Bombay High Court
Kiran Manikrao Bhusare And Others vs The State Of Maharashtra And ... on 15 January, 2018
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 5150 of 2013
1) Kiran s/o Manikrao Bhusare,
Age 30 years,
Occupation : Service as
Assistant Professor and
Union Secretary,
Bhartiya Kamgar Sena,
Having its Unit at
Shri. Bhagwan College of
Pharmacy, Aurangabad.
2) Dr. Aquil-ur-Rahim Siddiqui
S/o Enam-ur-Rahim Siddiqui
Age 50 years,
Occupation: Service as
Associate Professor and
Head of Department of
Pharmacognosy,
Shri. Bhagwan College of Pharmacy,
N-6, CIDCO, Aurangabad
R/o H. No.15, Shabista Housing
Society, Zulnoorain Complex,
VIP Road, Rasheedpura,
Aurangabad.
3) Preeti Narayan Sable,
Age 26 years,
Occupation: Service as Lecturer,
Shri. Bhagwan College of Pharmacy
Aurangabad
R/o Plot No.9, Yogayog Society,
N-12, D, HUDCO, Aurangabad.
4) Nanasaheb s/o Babasaheb Dharbale,
Age 27 years,
Occupation: Service as Lecturer
Shri Bhagwan College of Pharmacy
R/o H. No.169, Plot No.159,
Pundliknagar, Aurangabad.
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5) Vijayalaxmi Appasaheb Chavan,
Age 27 years,
Occupation: Service as
Assistant Professor
Shri Bhagwan College of Pharmacy
Aurangabad
R/o Plot No.1117, Sai-nagar, N-6,
CIDCO, Aurangabad.
6) Pawan s/o Balmukund Rathi,
Age 29 years,
Occupation: Service as
Assistant Professor in Shri.
Bhagwan College of Pharmacy
Aurangabad
R/o "Rushikesh Nivas"
Sanjay Nagar, C-4,
H. No.3-8-46, Smashan Maruti
Road, Akashwani, Aurangabad.
7) Ganesh s/o Kaduba Gajare,
Age 32 years,
Occupation; Service as
Assistant Professor
R/o Pushpak Garden,
Near Bus Stop, Chikalthana
(Air Port), Aurangabad. .. Petitioners.
Versus
1) The State of Maharashtra
Through Secretary
Technical Education Department
Mantralaya, Mumbai.
2) Joint Director of Technical Education
Near Polytechnic College,
Osmanpura, P.O. Box 516,
Aurangabad.
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3) Principal Secretary,
All India Council for Technical
Education, 7th Floor,
Chandralok Building,
Janpath, New Delhi 110 001.
4) Chairman (Regional)
All India Council of Technical
Education (Western Region)
7th Floor, LIC Building,
Nariman Road, Church Gate,
Mumbai.
5) President,
Pharmacy Council of India
Combined Council's Building
Kotla Road, Aiwan-E-Ghalib Marg,
New Delhi.
(Note : Respondent No.5 is deleted
as per order dated 13-9-2013)
6) The Registrar,
Dr. Babasaheb Ambedkar
Marathwada University,
University Campus,
Aurangabad.
7) Secretary,
Bhagwan Shikshan Prasarak
Mandal's Shri. Bhagwan
College of Pharmacy,
Dr. Y.S. Khedkar Marg,
N-6, CIDCO,
Aurangabad 431 003.
8) Principal,
Shri. Bhagwan College of
Pharmacy,
Dr. Y.S. Khedkar Marg,
N-6, CIDCO, Aurangabad. .. Respondents.
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Shri. S.R. Chaukidar, Advocate, for petitioners.
Shri. A.V. Deshmukh, Assistant Government Pleader, for
respondent Nos.1 and 2.
Shri. S.V. Adwant, Advocate, for respondent Nos.3 and 4.
Respondent No.5 - deleted.
Shri. S.G. Chapalgaonkar, Advocate for respondent No.6.
Shri. P.M. Shah, Senior Counsel instructed by Shri. A.M.
Karad and Shri. S.G. Rudrawar, Advocates for respondent
Nos.7 and 8.
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CORAM: T.V. NALAWADE &
SUNIL K KOTWAL, JJ.
DATE : 15 JANUARY 2018
JUDGMENT (Per T.V. Nalawade, J.):
1) Rule, rule made returnable forthwith. By
consent heard both sides for final disposal.
2) The petition is filed by the employees from
teaching staff of one private unaided College of Pharmacy
which is represented by respondent Nos.7 and 8 in the
present proceeding for the relief of direction to
respondent Nos.1 to 6 to take necessary steps to see that
respondent Nos.7 and 8 pay to the petitioners salary,
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allowances, arrears thereof and make available the
benefits of the proposals made by the 6th Pay
Commission.
2) Respondent Nos.7 and 8, the management, is
running Graduate as well as Post-Graduate courses in
Pharmacy Branch at Aurangabad on self finance basis.
The petitioners are working as Lecturers, Assistant
Professors and Associate Professors.
3) It is the case of the petitioners that the
Government of Maharashtra has accepted the
recommendations of 6th Pay Commission which were
already accepted by the Central Government and the
benefits are extended to the employees of the University
and the affiliated colleges. It is the case of the petitioners
that the effective date for the application of the
recommendations is fixed as 1-1-2006. It is contended that
the petitioners had filed many representations with the
management and also with University and other
authorities for seeking the relief claimed in the present
matter but the management has not given any response to
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the representations. The petitioners are relying on the
decision given by this Court in Writ Petition No.11091 of
2010 decided with connected matters on 10-2-2012. This
Court allowed the writ petition and directed the
management of one Engineering College from
Aurangabad to see that the pay scales suggested by the
6th Pay Commission are applied to both the teaching and
non teaching staff with effect from 1-1-2006. This decision
was challenged by the management of that college but the
Apex Court dismissed the civil appeal filed by the
management. This decision of Apex Court dated 5-1-2017
is reported in the case reported as 2017(1) ALL MR 947
(SC) (Secretary Mahatma Gandhi Mission and Anr. vs.
Bhartiya Kamgar Sena and Ors). It is the contention of
the petitioners that the institution involved in that
previous matter was also technical institution and so
similar direction needs to be given in the present matter.
4) Respondent No.8 has filed affidavit-in-reply.
Respondent-management has contested the present
proceeding by making various contentions some of which
are quoted in this decision. One of the petitioners has filed
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affidavit as rejoinder to reply the contentions made by the
respondent Nos.7 and 8.
5) The learned counsels for the University and All
India Council for Technical Education (for short, "AICTE")
submitted that in view of the decision given by this Court
which is confirmed by the Apex Court, they are supporting
the petitioners. The learned counsel for the AICTE made
further submissions by drawing attention of this Court to
the provisions of the All India Council for Technical
Education Act 1987 and submitted that to ensure that the
students studying in such colleges get quality education,
teaching staff needs to get the salary as proposed by 6 th
Pay Commission and which is being given to the teaching
staff of the colleges receiving Government aid. He
submitted that the circumstances that respondent
management is not getting Government aid and the
probability that the management is required to manage
the things on the fees collected cannot be considered for
deciding the present matter. He placed reliance on the
observations made by the Apex Court in the case reported
as (2013) 3 SCC 385 (Parshvanath Charitable Trust v. All
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India Council for Technical Education) and took this
Court through paragraphs 21 and 24 of the reported case
to show that the conditions imposed by the AICTE need to
be fulfilled. He submitted that the regulations made by the
AICTE are now placed before both the Houses of the
Parliament and in any case due to the conditions imposed
by the AICTE for getting approval and continuation of
approval it is necessary for respondent No.1 to comply
those conditions and act as per undertaking given for
getting approval and continuation of approval.
6) It is not disputed that the respondent
institution falls under the definition of "technical
education" given in section 2(h) of the AICTE Act, 1987 as
it is running a college of technical education, a Pharmacy
College. The aforesaid previous matter was decided by
this Court in respect of teaching staff of one Engineering
College which was run on self-finance basis, which was
not getting aid from Government. So it was necessary for
the respondent-management to satisfy this Court that the
decision given by this Court in the matter, quoted above,
which is confirmed by the Hon'ble Apex Court cannot be
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used in favour the present petitioners. The learned Senior
Counsel argued before this Court by raising following
points :-
(i) Respondent-institution is unaided institution and it is
required to run and manage the college on the basis of the
fees collected from students;
(ii) in the petition no cause of action is disclosed by the
petitioners;
(iii) the pay commission has made only recommendations
and the suggestions of the pay commission which are
accepted by the State Government are not binding on
respondent-institution;
(iv) the directives given by the Union of India, the State
Government, AICTE and University are not binding on the
respondent-institution as it is not receiving the aid from
Government;
(v) the proceeding came to be filed very late and it will
not be possible for the institution to collect more fees from
the students of past years and even the Fee Regulatory
Committee may not allow the respondent-institution to
take such step; and,
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(vi) the petitioners are not entitled to get relief on the
ground of delay.
7) In the petition, the petitioners have referred to
the directions given by the AICTE in Notification dated 5-
3-2010, the directions given by the University in
Notification dated 29-8-2009, the Government Resolutions
of the State Government dated 12-8-2009 and 20-8-2010.
The learned Senior Counsel for the respondent-
management made arguments in respect of each of these
directions separately. The learned Senior Counsel
submitted that in the case cited supra the Hon'ble Apex
Court has used Government Resolution dated 12-8-2009 of
the State Government as the base for the decision and so
the Apex Court has not held that the other authorities like
AICTE and University have authority to give directions
which can bind respondent-management. The learned
Senior Counsel submitted that the University has not
made statute with regard to the subject like fixing of
salary as provided in section 14.(8) of the Maharashtra
Universities Act, 1994 and so it was not open for the
University to issue such directions. He took this Court
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through various provisions of the AICTE Act 1987
including provision of section 23 to show the procedure
and submitted that the Hon'ble Apex Court has also
observed that the orders issued by AICTE are superfluous,
without authority of law.
8) For attacking the Government Resolution dated
12-8-2009 of the State Government the learned Senior
Counsel submitted that this Government Resolution
mentions a letter of the Central Government dated 31-12-
2008 and in the letter dated 31-12-2008 there was no
direction of binding nature issued by the Central
Government. The learned Senior Counsel submitted that
even in section 8.(3) of the Maharashtra Universities Act
1994 particular procedure is given and unless and until
that procedure is followed, such direction cannot come
into existence. He placed reliance on the observations
made in some reported cases on this point and submitted
that the aforesaid Government Resolution of the State
Government can be of no use.
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9) The learned Senior Counsel for the respondent
-management made specific submissions with regard to
the letter of the Central Government dated 31-12-2008
and Government Resolution dated 12-8-2009 as under :-
(i) This letter of Central Government was not for private
unaided institutions;
(ii) if scheme is given in this letter it is necessary to
adopt the scheme in entirety and any part of the scheme
cannot be adopted;
(iii) if the scheme given in letter dated 31-12-2008 is to
be implemented, the concerned University needs to make
statute for the same first;
(iv) the letter dated 31-12-2008 was not intending for the
use of the State Government, for enabling the State
Government to issue Government Resolution dated 12-8-
2009;
(v) in respect of the Government Resolution dated 12-8-
2009 of the State Government the learned Senior Counsel
submitted that the State Government accepted the
scheme of the Central Government quoted in letter dated
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31-12-2008 but it was conditional acceptance. He
submitted that even in the Supreme Court, submissions
were made for the State Government that the State
Government had not taken policy decision as such on this
point;
(vi) in the Government Resolution dated 12-8-2009 the
source of power of the State Government is not given or
the provision of section 8.(3) of the Maharashtra
Universities Act 1994 is not mentioned;
(vii) if the Government Resolution dated 12-8-2009 was to
be treated as an order made under section 8.(3) of the
Universities Act, then it was necessary to issue it as per
the procedure given in the same section, to publish in
official gazette;
(viii) it is the job of the University to fix pay and so the
Government Resolution dated 12-8-2009 cannot be used
by the petitioners.
10) The aforesaid submissions made by the learned
Senior Counsel for the respondent-management show that
all these technical points are raised even when there is
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decision of this Court on the points involved in the present
matter, which is confirmed by the Apex Court in the case
cited supra. The submissions were made by the learned
Senior Counsel for the respondent-management on the
basis of some observations made by the Apex Court in the
case reported as (2010) 1 SCC 730 (Rajendra
Agricultural University v. Ashok Kumar Prasad). The
observations are with regard to the procedure which is
required to be followed by the University. They are in
different context. Further, the Apex Court in the case of
Secretary, MGM (cited supra) has made observations in
this regard at paragraphs 69 and 70 as under :-
"69. While the GR dated 12.08.2009 is specific in its
declaration that the elaborate Rules contained therein
dealing with the pay scales of the various cadres of the
teaching staff of the educational institutions
mentioned therein, it does not make any distinction
between aided and un-aided colleges. However, the GR
does not purport to be one made in exercise of the
power under Section 8(3) of the Universities Act. It is
agreed on all hands at the Bar that the expression
"Government Resolution" in the Maharashtra
Administrative jargon means a decision taken either in
exercise of the authority of the State under Article 162
of the Constitution of India or in exercise of the
authority under some statutory provision. No doubt
the GR does not refer to the source which authorises
the exercise of the power for revising the pay scales of
the teaching staff of the various educational
institutions mentioned therein. The mere absence of
the recital of the source of power in our opinion
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cannot determine the legal status of the instrument or
deprive the instrument of its efficacy.
70. The difference between the authority of the
State flowing from Article 162 of the Constitution or
Section 8(3) of the Maharashtra Universities Act is
two-fold. Firstly, the statutory authority under section
8(3) could be abrogated anytime by the legislature
while the constitutional authority under Article 162
cannot be abrogated by the State Legislature.
Secondly, the procedural requirements for the
exercise of the power vary depending upon the nature
of the source of the power, but the existence of power
itself cannot be doubted."
11) The learned Senior Counsel for the respondent
management placed reliance on some observations made
by the Apex Court in the case reported as (1989) 1 SCC
101 (Municipal Corporation of Delhi v. Gurnam Kaur)
and submitted that the Apex Court has not considered the
procedure given in section 8(3) of the Maharashtra
Universities Act, 1994 and so the decision of the Apex
Court is not binding. Reliance was placed on one more
case reported as (2001) 3 SCC 537 (A-One Granites v.
State of U.P.). In view of the observations made by the
Apex Court already quoted, this Court holds that there is
no force in the submissions made by the learned Senior
Counsel as this point is dealt with by the Hon'ble Apex
Court by touching the provisions of the Constitution of
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India.
12) The learned Senior Counsel referred to the
provision of section 14.(8) of the Maharashtra Universities
Act, 1994 and placed reliance on the case reported as
(1998) 2 SCC 109 (Naga People's Movement of Human
Rights v. Union of India) . The facts of the reported case
were altogether different and the observations of
Supreme Court already quoted can be used against this
submission as the State Government had issued the order
by exercising authority of the State under Article 162 of
the Constitution of India and there was virtually no
necessity for the Vice Chancellor to issue further orders in
that regard.
13) The learned Senior Counsel placed reliance on
some observations made by the Apex Court in the cases
reported as AIR 1954 SC 493 (The State of M.P. v. G.C.
Mandawar); and, AIR 1965 SC 1196 (The State of Assam
v. Ajit Kumar Sarma). The facts of the reported cases
were altogether different and in the present matter the
responsibility of the management to abide by the
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undertaking given for getting permission to start the
college and also the effect of binding nature of the
direction given by the State Government with regard to
the responsibility of the management towards its teaching
staff is involved. This aspect is also touched by the Apex
Court in the case cited supra and the entitlement of such
employees is discussed. Similar employees working in
aided institutions are getting pay scales suggested by 6th
Pay Commission.
14) The learned Senior Counsel for the respondent
- management submitted that due to laches and delay in
filing the proceeding, no relief can be granted in favour of
the petitioners. On this point he has placed reliance on
some observations made by the Apex Court in the case
reported as (2015) 1 SCC 347 (State of U.P. v. Arvind
Kumar Srivastava). The observations made by the Apex
Court show that the appointment letters which were
cancelled about 9 years prior to the date of the petition
were challenged by the petitioners. The Apex Court
refused to direct the reappointment of the petitioners.
The facts of the present matter are totally different.
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Copies of the representations made by the petitioners to
the management, to University and the other authorities
are on the record and there is also communication of
AICTE showing that AICTE had asked the management to
do the needful. The Government had taken decision in the
year 2009 and after that the University and AICTE
stepped in. The matter was filed in the year 2013, after
the decision given by this Court in similar matter. The
employees of private institutions do not dare to go against
the management ordinarily as they want the protection of
their services as they are in need of employment. They
cannot be allowed to be exploited by holding that they
need to go to Court immediately when Government
decision comes out with regard to the implementation of
the pays scales. The Government Resolution dated 12-8-
2009 was in respect of such employees of unaided
colleges also though this point was again argued in the
present proceeding. On its own, the management ought to
have complied with the directions given by the
Government. So, this ground has no force.
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15) The learned counsel for the University
submitted that in view of the authority of State
Government, the observations made by the Apex Court
and the provisions of section 8.(3) of the Maharashtra
Universities Act, 1994 the State Government's direction
needs to be followed. He submitted that there was no
necessity for the Vice Chancellor to issue one more order
under Universities Act. He submitted that when there is
the Government Resolution it will hold the field and there
is no need to prepare separate Code under section 8.(3) of
the Maharashtra Universities Act, 1994.
16) This Court is avoiding to discuss in detail the
aforesaid various challenges raised by the learned Senior
Counsel during arguments. All the relevant contentions
are already dealt with by this Court while deciding Writ
Petition No.11091 of 2010 and the Hon'ble Apex Court
had set the disputed points at rest in the case cited supra.
This Court holds that the petition deserves to be allowed
and so following order.
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17) The petition is allowed with no order as to
cost.
The State Government, Dr. Babasaheb Ambedkar
Marathwada University Aurangabad and All India Council
of Technical Education (A.I.C.T.E.) Mumbai are hereby
directed to see that respondent Nos.7 and 8 implement
the pay scales suggested by 6th Pay Commission as
applied by the Government of Maharashtra to the
teaching staff with effect from 1-1-2006.
If the respondents fail to implement the
recommendations in respect of application of the pay
scale, the State Government, University and AICTE are to
take steps for withdrawal of affiliation given by the
University and for withdrawal of the approval given by the
AICTE.
The aforesaid orders are to be implemented within
three months from today. Rule is made absolute in
aforesaid terms.
Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (T.V. NALAWADE, J. )
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