Bombay High Court
Lokmanya Tilak Jankalyan Shikshan ... vs Rutesh S/O Shamrao Lonkar And Others on 31 January, 2025
Bench: G. A. Sanap, Anil L. Pansare
2025:BHC-NAG:1000-DB
1 MCA830.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
MISCELLANEOUS CIVIL APPLICATION (REVIEW) NO.830/2023
IN
WRIT PETITION NO.2022/2020 (D)
1. Lokmanya Tilak Jankalyan
Shikshan Sanstha, Nagpur
Campus of Priyadarshini College of
Engineering, Digdoh Hills, Hingna,
Dist. Nagpur through its Secretary
2. Priyadarshini Indira Gandhi College
of Engineering, Digdoh Hills, Hingna,
Dist. Nagpur through its Principal .....APPLICANTS
...V E R S U S...
1. Rutesh s/o Shamrao Lonkar,
aged 36 years, Occ. Service,
r/o Duplex No. KW-11, Orbital Empire,
Jaitala, Nagpur.
2. Vivek s/o Rameshrao Barwat,
aged 32 years, Occ. Service,
r/o Flat No. 201, "Vaishnav Supernova",
Apartment, Plot No. 23, Patil Layout,
Indraprastha Nagar, Nagpur - 440 027.
3. Asvini d/o Shrihari Gawarle,
aged 39 years, Occ. Service,
r/o 101, "Shreekamal" Apartment,
88, Saket Nagar, Near Suyog Nagar,
Nagpur - 440 027.
4. State of Maharashtra, Department
of Technical Education, Mantralaya,
Mumbai - 32.
5. The Directorate of Technical Education,
Mahanagar Palika Marg, Mumbai.
2 MCA830.23.odt
6. All India Council for Technical Education,
Nelson Mandela Marg, Vasant Kunj,
New Delhi - 110 070.
7. Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur through its
Registrar, Jamnalal Bajaj Administrative
Building, Ambazari Bye-Pass Road,
Nagpur - 33.
8. Fees Regulatory Authority (FRA),
305, Government Polytechnic Building,
49, Kherwadi, Ali Awar Jang Marg,
Bandra (East), Mumbai - 400 051.
through its Secretary. ...NON APPLICANTS
-------------------------------------------------------------------------------------------
Mr. M.G.Bhangde, Senior Advocate, assisted by Mr. H.D.Dangre
Advocate for Applicants.
Mr. R.L.Khapre, Senior Advocate assisted by Mr. P. B. Patil with
Mr. N.A.Waghmare, Advocates for non applicant nos.1 to 3.
Mr. A.M. Joshi, A.G.P. for non applicant Nos. 4 and 5-State.
Mr. N. P. Lambat, Advocate for non applicant No.6.
Mr. J.J.Chandurkar, Advocate for non applicant No.7.
Respondent No.8 served.
-------------------------------------------------------------------------------------------
CORAM:- G. A. SANAP & ANIL L. PANSARE, JJ.
DATE OF RESERVING THE JUDGMENT :- 13.12.2024.
DATE OF PRONOUNCING THE JUDGMENT :- 31.01.2025
JUDGMENT (Per: Anil L. Panasre, J.)
1. Having heard at length, we deem it appropriate to first
reiterate the scope of the review jurisdiction, which we have culled
down from the judgments submitted by both the sides.
(i) Review of the judgment is a serious step and
reluctant resort to it is proper only where a glaring omission
or patent mistake or like grave error has crept in, resulting
into miscarriage of justice.
3 MCA830.23.odt
(ii) An error that is not self evident and the one that
has to be detected by the process of reasoning cannot be
described as an error apparent on the face of record.
(iii) The error apparent on the face of the proceeding
is an error which is based on clear ignorance or disregard of
the provisions of law. Such error is an error which is a
patent error and not a mere wrong decision.
(iv) The error must be an error of inadvertence.
(v) It is not permissible for an erroneous decision to
be 'reheard and corrected'.
(vi) Review is not maintainable unless the material
error manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(vii) The term, 'miscarriage or error apparent', by its
very connotation signifies an error which is evident per se
from the record of the case and does not require detail
examination, scrutiny and elucidation either of the facts or
the legal position.
(viii) It is not open to the Court to re-appreciate the
evidence and reach a different conclusion even if that is
possible.
(ix) A review is, by no means, an appeal in disguise
4 MCA830.23.odt
whereby an erroneous decision is reheard and corrected but
lies only for patent error.
(x) The words, 'any other sufficient reason' appearing
in Order XLVII Rule 1 of the Civil Procedure Code, 1908 must
mean 'a reason sufficient of grounds at least analogous to
those provisions specified in the rule'.
(xi) A decree or the order passed under
misapprehension of true set of circumstances is sufficient
ground to exercise power of review.
(xii) Ignorance of a binding precedent and taking a
totally contrary view can be said to be an error apparent on
the face of record.
(xiii) If the relevant provision of law was not pointed
out and consequently not considered, the same can be a
ground for review.
(xiv) The contention urged but not considered can be
said to be an error apparent on the face of record.
2. Keeping in mind the above legal position, the grounds
raised by the applicants will have to be considered.
3. Applicant No.2 - College of Engineering is run by the
applicant No.1 - Society. The applicants shall be hereinafter
5 MCA830.23.odt
referred to as the, 'Management'. The non applicant Nos. 1 to 3 -
original petitioners, are/were working as Assistant Professors in
the applicant No.2 - College. They will be hereinafter referred to
as 'Assistant Professors'. Non applicant Nos.3 to 8 were other
respondents and include State of Maharashtra, Directorate of
Technical Education, All India Council of Technical Education
(AICTE), Rashtrasant Tukdoji Maharaj Nagpur University
(University) and Fees Regulatory Authority.
4. The Assistant Professors filed a petition seeking benefit
of recommendations of the VI and VII Pay Commission, being Writ
Petition No.2022/2020. This Court (Coram : Rohit B. Deo and Y.
G. Khobragade, JJ.) vide impugned judgment, allowed the petition
and declared that the Assistant Professors are entitled to the
benefits of Pay Scales recommended by the VI and VII Pay
Commission. Accordingly, the Management was directed to pay
arrears of salary at 100% for 3 years preceding the date of filing of
petition viz. from 20.06.2017 to 20.10.2020 and 50% from the
date of approval, until 19.06.2017.
5. According to the Management, the judgment suffers
from error apparent on the face of record and accordingly, the
present review is filed. According to Mr. M. G. Bhangde, learned
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Senior Counsel for the petitioners, various points that were argued
by the Management, though noted, were not considered by the
Court and thus occasioned error apparent on the face of record.
6. This contention has been countered by Mr. R. L.
Khapre, learned Senior Counsel for the Assistant Professors.
According to him, the points argued by the Management have
been duly considered by the Court.
7. Having given thoughtful consideration to the
submissions made by both sides and having gone through the
record, we find that the points argued by the Management have
been duly considered by this Court, maybe not to the expectation
of the Management, which by itself will be not a ground to review
the judgment.
8. Following are the points which, according to the
Management, have been noted but not considered by the Court.
We will briefly note the said points and from the judgment under
review, the consideration given to the said points to render a
finding.
(I) Point No.1:
The State Government has stated in its reply to
the petition that Government Resolutions dated 20.08.2010
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and 11.09.2019, are its policy decisions and are restricted to
Government and non Government aided institutions only.
According to Mr.Bhangade, these resolutions, therefore, are
not applicable to the Management, which runs unaided
minority educational institution.
The aforesaid submissions were noted by the
Court. The Court showed its disinclination to delve deeper in
the said submissions in view of the authoritative
pronouncement of the Supreme Court in Secretary, Mahatma
Gandhi Mission Vs. Bhartiya Kamgar Sangha, [(2017) 4 SCC
449]. The Court noted that in Mahatma Gandhi's case, the
Supreme Court held that the Government Resolution dated
12.08.2009 was issued in exercise of statutory power under
Section 8(3) of the Maharashtra Universities Act of 1994
(hereinafter referred to as the, "Act of 1994") and it applies
with equal vigor to unaided institutions and that the said
Government Resolution applies also to unaided minority
institutions. The Court then held that the Management is
covered by the applicability clause of both AICTE Regulations
of 2019 and Government Resolution dated 11.09.2019 and
the Assistant Professors are entitled to benefits of pay scales
recommended by VII Pay Commission.
8 MCA830.23.odt
The Court further held that every institution,
including unaided minority institution, is obligated to fulfill
and comply with the conditions of recognition and affiliation.
The condition of recognition was that the Assistant Professors
shall be paid salary in accordance with the norms fixed by
AICTE. The Court noted that the Management's counsel was
right in submitting that Mahatma Gandhi's case was not
considering the case of unaided minority institution but held
that the ratio of the decision would equally apply to unaided
minority institutions. The Court, considering the provisions
of the Maharashtra Public Universities Act, 2016 (hereinafter
referred to as the, "Act of 2016") and law laid down in
Mahatma Gandhi's case, held that the Government
Resolution dated 11.09.2019 can also be construed to have
been issued in exercise of powers under Section 8 (3) of the
Act of 2016.
(II) Point Nos.2 & 3:
The AICTE Regulations, 2010, are subject to
adoption by the State Government. The same have been
adopted by the State Government by Government Resolution
dated 20.08.2010 for Government and non Government
aided institutions only. Accordingly, it is argued that the said
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Government Resolution will be applicable to the Government
and non Government institutions only and not to unaided
minority institutions.
It is further the case of Management that Clause
2.11 of the AICTE Regulations 2019, provides that State
Government has to opt for implementation of revised pay-
scales and the State Government has opted for revised pay-
scales for Government and non Government aided Colleges
only.
Thus, according to the Management, what has
been mentioned in clause 2.11 of the AICTE Regulations,
2019, has been accepted by the State Government for
Government and non Government aided colleges only.
The Court referred to the judgment in the case of
Islamic Academy of Education and anr. .Vs. State of
Karnataka and Ors.; [(2003) 6 SCC 697] and TMA Pai
Foundation .Vs. State of Karnataka [(2002) 8 SCC 481] ,
wherein, it was held that "Private unaided professional
college" includes both minority as well as non minority. The
Court then considered the judgment in the P. A. Inamdar and
Ors. Vs. State of Maharashtra and Ors. [2005 (6) SCC 537]
case as also Modern Dental College and Research Centre Vs.
10 MCA830.23.odt
State of Madhya Pradesh [(2009) 7 SCC 751], and after
analysing decisions, held that the minority institution, aided
or unaided, which seeks and secures recognition or affiliation
from the University or Board or any regulatory board, is
obligated to comply with the conditions of the recognition
and affiliation and cannot be heard saying that the said
conditions dilute muchless obliterate subsistence of right
under Article 30 (1) of the Constitution of India. The Court
then showed disinclination to the argument canvassed by the
Management that the conditions of affiliation are the matter
between the University and the affiliated institution and did
not confer a corresponding right on the employees. It then
held that the condition of recognition or affiliation that
mandates the Management to pay emoluments as per the
norms of the AICTE or State Government or University or
both or any regulatory body, as the case may be, must be
compelled to comply with the conditions of affiliation having
statutory flavour. This Court, taking aid of the judgment in
Mahatma Gandhi's case, held that the AICTE Regulations are
applicable to the Professors and other academic staff of
technical institutions. The Court further held that the ratio
of the decision in Mahatma Gandhi's case applies to the
11 MCA830.23.odt
unaided minority institutions as well.
Thus, the Court held that AICTE regulations are
applicable to unaided minority institutions also.
(III) Point No. 4:
In TMA Pai Foundation's case, it has been held
that, if aid is provided by the State, it can frame service
conditions for teaching and other staff. In support, the
Management had relied upon judgment in the case of The
Correspondent/Principal, Arokiamada Matriculation Higher
Secondary School, Udumalai Road, Kollachi vs Tmt. T.
Sorubarani, 2015-5LW544 (FB).
According to the Management, in T. M. A. Pai's
case it is held that the State Government can frame
Governing services conditions of the staff of educational
institutions run by the minority for whom aid is provided, the
management, however, is a linguistic minority which is an
unaided institution.
This aspect, in our view, is considered while
dealing with point No. 3. The Court, having considered
various judgments, as noted above, held that even unaided
minority institutions who seeks and secures recognition or
affiliation from University or regulatory body, is obligated to
12 MCA830.23.odt
comply with the conditions of recognition and affiliation and,
therefore, the Court can compel Management to comply with
the conditions of affiliation having statutory flavour and thus
to pay emoluments as per the norms of the AICTE or the
State Government or the Board, etc.
(IV) Point Nos. 5 & 6:
That AICTE does not have any power to
determine the standards of education unlike UGC. The power
to determine the standards of education is only available
with UGC and right/power of AICTE is limited to right to be
consulted by the UGC.
The role of AICTE is recommendatory as held in
Association of Management of Private Colleges vs AICTE
[(2013) 8 SCC 271] and therefore AICTE Regulations are not
binding.
Thus, according to the Management, the AICTE is
only a recommendatory body and has no power to determine
the standard of education unlike the University Grants
Commission.
The Court rejected the aforesaid contention, inter
alia, on the ground that the AICTE is empowered to prescribe
the qualification, which would subserve merit and excellence
13 MCA830.23.odt
and implicit in the duty, to ensure that excellence in higher
and professional education is achieved, is the duty and the
power to prescribe the pay scales, which sufficiently refer to
teaching and non teaching employees who are qualified and
competent.
(V) Point No. 7:
Section 108 (1)(f) of the Act of 2016 is not the
source of Power of the State Government to prescribe pay
scales, such power is under Section 8(3) of the Act of 2016
which has been not exercised by the State Government.
The Court, referred to the judgment in Mahatma
Gandhi's case, which held that mere absence of the recitals of
the source of power cannot determine the legal status of the
instrument and further held that the resolution dated
12.08.2009, can be termed to be one made in exercise of
powers under Section 8(3) of Act of 1994 to confer a legal
right on the teaching staff of the college irrespective of the
fact whether they are aided or not. Accordingly, the Court
held that the Government Resolution dated 11.09.2019 can
also be construed to have been issued in exercise of powers
under Section 8(3) of the Act of 2016. The Court further
held that Section 108 (1) (f) provides that as a condition of
affiliation, the emoluments specified by the State
Government shall be paid to the Professors.
14 MCA830.23.odt
(VI) Point No. 8:
According to the Management, the judgment in
the case of Mahatma Gandi's case is not a law declared by
the Supreme Court because it is based on concession and no
reasons are given for holding that Government Resolution
dated 12.08.2009 was issued in exercise of powers under
Section 8(3) of the Act of 1994.
The Court held that Mahatma Gandhi's case was
relied upon by several Coordinate Benches viz. Kiran
Manikrao Bhusare, [2018 (4) Mh.L.J. 852, D. Y. Patil
College of Engineering [2019 (2) Mh. L. J. 86] and Rangnath
Vishnu Raskar [Writ Petition No.8949/2016 (Aurangabad
Bench)], to opine that the judgment was modified by the
Supreme Court only to the extent that relief granted to the
employee by the High Court was enlarged. The Court further
expressed its disinclination to accept submissions of the
Management that Mahatma Gandhi is not law declared
within the meaning of Article 141 of the Constitution of
India. The Court observed that all the parties before the
Supreme Court agreed that the Government Resolution
would mean decision taken either in exercise of the authority
of the State under Article 162 of the Constitution of India or
15 MCA830.23.odt
in exercise of authority under some statutory provision and,
thereafter rendered a finding that the nomenclature is not
decisive and Government Resolution may well be considered
to have been issued in exercise of the statutory power.
Mr.Bhangde, learned Senior Counsel, submits that
various judgments were relied upon by the Management in
support of its contention that the decision in Mahatma
Gandi's case is based on concession given at the bar and,
therefore, the finding recorded in the said case is not a law
declared by the Supreme Court.
The Court has noted these cases in paragraph D3
and D4 of its judgment. The Court, in para D8, has then
mentioned that it has given earnest consideration to the
decisions cited at the bar and having done so, held that the
Bench is not inclined to accept the submissions of
Management that Mahatma Gandhi's case is not the law
declared within the meaning of Article 141 of the
Constitution of India. The Court has then in detail discussed
the issue and the judgments referred to by the Management
on this point in the subsequent paras to discard the argument
of Management that Mahatma Gandhi did not consider
earlier binding precedents.
16 MCA830.23.odt
We may note here that where a party chooses to
rely upon multiple judgments on one point, the Court may
not and need not refer to each case so cited. The purpose
will be served, if the ratio spelt out in the judgments if taken
together and considered. That is what has been done in the
present case. In the circumstances, merely because there is
no reference to some of the cases cited, one cannot argue,
unless otherwise shown, that the ratio laid down in a
particular case has been not considered by the Court that the
judgments have been considered by the Court. In the present
case, the fact remains that the Court has given due
consideration to the decisions cited by the Management and
recorded detailed reasons to take a view that Mahatma
Gandhi's case holds the field.
(VII) Point No. 9:
The GRs dated 20.08.2010 and 11.09.2019 have
been not published in the official gazette and, therefore, they
cannot be said to have been issued in exercise of statutory
power.
This issue has been considered in earlier
paragraphs. The contention of the Management was that
these two resolutions are executive instructions issued in
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exercise of power under Article 162 of the Constitution of
India and cannot restrict or regulate the fundamental rights
of the Management. This Court, taking aid of Mahatma
Gandhi's case, has held that these GRs can be construed to
have been issued in exercise of powers under Section 8 (3) of
the Act of 2016.
(VIII) Point No. 10:
This Court relied on judgment in the case of Unni
Krishnan Vs State of Andhra Pradesh and Ors., [(1993) 1
SCC 645], which was not cited by any of the parties and that
the said judgment is overruled in T.M.A. Pai's case.
In Unni Krishnan's case, Five Judge Bench of the
Supreme Court held that there is no fundamental right under
Article 19(1)(g) of the Constitution of India, to establish an
educational institution if recognition or affiliation is sought
for such an educational institution. The Supreme Court
further held that the private educational institutions
discharge a public duty and their actions could be scrutinized
on the touchstone of Article 14 of the Constitution.
This judgment is said to have been overruled by
T.M.A. Pai's case. In T.M.A. Pai's case, however, Unni
Krishnan was overruled to the extent it framed the scheme
18 MCA830.23.odt
relating to grant of admission and fixing of fees and the
consequent directions given. Thus, T.M.A.Pai did not
overrule Unni Krishnan as regards its finding that there is no
fundamental right under Article 19 (1) (g) to establish an
educational institution if recognition and affiliation is sought
for such an educational institution.
It cannot, therefore, be said that the finding on
this point is based on the overruled judgment.
(IX) Point No. 11:
According to the Management, the Court has
relied upon Government Resolution dated 12.08.2009.
However, both the parties had agreed that Government
Resolution dated 12.08.2009, is not applicable.
In our view, the Court has referred to Government
Resolution dated 12.08.2009, which was subject matter in
Mahatma Gandhi's case and on the basis of law laid down in
Mahatma Gandhi's case, wherein the Court took a view that
Government Resolution dated 12.08.2009, has been issued in
exercise of statutory power under Section 8(3) of the Act of
1994 and shall apply with equal vigor to unaided institution
and also to unaided minority institution. Reference is so
made to infer that on identical analogy the Government
19 MCA830.23.odt
Resolutions dated 20.08.2010 and 11.09.2019 can be said to
be issued under Section 8(3) of the Act of 1994 and Section
8(3) of the Act of 2016 respectively. It can't be, therefore,
said that the finding of this Court is based on Government
Resolution dated 12.08.2009.
(X) Point No.12:
This Court has observed that under Section 10 of
the AICTE Act, the AICTE is tasked with the function of
laying down "infrastructure facilities", which would also
include the pay scales of teaching staff. According to the
Management, there is nothing in Section 10 to indicate that
AICTE is tasked with laying down infrastructure facilities.
We find that the words, "infrastructural facilities"
are not mentioned in Section 10 but that itself will not lead
to a different conclusion drawn by this Court that the AICTE
has power to prescribe pay scale. Section 10 provides that it
is exclusive duty of AICTE to take all such steps for ensuring
coordinated and integrated development of technical
education and maintenance of standards.
In the light of the above, which require AICTE to
ensure development and maintenance of standards of
education it appears that this Court has taken a view that
20 MCA830.23.odt
AICTE is tasked with the function of laying down norms and
standards for courses, infrastructural facilities, staffing
pattern and qualifications, etc. The Court has then referred to
judgment of the Coordinate Bench wherein the power of
AICTE to prescribe pay scales were recognized. The Court
referred to case of D. Y. Patil College of Engineering,
wherein the Coordinate Bench observed that the AICTE is
empowered to prescribe pay structure of the teaching staff on
degree and diploma level of technical institution. The Court
has then considered corresponding provisions of the Act of
2016, particularly Section 108 thereof to hold that it is the
duty of institution seeking affiliation to pay emoluments as
may be prescribed or specified by the University or the State
Government whether or not the institution has submitted
undertaking to that effect. The Court proceeded to hold that
the duty cast on the educational institutions creates a
corresponding right in favour of the employee.
(XI) Point Nos. 13 & 14:
According to the Management, the Assistant
Professors, during the course of hearing, had expressly
submitted that the Government Resolution dated 12.08.2009
is not applicable and that the applicable Government
21 MCA830.23.odt
Resolution is dated 20.08.2010. It is further the case of the
Management that by Government Resolution dated
11.09.2019, the Government had implemented AICTE
Regulations, 2019 in respect of the Government and non
Government aided institutions only.
Mr. Bhangde, learned Senior Counsel submits that
the Government Resolution dated 20.08.2010 indicates that
the AICTE has framed regulations dated 05.03.2010,
recommending payment of pay scales as per VI Pay
Commission. Pursuant thereto, regulations were made
applicable to the Government and non Government aided
colleges only and not to unaided Government colleges and,
therefore, the Assistant Professors had no right to salaries as
per VI Pay Commission.
This aspect has been already dealt with in the
earlier paragraphs. The Court has, by relying upon, Mahatma
Gandhi's case, held that Government Resolution issued by
the State Government can be said to be issued in exercise of
statutory power under Section 8 (3) of the Acts of 1994 and
2016 and that it applies with equal vigor to unaided
institutions including minority institutions.
22 MCA830.23.odt
(XII) Point No. 15:
The State Government had pleaded in its reply
that the Government Resolutions dated 20.08.2010 and
11.09.2019 are policy decisions of the State Government.
Hence, they were issued in exercise of power under Article
162 of the Constitution of India and not in exercise of any
statutory power.
The Court considered provisions of the Acts of
1994 and 2016. It referred to Section 108 of the Act of
2016, which provides that as a condition of affiliation, the
emoluments specified by the State Government shall be paid
to the Professors. The Court held that right of teacher to
claim entitlement to the emoluments specified by the State
Government has a statutory flavour. The Court then held
that even if it is assumed that the emoluments have been
specified in exercise of power under Article 162 of the
Constitution of India, the Court is not inclined to accept the
submission that the expression, "specified by Government",
must be understood as "emoluments statutorily prescribed".
The Court further held that the exercise of executive powers
under Article 162 of the Constitution of India can always be
subjected to judicial scrutiny on recognized parameters.
23 MCA830.23.odt
(XIII) Point Nos. 16 and 17:
According to the Management, this Court referred
to fees regulatory authority to observe that in view of the
undertaking submitted by the Management on the basis of
which reasonableness of the fee structure is determined, the
Management would have collected from the student fees
factoring prescribed salary.
Mr. Bhangde, learned Senior Counsel submits that
the Court's attention was brought to the pleadings (page Nos.
451-455) to show that the Management has not collected the
fees on the basis with which Professors will be paid salary as
per pay scales recommended by the VI and VII Pay
Commission.
The Court held that the Management is covered
by the applicability clause of both the AICTE Regulations of
2019 and Government Resolution dated 11.09.2019 and,
therefore, the Assistant Professors and similarly situated
employees will be entitled to the benefits of pay scales
recommended by the Pay Commission. In addition, the
Court referred to solemn statements made by the
Management on affidavit submitted in the fees determination
proceedings and the undertaking given by it that the salary
24 MCA830.23.odt
paid is and especially as per the norms of the AICTE/
Department of Technical Education/Government/ University.
In the light of such situation, the Court made remarks that
the Management would have collected from the student fees
factoring prescribed salary. Thus, collection of fees from the
students was not the basis on which the Court held that the
Professors will be entitled for the benefit of pay scales
recommended by the Pay Commission.
According to the Management, the conditions of
affiliation and recognition which are imposed by the
executive instructions did not give any right to the
employees. The Court was of the view that every institution
including unaided minority institutions is obligated to fulfill
and comply with the conditions of recognition and affiliation.
The condition of recognition and permission for starting
Management's college was that the teacher shall be paid
salary in accordance with the norms fixed by the AICTE. The
Court further noted that the conditions of affiliation provided
that the employees shall be paid in accordance with the
emoluments specified by the University and the State
Government. The Court, thereafter, has taken aid from
Mahatma Gandhi's case to hold that the Government
25 MCA830.23.odt
Resolution can be construed to have been issued in exercise
of power under Section 8(3) of the Acts of 1994 and 2016.
Mr. Bhangde, learned Senior Counsel submits, by
relying upon the judgment in the case of Ku. Regina Vs. St.
Aloysius Higher Elementary School and anr; [(1972) 4 SCC
188], that executive instructions for grant of recognition or
affiliation cannot be enforced by the employee. As such,
from the judgment, we do not find that this authority was
placed before the Court. However, the question here is that
the Court has held that the Management is bound by the
conditions of affiliation and recognition to permit to run the
college and having accepted the same, the Management was
duty-bound to pay to the employees the emoluments as
prescribed by the AICTE/State Government, etc. read with
the provisions of the Acts of 1994 and 2016. The Court has
further relied upon various judgments including Mahatma
Gandhi's to justify its finding.
(XIV) Point No. 18:
Executive Instructions i.e. Government Resolution
dated 11.09.2019 issued in exercise of power under Article
162 of the Constitution of India does not get any statutory
force by virtue of Section 108(1) of the Act of 2016.
26 MCA830.23.odt
This issue has been already dealt with in point
Nos. 7 and 9 and, therefore, requires no further discussion.
(XV) Point No. 19:
Right under Article 19 (1) (g) of the Constitution
of India can be regulated only by law as provided in Article
19(6) of the Constitution.
The Court, while considering the aforesaid issue,
found substance in the argument of Management that the
restrictions under Article 19(6) of the Constitution of India,
ought to be imposed by law in the interest of general public
and must be reasonable. The Court, however, examined
whether in the present case, any right guaranteed under
Article 19(1)(g) is restricted. The Court held that right to
carry on occupation includes right to establish an educational
institution and then added that such an institution, whether
aided or unaided, minority or majority, has no fundamental
right to insist on recognition or affiliation from the State,
University, Board or Regulatory Board. The Court further
held that right to establish educational institution with
recognition of State or Regulatory Board cannot be claimed
on the touchstone of Article 19(1) (g) of the Constitution of
India. The Court then held that the Management having
27 MCA830.23.odt
obtained recognition to start educational institution subject
to fulfilling the terms and conditions prescribed under the
statutory provisions specified in exercise of executive powers,
is bound to pay scales as prescribed or specified by AICTE or
the State Government, etc.
(XVI) Point No. 20:
Merely because legislature has power to make
laws with regard to the subject, does not mean that State
Government or its officers, in exercise of executive power,
can infringe the rights of the citizens.
This point can be said to have been considered
and dealt with in point No. 19. Having found that the
educational institution run by the Management was subject
to the condition of affiliation and undertaking furnished by
the Management, it was bound to pay salary as
recommended by the AICTE or the State Government, etc.
and, therefore, would not infringe the rights of Management.
(XVII) Point No. 21:
The Management as well as Professors had relied
upon the provisions of National Commission for Minority
Educational Institutions Act, 2004 (hereinafter referred to as
28 MCA830.23.odt
the, "Act of 2004") in support of their respective arguments.
Further, the right under Article 21 of the Constitution of
India cannot be waived.
We do not find from the judgment under review
that the attention of this Court was invited to provisions of
the Act of 2004. It, however, appears that the Assistant
Professors had, in written notes of argument, relied upon
Sections 10 and 10A of the Act of 2004 to argue that the
minority educational institutions may seek affiliation to any
University of its choice subject to such affiliation being
permissible within the Act under which the University is
established, the Management will be bound by provisions of
the Act of 2016 having got affiliation with such a University
and, therefore the salary as per the Pay Commission will be
payable to the Assistant Professors in terms of provisions of
the Acts of 1994 and 2016. The Management, in written
notes of arguments, countered these submissions, contending
that the provisions indicate that the conditions of affiliation
can only be prescribed by rules and regulations and,
therefore, payment of Pay Commission can be imposed only
by Rules or Regulations.
29 MCA830.23.odt
We find that the Court has rendered finding on
the basis of the provisions of the University Act and also held
that the AICTE Regulations will bound the Management to
pay emoluments as per Commission. Thus, it can be said
that payment of Pay Commission is imposed by the AICTE
Regulations. However, since both of us were not part of the
Bench, are unable to comment as to whether the parties
herein referred to the provisions of the Act of 2004 during
oral argument. In any case, the argument of Management
that payment of Pay Commission can be only imposed by
rules or regulations, stands answered in the finding of the
Court that payment of Pay Commission is payable to
Assistant Professors in terms of the AICTE Regulations read
with provisions of the Acts of 1994 and 2016 and relevant
Government Resolutions.
(XVIII) Point No. 22:
Any undertaking before Fee Regulatory Authority
given by a person cannot expand the statutory power of the
authority. Also, the right under Article 30(1) of the
Constitution of India cannot be waived.
30 MCA830.23.odt
Mr. Bhangde, learned Senior Counsel in support
of the aforesaid argument, submits that the Management had
referred to two judgments, one is Shridhar C. Shetty Vs.
Additional Collector and Competent Authority and Ors.
[(2020) 9 SCC 537 and another is Chandana Das (Malakar)
Vs. State of West Bengal, [(2020) 12 SCC 411. Contention is
that these judgments have been not recorded muchless
considered.
On this point, we can only say that since we were
not part of the Bench, are unable to comment. We, however,
find that the argument has been considered by the Court and
having considered the same, the Court held that the minority
institution, aided or unaided, which seeks and secures
recognition or affiliation from the University or Board or the
Regulatory Board, is obligated to comply with the condition
of recognition and affiliation and cannot be heard of saying
that said condition dilates muchless obliterate the subsistence
of the right under Article 31 of the Constitution of India.
(XIX) Point No. 23:
During the period pertaining to recommendation
of the VI Pay Commission from 01.01.2006 till 31.03.2015,
31 MCA830.23.odt
the Act of 1994 was in operation. Section 81(1)(f) of the
said Act does not permit the State Government to prescribe
service conditions of the employees of the affiliated colleges.
The power is with University which had not prescribed pay
scale as per VI Pay Commission.
The Court noted that Section 108 (1) (f) of the
Act of 2016 is a similar provision to corresponding provision
of the Act of 1994, except that the emoluments and the
conditions of service of affiliated college shall be as may be
specified by the University and the State Government. The
Court, however, took a view that it is the duty of the
institutions seeking affiliation to pay emoluments as may be
prescribed or specified by the University or State Government
and as such it is not dependent on the submission of
undertaking to seek affiliation or permission to run
educational institution. The Court held that the statutory
duty is absolute and neither the factum of submission nor
form of affidavits is decisive.
9. This is how each point argued by the Management has
been considered by the Court to render a finding. As noted at the
beginning, the consideration may not have met the expectations of
the Management; however, that alone does not permit the
32 MCA830.23.odt
Management to argue that the Court has committed an error
apparent on the face of the record.
10. We may reiterate here that the term "error apparent,"
by its very connotation, signifies an error that is evident per se
from the record of the case and does not require detailed
examination, scrutiny, or illustration of either the facts or the legal
position. In other words, an error that is not self-evident and one
that must be detected through reasoning cannot be described as an
error apparent on the face of the record.
11. In this context, we note that the Management took
more than two sessions to point out the so-called errors, which it
claims are apparent on the face of the record. The time taken itself
is sufficient to conclude that the errors were not self-evident.
However, we have examined the issue, only to find that each point
raised by the Management has been duly considered by the Court.
Therefore, it cannot be said that the Court has committed any
error apparent on the face of the record.
12. It is also the Management's case that certain points
argued were neither noted nor considered. We find ourselves
oblivious to what was argued before the Court and, therefore,
cannot comment on the plea regarding arguments not noted by the
33 MCA830.23.odt
Court. Nonetheless, what is argued before us is that the provisions
of the National Commission for Minority Institutions Act, 2004,
were not considered, and that T.M.A. Pai's case cannot be relied
upon for unaided minority institutions, along with other judgments
which, according to the Management, were either not binding or
not applicable to minority institutions.
13. As such, we find that all the points raised and the
judgments referred to by the Management were duly considered
by the Court. As noted earlier, the absence of a reference to a
particular judgment does not imply that the judgments cited by the
Management were not taken into account. When multiple
judgments are referenced on a single point, the Court serves its
purpose by considering the ratio laid down in those judgments and
their effects. Regarding the binding effect of a judgment, if the
Court has rendered a finding affirming its binding force, that
decision may not fall under the category of an apparent error, as it
would require a detailed analysis of the judgment. If found
otherwise, it could be deemed an erroneous decision, which
cannot be corrected in the review jurisdiction.
14. We may add that there has recently been a surge in the
filing of review petitions to avoid obligations, particularly in cases
34 MCA830.23.odt
where monetary relief is granted. The aggrieved party often seeks
to evade payment obligations by prolonging litigation. Filing
unjustified review applications is one such tactic, and the present
case is no exception. Despite a comprehensive analysis of the
controversy, which detailed the importance of quality education
and justified the payment of attractive salaries to procure good
talent for imparting education, the instant review has been filed. It
appears that the management has lost sight of importance of
quality education, which has potential to shape up the future
generations. Unless the students are technically sound, possibility
of collapsing the bridge connecting two destinations cannot be
ruled out. Had the Management looked at the issue from this
perspective, probably it would have of its own paid salary to the
Assistant Professors as recommended by the VI and VII Pay
Commissions. The unwarranted review petition is, therefore, liable
to be dismissed.
15. The petitioners have, however, also made an alternative
prayer, stating that if the finding is adverse to the Management,
they should be allowed to include the increased expenditure in the
pay scales within the annual fee structure and to pay the amount
towards the revised pay scales as and when approved by the Fees
Regulatory Authority.
35 MCA830.23.odt
16. This prayer should have been made in the Writ Petition.
Having not done so, we are not inclined to accede to it, as it also
has the effect of prolonging payments to the Assistant Professors.
The Management is seeking permission to raise funds in the
annual fee structure only when approved by the Fees Regulatory
Authority. Consequently, the prayer made and the review petition
are dismissed. No order as to costs.
(Anil L. Pansare, J.) (G. A. Sanap, J.)
17. At this stage, Mr. H. D. Dangre, learned counsel for the
Management, makes a request to stay the effect and operation of
the judgment.
18. As against, Mr. P. B. Patil, learned counsel for the
Assistant Professors, submits that the Assistant Professors are
awaiting salary since long and, therefore, the stay, if is to be
granted, may be granted subject to payment of arrears of salary.
19. We are of the view that purpose will be served if six
weeks time is granted to Management to challenge the judgment.
Accordingly, we direct that the judgment shall take
effect after six weeks from today i.e. on or after 14.03.2025.
(Anil L. Pansare, J.) (G. A. Sanap, J.)
kahale
