /
or the relief required to be moulded:
E.1) The quintessence of the argument canvassed by Mr.
Bhangde is that the claim in the petition suffers from delay and
latches.
E.2) It is submitted that the 6
th
Pay Commission was
implemented by the State Government by Government Resolution
dated 20.8.2010, and the petition is filed on 19.6.2020 seeking
benefit of the 6
th
Pay Commission recommendation from 1.1.2006 ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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till 31.12.2015. Inasmuch as the first representation was made by
the petitioners on 15.1.2020, the claim to arrears of salary, if at all,
can be restricted only to three years preceding the filing of the
petition. Mr. Bhangde submits relying on the decision in Mr.
Milind Kumar Jibhakate and the decisions of the Supreme Court in
Shiv Das and Tarsem Singh that the arrears of salary as per the
recommendations of the 6
th
Pay Commission is liable to be
dismissed. Mr. Bhangde would submit that if it is held that the
petitioners are entitled to the benefit of the 7
th
Pay Commission from
1.1.2016, the relief of arrears of salary shall have to be restricted
from 20.6.2017 till 19.6.2020. Mr. Bhangde would distinguish the
decisions of this Court in Narayanrao Watkar, D.Y. Patil College of
Engineering and Kiran Manikrao Bhusare. Mr. Bhangde further
submits that even if it is accepted arguendo that non payment of
applicable pay scale is recurring wrong even then, the relief will
have to be restricted to three years preceding the filing of the
petition. Again, Tarsem Singh is referred and additionally reliance is
placed on M.R. Gupta.
E.3) In rebuttal, Mr. Khapre emphasizes that inasmuch as the
fifth respondent has secured the determination of the reasonableness
of the fees under the statutory regime of the Act of 2015, the
principle that the relief will have to be restricted to reasonable
period has no application. The submission is that if the relief is
restricted to certain period, the result would be unjust
enrichment,the management already having collected fees from ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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students, on the basis of the determination by the FRA. It is then
submitted relying on the decisions of D.Y. Patil College of
Engineering and Kiran Manikrao Bhusare that the teachers are not
expected to approach the doors of the Court in immediate proximity
to decision of the implementation of the recommendations of the
pay commission. Mr. Khapre relies on the decision of the Supreme
Court in M.R. Gupta and the decision of the Coordinate Bench in
Mr. Milind Kumar Sitaramji Jibhakate.
E.4) Broadly, the factual matrix in Shiv Das was that the
Punjab and Haryana High Court dismissed the petition on the
ground of delay. Mr. Shiv Das was invalidated out of service in
1983 and a writ petition was filed in 2005 seeking disability
pension. The Supreme Court, while noting that in the case of
pension, the cause of action continues from month to month,
observed that cannot be a ground to overlook the delay in filing the
petition. Paragraphs 10 and 11 in Shiv Das read thus:
“10. In the case of pension the cause of action
actually continues from month to month. That,
however, cannot be a ground to overlook delay in
filing the petition. It would depend upon the fact of
each case. If petition is filed beyond a reasonable
period say three years normally the Court would
reject the same or restrict the relief which could be
granted to a reasonable period of about three years.
The High Court did not examine whether on merit
the appellant had a case. If on merits it would have
found that there was no scope for interference, it
would have dismissed the writ petition on that score
alone. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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11. In the peculiar circumstances, we remit the
matter to the High Court to hear the writ petition on
merits. If it is found that the claim for disability
pension is sustainable in law, then it would mould
the relief but in no event grant any relief for a
period exceeding three years from the date of
presentation of the writ petition. We make it clear
that we have not expressed any opinion on the
merits as to whether the appellant’s claim for
disability pension is maintainable or not. If it is sans
merit, the High Court naturally would dismiss the
writ petition”.
E.5) Tarsem Singh refer to Shiv Das and observes that one of
the exceptions to the rule that belated service related claim will be
rejected is claims relating to continuing wrong. Having so observed,
the Supreme Court restricted the relief relating to arrears to three
years prior to the filing of the petition.
E.6) In Kiran Bhusare, the petition seeking the benefit of the
recommendations of the 6
th
Pay Commission was filed in 2013. The
Coordinate Bench noted that the decision to implement the
recommendations of the 5
th
Pay Commission was taken in 2009, and
the petitioners had made representations to the management, to
university and other authorities. Certain observations of the
Coordinate Bench seem to suggest that the management on its own
ought to have complied with the directions issued by the State
Government, rather than forcing the employees to approach the
Court. ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
133 wp2022.2020.
E.7) In D.Y. Patil College of Engineering, the Coordinate
Bench was not called upon to consider the submission that the claim
is hit by delay and latches and to this extent Mr. Bhangde is right.
The management contended that while recommendations of the Pay
Commission are implemented, the State Government was not
justified in directing that the recommendations be implemented
from retrospective date.
E.8) While there cannot be a straight jacket formula for
moulding the relief as to the arrears of salary, the Supreme Court
has, in some cases, which we have considered supra, restricted the
claim to the period of three years preceding the filing of the petition.
Exceptions have been made. Illustratively, while allowing the
Special Leave Petition preferred by Mr. Rangnath Raskar, while
observing that Mr. Raskar was agitating for salary in accordance
with the report of the 6
th
Pay Commission at least from the year
2011, the Supreme Court enlarged the relief granted by the High
Court and held Mr. Rangnath Raskar entitled to relief from
1.1.2006.
E.9) We cannot brush under the carpet the submission
canvassed by Mr. Khapre that in the State of Maharashtra, the Fee
Regulatory Committee was constituted in 2008-2009 in view of the
direction issued by the Supreme Court, which continued to
determine the fee structure till the Legislature stepped in and ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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enacted the Act of 2015, and in view of the undertakings submitted
by the management, on the basis of which reasonableness of the fee
structure is determined, the management would have collected from
the students fees factoring in the prescribed salary. We need not
make any positive observation on the submission canvassed on the
touchstone of doctrine of enrichment. We are however satisfied that
this aspect is a relevant consideration while moulding relief. We are
therefore, inclined to hold that the petitioners are entitled to 100%
arrears of salary payable in terms of the recommendations of the 7
th
Pay Commission which are accepted w.e.f. 1.1.2016, for the period
of three years preceding the filing of the petition that is from
20.6.2017 to 20.6.2020. The petitioners shall be paid 50% of the
arrears for the period from the date of approval to their
appointments till 19.6.2017. In our considered view, such
directions shall subserve broad justice and shall balance the equities.
We therefore, pass the following order:
i)We hold and declare that the petitioners are
entitled to the benefits of pay scale recommended by the
6
th
and 7
th
Pay Commission.
ii)The petitioners are entitled to 100% arrears of
salary payable in terms of the recommendations of the
7
th
Pay Commission which are accepted w.e.f. 1.1.2016,
for the period of three years preceding the filing of the
petition that is from 20.6.2017 and to the difference
between the pay scale recommended by the 7
th
Pay ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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Commission and the salary actual paid, during the
pendency of the petition.
iii)The petitioners shall be paid 50% of the arrears for
the period from the date of approval to their
appointments till 19.6.2017.
iv)The respondent 2 – The Directorate of Technical
Education shall compute the amount which is due and
payable, in terms of the recommendations of the 6
th
and
7
th
Central Pay Commissions, as aforesaid, in accordance
with AICTE regulations and the GR issued by the
Government of Maharashtra. The computation of the
amount shall be made within a period of eight weeks
from the date of receipt of this order.
v) Respondents 4 and 5 shall make the payment of the
arrears as computed, within four weeks from the date of
computation.
vi) The respondents 1 to 3, 6 and 7 shall ensure that the
amount so computed is paid by the respondents 4 and 5
to the petitioners within the stipulated period.
vii)The respondents 1 to 3, 6 and 7 shall take
appropriate action against the respondents 4 and 5 in
accordance with the provisions of Act of 1987 and the
Act of 2016 including action of withdrawal/ ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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derecognition of the Technical Institution and/or
withdrawal of affiliation, as the case may be if the
amount as computed is not released, as directed.
viii) We further direct that in the event, the arrears are
not paid within the period stipulated, the arrears shall
attract interest @ 12% per annum from the expiry of the
period till actual realization.
ix) The petition is allowed in the aforestated terms.
x)All pending civil applications are disposed of.
(Y.G. Khobragade, J.) (Rohit B. Deo, J.)
At this stage, learned counsel Mr. H.D. Dangre, who
appears on behalf of the respondents 4 and 5 prays that the effect
and operation of the judgment be stayed to enable the private
respondents to approach the Hon’ble Supreme Court.
We stay the effect and operation of the judgment for four
weeks.
The time schedule which we have stipulated in the ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
137 wp2022.2020.
judgment shall stand extended by four weeks.
(Y.G. Khobragade, J.) (Rohit B. Deo, J.)
Belkhede,PA ::: Uploaded on - 03/08/2023 ::: Downloaded on - 30/08/2025 21:40:49 :::
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