LAWS(BOM)-2018-9-143

D.Y. PATIL COLLEGE OF ENGINEERING AND OTHER Vs. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION I G SPORTS COMPLEX AND OTHERS

Decided On September 07, 2018
D.Y. Patil College Of Engineering And Other Appellant
V/S
All India Council For Technical Education I G Sports Complex And Others Respondents

JUDGEMENT

(1.) The Writ jurisdiction of this Court is invoked by the petitioner No.1, D.Y. Patil College of Engineering which is run by the petitioner No.2 D.Y. Patil Pratisthan, District Kolhapur. The present Writ Petition seeks issuance of writ in the nature of mandamus or any other appropriate writ or direction for quashing and setting aside two Government Resolutions issued by the Higher and Technical Education Department, Government of Maharashtra dated 20.10.2000 and 07.10.2009, to the extent that they direct retrospective effect to be given to the pay revisions to the employees of the petitioner No.1. The grievance raised by the present petition is limited to the retrospective implementation of the 5th and 6th pay commission recommendation and the petitioner Nos.1 and 2 have no hesitation in implementing the recommendations of the pay commission itself.

(2.) The petitioner No.1 who has obtained a necessary permission under the All India Council for Technical Education Act (for short 'AICTE' Act) in the year 1984 and is affiliated to Savitribai Phule, Pune University and is a nonaided private institution imparting education of a professional course. The petitioner submits that the college is not in receipt of any grant from the State Government since it is a nonaided institution and the infrastructural arrangements are catered to from the fees received from the students and the same amount is used for payment of salary of the teaching and nonteaching staff of the petitioner No.1. The petitioners before us has no qualm about implementing the recommendations of the 5th and 6th pay commission to its eligible staff but it is only the retrospective effect of such pay revision which hurts the petitioners. The petitioners submit that the Government of India had taken a decision on 9.10.1998 implementing the revision of payscale of teachers in technical institution, following the revision of payscale of Central Government Employees on the recommendation of 5th pay, Central Pay Commission. The Government of India had thereafter notified and made its implementation applicable to the AICTE. According to the petitioner the State Government granted its approval for the implementation of the revised payscale to the teachers etc., in the Government and non Government, Engineering College with effect from 1.1.1996. Similarly, in respect of the recommendations of 6th pay commission, the Government of Maharashtra accepted the same and the decision was taken pursuant to the Pay Revision Committee popularly known as Hakim Committee and the pay revision was directed to be implemented with effect from 1.1.2006. The petitioners do not dispute that they are governed by these rules and regulations formulated by the AICTE, which is a statutory body. The petition contains the categorical statement that the Government Resolution issued by the State Government directed the benefit of the 5th and 6th pay commission to be extended to the teachers as well as to the nonteaching staff of the petitioner institution, there is no opposition to implement the recommendations of 5th pay commission and 6th pay commission as contained in the Government Resolutions but the only objection is to apply the same retrospectively.

(3.) The learned Senior Counsel Shri.Anturkar appearing for the petitioners would categorically make a submission before us that by no stretch of imagination the petitioners are assailing the applicability of 5th and 6th pay recommendations but the limited challenge is only to its retrospective effect. The learned counsel would submit that the issue to be decided is whether a private nonaided institutions like the petitioner should be foisted with an application to pay the employee's retrospectively, the salary made applicable to them in terms of the recommendations of the revised pay commission and whether it can be made imperative in such institutions to discharge heavy burden of arrears. The learned Senior counsel would submit that practically speaking it is not possible for the institution to pass on the burden to the students since for the respective academic years, the fees to be paid by the students have been regulated taking into consideration the expenditure to be borne by the institution and accordingly it has been capped by the Fee Regulatory Authority and since now the students have left the institution on completion of the curriculum, it is difficult for the institution to bear the burden of the arrears. The learned Senior Counsel would also advance submission to the effect that the institution like the petitioner possess a fundamental right, which by this time have even being recognised by the Hon'ble Apex Court to run the institution. He would therefore submit that the doctrine of proportionality require that one has to see degree of the restrictions which are imposed, on the fundamental right and degree of control being really in the nature of restrictions should only be proportionate to the object which is sought to be achieved and should not exceed. He would submit that if the object which is sought to be achieved by directing the teaching and nonteaching staff belonging to the unaided institution should also get the same benefit which their counterparts in aided institution are entitled to, and obviously the object is that such institutions should not appoint substandard teaching staff/nonteaching staff. The petitioner's institution according to Shri.Anturkar, is ready to bear the burden of the revision of payscale and he expresses that there is no iota of doubt in the mind of the petitioner's institution that the AICTE has right to control the technical education, and in exercise of its power it can direct maintenance of minimum standard in those institutions which also extend to the infrastructure which would include the commensurating standards for teaching and nonteaching staff. However, according to him imposing the liability of the arrears, rather than giving a notional effect to them amounts to exceeding the degree of the restriction and violates the doctrine of proportionality. Another submission which the learned counsel would advance is that if the distinction is to be drawn between an aided and nonaided institution, then obviously the nonaided institution should also get the same benefit, which the aided institutions enjoyed that is which inter alia would include 80% of the grant being arranged for, by the Central Government and in that eventuality it would become necessary to declare that the liability of the nonaided institution would be to the extent of 20%. He would thus submit that equality cannot be compartmentalized, it cannot be merely achieved by enforcing the obligation in respect of payment of arrears but according to the learned Senior Counsel it should also then extend to the right of receiving 80% contribution of the revision of payscales from the Central Government. Shri.Anturkar, would place heavy reliance on a Division Bench Judgment of this Court in case of Sunanda w/o Pandharinath Adhav (Mrs.) & Ors. v. State of Maharashtra & Ors., 2001(1) Bom.C.R. 809 to support his submission. He would submit that the said judgment of the Division bench of this Court turn places reliance on a judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh v. U.P. Polytechnic Diploma Shikshan Sanstha and Another, 2000(10) S.C. 469. Wherein the Hon'ble Apex Court had conferred the benefit of the pay revision from the date on which the petition is filed and with retrospective effect. He would submit that this authoritative pronouncement by the Hon'ble Apex Court has been taken into consideration in the recent judgment of the Hon'ble Apex Court delivered in case of Secretary, Mahatama Gandhi Mission and Another v. Bhartiya Kamgar Sena and Ors., (2017) 4 SCC 449 Shri.Anturkar, the learned senior counsel would therefore submit that the petitioners need be compelled to discharge the burden of the arrears of pay revision, which at this stage is difficult for them to discharge.