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MAHARASHTRA ASSOCIATION OF SOCIAL WORK EDUCATORS, THROUGH ITS VICE PRESIDENT DILIP BARAHATE V/S THE STATE OF MAHARASHTRA, THROUGH SECRETARY, DEPARTMENT OF SOCIAL JUSTICE AND SPECIAL ASSISTANCE & OTHERS, decided on Tuesday, December 5, 2017.
[ In the High Court of Bombay (Nagpur Bench), Writ Petition No. 4048 of 2013. ] 05/12/2017
Judge(s) : R.K. DESHPANDE & M.G. GIRATKAR
Advocate(s) : P.D. Meghe. N.S. Rao, Assistant Government Pleader.
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    R.K. Deshpande J.1. This petition is filed by the Association of teachers and nonteaching employees working in the aided Colleges of Social Work in the State of Maharashtra claiming a relief of declaration that the Government Resolution dated 8-3-2011 be declared as illegal to the extent it denies the arrears of pay-scales of the Sixth Pay Commission to the nonteaching employees in the aided Colleges of Social Work for the period from 1-1-2006 to 31-3-2010. It further claims a direction to the respondents to release the arrears arising out of the revision as per the Sixth Pay Commission for the period from 1-1-2006 to 31-3-2010.2. The pay scales of teachers and non-teaching employees working in the aided Colleges affiliated to Non-Agricultural Universities were revised as per the recommendations of the Sixth Pay Commission with effect from 1-1-2006. Accordingly a notification was issued by the Higher and Technical Education Department of the State Government on 7-10-2009 publishing the Maharashtra NonAgricultural Universities Standard Code (Revision of Pay of Non-Teaching Employees) Rules 2009 brought into force with effect from 1-1-2006. Rule 16 under the said Rules deals with the entitlement of the nonteaching employees in the aided non-Government Colleges affiliated to Non-Agricultural Universities to the arrears of the difference in their pay from 1-1-2006 to 31-3-2009 arising out of revision in the scale of pay with effect from 1-1-2006. The nonteaching employees working in the aided non-Government Colleges of Social Work in the State of Maharashtra also expected that they would be getting the arrears arising out of the revision of pay scales with effect from 1-1-2006 till 31-3-2009.3. The Department of Social Justice and Special Assistance in the Government of Maharashtra issued a resolution dated 8-3-2011 making the revision in the scale of pay as recommended by the Sixth Pay Commission applicable to the non-teaching employees working in the non-Government aided Colleges of Social Work in the State of Maharashtra subject to two conditions -(i) that their pay in the revised scale shall be fixed notionally with effect from 1-1-2006 i.e. the date from which the pay scales recommended by the Sixth Pay Commission were implemented and(ii) that they would not be entitled to arrears of difference arising out of the revised pay scales for the period from 1-1-2006 to 31-3-2010. It is clarified in the said Government Resolution that the revised pay would be actually payable to the nonteaching employees with effect from 1-4-2010.4. The challenge is to the denial of arrears of difference arising out of revised pay scales for the period from 1-1-2006 to 31-3-2010. The case of the petitioner is that this amounts to providing discriminatory treatment to deprive the nonteaching employees in aided Colleges of Social Work their legitimate claim for arrears of difference arising out of the revision of pay scales and it violates the guarantee of such employees contained in Article 14 of the Constitution of India. It is specifically averred in the petition that the nonteaching employees in Matru Sewa Sangh Institute of Social Work at Nagpur which is also an aided College affiliated to Non-Agricultural University were paid the arrears of difference arising out of the revision of pay scales from 1-1-2006. However the nonteaching employees in other Colleges of Social Work run on grant-in-aid basis are denied the equal treatment.5. The claim made in the petition is denied by the respondents by filing their common affidavit dated 21-6-2014. The stand taken in the affidavit in paras 3 4 5 7 and 8 is reproduced below :“3. It is submitted that by Government Notification High Education Department dated 7.10.2009 thereby making 6th Pay Commission applicable to all non teaching employees of Government aided college under the Higher Education Department. It is submitted that the Respondent no.1 issued resolution dated 8-3-2011 to grant revised Pay scale as per 6th Pay Commission to the non teaching employees of Social work colleges which are run on grant in aid basis. It is submitted in respect of the financial matters Social Justice and Special Assistance Department and Higher Education Department have their independent policies.”“4. It is submitted that the proposal for extending benefit of 6th pay commission to teaching and non teaching employees of Social Welfare College running under Social Justice and Special Assistance Department was submitted before Finance Department Mantralaya Mumbai for approval by Respondent no.1. After perusing the proposal Finance Department comes to the conclusion that for payment of arrears as per 6th pay commission Rs.610.00 lakhs approximately only are required. By ascertaining the revised pay scale prescribed in Government Resolution Finance Department has given remark that 6th pay commission is applicable from 1-1-2006 to non teaching employees of Social Welfare colleges and only to give notional fixation of pay benefit of pay scale is to be given from 1-4-2010. It is also made it clear by Finance Department that arrears will not be admissible for the period 1.1.2006 to 31.3.2010.”“5. It is submitted that as per G.R. Dated 8.3.2011 actual benefit of pay scale as per 6th pay is to be given from 1.4.2010 and arrears from 1.1.2006 to 31.3.2010 are not made admissible hence extending benefit of 6th pay commission to the employees who have retired during 1.1.2006 to 31.1.2010 does not arise at all.”“7. … It is mentioned in Government Resolution dated 8.3.2011 that the said G.R. is issued with the consent of the Finance Department.”“8. It is submitted that Matru Seva Sangh Institute of Social Work Nagpur is under Higher Education Department. As stated in earlier para in the respect of financial matters Social Justice and Special Assistance Department and Higher Education Department have their independent policies.”6. It is a fact that there are several aided Colleges affiliated to twelve Non-Agricultural Universities in the entire State of Maharashtra including the Universities incorporated under Section 3 of the Maharashtra Universities Act (“the said Act”). All such Colleges are getting grant-in-aid from different Departments of the State Government like Education and Employment Higher and Technical Education Social Justice Cultural and Sports Social Justice and Special Assistance etc. Sub-section (3) of Section 8 of the said Act being relevant is reproduced below:“8. Control of State Government and universities. (3) The State Government may in accordance with the provisions contained in this Act for the purpose of securing and maintaining uniform standards by notification in the Official Gazette prescribe a Standard Code providing for the classification manner and mode of selection and appointment absorption of teachers and employees rendered surplus reservation of posts in favour of members of the Scheduled Castes Scheduled Tribes Denotified Tribes (Vimukta Jatis) Nomadic Tribes and Other Backward Classes duties workload pay allowances postretirement benefits other benefits conduct and disciplinary matters and other conditions of service of the officers teachers and other employees of the universities and the teachers and other employees in the affiliated colleges and recognised institutions (other than those managed and maintained by the State Government Central Government and the local authorities). When such Code is prescribed the provisions made in the Code shall prevail and the provisions made in the Statutes Ordinances Regulations and Rules made under this Act for matters included in the Code shall to the extent to which they are inconsistent with the provisions of the Code be invalid.”The aforesaid provision confers power upon the State Government to prescribe a 'Standard Code' by notification in the Official Gazette for the purpose of securing and maintaining uniform standards and providing for several matters stipulated therein including pay allowances and other terms and conditions of the teachers and other employees in the affiliated Colleges. It is made clear that upon issuance of such notification the provisions made in the Code shall prevail and the other provisions made in the Statutes Ordinances Regulations and Rules made under the said Act for matters included in the Code shall to the extent to which they are inconsistent with the provisions of the Code be invalid.7. The provision of sub-section (3) of Section 8 of the said Act reproduced above does not make any distinction between the Colleges functioning under the control and getting grants from the different Departments of the State Government. The provision does not contemplate framing of multiple 'Standard Codes' by different Departments of the State Government to make separate provisions for the teaching and nonteaching employees working in the Colleges to which they provide the grant-in-aid. The power to frame a 'Standard Code' by issuing notification under subsection (3) of Section 8 of the said Act is exercised and completely exhausted by the Higher and Technical Education Department of the State Government thereby issuing notification dated 7-10-2009 leaving no scope for the other Departments like Social Justice Cultural and Sports or Social Justice and Special Assistance to encroach upon the subject covered by such notification and to make any provision inconsistent with it in respect of the aided Colleges under their control.8. Rule 2(1) of the 'Standard Code' stipulates that those Rules apply to the fulltime non-teaching employees of twelve specified Non-Agricultural Universities and Affiliated Non-Government Aided Colleges. Rule 16 of the 'Standard Code' deals with the payment of arrears arising out of revision of pay scales with effect from 1-1-2006 to all the employees eligible in terms of the provisions of the 'Standard Code'. Rule 17 deals with the overriding effect of the Rules and it states “Barring unless otherwise providing for in these Rules in cases where pay has been regulated as per the Rules the provisions in the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Service and Conditions of the Non-Teaching Employees) Rules 1984 if inconsistent with these Rules then would not apply up to that limit.” The rules under the 'Standard Code' nowhere provide for framing of different policies by the Departments in respect of the employees working in the Colleges getting grant-in-aid from them.9. Neither the provision of subsection (3) of Section 8 of the said Act nor the 'Standard Code' brought into force with effect from 1-1-2006 by issuing notification dated 7-10-2009 makes any distinction or reflects different policies in respect of the Colleges getting grantinaid from different Departments of the State Government. The object and purpose of these provisions is to secure and maintain uniform standards and to provide for several matters stipulated therein including pay allowances and other terms and conditions of the teachers and other employees in the Colleges affiliated to twelve Non-Agricultural Universities as is stipulated in the 'Standard Code'. Thus the object and purpose prohibits applying the different standards and different pay scales and terms and conditions of service of the teachers and other employees working in several aided Colleges affiliated to twelve Non-Agricultural Universities in the State of Maharashtra. The provisions make it clear that anything inconsistent with the provisions of the 'Standard Code' shall be invalid.10. The provision of Rule 16 in the 'Standard Code' makes all nonteaching employees working in the aided Colleges affiliated to Non-Agricultural Universities in the State of Maharashtra to get the arrears arising out of revision of pay scales with effect from 1-1-2006. This confers a legal right upon the petitioner-non-teaching employees to receive such arrears with effect from 1-1-2006 arising out of implementation of the revised pay scales as per the recommendations of the Sixth Pay Commission irrespective of the fact of the source of their grant-in-aid. There cannot be a different policy of the Department of Social Justice and Special Assistance in deviation of the policy published by way of 'Standard Code' in the notification dated 7-10-2009 by the Higher and Technical Education Department of the State Government. We therefore cannot sustain such a reasoning adopted by the State Government in the reply filed in response to the present petition.11. Even otherwise the nonteaching employees working in all the aided Colleges affiliated to the Non-Agricultural Universities are governed by the same terms and conditions as are prescribed in the 'Standard Code' their duties and responsibilities are the same they form a single class and therefore no discriminatory treatment can be provided to them as contemplated by the Government Resolution dated 8-3-2011 denying the benefit of arrears for the period from 1-1-2006 to 31-3-2010 to the non-teaching employees working in the aided Colleges of Social Work. The source of grant-in-aid to create classification for providing discrimination becomes artificial having no nexus with the object of securing and maintaining uniform standard of education. It therefore violates the guarantee of the nonteaching employees working in the aided Colleges of Social Work affiliated to the Non-Agricultural Universities contained in Article 14 of the Constitution of India. The same cannot therefore be sustained.12. It is not in dispute that non-teaching employees in Matru Sewa Sangh Institute of Social Works Nagpur conducting the courses in social work like any other Colleges of Social Works and affiliated to Non-Agricultural University are getting arrears as per Rule 16 of the 'Standard Code' merely because it is getting grant-in-aid from the Department of Higher and Technical Education but the nonteaching employees in other Colleges of Social Works are deprived of it on the ground that they are getting grant-in-aid from the Department of Social Works. This is a micro classification not based upon any valid criteria having any nexus with the object sought to be achieved. It is unreasonable and arbitrary violating fundamental right under Article 14 of the Constitution of India of the nonteaching employees in the Colleges of Social Works getting grant-in-aid from the Social Works Department. It cannot be sustained.13. We may point out at this stage that similar question arose before the Apex Court in Civil Appeal Nos.115116 of 2017 [Secretary Mahatma Gandhi Mission and another v. Bhartiya Kamgar Sena] decided on 5-1-2017. Para 74 of the said decision being relevant is reproduced below:“74. At the outset it must be remembered that the 1999 Rules which extended the 5th pay commission recommendations to the nonteaching staff of the affiliated colleges did not make any distinction between the aided and unaided colleges. For the first time that classification is sought to be made under the 2009 Rules. No doubt aided and unaided colleges ostensibly fall under two separte categories. But for the purpose of Article 14 every classification does not automatically become permissible. Second requirement of the doctrine of reasonable 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 be identified and that it is required to be examined whether the classification made bears any reasonable nexus to such object.” Further in the last portion of para 84 the Apex Court has observed as under:“84. … It did deal with the subject under Section 8(3) of he 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 nonteaching) 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.”14. In view of the aforesaid position this petition needs to be allowed with a direction to the respondents to pay to the petitioner all the arrears arising out of revision in the pay of scale for the period from 1-1-2006 to 31-3-2010.15. In the result the petition is allowed in the following terms :(i) The Government Resolution dated 8-3-2011 to the extent it denies to the nonteaching employees working in the aided Colleges of Social Work affiliated to the Non-Agricultural Universities the arrears of pay arising out of difference upon implementation of the Sixth Pay Commission recommendations for the period from 1-1-2006 to 31-3-2010 is held to be illegal and invalid.(ii) The respondents are directed to pay the arrears of pay arising out of revision of pay scale as per the notification dated 7-10-2009 to the nonteaching employees working in the aided Colleges of Social Work affiliated to the Non-Agricultural Universities including those incorporated under Section 3 of the Maharashtra Universities Act 1994.(iii) The direction be complied with within a period of three months from today failing which the employees shall be entitled to interest at the rate of 12% per annum on the amount of arrears with effect from 31-3-2010 till the date of payment.16. Rule is made absolute in the aforesaid terms. No order as to costs.17. After pronouncement of this judgment Shri N.S. Rao the learned Assistant Government Pleader for the respondents submits that after hearing was concluded he was granted time to take instructions from the respondents as to the cutoff date prescribed in the Government Resolution impugned in this petition for payment of arrears.18. No doubt we had granted time to take instructions up to 7-12-2017. However the hearing was concluded and the case was closed for judgment. Keeping in view the law which we have enunciated we do not think that more time is required to be granted or any consent of the respondents is required for that purpose.