Milindkumar Rameshrao Joshi vs State Of Maha & Ors
2017 Latest Caselaw 8769 Bom

                                         (1)                 WP No. 5960/2004



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD.


                          WRIT PETITION NO. 5960 OF 2004


 Milindkumar Rameshrao Joshi
 Age : 36 years, occu.: service
 R/o 95, Siddhraj, Ashirwad Society,
 Kalyan Nagar, CIDCO, Nanded,
 District Nanded.                                                 Petitioner.

                  Versus


 1.       The State of Maharashtra
          Through Dy. Director,
          Higher Education, Jalgaon,
          District Jalgaon.


 2.       The Registrar,
          North Maharashtra University
          Jalgaon, District Jalgaon.


 3.       Chairman/President
          Adivasi Seva Sahayak and
          Prasarak Sansthan, Near Arts,
          Science College, Nawapur,
          District Nandurbar.


 4.       The Secretary,
          Adivasi Seva Sahayak and
          Prasarak Sansthan, Near Arts,
          Science College, Nawapur,
          District Nandurbar.


 5.       The Principal
          Shri S.H. Naik College of
          Education, Nawapur,
          District Nandurbar.                                     Respondents.




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                                             (2)                        WP No. 5960/2004

                                            ***
 Mr. N.B. Patekar, Advocate holding for
 Mr. P.R. Katneshwarkar, Advocate for the petitioner.
 Smt. V.S. Chaudhary, A.G.P. for respondent No.1.
 Mr. Yogesh Bolkar, Advocate holding for
 Mr. R.B. Rathuwanshi, Advocate for respondent No.2.
 Mr. K.V. Patil, Advocate holding for
 Mr. S.R. Barlinge, Advocate for respondent Nos.3 to 5.
                                            ***
                                           CORAM :       RAVINDRA V. GHUGE
                                                                 AND
                                                          SUNIL K. KOTWAL, JJ.

Dated : 16-11-2017.

ORAL JUDGMENT (PER RAVINDRA V. GHUGE ) :-

1. This matter was heard extensively on 15.11.2017.

2. Since the learned Advocate for the Management -

respondent Nos.3, 4 and 5 did not turn up, the matter was adjourned to

this date only to enable the learned Counsel to address us. Today after

the matter is called out, we waited for some time only to enable the

learned Advocate to appear before us. Since none has appeared, we

have proceeded to dictate the order.

3. By this Petition, the petitioner has prayed for a direction to

the Management to pay the difference of salary for the period 08.08.1994

till 24.01.2002.

4. Learned Counsel for the University submits that the approval

granted to the appointment of the petitioner was dated 18.10.1994, on the

condition that the petitioner would acquire his NET/SET qualification

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pursuant to which he would be entitled to parity in pay scale.

5. Learned Counsel for the petitioner submits that he passed

the SET Examination on 22.08.1997, and therefore, he would be entitled to

parity in pay-scale as per the recommendations of the Pay Commission.

6. At this juncture, learned Counsel for the Management-

respondent Nos.3 to 5 has appeared and addressed us on the basis of the

affidavit-in-reply filed on 19.11.2004. It is strenuously submitted that as the

Management is an unaided educational institution, the recommendations

of the Pay Commissions are not applicable and hence there is no

obligation on the part of the Management to make the said payment as per

the Pay Commission recommendations.

7. Having considered the submissions of the learned

Advocates, we have referred to the judgment delivered by the Hon'ble

Apex Court in the matter of Andi Mukta Sadguru Shree Muktajee

Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R.

Rudani [1989 AIR (SC) 1607] and the recent judgment delivered by the

Hon'ble Apex Court in the matter of Secretary Mahatama Gandhi

Mission and another Vs. Bhartiya Kamgar Sena and others [2017 AIR

(SC) 505].

8. We are conscious of the ongoing debate with regard to

unaided and aided educational institutions wherein the institutions not

receiving grants-in-aid have taken a stand that they are not obliged to

make salary payments to their employees as per the recommendations of

the Pay Commissions. We are also aware of the law that if the requisite

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qualifications of NET/ SET for granting permanent and regular approval is

not acquired, though the services of the candidates not having acquired

the said qualifications have been protected by various Government

Resolutions passed by the State of Maharashtra, they would not be

entitled for parity in pay-scale as per the rates of salaries paid to regular

employees, until they pass their NET/SET examinations.

9. It is undisputed that the petitioner has cleared his SET

examination on 22.08.1997, thereby making him a regular employee and

eligible to be treated at par with the equally placed employees.

10. The Hon'ble Apex Court in paragraph No.75 of the

Secretary, Mahatama Gandhi Mission judgment (supra), while dealing

with the aided and unaided colleges, has observed in paragraph Nos.74,

75 and 76 as under :-

74. At the outset, it must be remembered that the 1999 Rules, which extended the 5th pay commission recommendations to the non-teaching staff of the affiliated colleges, did not make any distinction between the aided and un-aided colleges. For the first time, that classification is sought to be made under the 2009 Rules. No doubt aided and un-aided colleges ostensibly fall under two separate categories. But for the purpose of Article 14, every classification does not automatically become permissible. Second requirement of the doctrine of reasonable classification is that such classification must bear a nexus to the objects sought to be achieved. Therefore, the object sought to be achieved by the 2009 Rules is required to be identified and that it is required to be examined whether the classification made bears any reasonable nexus to such object.

75. The objects sought to be achieved by the periodic revision of the pay- scales is obviously to comply with the constitutional mandate emanating from Article 43 of the Constitution of India. If that is the object, we fail to understand the rationale behind the classification made

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by the State of the Maharashtra between aided and unaided colleges. People employed in educational institutions run by non-State actors are not treated any more kindly by the market forces and the economy than the people employed either by the Government or its instrumentalities or institutions administered by non- State actors receiving the economic support of the State.

76. The very fact that the Government of India thought it fit to revise the pay scales of its employees and also thought it fit to accept the suggestions of the UGC to revise the pay scales of various Universities and other bodies whose maintenance expenditure is met by the UGC (in other words virtually by the Union of India), shows that the Government of India is completely convinced that there is a definite need to revise the pay scales of not only its employees, but also the employees of its instrumentalities. The fact that the Government of India made an offer to the States that the Government of India is willing to shoulder a substantial portion of the financial burden arising out of the adoption of revised pay scales in the event of the States choosing to adopt the revised pay scales, also indicates that the Government is fully convinced that having regard to various factors operating in the economy of the country there is a need to revise the pay scales of the personnel employed even by various States and their instrumentalities. Such a conclusion of the Union of India is endorsed by the State of Maharashtra. The decision of the State in issuing the two GRs revising the pay scales of the teaching staff of all the educational institutions and non-teaching staff of the aided educational institution is proof of such endorsement.

Therefore, we see no justification in excluding the non-teaching employees of the unaided educational institutions while extending the benefit of the revised pay scales to the non-teaching employees of the aided educational institutions. Such a classification, in our opinion, is clearly violative of Article 14 of the Constitution of India.

11. It is, therefore, no longer disputed that the teaching staff

employed in educational institutions run by non-State entities would be

treated at par with the employees appointed with aided institutions.

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12. In the light of the above, the petitioner would be entitled for

the salary under the 5 th Pay Commission Recommendations w.e.f.

22.08.1997, when he passed the SET examination. Difference of salary

will, therefore, have to be calculated by the Management w.e.f. 22.08.1997

till 24.01.2002 as is claimed by the petitioner.

13. This Petition is, therefore, partly allowed. The petitioner

would be entitled for the difference in salary as per the recommendations

of the 5th Pay Commission w.e.f. 22.08.1997 till 24.01.2002 alongwith all

the incidental and consequential benefits inclusive of the Provident Fund

contribution.

14. Rule is made absolute accordingly.

            ( SUNIL K. KOTWAL)                 ( RAVINDRA V. GHUGE)
                 JUDGE                                JUDGE




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