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