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Judgment
Rule was issued in the present writ petition vide order dated 29.08.2012. The matter was heard finally. We have heard the learned Senior Counsel Mr. Bhangade assisted by Mr. A. G. Baheti, Advocate for the petitioner and the learned Advocate General Mr. Milind Sathe assisted by the learned AGP Mr. Patil for respondent no. 1 and learned Counsel Mr. Parsodkar for the respondent no.3.
By the present petition, the petitioners initially sought a declaration that Section 77-A of the Nagpur University Act, 1974 and Section 8(3) of the Maharashtra Universities Act, 1994 are unconstitutional, being violative of Articles 14, 19(1)(g) and 26 of the Constitution of India. They also sought quashing of the Government Notifications dated 27.07.1989 and 04.02.1999, inter alia, on the ground that the same were not published in the Official Gazette. In the alternative, the petitioners sought reading down of the aforesaid statutory provisions and Government instruments so as to exclude private unaided institutions from their operation.
The learned Advocate General further submitted that the Nagpur University Act, 1974 and the Maharashtra Universities Act, 1994 have since been repealed and the Maharashtra Public Universities Act, 2016 has come into force. In view of the subsequent legislative development, it was submitted that the challenge to Section 77-A of the Nagpur University Act, 1974 and Section 8(3) of the Maharashtra Universities Act, 1994 does not survive for consideration and the same has not been disputed by the petitioners. It is also not in dispute that the petitioners have not challenged the provisions of the Maharashtra Public Universities Act, 2016. The challenge is, therefore, restricted to the issuance of notification dated 27.07.1989 and 04.02.1999.
Petitioner No.1, Shri Ramdeobaba Sarvajanik Samiti (“the Samiti”), is a society registered in 1968 and runs Ramdeobaba Kamla Nehru College of Engineering, Nagpur (“the College”). The College is a private unaided Hindi linguistic-minority institution, affiliated to Nagpur University, now Rashtrasant Tukadoji Maharaj Nagpur University (“the University”), and received AICTE approval on 20.09.1993.
In 1995, respondent No.3, on behalf of about 147 non-teaching employees, instituted Complaint (ULP) No.148/1995 before the Industrial Court, Nagpur, under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter MRTU & PULP Act). The employees sought appropriate scales and arrears. The Samiti filed its reply on 09.06.1995. During pendency of the complaint, the parties entered into a settlement dated 18.01.1996, under which AICTE scales were made applicable from 01.08.1995, without prejudice to their rights in the pending proceedings.
By judgment dated 20.03.2004, the Industrial Court dismissed the complaint. Review Application No.11/2004 came to be dismissed on 02.04.2005. The respondent no. 3 in the present case thereafter filed Writ Petition No.3802/2005. By judgment dated 22/23.03.2010, the learned Single Judge partly allowed the writ petition, holding that the notification dated 27.07.1989 applied to the College and that non-extension of the prescribed scales amounted to unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. The petitioner was directed to fix the employees in the appropriate scales from their respective dates of regularisation, with arrears from 20.09.1993.
The petitioner no. 1 challenged that judgment in Letters Patent Appeal No.397/2010. On 18.01.2012, the appeal was admitted and expedited. The order records that Fifth Pay Commission benefits had been extended and that 50% of the Fourth Pay Commission arrears would be paid, while the balance remained stayed during pendency of the appeal.
The petitioners then instituted the present Writ Petition No.4715/2010. They seek quashing of the Government notifications dated 27.07.1989 and 04.02.1999, for want of publication in the Official Gazette; and, alternatively, reading down of those provisions and notifications to exclude private unaided institutions.
9. Submissions on Behalf of the Petitioners:
Learned Senior counsel Mr. Bhangade assisted by Mr. A. G. Baheti, for the petitioners submits that the College is a private unaided minority institution and that its right to establish and administer the institution is protected by Articles 19(1)(g), 26 and 30(1) of the Constitution of India. It is urged that this right includes the power to appoint non-teaching staff and determine their service conditions, including pay scales.
He submitted that the State’s role in relation to an unaided institution is regulatory and extends only to ensuring that the institution is not maladministrated. The State, it is urged, cannot prescribe or alter the pay scales of non-teaching employees of an unaided minority institution merely because the institution is affiliated to a University.
Learned Senior Counsel further submitted that aided and unaided institutions constitute distinct classes since the former receive State financial support, whereas the latter must meet their expenditure from their own resources. Treating both alike for fixation of pay scales, according to the petitioners, is arbitrary and offends Article 14.
He further contended that the Government notifications dated 27.07.1989 and 04.02.1999 are pieces of delegated legislation. Since statutory scheme require prescription of the Standard Code by notification in the Official Gazette, publication in the Official Gazette is urged to be a mandatory condition for their enforceability.
He further contended that the impugned notifications were neither published in the Official Gazette nor communicated to the petitioners. It is pointed out that the petitioners’ representative made enquiries at the Government Press, Nagpur, the All India Reporter library and the office of the Director of Higher Education, but could not locate the Gazette publication. The Principal of the College also addressed communications dated 24.05.2010 and made applications under the Right to Information Act, 2005 seeking particulars of the alleged publication. It is submitted that the material sought was not furnished.
It is, therefore, urged that the impugned notifications suffer from procedural ultra vires and cannot impose any enforceable obligation upon the petitioners. Reliance is placed on Municipal Corporation of Greater Mumbai vs Anil Shantaram Khoje,(2016) 15 SCC 726, Rajendra Agricultural University v. Ashok Kumar Prasad, (2010) 1 SCC 730, to submit that statutory instruments requiring Gazette publication do not become enforceable without such publication.
On the issue of delay, learned Senior Counsel submitted that the petitioners bona fide proceeded on the footing that the impugned notifications did not apply to the College, particularly because it was unaided and the notifications were not communicated to it. The need to challenge the provisions and the Government notifications, it is urged, arose only after the judgment in Writ Petition No.3802/2005 held that they were applicable to the College.
Learned counsel relies upon T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, in support of the submission that an unaided minority institution retains autonomy in its day-to-day administration.
It was accordingly urged that the Government notifications dated 27.07.1989 and 04.02.1999 be quashed; or, in the alternative, that the said provisions and notifications be read down to exclude private unaided minority institutions.
10. Submissions on behalf of Respondent No. 1:
Learned Advocate General Mr. Milind Sathe assisted by the learned AGP Mr. Patil for respondent no. 1 submitted that non-publication of the notification dated 27.07.1989, by itself, does not render the notification unenforceable.
He submitted that, in exercise of powers the State Government framed the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employees) Rules, 1984 and the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Revised Pay of Non-Teaching Employees) Rules, 1989. Referring to Rule 16 of the 1984 Standard Code, he contended that the prescribed time scales of pay, including special pay, are binding upon the employees and are subject to revision by the Government from time to time.
The learned Advocate General further submitted that the notification dated 27.07.1989 was subsequently amended by the notification dated 02.11.1989, which was published in the Official Gazette.
Adverting to the status of petitioner No.1, he submitted that it is a private, unaided linguistic-minority engineering college affiliated to respondent No.2 University. Referring to Clause 11 of the Notifications dated 21.05.1983, he contended that no claim for grant-in-aid towards recurring or non-recurring expenditure could be entertained and, therefore, the responsibility of meeting salary and other service expenses rests with the management.
He, however, submitted that the unaided status of the institution does not exempt it from complying with the applicable statutory provisions and service conditions. Referring to applicable Act and the University statutes concerning implementation of the Fourth, Fifth and Sixth Pay Commissions, he contended that the prescribed pay scales are binding upon affiliated colleges, irrespective of whether they receive grant-in-aid.
The learned Advocate General further contended that the financial burden of implementing the prescribed pay scales cannot justify denial of the employees' service entitlements. He submitted that the Fee Regulation Authority takes into account the admissible expenditure of the institution while determining its fee structure, including salary expenditure. He added that the linguistic-minority status of the institution does not exempt it from lawful regulatory requirements governing salaries and service conditions. He, therefore, submitted that neither the unaided status nor the minority character of the institution provides a valid basis for avoiding the obligations arising under the Standard Code, the Government notifications and the University statutes.
On the question of publication, the learned Advocate General submitted that every Notifications or executive order issued under Articles 162 and 166 of the Constitution of India need not necessarily be published in the Official Gazette. He fairly stated that the available records do not conclusively establish whether the notifications dated 27.07.1989 and 04.02.1999 were so published, as the relevant old records had been destroyed. Nevertheless, he maintained that the absence of proof of publication does not, by itself, invalidate the notifications. In support, State has relied upon B.K. Srinivasan and Others v. State of Karnataka and Others, (1987) 1 SCC 658.
The learned Advocate General therefore submitted that neither the alleged non-publication of the Government notifications nor the unaided and linguistic-minority status of the institution absolves the petitioners of their obligation to implement the prescribed pay scales and applicable service conditions. He, therefore, prayed for dismissal of the writ petition.
11. Submissions on behalf of respondent No.3 :
Learned counsel Mr. Parsodkar for respondent No.3 submitted that the writ petition is liable to be dismissed on the ground of delay and laches. He urged that the petitioners challenge the notification dated 27.07.1989 after more than two decades and the notification dated 04.02.1999 after more than eleven years. The challenge, thus, was instituted only after the petitioners suffered an adverse judgment in Writ Petition No.3802/2005.
He submitted that the 1984 Standard Code and the 1989 Revised Pay Rules were framed under statutory authority to govern the service conditions of non-teaching employees of Universities and affiliated colleges. Under Rule 16 of the 1984 Standard Code, employees are entitled to the prescribed time-scales, as revised by the Government from time to time. The College, being affiliated to respondent No.2, is bound by the conditions of affiliation and the applicable salary norms. The objection regarding non-publication is, therefore, stated to be misconceived.
Learned counsel further submitted that respondent No.3 instituted Complaint (ULP) No.148 of 1995 after the petitioners failed to extend the scales under the notification dated 27.07.1989. Though initially dismissed, the complaint was partly allowed in Writ Petition No.3802 of 2005, wherein the learned Single Judge held that non-extension of the prescribed scales constituted an unfair labour practice and directed fixation in the appropriate scales, with arrears from 20.09.1993. In the LPA No. 397/2010, the petitioners were directed to pay 50% of the Fourth Pay Commission arrears, but respondent No.3 alleges that the payment has not been made in accordance with the employees’ entitlement, giving rise to proposed contempt proceedings.
It is, therefore, submitted that the present petition is a belated attempt to defeat the judgment in Writ Petition No. 3802 of 2005 by challenging the statutory provisions and notifications forming the basis of the employees’ claim. Hence, the petition is liable to be dismissed.
Reasoning and Analysis:
We have considered the rival submissions and perused the material placed on record.
At the outset, it is necessary to deal with the submission made by the learned Advocate General regarding the subsequent legislative development. The petitioners had initially challenged the constitutional validity of Section 77-A of the Nagpur University Act, 1974 and Section 8(3) of the Maharashtra Universities Act, 1994. However, the learned Advocate General submitted that the aforesaid enactments have since been repealed and subsequently the Maharashtra Public Universities Act, 2016 has come into force. In view thereof, it was submitted that the challenge to the aforesaid provisions does not survive for consideration.
The learned counsel for the petitioners, upon considering the said submission, did not dispute the same. The petitioners have not challenged the provisions of the Maharashtra Public Universities Act, 2016. We accordingly confine our consideration to the surviving challenge to the Government notifications dated 27.07.1989 and 04.02.1999.
The controversy concerns the legal efficacy and applicability of the impugned notifications dated 27.07.1989 and 04.02.1999, and whether the petitioners can avoid the obligations arising thereunder merely on the ground that the College is an unaided minority institution or that the notifications were not published in the Official Gazette.
The applicable statutory and regulatory framework governing affiliated colleges, including the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employees) Rules, 1984, is therefore relevant in determining the service conditions of its non-teaching employees. Rule 16 thereof provides for payment of the prescribed time-scale of pay and permits revision thereof by the State Government from time to time. The petitioners do not dispute the affiliation of the College to the University. Having elected to obtain and continue such affiliation, the College is bound by the statutory conditions governing it, including the conditions concerning emoluments payable to its non-teaching employees.
The submission that the College is unaided cannot, by itself, furnish an exemption. In Secretary, Mahatma Gandhi Mission v. Bhartiya Kamgar Sena, (2017) 4 SCC 449, the Hon’ble Supreme Court held that the State possesses statutory authority to regulate service conditions of teaching and non-teaching employees of affiliated institutions. The Court also held that exclusion of employees of unaided institutions from the benefit of revised scales, while extending it to employees of aidede institutions, creates an artificial and impermissible classification.
The Hon’ble Supreme Court has also rejected the argument that an unaided institution is unable to bear the additional financial burden. Mahatma Gandhi Mission(supra) recognise that the management may place the relevant salary liability before the Fee Regulatory Authority while seeking fixation of fees. The absence of aid, therefore, may have consequences concerning the source from which the management is to meet the liability but it does not extinguish the employees’ entitlement under the applicable statutory regime.
The same position has been reiterated by this Court in Lokmanya Tilak Jankalyan Shikshan Sanstha v. Rutesh Lonkar, MCA (Review) No.830 of 2023 in W.P. No.2022 of 2020, decided on 31.01.2025. The Court held that an unaided minority institution which seeks and secures recognition or affiliation remains bound by the conditions of recognition and affiliation, including the obligation to pay emoluments prescribed under the governing statutory and regulatory framework. The minority character of the institution does not create an immunity from a regulatory condition concerning service conditions of employees.
The employees of an educational institution, merely because it is unaided, cannot be deprived of the remuneration to which they are lawfully entitled under the applicable service conditions. The employees are an integral part of the educational system and their contribution to the effective functioning and maintenance of academic standards cannot be overlooked. When the Government, in exercise of its lawful authority, prescribes or revises pay scales for the relevant category of employees, such employees are equally deserving of the benefit of those scales, provided the governing statutory and regulatory framework makes them applicable to the institution concerned. Denial of such benefits solely on the ground that the institution is unaided would undermine the objective of maintaining uniformity in service conditions and fair remuneration for similarly placed employees. As emphasised by the Hon’ble Supreme Court in Frank Anthony Public School Employees’ Association v. Union of India, (1986) 4 SCC 707, the well-being and contentment of employees are closely connected with the quality of education, and the protection afforded to minority educational institutions cannot be invoked as a licence to exploit their employees. Accordingly, where the prescribed pay scales are legally applicable, the employees are entitled to receive the benefit thereof, and the management cannot avoid that obligation merely by relying upon the unaided status of the institution or the financial burden involved.
We are, therefore, of the considered opinion that these provisions secure uniformity in service conditions in affiliated institutions. Such a measure is regulatory in character and bears a direct nexus with maintenance of educational standards and protection of employees. It neither takes away the right of administration under Article 30(1) nor imposes an unreasonable restriction upon the petitioners’ rights under Article 19(1)(g) or 26 of the Constitution.
The challenge based upon alleged non-publication of the notifications requires separate consideration. The issue cannot be answered merely by referring to the object of statutory provisions governing the issuance of the notifications, the service conditions of employees, or the petitioners’ alleged knowledge of the revised scales. The relevant inquiry is whether publication in the Official Gazette was mandatory under the statutory scheme governing the notification dated 27.07.1989 and, if so, whether that requirement was complied with or whether the notification dated 02.11.1989 independently provides the legal basis for the revised pay scales during the relevant period.
There can be no dispute about the governing principle. When a parent statute prescribes publication in the Official Gazette as the mode of bringing subordinate legislation into force, that requirement must ordinarily be satisfied. In B.K. Srinivasan (supra), the Hon’ble Supreme Court explained that subordinate legislation must be published or promulgated in an appropriate manner and that the effect of a procedural defect depends upon the statutory scheme and the nature of the requirement.
In Rajendra Agricultural University (supra), the Hon’ble Supreme Court held, that where the governing statute expressly made publication in the Official Gazette part of the process of making a statute, an unpublished statute could not be treated as valid and enforceable. The decision correctly states the consequence where non-publication is established and the notifications remains incomplete. Likewise, Municipal Corporation of Greater Mumbai (supra), emphasises that where publication is statutorily prescribed as a condition for the operation of rules, the rules become operative only upon such publication. These decisions are not to be disregarded merely because they concerned different enactments.
The principle emerging from the aforesaid decisions relied upon, is that the requirement of publication and the consequences of its non-compliance must be determined with reference to the specific statutory provisions governing the notifications in question. Where the statute expressly prescribes publication in the Official Gazette as a condition precedent to the notifications coming into force, such requirement must be complied with. However, in the absence of any such stipulation under the relevant Act, the mere non-publication of the Notifications in the Official Gazette cannot, by itself, render it illegal or invalid. The decisions relied upon by the petitioner, therefore, cannot be applied without examining the statutory scheme and the consequences contemplated under the provision in question.
The requirement of publication may be mandatory where the statutory scheme makes it a condition precedent to the notifications coming into force. However, in the absence of any express provision rendering the Notifications invalid for want of such publication, the principle laid down in the above judgments cannot be mechanically extended to hold that non-publication, by itself, renders the Notifications illegal or unenforceable. The judgments, therefore, do not advance the petitioner's contention that the Notifications is invalid solely on account of its non-publication in the Official Gazette.
In the present case, the learned Advocate General has brought to our attention that the notification dated 27.07.1989 was followed by the notification dated 02.11.1989. The State has specifically pointed out that the latter notification amended and replaced the earlier notification and was published in the Official Gazette. The employees’ entitlement in the present matter was directed to be computed only from 20.09.1993, namely, the date of approval granted by AICTE. Thus, even assuming that a question existed regarding the manner in which the notification dated 27.07.1989 was published, the subsequent published notification had already come into operation before the period for which the employees’ entitlement was directed to be worked out.
The petitioners’ objection must also be considered in the context of Rule 16 of the 1984 Standard Code. The Rule contemplates payment in the time-scales prescribed by the Government and revised from time to time. The subsequent published notification, read with the existing Standard Code, therefore, governed the relevant service conditions and revised scales during the material period. The petitioners cannot avoid the applicable statutory obligation by isolating the earlier notification from the continuing Standard Code and the subsequent published measure.
The case of Kiran s/o Manikrao Bhusare v. State of Maharashtra, W.P. No.5150 of 2013, decided on 15.01.2018, reproduces paragraphs 69 and 70 of Mahatma Gandhi Mission (supra) and holds that the absence of a recital of the source of power does not, by itself, determine the legal status or efficacy of a notifications. It does not lay down that an express statutory requirement of Gazette publication can be disregarded. The distinction is important. The State is not relieved of a statutory requirement of publication. The relevant paragraph no. 10 has been reproduced below:
“10………. 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 "Notifications" 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 cannot determine the legal status of the notifications or deprive the notifications 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."”
In view of the aforesaid discussion, we find that the objection based on non-publication cannot be considered in isolation from the subsequent notification dated 02.11.1989 and the applicable Standard Code. The petitioners have not established that the alleged non-publication of the notification dated 27.07.1989 renders the revised pay scales inapplicable for the period in question, particularly in view of the subsequent published notification and Rule 16 of the 1984 Standard Code. The challenge on this ground, therefore, does not warrant quashing of the notifications.
The objection of delay and laches raised by respondent No.3 also requires consideration. The instrument dated 27.07.1989 is challenged after a substantial lapse of time, while the challenge to the instrument dated 04.02.1999 was instituted more than eleven years after its issuance. During this period, respondent No.3 pursued the employees' claim before the Industrial Court and thereafter before this Court in Writ Petition No.3802 of 2005.
The petitioners contend that the necessity to challenge the instruments arose only after the judgment in Writ Petition No.3802 of 2005 held them applicable to the College. Respondent No.3, on the other hand, submits that the present petition is an attempt to defeat the consequences of the said judgment by questioning the instruments which formed the basis of the employees' claim.
Delay and laches do not, by themselves, render every constitutional or statutory challenge incapable of consideration. However, the lapse of time is a relevant consideration in the exercise of jurisdiction under Article 226 of the Constitution, particularly where the impugned instruments have operated for a considerable period and the rights of employees have been the subject matter of earlier adjudication.
The petitioners participated in the adjudicatory process concerning the employees’ claim, raised no challenge to the notifications for more than two decades in one case and more than eleven years in the other, and invoked the present jurisdiction only after an adverse judgment. In the absence of clear evidence of invalidity and demonstrable prejudice, discretionary relief cannot be granted.
In view of the foregoing discussion, we are of the considered opinion that the petitioners have failed to establish that the notifications governing the relevant period are liable to be quashed on the ground of alleged non-publication. The surviving challenge to the notifications dated 27.07.1989 and 04.02.1999 is accordingly rejected. No case is made out for reading down the provisions so as to exclude unaided minority institutions from their operation.
For the reasons recorded hereinabove, the writ petition is dismissed. Rule stands discharged. There shall be no order as to costs.