SECRETARY MAHATAMA GANDHI MISSION & ANOTHER versus BHARTIYA KAMGAR SENA & OTHERS

41. Under the Constitution oflndia, both the Parliament and the Legislative Assemblies of the States are conferred with the power to legislate upon various aspects of education. The power to legislate with respect to the field of education vested basically with the State Legislatures under Article 246 (3) read with Entry 11 of List II of the Seventh Schedule as it stood prior to the Constitution 42"' Amendment. Parliament is exclusively authorised under Article 246(1) to make laws with respect to various educational institutions specified under Entries 63 to 66" (both inclusive) of List I.

42. Original Entry 25 of the List llI indicated the concurrent field of legislative authority (of the Par! iament as well as the State Legislature) with reference to certain aspects of the education came to be substituted".

43. By the 42"' amendment of the Constitution, Entry 11 of List IP was omitted and Entry 25 of List Ill was substituted. Entire field of legislation with regard to education became the subject matter of Concurrent List. Entry 25 now reads: "Education; including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training oflabour." 26 See Footnote No. 25 27 Entry 25 of List Ill prior to the 42nd Amendment. – '·Vocational and technical training of labour." 28 Entry 11 of List II prior to the 42°d Amendment. – '·Education including universities. c subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III." [201 7] 2 S.C.R.

44. The availability of such legislative authority to the States (both before and after the 42"' Amendment) necessarily carried with it co-extensive executive authority which authorised the States to establish and administer colleges.

45. Parliament also made laws exercising its exclusive authority over the field indicated under Entries 63, 64 and 65 of List I of the Seventh Schedule to the Constitution. By the said laws, educational institutions were established and their administration was entrusted to either the Government of India or some other authority c

46. Entry 32 of List II of the Seventh Schedule indicates that State legislatures have exclusive legislative competence to make laws dealing with "incorporation, regulation and winding up of. .. universities". In exercise of such legislative authority, laws are made by the State L('gislatures bringing into existence Universities.

47. Various non-state actors including minorities established large number of colleges and other educational institutions in this country, both before and after the advent of the Constitution" (spanning over a period ofabout 200 years). Certain aspects of establishment and administration of colleges by non-state actors have always been regulated by the legislature. Various enactments (by or under which universities are established) command that colleges should secure affiliation to an appropriate university. However, after the 42"' Amendment, Parliament also became competent to regulate the activity of education. Some of the laws made by the Parliament do regulate. The All India Council for Technical Education Act (AlCTE Act) is one such.

48. Employment is essentially a contractual relationship between the employer and the employee. Employment in colleges could be employment by State, or its instrumentalities or by non-state actors, because there exist colleges conducted either by State or its instrumentalities or non-state actors. Therefore, the nature of the legal relationship of employment varies depending upon the employer.

49. The basic norms (employment under State) are regulated by the Constitution. The Constitution guarantees equality of opportunity in 29 Article 30 confers a fundamental right on (minorities both religious and linguistic non- state actors) to establish and administer educational institutions of their choice SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] the matter of public employment under Article 1630 • Article 309 declares that the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State. The appropriate legislature would be Parliament in the context of employment under the Government oflndia and the concerned State Legislature in the context of employment under any of the States within Union oflndia. Article 311 stipulates that no civil servant employed either by the Government of India or by any State shall either be dismissed or removed from the service except in accordance with the procedure stipulated thereunder. Therefore though employment even by State is essentially contractual relationship, such relationship is encumbered by the legal obligations emanating from the provisions of the Constitution and laws made thereunder. It is in the context of these constitutional provisions that this Court had repeatedly held that employment under State is a matter of status but not a matter of contract.

50. Employment under the various instrumentalities of State, either statutory or non-statutory, is also subject to the discipline of Article 14 of which Article 16 is only a facet. This Court in innumerable cases held that though Part XIV of the Constitution (wherein Article 309 etc. occur) is not applicable to such employment, some of the principles underlying the provisions of Part XIV still govern the employment under the instrumentalities of the State".

51. The expression 'education' occurring under Entry 25 of List III to the Seventh 'Schedule of the Constitution takes within its sweep the authority to legislate with respect to every aspect of education including establishment and administration of educational institutions such as schools, colleges etc. Administration of an educational institution has mainly two facets (i) imparting of knowledge, and (ii) maintaining the necessary infrastructure for providing the venue and other facilities for imparting of knowledge. To perform the twin functions, manpower is '"Article 16. Equality of opportunity in matters of public employment. – (I) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.· (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. 31 Managing Director. ECIL, Hyderabad & Others v. B. Karunakar & Others ( 1993) 4 sec 121 c [20 l 7] 2 S.C.R. required. Such manpower consists of two classes of persons, teaching staff and non-teaching staff.

52. Therefore Entry 25.must necessarily take within its sweep inter alia the power to regulate the activity of employment by educational institutions, whether they are established by the State, or its instrumentalities or non-State actors.

53. In view of the fact Entry 25 occurs in the Concurrent List of the Seventh Schedule, both the Parliament and State legislatures are competent to make laws regulating inter alia the establishment and administration of colleges either by the governments (Union or State) or c their instrumentalities or by non-State actors (private sector).

54. As ofnow, there is no law made by the Parliament regulating the entire activity of education either in public sector or private sector. Only certain areas of education such as medical education and technical education in some of the aspects are regulated by the laws made by the Parliament. For the purpose of the present case we are only concerned with technical education. AICTE Act is the relevant law made by the Parliament in the context of the present case.

55. The follo_wing principle submissions are made by the appellants: (i) The rights and obligations arising out of the relationship of employment between the appellants and their employees (whether teaching or non-teaching) is purely contractual. Such rights and obligations can be modified by law. But there is no statutory obligation (law) compelling the appellant to pay anything more than what is agreed to at the time of employing each one of the employees. According to the appellants, there is no law which obliges the appellants to pay the salaries and other allowances to its employees whether teaching staff or non-teaching staff in accordance with the pay structure recommended by the Sixth Pay Commission. (ii) A Jaw creating such statutory obligation must be express. (iii) 2009 Rules made under Section 8(3) of the Maharashtra Universities Act, 1994 only deal with the service conditions of the non-teaching employees that too of aided colleges. Therefore, the ~ppellant which is an unaided college cannot SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] be compelled to pay the s~lary and other allowances to its employees in terms of the recommendations of the Sixth Pay Commission in the absence of any express statutory obligation to make such payment. (iv) The AICTE Regulations dated 05.03.2010 though textually apply to the teaching and other academic staff etc. imparting technical educations in the technical institutions and universities do not ipso facto apply to the institutions governed by the respective State legislations dealing with education and universities". (v) The AICTE Act does not authorise the AICTE to regulate the service conditions of the employees of technical institutions.

56. On the other hand, it is submitted on behalf of the respondents- employees that once the State Government decided to accept the suggestion of the Government of India to extend the benefits of the Sixth Pay Commission to the employees of the various educational institutions falling under the purview of the State Legislature, the State Government is not justified in directing the revision of the pay 32 Written Submissions of the Appellants: Para 25. That is \vhy the AICTE notification dated 05.03.2010 itself even in the context of central funding, preserves the authority of the state Government to extend the notification to institutions falling within the State legislations. This is on the premise that the conditions of service of employees of institutions governed by university legislations is a matter to _be dealt within the terms of such a legislation. Para 26. It is. therefore. submitted that AICTE notification does not ipso-facto become applicable to all and every institutions governed by respective State legislation dealing \Vith education and universities. Para 27. Conditions of ser\'ice of, employees. e\'en though matters of contract can still be regulated by law. Such a law can fall under entry – 25 List Ill. But the law must expressly deal with such subject and not by any implication. As the law stands today private unaided institutions as far as various aspects of education are concerned inclUding the aspect of conditions of service are governed only and exclusively by legislation relating to universities. Para 28. As the GoYernment of Maharashtra has not exercised its statutory po,ver under sub-section.(3) of section 8 of the IQ94 Act and since the notification issued by it on 25.08.2010 omits to deal \Vi th private unaided institutions, they cannot be compelled to abide by AJCTE notification. It is well settled that the \Vrit of mandamus is not ·a creative \\Tit but only enforces statutory duties or rights. Para 29. The issue of conditions of service of employees within the scope of universities legislation can always be dealt with in' terms \Vi th such a law in the absence of any such detennination by the State Government, on principles of parity alone, the court will not issue a \Vrit of mandamus. c c [201 7] 2 S.C.R. scales of only the employees of those institutions which are either directly under the control of the State Government or its instrumentalities and private aided institu(jons. The non- extension of the same benefits to the employees of the unaided educational institutions which otherwise function under the control and supervision of the State Government would be a dereliction of the Constitutional mandate under Article 38" and Article 39(d)" and violative of Article 14 on the ground that the law is 'under inclusive'. Jn other words, it makes an artificial classification between the teaching and non- teaching staff of the educational institutions and further between the employees of aided and unaided educational institutions without there being any nexus between such classification and the purpose sought to be achieved by the pay revision.

57. We shall now examine the various submissions mentioned above.

58. The source of the rights, if any, of the employees' of the appellants to receive pay and allowances in terms of the recommendations of the Sixth Pay Commission is first required to be identified.

59. The Sixth Pay Commission appointed by the Government of India is only a body entrusted with the job of making an assessment of the need to revise the pay structure of the employees of the Government of India and to suggest appropriate measures for revision of the pay structure. The recommendations of the pay commission are not binding on the Government of India, much less any other body. They are only 33 Article 38. State to secure a social order for the promotion of 'velfare of the people- ( I) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 3 ~ 39. Certain principles of policy to be followed by the State – The State shall. in particular, direct its policy to\vards securing- xxx xxx xxx (d) that there is equal pay for equal \York for both men and 'vomen: •We have already taken note of the fact that the writ petitioners (respondents herein), employees of the appellants fall into t\vo categories i.e. teaching staff and non-teaching staff. SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] meant for administrative guidance of the Government of India. The Government of India may accept or reject the recommendations either fully or partly, though it has never happened that the recommendations of the pay commission are completely rejected by the Government so far.

60. Once the Government oflndia accepted the recommendations of the pay commission and issued orders signifying its acceptance, it became the decision of the Government oflndia. That decision of the Government oflndia created a right in favour of its employees to receive pay in terms of the recommendations of the Sixth Pay Commission and the Government oflndia is obliged to pay.

61. The fact that the Government of India accepted the recommendations of the Sixth Pay Commission (for that matter any pay commission) does not either oblige the States to follow the pattern of the revised pay structure adopted by the Government of India or create any right in favour of the employees of the State or other bodies falling within the legislative authority of the State. The Government of India has no authority either under the Constitution or under any law to compel the States or their instrumentalities to adopt the pay structure applicable to the employees of the Government oflndia.

62. The Government of India decided to extend the benefit of revised pay scales to the employees of various central universities etc. on the basis of the recommendations of the University Grants Commission – a statutory body. While accepting the recommendations of the UGC, the Government of India chose to extend the benefit of revised pay scales only to the teachers and other equivalent cadres of Library and Physical Education etc. in all the Central Universities and Colleges thereunder etc. The Government oflndia was not oblivious of the fact that various other categories of employees are working with those institutions. Therefore, it made a specific mention in the Scheme dated 31.12.2008 that though the Scheme did not extend to the cadres of Registrar, Finance Officer, Controller of Examinations etc., the revision of pay scales of such categories of employees was in contemplation. "Scheme of the Government of India [Extract from Letter dated 31.12.20018: (ii) This Scheme does not extend to the cadres of Registrar, Finance Officer and Controller of Examinations for which a c separate Scheme is being issned separately. (iii) This Scheme does not extend to the Accompanists, Coaches, Tutors and Demonstrators. Pay and Grade Pay of the said categories of employees shall be fixed in the appropriate Pay Bands relative to their existing Pay in each university/ · B institution corresponding to such fixation in respect of Central Government employees as approved by the Central Government on the basis of the recommendations of 6'h Central Pay Commission. (iv) This Scheme does not extend to the posts of professionals c like System Analysts, Senior Analysts, Research Officers etc. who shall be treated at par with similarly qualified personnel in research/scientific organizations of the Central Government."

63. The Government of India's decision to extend the revised pay scales even to the employees of the various educational institutions established and administered by it or its instrumentalities, is a policy choice of Government of India.

64. However, after adopting such a policy the Government of India thought it fit to suggest to the States by its communication dated 31.12.2008 that the States may also adopt the policy of the Government of India if they so choose. As an incentive for the States to adopt the policy, the Government oflndiaoffered to undertake a substantial portion of the financial burden of the States resulting from the adoption of such policy. However, such an undertaking is limited only for a period of five years.

65. Accepting the offer made under the scheme of the Union of India, the State of Maharashtra issued the GR dated 12.8.2009 revising the pay scales of the cadres specified therein (essentially teaching staff) of the "universities' colleges and other higher educational institutions". By the said GR, the State of Maharashtra declared the revision of the pay scales of the teaching staff of the educational institutions. It is stated in the counter affidavit filed before this Court on behalf of the State: "3. I say that as things stand today, the Government of Maharashtra has taken a policy decision to implement the recommendations SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] of 6'h Pay Commission to teaching and non-teaching staff of government-run and government-aided educational institutions only. 4. I say that the Government of Maharashtra has not taken any policy decision and/or issued any Government Resolution in respect of implementation of the recommendations made by 6"' Pay Commission for teaching and non-teaching staff in un-aided private educational institutions …. " However, the universities were directed by the GR dated 12.08.2009 to make appropriate amendments to the relevant subordinate legislative instruments of the various universities to provide, in the opinion of the State, requisite legal framework for the implementation of such policy decision. Whether such amendments are really required is a separate issue. In view of the powerunder Section 8(3) of the Maharashtra Universities Act authorizing the State to make rules dealing with the various aspects of the service of the employees of the universities and other educational institutions, the authority, ifany3', of the universities to deal with the said subject would cease the moment the State Government chooses to make Rules. In view of the elaborate provisions in the G.R. dated 12.08.2009 stipulating the pay scales of the teaching staff of the educational institutions, any further directions to the universities to make amendments to the relevant subordinate legislative instruments is wholly redundant.

66. Order No.214 of the Vice-Chancellor dated 29.08.2009, purports to have been issued in exercise of the power conferred on the Vice-Chancellor under Section 14(8) of the Maharashtra Universities Act, 1994. Section 14(8) reads as follows: "Section 14. Powers and duties of Vice-Chancellor- (8) Where any matter is required to be regulated by the Statutes, Ordinances or Regulations, but no Statutes, Ordinances or Regulations are made in that behalf the Vice-Chancellor may, for the time being, regulate matter by issuing such directions as he thinks necessary, and shall, at the earliest opportunity 3~ We say "if any" only because we have neither examined the complete scheme of the Maharashtra Universities Act, nor any submission made by any one of the parties – with regard to the competence of the University or its authorities to regulate the service conditions of the employees of the affiliated colleges \Vhether aided or not. c c [201 7] 2 S.C.R. thereafter, place them before the Management Council or other .authority or body concerned for approval. He may, at the same time, place before such authority or body for consideration the draft of the Statutes, Ordinances or Regulations, as the case may be, required to be made in that behalf."

67. From the language of sub-section (8)to Section 14, the Vice- Chancellor could have issued such order if only the Universities Act authorised making of Statutes, Ordinance or Regulations dealing with the service conditions (including pay-scales) of the employees of the affiliated colleges. No specific provision under the said Act which authorised making of either Statutes, Ordinance or Regulations dealing with the service conditions including the pay-scales of the employees of the affiliated colleges is brought to our notice. On the other hand, Section 8(3) expressly authorises the State Government to make rules with respect to the service conditions of the employees (teaching and non-teaching staff) of the affiliated colleges. Therefore, in our opinion, the order of the Vice-Chancellor dated 29.08.2009 is superfluous and without any authority oflaw.

68. We are now left only with the GR dated 12.08.2009 which laid down the policy of the Government of Maharashtra to adopt the pay-scales stipulated by the Government of India in its Scheme dated 3 I .12.2008 insofar as the teaching staff of the various affiliated colleges are concerned and the rules framed by the Government of Maharashtra dated 07 .10.2009 in exercise of the power under Section 8(3) insofar as the non-teaching staff are concerned.

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 oflndia 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 SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] absence of the recital of the source of power in our opinion 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.

71. In our opinion, the GR dated 12.8.2009 can be safely construed to be one made in exercise of the power under Section 8(3) of the Universities Act conferring a legal right on the teaching staff of the affiliated colleges irrespective of the fact whether they are aided ornot.

72. The colleges run by the appellants are admittedly colleges affiliated to the Universities functioning under the Act. Therefore, their teaching staff would be entitled to the revised pay scales in terms of the · G.R. dated 12.08.2009.

73. Coming to the non-teaching staff working in the colleges run by the appellant, the Rules of2009 purport to be the rules revising the pay-scales of the non-teaching staff ofonly the affiliated aided colleges. Therefore, textually the colleges administered by the appellants are not governed by the rules. However, the question – whether such Rules are sustainable in view of the mandate of Article 14 of the Constitution oflndia that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" is required to be examined. If the answer to the question is in the negative, the further question would be what would be the legal remedy available to the aggrieved person/s.

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

75. The objects sought to be achieved by the periodic revision of the pay-scales is obviously to comply with the constitutional mandate emanating from Article 43 of the Constitution of India. If that is the object, we fail to understand the rationale behind the classification made by the State of the Maharashtra between aided and unaided colleges. People employed in educational institutions run by non-State actors are not treated any more kindly by the market forces and the economy than the people employed either by the Government or its instrumentalities or institutions administered by non-State actors receiving the economic support of the State.

76. The very fact that the Government of India thought it fit to revise the pay scales of its employees and also thought it fit to accept the suggestions of the UGC to revise the pay scales of various Universities and other bodies whose maintenance expenditure is met by the UGC (in other words virtually by the Union oflndia), shows that the Government of India is completely convinced that there is a definite need to revise the pay scales of not only its employees, but also the employees of its instrumentalities. The fact that the Government of India made an offer to the States that the Government of India is willing to shoulder a substantial portion of the financial burden arising out of the adoption of revised pay scales in the event of the States choosing to adopt the revised pay scales, also indicates that the Government is fully convinced that having regard to various factors operating in the economy of the country there is a need to revise the pay scales of the personnel employed even by various States and their instrumentalities. Such a conclusion of the Union oflndia is endorsed by the State ofMaharashtra. The decision of the State in issuing the two GRs revising the pay scales of the teaching staff of all the educational institutions and non-teaching staff of the aided educational institution is proof of such endorsement. SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] Therefore, we see no justification in excluding the non-teaching employees of the unaided educational institutions while extending the benefit of the revised pay scales to the non-teaching employees of the aided educational institutions. Such a classification, in our opinion, is clearly violative of Article 14 of the Constitution oflndia.

77. Next, we need to examine the question, whether a constitutional court could compel the executive to exercise its statutory authority to make subordinate legislation in a manner which would be consistent with the command of Article 14 and other provisions of the Constitution. In the alternative, whether the executive could be compelled to ignore the letteroflaw and enforce the law even against bodies which are not covered by the text of the subordinate legislation either by an injunctive or declaratory relief. 78. !fa law (whether primary or subordinate legislation) is found to be untenable on the touchstone of Article 14 by the constitutional court, one clear option for a constitutional court is that it can declare such law to be unconstitutional and strike down the law. But, striking down a law, which confers some benefit on a class of people ignoring others who are otherwise similarly situated in our opinion is not to be done as a matter of course. If the benefit sought to be conferred by such a law is not repugnantto the directive principles of the State policy, striking down the same would virtually amount to throwing away the baby with bath water. The doctrine of equality has many a facet. Law laid down by this Court on the interpretation of Article 14 in the last 70 years illuminated some of them. In a series of judgments commencing from E.P. Royappa v. State of Tamil Nadu & Another, (1974) 4 SCC 3, the orientation of this Court in dealing with article 14 has been dynamic. Justice Mathew in his dissenting Judgment in Bennett Coleman & Co. and Others v. Union of India and Others, ( 1972) 2 SCC 78836 very precisely identified 36Para 162. It has been said that in the scheme of distribution ofne\VSw print, unequals have been treated equally and therefore, the Newsprint Policy violates Art' 14 of the Constitution. To decide this question regard must be had to the criteria to be _adopted in distributing the material resources of a community. Arguments about equality in this sphere are really arguments about the criteria of relevance. The difficulties involved in developing such criteria have occupied philosophers for centuries. Despite the refinements that distinguish the theories of various philosophers, most such theories represent variations on two basic notions of equality: numerical equality and c the question, which this Court should address while interpreting Article 14: c The crucial question today, as regards Article 14, is whether the command implicit in it constitutes merely a bar on the creation of proportional equality. The contrast between the t\VO notions is illustrated by the difference between the right to an equal distribution of things and the equal- right with respect to a distribution of such things. According to the former, each individual is to receive numerically identical amounts of the benefit being distributed or the burden imposed in the public sector, whereas the latter means only that all \Viii receive the same consideration in the distributional decision, but that the numerical amounts distributed may differ. Proportional equality means equality in the distribution according to merit or distribution- according to need (see Developments-Equal Protection). (2) But the Supreme Court of U.S.A. has departed froth this traditional approach in the matter of equality and has adopted a more dynamic concept as illustrated by the decisiofl'in Griffin v. Illinois(") and Douglas v. California. ( 4) In these cases it \Vas held that the State has an affirmative duty to make con1pensatory legislation in order to make men equal \Vho are really, unequal has undergone radical other\vords, the traditional doctrine that the Court is concerned with formal equality betbre the law and is not concerned to make men equal who are really unequal has under gone radical change in the recent years as illustrated by these cases. Justice Harlan dissented both in Griffin's case and Douglas' case and his dissenting opinion in the former case reveals the traditional and the hew approaches and also highlights the length to which the majority has, gone: ·'The Court thus holds that. at least in this area of criminal appeals. the Equal Protection Clause imposes on the States an affirmative duty to lift the handicaps tlo\Ying from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the States to treat all persons equally means in this instance that Illinois must give to some "·hat is requires others to pay for …. It may as accurately be said that the real issue in this case is not ,.,.-hether Illinois has discriminated but \Yhether it has a duty to discriminate." Para J 63. The crucial question today, as regards Art. 14. is \Yhether the command implicit in it constitutes merely a ban on the creation of inequalities by the State, or, a co1nmand, as well, to eliminate inequalities existing without any contribution thereto by State action. The answer to this question, has already been given in the United States under the equal protection clause in the two cases referred to, in certain areas. The Court, in eft'ect, has began to require the State to adopt a standard which takes into account the differing economic and social conditions of its citizens, whenever these differences stand in the way of equal access to the exercise of their basic rights. It has been said that justice is the eftbrt of man to mitigate the inequality of men. The whole drive of the directive principles of the Constitution is toward this goal and it is in consonance with the new concept of equality. The, only norm which the Constitution furnishes for distribution of the material resources of the community is the elastic norm of the common good fsee Art .. 39 Jb) l1 1 do not think I can say that the principle adopted for the distribution of ne,vsprint is not for the common good. SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR J.] inequalities existing without any contribution thereto by State action. His Lordship went on to say: It has been said that justice is the effort of man to mitigate the inequality of men. The whole drive of the directive principles of the Constitution is t0ward this goal and it is in consonance with the new concept of equality. 79. In a similar situation, a Constitution Bench of this Court has in D.S. Nakara & Others v. Union of India ( 1983) l SCC 305 adopted a more innovative procedure of directing the State to fi.11 up the lacuna by extending the benefit uniformly to all the people who are otherwise similarly situated. The facts of D.S. Nakara's case are: "5. On May 25, 1979, Govemmentof!ndia, Ministry offinance, issued Office Memorandum No. F-19(3)-EV-79 whereby the formula for computation of pension was liberalized but made it applicable to government servants who were in service on March 31, 1979 and retire from service on or after that date ('specified date', for short) … 6. … Consequently those who retired prior to the specified date would not be entitled to the benefits of the liberalized pension formula." This Court made an elaborate examination of the concept of pension and its legal implications; the obligations of State under the Constitution oflndia flowing from the directive principles and a host of other factors. The Court recorded a conclusion. "43. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14. The next question is what is the way out?" The Court was then confronted with a question whether the court could grant any relief by enlarging the ambit of the scheme. Incidentally this Court had to deal with a submission that such a course of action was unprecedented: "40 …. Alternatively, it was also contended that where a larger class comprising two smaller classes is covered by a legislation c [2017) 2 S.C.R. of which one part is constitutional, the court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. It was also said that severance always cuts down the scope oflegislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is not a single case in India or elsewhere where the court has included some category within the scope of provisions of a law to maintain its constitutionality." This court rejected the submission based on the lack of precedent, holding: "41. The last submission, the absence of precedent need not deter us for a moment. Every new norm of socio-economic justice, every new measure of social justice commenced for the first time at some point of history. !fat that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be pragmatic is not to be unconstitutional. In its onward march law as an institution ushers in socio-economic justice. In fact, social security in old age commended itself in earlier stages as a moral concept but in course of time it acquired legal connotation. The rules of natural justice owed their origin to ethical and moral code. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilised society is proud? Can anyone be bold enough to assert that ethics and morality are outside the field oflegal formulations? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied. Therefore, absence of a precedent on SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] this point need not deter us at all. We are all the more happy for the chance of scribbling on a clean slate." and the Court finally concluded as follows: "65. That is the end of the journey. With the expanding horizons of socio-economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exp9sed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion: "being in service and retiring subsequent to the specified date" for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pensiorr and the eligibility criteria devised being thoroughly arbitrary, we are of the view thatthe eligibility for liberalised pension scheme of"being in service on the specified date and retiring subsequent to that date" in impugned memoranda, Exs. P-l & P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down. … Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as' per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs." 80. When Justice Mathew declared that Article 14 interdicts the State from creating inequalities, he was stressing the obvious. Further, he articulated the remedial measures the State has been enjoined to take recourse to: eliminate the existing inequalities through positive~affinnative­ action, rather than passive neutrality. What is the remedy open to the citizen and the corresponding obligation of the judiciary to deal with such a situation, where the c c (2017] 2 S.C.R. inequalities are created either by the legislation or executive action ? Traditionally, this Court and the High Courts have been declaring any law, which created inequalities to be unconstitutional, but in Nakara's case this Court realised that such a course of action would not meet with the obligations emanating from a combined reading of the directive principles and Article 14. Therefore, this Court emphatically laid down in Nakara's case that it is possible to give an appropriate inductive relief by eliminating the factors, which creates the artificial classification leading to a discriminatory application oflaw. 81. Though this Court is not bound by the law declared by the municipal courts of other countries, this court in the last 70 years always examined with due regard decisions of the American Supreme Court on questions of constitutional law. In a comparable situation, American courts did exercise jurisdiction by granting appropriate injunctive orders compelling the State to comply with the constitutional mandate by ignoring the legislative command and extending the benefit provided under a legislation to a certain class of people who were expressly excluded from receiving that benefit provided by the legislation. [See: James Plyler 1'. J. and R. DOE et al. (supra)" 82. Notwithstanding the wholly unsatisfactory reasoning adopted by the High Court for allowing the claims of the writ petitioners, (the respondents herein), we are convinced that the conclusion of the High Court could be justified on basis of the principle enunciated in D.S. Nakara's case. 83. We must at this stage mention that the appellants made elaborate submissions during the course of the arguments regarding the inter play between Entry 66 of the List I and Entry 25 of the List III of the Seventh Schedule and the judgments of this Court in the line of "The facts of J<1mes PLYLER are as follows: The Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not "legally admitted" into the United States .. A class action was brought on behalf of certain school-age children of Mexican origin who could not establish that they had been legally admitted into the United States, complaining of discrimination. The District Court held that the children were entitled for the protection of the Fourteenth Amendment (Equal Protection Clause) and injuncted the State from denying the funds for their education. On appeal, the Court of Appeals for the Fifth Circuit upheld the injunction. Eventually, the matter reached the Supreme Court of the United States, which affirmed the injunction. SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.] judgments commencing from St(lte of T(lmi/ N(ldu v. Adltiy(lm{ln Etf(/C(ltion(I/ (Ind Rese(lrclt Institution, ( 1995) 4 SCC I 04, Bltaratltid(ISan University v. AICTE, (200 I) 8 SCC 676 etc. in a bid to demonstrate that the Council constituted under the AICTE Act would be incompetent to regulate the service conditions of the employees of the engineering colleges and therefore the Regulations of 20 I 0 dated 05.03.20 I 0 made by the AICTE purporting to give effect to the recommendations of the Sixth Pay Commission are without any authority of law. 84. ln view of our conclusion that the State of Maharashtra has taken a decision in exercise of the power allowable to it·under Section 8(3) of the Maharashtra Universities Act, the question whether AICTE is the competent body to regulate the service conditions of the employees of engineering colleges in our opinion is wholly irrelevant to the issue and academic. Even if the appellant's submissions in this regard were to be accepted, it only leads to the inevitable conclusion that the Maharashtra State legislature is the competent body to deal with the subject. It did deal with the subject under Section 8(3) of the Maharashtra Universities Act. Section 8(3) clearly authorises the State Government to frame rules dealing with the service conditions of the employees (both teaching and non-teaching) of various educational institutions. The power is duly exercised. While exercising such power is that State of Maharashtra drew an artificial distinction between aided and unaided educational institutions. 85. Another submission of the appellants that is required to be dealt with is that since the appellant does not receive any financial aid from the State, calling upon the appellants to pay its employees in term§'" of the revised pay scales would be compelling them to perform an impossible task. The appellants submitted that their only source of revenue is the fee collected from the students. Their right to collect fee is regulated pursuant to judgments of this Court in incoherence T.M.A. Pai Foundation & Otlters v. St(lte of Karnataka & Otlters, (2002) 8 SCC 481 38 and lsf(lmic Academy of Education & Anotlter v. State of Karnataka & Others, (2003) 6 SCC 69739• Therefore, if they are '"See Paras 56 to 58 and 161 39 See Paras 6, 7 and 19 c compelled to pay their staff higher salaries they would be without any financial res~mrces as they do not receive any aid from the State. c 86. On the other hand it is argued by the respondent that the determination of the fee structure and the amount of the fee that could be collected by the appellants from the students is madti by the Fee Regulatory Committee and such a body is bound under law and does in fact take into account the various relevant factors in determining the fee structure. It is, therefore, submitted that it is always open to the managements to make an appropriate application before the Fee Regulatory Committee bringing all the relevant factors to the notice of the body competent to determine the fee structure and raise appropriate revenue. 87. At the outset, we make it clear that at least insofar as non- teaching staff are concerned, the appellants have no excuse for making such a submission because in the earlier round oflitigation the respondents – non-teaching employees of the appellants, though succeeded both before the High Court and this Court in obtaining appropriate directions to the appellant and other authorities to revise the pay scales of the employees in tune with the Fifth Pay commission, entered into a settlement dated 30'h January, 2006, the terms of which have already been taken note in this judgment at para 5. 88. Under the said agreement, the management agreed to revise the pay scales from time to time in tune with the revision of the pay scales of the employees of the State. Therefore, the submission of the management in this regard is liable to be rejected on that ground alone. 89. Even otherwise, if the appellants are obliged under law, as we have already come to the conclusion that they are in fact obliged, it is for the appellants to work out the remedies and find out the ways and means to meet the financ-ial liability arising out of the obligation to pay the revised pay scales. 90. In the result, the appeals being devoid of merit are dismissed with no ordei; as to costs. Nidhi Jain Appeals dismissed.