Vidarbha Ayurved Mahavidyalaya and Others Vs. Tuleshwar Mangalmurti Dhaskat and Others - Court Judgment

Excerpt:

.....141, article 300 - civil procedure code - order 47 rule 1 - 3(1) - maharashtra universities act ,1994 - section 27,section 28 section 82 - “pension scheme” - petitions is in respect of superannuation pension - seeks similar benefit for the teachers in non-government aided social work colleges - resolution in which benefits except voluntary retirement were extended mutatis mutandis to full time approved teaching and non-teaching employees - preliminary objections as that the petitioners are not a juristic person (para 2, 4, 23 and 24) held - petitioners got full salary grants in terms of that policy decision - government resolution is applicable to colleges affiliated to universities –scheme is also applicable to employees of recognized and aided educational institutions – applicable to non-governmental universities and affiliated non-government colleges and agricultural universities also - staff members had been covered under contributory provident fund scheme and must have received its benefit. (para 38, 39, and 40) cases referred: 1. budhan choudhry and ors. vs state of bihar, (air 1955 sc 191) 2. padman meher vs. state of orissa, (air 1981 sc 457)..........of this court in writ petition no. 3508 of 1992 and writ petition no. 2645 of 1990 delivered at mumbai on 14.06.1996 and the judgment of the hon'ble apex court in civil appeal no. 2878-2879 of 1997 dated 07.04.1997 thereafter. the petitioners there had claimed a direction to the respondents to extend the benefit of pension and gratuity scheme as per government resolution dated 21.07.1983 to teaching and non-teaching employees as also the hospitals of the petitioners 1 to 4 colleges. by order dated 23.01.2012, this court has permitted one assistant professor and one clerk in employment of said colleges to intervene in the matter. the petitioners state that division bench of this court in its judgment dated 14.06.1996 found the non-extension of benefit of pension and gratuity scheme to the teaching and nonteaching employees non-government aided ayurvedic and unani colleges affiliated to the university of pune, university of nagpur as also to hospital staff attached thereto violative of articles 14 and 16 of the constitution of india. hence, a direction was issued to extend that benefit to said employees with effect from 26.05.1981. this judgment of division bench was assailed by.....

Judgment:

B.P. Dharmadhikari, J.

The grievance and demand in all these writ petitions is in respect of superannuation pension. Writ Petition No. 5771 of 2011 seeks that benefit for the Teachers in Non-Government aided Ayurvedic Colleges affiliated to Non-Agricultural Universities/ Maharashtra University of Health Sciences, Nasik. Writ Petition No. 682 of 2012 seeks similar benefit for the Teachers in Non-Government Aided Social Work Colleges being Education Colleges affiliated to Non-Agricultural University viz., Rashtra Sant Tukdoji Maharaj Nagpur University. Writ Petition No. 3277 of 2012 is for similar benefit by the Teaching and Non-teaching staff of Social Work Colleges, who are joined as respondents therein. Writ Petition No. 185 of 2012 was also heard for some time with these matters but then because of need felt by the petitioners therein to produce more documents and to amend it, the same has been separated from this group.

2. Writ Petition No. 5771 of 2011 has been filed in the background of earlier judgment of this Court in Writ Petition No. 3508 of 1992 and Writ Petition No. 2645 of 1990 delivered at Mumbai on 14.06.1996 and the judgment of the Hon'ble Apex Court in Civil Appeal No. 2878-2879 of 1997 dated 07.04.1997 thereafter. The petitioners there had claimed a direction to the respondents to extend the benefit of Pension and Gratuity Scheme as per Government Resolution dated 21.07.1983 to Teaching and Non-teaching employees as also the Hospitals of the petitioners 1 to 4 Colleges. By order dated 23.01.2012, this Court has permitted one Assistant Professor and one Clerk in employment of said Colleges to intervene in the matter. The petitioners state that Division Bench of this Court in its judgment dated 14.06.1996 found the non-extension of benefit of Pension and Gratuity Scheme to the Teaching and Nonteaching employees Non-Government aided Ayurvedic and Unani Colleges affiliated to the University of Pune, University of Nagpur as also to Hospital staff attached thereto violative of Articles 14 and 16 of the Constitution of India. Hence, a direction was issued to extend that benefit to said employees with effect from 26.05.1981. This judgment of Division Bench was assailed by the State of Maharashtra in Civil Appeal and the Hon'ble Apex Court delivered its judgment in said matter on 07.04.1997. The Hon'ble Apex Court did not disturb the finding of High Court on violation of Articles 14 and 16 of the Constitution of India and only declared that a direction to extend the benefit of Pension and Gratuity Scheme from a particular date could not have been given. It, therefore, permitted State Government to consider extension of benefit of said Scheme in phased manner.

3. It is in this background that Shri Deshpande, Senior Advocate with Shri Dhande, Advocate submits that the declaration of entitlement of those benefits already granted needs to be obeyed and Government Resolution dated 27.06.2001 by which the State Government has not extended said benefit to the employees of Ayurvedic Private and three Unani Private Colleges and Hospitals thereof needs to be set aside. The benefit as per Government Resolution dated 21.07.1983 needs to be extended and restored. It is pointed out that after High Court direction, a Contempt Petition No. 346 of 1996 was filed before the Principal Seat of this Court and after judgment of the Hon'ble Apex Court dated 07.04.1997, the said Contempt Petition has been disposed of on 03.04.2006 by placing reliance upon para 1 of the affidavit-in-reply where respondents stated that they would follow the order of Court in letter and spirit. The learned Senior Advocate has invited our attention to Government decision dated 27.06.2001 to show that a demand for Pension and Gratuity was made thereafter and the Government rejected it. After this refusal, Contempt Petition No. 233 of 2002 came to be filed before this Court and on 15.06.2008, this Court, after some observations in favour of the employees, noted that Government Resolution dated 27.06.2001 was against the mandate of the Court and then gave Government time to reconsider the issue. Said Contempt Petition was looked into again by this Court on 04.05.2009 and this Court then found that the Hon'ble Apex Court in its judgment dated 07.04.1997 directed Government to consider the issue and the direction did not unmistakably restrict the freedom of Government to take appropriate decision; as such, there was no contempt. This Court then found that in the facts and circumstances, the impugned decision needed to be challenged by filing an independent writ petition. It is after this judgment that the present petition came to be filed.

4. Our attention has also been invited to Government Resolution dated 16.11.1996 by which the Pension and Gratuity Scheme has been made applicable to recognized grant-in-aid private Arts Colleges. By Government Resolution dated 17.04.2000, the said benefit has been extended to Teachers in eight private grant-in-aid Colleges of Physical Education. It is urged that this refusal to extend scheme to the petitioners in these facts is nothing but arbitrary and high handed exercise of powers of State Government. Before the Hon'ble Apex Court, the State Government did not assail the findings recorded by the Division Bench of this Court on merits and only contended that the implementation ought to have been left to State Government because of huge expenditure involved in the process. The Hon'ble Apex Court also noted that the State Government was not denying the benefit of Scheme to only a segment of Teachers. It, therefore, only modified that part of judgment of High Court by which the High Court directed implementation of Scheme with effect from 26.05.1981. Hence, the State Government was obliged to implement the Scheme for the benefit of the employees of the Petitioners – Colleges and it could not have refused to implement it by overlooking these judgments.

5. Attention is invited to stand taken by the respondents in reply affidavit in this respect to urge that defence of financial feasibility while extending said scheme to Ayurvedic Colleges is not valid as the scheme has already been extended to various other Colleges and Teachers therein even in the face of alleged financial difficulties. The introduction of New Defined Contribution Pension Scheme vide Government Resolution dated 31.10.2005 is urged to be irrelevant for the purposes of adjudication of present challenge.

6. The judgment of the Hon'ble Apex Court in the case of Budhan Choudhry and ors. vs State Of Bihar, (AIR 1955 SC 191) and in the case of Padman Meher vs. State of Orissa, (AIR 1981 SC 457), are relied upon to show how a classification can be validly made for the purposes of Article 14 of the Constitution of India and what is the effect of absence of nexus between the intelligible differentia and the object sought to be achieved. The judgment of the Hon'ble Apex Court in the case of D.S. Nakara vs. Union of India, (AIR 1983 SC 130) is also relied upon to submit that all teachers constitute one class and distinction made between other Teachers and Teachers/Staff in Ayurvedic Colleges for the purpose of pension is unsustainable. The judgment in the case of State of Maharashtra vs. Manubhai Pragaji Vashi and Ors., (AIR 1996 SC 1), is also pressed into service to show that plea of absence of funds in this situation is no answer. Our attention has been invited to various paragraphs in memo of the writ petition to point out how the challenge has been properly spelt out. The learned counsel submits that in relation to Ayurvedic Colleges, the Hon'ble Apex Court has maintained the mandate of this Court to extend the benefit and hence denial by State Government vide impugned decision dated 27.06.2001 is unsustainable.

7. Coming to Writ Petition No. 682 of 2012, the learned Senior Advocate Shri Deshpande states that the challenge is materially same. Petitioners therein are also Teachers and hence cannot be treated differently. Judgment of the Division Bench of this Court in Dr. Suresh Shrikrishna Naik vs. Karmveer Hire Rural Institute and others (2000 (2) All M.R. 94) which finds the petitioners entitled to pension is heavily relied upon. The arguments advanced by him in Writ Petition No. 5771 of 2011, therefore, hold good even for the purposes of present petition. Our attention has been invited to Government Resolution dated 22.09.2011 on the point of revision of pay-scales of Teachers of Social Welfare Colleges as per UGC Scheme (6th Pay Commission). It is pointed out that said scheme of Ministry of Human Resources Development dated 31.12.2008 is for revision of pay of Teachers and equivalent cadres in Universities and Colleges. Its clause 8(g) deals with Pension and (h) deals with Family Pension. As per clause (p) it is applicable to Teachers and other equivalent cadres of Library and Physical Education in Central University and Colleges thereunder and to institutes deemed to be Universities. The scheme can be extended to Universities, Colleges and other Higher Educational Institutions coming under the purview of State Legislature, subject to conditions stipulated in sub-clause (v) of said clause (p). The learned Senior Advocate submits that thus Pension is an integral part of this wage revision and it cannot be severed therefrom. Hence, all employees in Social Work Colleges who are given benefit of 6th Pay Revision, automatically become entitled to pension. Support is being taken from the judgment of the Hon'ble Apex Court in the case of State of Maharashtra vs. Maharashtra Education Service Officers, (1974 (4) SCC 706), for said purpose.

8. The decision of Government incorporated in letter dated 12.07.2010 sent by the Assistant Secretary to Director of Social Welfare, refusing to extend Pension and Gratuity scheme to Social Work Colleges is, therefore, assailed as violative of Articles 14 and 16 of the Constitution of India. Our attention has also been drawn to newly drafted Contribution Pension Scheme as contained in Government Resolution dated 31.10.2005, to urge that it is applicable to Government Servants recruited on or after 01.11.2005. The said scheme has also been made applicable to new employees in recognized and aided institutions and affiliated non-government colleges. The learned Senior Advocate, therefore, submits that new scheme as contained in this resolution is not for the petitioners. He submits that prior to 1964, the Social Work Colleges and Higher Education Colleges came under the purview of Department of Education and Social Welfare. After 1964, the Department of Education and Social Welfare were bifurcated and Social Work Colleges came under the Department of Social Welfare and the Higher Education Colleges including some Social Work Colleges came under the Department of Higher Education. The benefits applicable to Higher Education Department were also applicable to the Social Welfare Department. The petitioners submit that said benefits were initially denied to them and were made applicable to Social Welfare Department from 2005 vide Government Resolution dated 16.08.2005. The ground (N) in the petition is pressed into service to submit that Social Work Colleges established prior to 1964 got the benefit of Pension and still get that benefit. The judgment of Hon'ble Apex Court dated 07.04.1997 and particularly its earlier judgment in the case of State of Maharashtra vs. Manubhai Pragji Vashi, (1995 (5) SCC 730), about the Teachers in Law Colleges is relied upon to buttress the plea of hostile discrimination. The Division Bench judgment of this Court in the case of Dr. Suresh Shrikrishna Naik vs. Karmveer Hire Rural Institute and others (2000 (2) All M.R. 94), about the institutes/ colleges under Social Welfare Department and a direction to Government to consider extension of benefits to Teaching and Non-teaching staff therein in phased manner issued by said Division Bench judgment, are pressed into service in this background. The impugned communication dated 12.07.2010 is thus stated to be bad and unsustainable.

9. Shri Khubalkar, learned counsel for the petitioners in Writ Petition No. 3277 of 2012 states that the petitioners therein are the Teaching and non-Teaching staff working in Social Work Colleges and their grievance is identical as is in Writ Petition No. 682 of 2012. He, therefore, adopts the arguments of the learned Senior Advocate.

10. Mrs. Dangre, learned Additional Government Pleader has raised a few objections in Writ Petition No. 5771 of 2011 as the preliminary objections. Her contention is, the petition as filed by four Colleges is not maintainable as Colleges who are Petitioners therein are not a juristic person. It is further urged that there is huge delay in the matter and the government decision taken on 27.06.2001 is sought to be assailed by the Colleges after almost 10 years. The learned Additional Government Pleader submits that after the judgment in Special Leave Petition by the Hon'ble Apex Court on 07.04.1997, the controversy stood concluded and hence all arguments advanced today are not available or open. In the alternative and without prejudice, it is submitted that there is no discrimination and hence Article 14 of the Constitution of India has not been violated. The subsequent event of withdrawal of pension scheme itself and its replacement in 2005 by a new scheme is relied upon to urge that this event also militates with the theory of discrimination. Our attention has been invited to charts filed by the petitioners – Colleges as Annexure P1 onwards up to Annexure Q3 to show that it is the liability of Gratuity incurred by these Colleges which has prompted them to file the present petition. The said liability is incurred in terms of Payment of Gratuity Act and Petitioner No. 2 has filed Writ Petition Nos. 875 of 2013, 878/2013, 880/2013 and 881/2013 against the employees who have succeeded before the Competent Authority in Gratuity proceedings. Petitioner No. 3 had filed Writ Petition No. 5699 of 2010 which has been disposed of on 13.07.2011. Thus, in order to avoid the statutory liability to pay gratuity in terms of Payment of Gratuity Act, the Colleges have filed present writ petition. The said liability cannot constitute a “cause” and the grievance about service matter cannot be looked into as Public Interest Litigation. The petition, therefore, is not maintainable and deserves to be dismissed.

11. Writ Petition Nos. 3508/1992 and 2645/1990 were filed at Bombay by the Teaching and Non-teaching staff (i.e. directly by the employees). The Government Resolution dated 21.07.1983 was also assailed in those writ petitions. The challenge in present writ petition by the Colleges, after adjudication therein, is thus grossly belated. After directions of the Hon'ble Apex Court dated 07.04.1997, an interlocutory application was filed before it for the first time in 2004 and it was dismissed on 05.04.2004. Thus, the Hon'ble Apex Court did not find decision of State Government dated 27.06.2001 to be Contempt of Court.

12. Contempt Petition was then filed in High Court vide Contempt Petition No. 233 of 2007 and that Contempt Petition was then disposed of on 04.05.2009. The cause of action, therefore, accrued in favour of the employees on 27.06.2001 or thereafter on 05.04.2004 or on 04.05.2009 but then they have not taken any steps in the matter till date. The said Contempt Petition before Nagpur Bench i.e. Contempt Petition No. 233 of 2007 was not by the petitioners before the Bombay Bench but by other employees. Hence, filing of such a petition by Colleges is nothing but abuse of law. The Colleges were aware of the Government decision since 21.07.1983 but did not choose to approach High Court at any point of time. Now they are trying to seek benefit of Pension scheme for employees with them from 1982. This conduct of the petitioners, therefore, disentitles them to any relief in extraordinary jurisdiction. According to her, the finding that there is no contempt shows that judgment dated 14.6.1996 by the Division Bench of this Court does not now hold the field.

13. Coming to challenge with reference to Article 14, the learned Additional Government Pleader submits that the petitioners rely upon Government Resolution dated 21.07.1983 issued by the Education and Employment Department as basis of their entitlement. The said resolution is expressly made not applicable to them and in this situation as the petitioners Colleges are not recognized by the Higher Education Department, their demand for Pension is misconceived. The Division Bench judgment of this Court at Bombay dated 14.06.1996 has been set aside by the Hon'ble Apex Court on 07.04.1997. Therefore, no support can be taken from it.

14. Ayurvedic and Unani Colleges have their own Hospitals and therefore, there is a source of income. They collect fees from students and charge the patients. That is not the position in respect of other colleges to whom Pension Scheme was extended by the Government. Pension was never a term of service conditions for the employees in Ayurvedic and Unani Colleges. They were always taking benefit of Contributory Provident Fund. There is no change in their service condition to their disadvantage. Maharashtra Civil Service Condition Rules, 1982, apply only to employees of State Government and its benefit cannot be extended to the employees of the petitioners – Colleges. It is in this light that the learned Additional GP points out how the classification between other Colleges and Ayurvedic/ Unani Colleges is in accordance with law and not violative of Article 14 of the Constitution of India. The petitioners are covered under Contributory Provident Fund Rules and as they are not Government servants, the petition as filed is misconceived. Government has to take into account finances and when Government is finding it difficult to extend that benefit to its new employees and a new policy in that respect has been implemented with effect from 01.11.2005, present demand and challenge is liable to be rejected.

15. To point out how the argument of invalid classification for the purpose of Article 14 of the Constitution of India need to be appreciated, she relies upon the judgment of the Hon'ble Apex Court in the case of Air India vs. Nergesh Meerza , (1981 (4) SCC 335) and in the case of Transport and Dock Workers Union vs. Mumbai Port Trust, (2011 (2) SCC 575). The limited scope of judicial review in policy matters is pressed into service by drawing support from the judgments of the Hon'ble Apex Court in the case of Union of India vs. Kannadapara Sanghatanegala Okkuta and Kannadigara, (2002 (10) SCC 226), State of Kerala vs. Naveena Prabhu , (2009 (3) SCC 649), Bajaj Hindustan Ltd. vs. Sir Shadilal Enterprises Ltd., (2011 (1) SCC 640) and Dilip Kumar Garg vs. State of Uttar Pradesh, (2009 (4) SCC 753). She submits that documents filed by the petitioners on 04.04.2013 about extension of Pension and Gratuity Scheme to their counterparts by Karnataka State Government and Gujarat State Government, are not sufficient to substantiate the challenge made and those documents cannot be looked into in the absence of proper application seeking leave of Court to produce, necessary affidavits and an opportunity to State to oppose production or rebut the same on merit.

16. Coming to Writ Petition No. 682 of 2012, she submits that said writ petition is filed by an Association and its members working in Social Work Colleges appointed between 01.01.1973 and 21.10.2005. The Government decision dated 11.07.2001 is sought to be questioned after inordinate delay. The communication dated 12.07.2010 is in the light of earlier decision taken in 2001 and not a new cause of action. The financial implications involved in the matter are very wide. The Social Work Colleges fall under Social Justice Department while Arts, Science, Commerce and Education Department are recognized by the Department of Education. The petitioners were aware of this position since 1983 and still did not make any effort to challenge the non extension of Pension and Gratuity Scheme till 2012. She points out that 2008 UGC Scheme is for Pay Revision and it does not deal with Pension. The Social Work Colleges were totally dependent upon the State Government. The Government has with best intentions and due thought to financial position, taken appropriate decision and extended, whereever possible, the benefit thereof to Teachers employed in various disciplines. The said act cannot be viewed as arbitrary and does not legally lead to or result in any discrimination.

17. To point out the effect of judgment of the Hon'ble Apex Court dated 07.04.1997, she relies upon the judgment of the Hon'ble Apex Court in the case of Kunha Yammed vs. State of Kerala, (2000 (6) SCC 359). Her submission is, after 07.04.1997, the judgment of Division Bench of this Court dated 14.06.1996 is no longer available and the controversy needs to be viewed in the light of judgment of the Supreme Court only. She also draws support for said purpose from the judgment dated 04.05.2009 in Contempt Petition No. 233 of 2007. The recent judgment of the Hon'ble Apex Court in the case of Commissioner of Central Excise vs. Osnar Chemical (P) Ltd., (2012 (2) SCC 282), is also pressed into service for said purpose. We may mention here that this last citation appears to be not germane.

18. In reply arguments, Shri Deshpande, learned Senior Advocate urges that doctrine of Merger is not of universal application or unlimited in nature. He relies upon the judgment of the Hon'ble Apex court in the case of Kunha Yammed vs. State of Kerala (supra) only to urge that the judgment of the Hon'ble Apex Court dated 07.04.1997 does not totally substitute High Court judgment dated 14.06.1996. Support is also taken from the judgment of the Hon'ble Apex Court in the case of Collector of Central Excise vs. Maharashtra Fur Fabrics Ltd. (AIR 2002 SC 3482).

19. On the preliminary objections raised by the learned Additional Government Pleader, he submits that the College is recognized by University and is also affiliated to it, hence, it cannot be said that writ petition filed by the College for the benefit of its staff or in the interest of itself or the management is not maintainable. He points out that two employees were permitted by this Court to intervene as applicants in Writ Petition No. 5571 of 2011. The judgment in the case of State of Maharashtra vs. Manubhai Pragaji Vashi and Ors., (supra), is relied upon to contend that there a letter has been taken cognizance of by High Court and wheels of justice were set in motion. In the light of previous adjudication, this Court should also take suo motu cognizance as was taken in the matter of Private Law Colleges and this Court granted them grant-in-aid and pension. The word “consider” employed by the Hon'ble Apex Court in its judgment dated 07.04.1997, therefore, must be construed to be a positive direction and not certainly as a leave given to the government to take a fresh decision. He insists that in this situation, remitting the matter to the State Government will not be in the interest of justice and it is this Court which has to issue a mandamus for retrospective implementation of Pension and Gratuity Scheme.

20. According to him, the argument of delay and laches is misconceived as cause of action is continuous one and a judgment of High Court has not been implemented till date. The distinguishing feature of income to the petitioners – Colleges from Hospitals attached, is stated to be illusory. There is no such plea in defence by the respondents and hence, there is no data on record. It is further submitted that all these hospitals charge fees at rates prescribed by the State Government and always run in losses. In absence of such a stand in defence, the Colleges did not get opportunity to meet it. Division Bench judgment of this Court in the case of Retired Employees of Nongovernment Colleges Association, Nagpur vs. The State of Maharashtra and others (1987 (2) BCR 348) is relied upon by him to point out how a date for implementation of scheme needs to be worked out. From 05.12.2003, 100% salary grants were/are made applicable and that has to be the date from which the pension and Gratuity Scheme must be extended to employees of the petitioners – Colleges. He further submits that as violation of Article 14 is accepted, date on which this scheme has been extended to Pharmacy colleges also can be looked into. He further contends that one Social Work College is getting benefit of Pension and Gratuity from 01.10.1982, however, he adds that all Colleges are receiving grant-in-aid from the Government. The placement of Social Work Colleges under one or the other department of State Government, for administrative convenience therefore, is not determinative and all Teachers in such Colleges have already been judicially accepted and deserve to be recognized as one homogenous class and must be extended uniform treatment. He, therefore, prays for allowing all these petitions.

21. To substantiate the defence that after judgment of Hon'ble Apex Court in State of Maharashtra v. Hari Shankar Vaidhya (Dr)(1997) 9 SCC 521), the verdict of the Division bench of this Court looses its sanctity, learned Additional G.P. Has relied upon the doctrine of merger and two precedents. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359), Hon'ble Apex Court observes:-

“44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.

45. Having thus made the law clear, the case at hand poses no problem for solution. The earlier order of the High Court was sought to be subjected to exercise of appellate jurisdiction of the Supreme Court by the State of Kerala wherein it did not succeed. The prayer contained in the petition seeking leave to appeal to this Court was found devoid of any merits and hence dismissed. The order is a non-speaking and unreasoned order. All that can be spelled out is that the Court was not convinced of the need for exercising its appellate jurisdiction. The order of the High Court dated 17-12-1982 did not merge in the order dated 18-7-1983 passed by this Court. So it is available to be reviewed by the High Court. Moreover such a right of review is now statutorily conferred on the High Court by sub-section (2) of Section 8C of the Kerala Act. The legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders, also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted. The constitutional validity of sub-section (2) of Section 8C has not been challenged. Though, Shri T.L.V. Iyer, the learned Senior Counsel for the appellant made a feeble attempt at raising such a plea at the time of hearing but unsuccessfully, as such a plea has not so far been raised before the High Court, also not in the petition filed before this Court.”

22. In its later judgment in S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361), on same point, the Hon'ble Apex Court observes:

“12. Thirdly, as we have already indicated, in the present round of litigation, the decision in M. Varadaraja Pillai case was cited only as a precedent and not as res judicata. The issue ought to have been examined by the Full Bench in the light of Article 141 of the Constitution and not by applying the doctrine of merger. Article 141 speaks of declaration of law by the Supreme Court. For a declaration of law there should be a speech i.e. a speaking order. In Krishena Kumar v. Union of India this Court has held that the doctrine of precedents, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. In State of U.P. v. Synthetics and Chemicals Ltd. R.M. Sahai, J. (vide para 41) dealt with the issue in the light of the rule of sub silentio. The question posed was: can the decision of an appellate court be treated as a binding decision of the appellate court on a conclusion of law which was neither raised nor preceded by any consideration or in other words can such conclusions be considered as declaration of law?

His Lordship held that the rule of sub silentio is an exception to the rule of precedents. “A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” A court is not bound by an earlier decision if it was rendered “without any argument, without reference to the crucial words of the rule and without any citation of the authority”. A decision which is not express and is not founded on reasons, nor which proceeds on consideration of the issues, cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. His Lordship quoted the observation from B. Shama Rao v. Union Territory of Pondicherry “it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein”. His Lordship tendered an advice of wisdom — “Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” (SCC p. 163, para 41)

13. Rup Diamonds v. Union of India is an authority for the proposition that apart altogether from the merits of the grounds for rejection, the mere rejection by a superior forum, resulting in refusal of exercise of its jurisdiction which was invoked, could not by itself be construed as the imprimatur of the superior forum on the correctness of the decisions sought to be appealed against. In Supreme Court Employees' Welfare Assn. v. Union of India this Court observed that a summary dismissal, without laying down any law, is not a declaration of law envisaged by Article 141 of the Constitution. When reasons are given, the decision of the Supreme Court becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. When no reasons are given, a dismissal simpliciter is not a declaration of law by the Supreme Court under Article 141 of the Constitution. In Indian Oil Corpn. Ltd. v. State of Bihar this Court observed that the questions which can be said to have been decided by this Court expressly, implicitly or even constructively, cannot be reopened in subsequent proceedings; but neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court bar the trial of identical issue in separate proceedings merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication.

14. It follows from a review of several decisions of this Court that it is the speech, express or necessarily implied, which only is the declaration of law by this Court within the meaning of Article 141 of the Constitution.

15. A situation, near similar to the one posed before us, has been dealt in Salmond's Jurisprudence (12th Edn., at pp. 149-50) under the caption — “Circumstances destroying or weakening the binding force of precedent: (perhaps) affirmation or reversal on a different ground.” It sometimes happens that a decision is affirmed or reversed on appeal on a different point. As an example, suppose that a case is decided in the Court of Appeal on ground A, and then goes on appeal to the House of Lords, which decides it on ground B, nothing being said upon A. What, in such circumstances, is the authority of the decision on ground A in the Court of Appeal? Is the decision binding on the High Court, and on the Court of Appeal itself in subsequent cases? The learned author notes the difficulty in the question being positively answered and then states: (i) The High Court may, for example, shift the ground of its decision because it thinks that this is the easiest way to decide the case, the point decided in the court below being of some complexity. It is certainly possible to find cases in the reports where judgments affirmed on a different point have been regarded as authoritative for what they decided. (ii) The true view is that a decision either affirmed or reversed on another point is deprived of any absolute binding force it might otherwise have had; but it remains an authority which may be followed by a court that thinks that particular point to have been rightly decided.

16. In the present case, the statement of law contained in the decision of the High Court.

17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10-9-1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10-9-1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent Benches of coordinate or lesser strength but open to reconsideration by any Bench of the same High Court with a coram of Judges more than two.

18. The Full Bench was not dealing a question is not arising before us.

19. Under Article 141 of the Constitution, it is the law declared by the Supreme Court, which is binding on all courts within the territory of India. Inasmuch as no law was declared by this Court, the Full Bench was not precluded from going into the question of law arising for decision before it and in that context entering into and examining the correctness or otherwise of the law stated by the Division Bench in M. Varadaraja Pillai case and either affirming or overruling the view of law taken therein leaving the operative part untouched so as to remain binding on parties thereto.”

We have underlined the relevant observations of the Hon'ble Apex Court which to us show that findings of the Division Bench of this Court dated 14.6.1996 on unjust classification and hostile discrimination are not set aside by the Hon'ble Apex Court. Need to make amends by taking positive steps to extend the pension-cum-gratuity scheme to petitioners in Writ Petition Nos.3508/1992, 2645/1990 and 3508/1993 recognized by said Bench and a direction to secure doing away of unjust classification is not disturbed by the Hon'ble Apex Court. It has only substituted the operative part in the High Court judgment. Hence, to that extent, there is no scope for or an occasion to invoke the doctrine of merger.”

23. The Division Bench of this Court in W.P. 3508 of 1992 Dr. Shrihari Shankar Vaidhya vs. State of Maharashtra decided with W.P. 2645 of 1990 and 3508 of 1993 on 14th June, 1996 has considered the challenge to discriminatory treatment meted out to teaching and non-teaching employees of non-government aided Ayurvedic and Unani Colleges affiliated to University of Pune and Nagpur and in Hospitals attached thereto by not extending to them the scheme of pension and death cum retirement gratuity and other retirement benefits. The Division Bench has noted that on 26.05.1981, Urban Development and Public Health Department of Government of Maharashtra issued Government Resolution whereby Ayurvedic Lecturers, Deans, Professors, Readers etc. of Government Ayurvedic Colleges were given UGC scales with effect from 01.04.1981. Stipends etc. of Housemen and Registrars were revised. These benefits were also made applicable to non-Government Ayurvedic grant-in-aid institutions. The petitioners in that matter were put at par with their counterparts in allopathic medicine so far as their pay-scale, stipends etc. are concerned. But then they were not made eligible for Pension and Gratuity after their retirement though the Teaching and non-teaching staff of allopathic Colleges received that benefit. On 21.07.1983, State Government directed that Pension, Gratuity and other retirement benefits available as per Maharashtra Civil Services (Pension) Rules, 1982, including the Family Pension Scheme 1964, applied to Full Time approved Teaching and non-teaching staff in recognized aided non-Government Arts, Science, Commerce and Educational Colleges and the non-Agricultural Universities in the State in respect of their employees who retired or retire on or after 01.10.1982. The fixation of date 01.10.1982 was challenged in Writ Petition No. 2632 of 1985 filed before this Bench on the ground that it violated Article 14 of the Constitution of India. On 25.02.1987, said writ petition was allowed and a writ of mandamus directing the respondents therein to extend the said benefit to employees who retired on or after 01.01.1973, came to be issued.

24. The State Government then issued another resolution dated 20.02.1985 whereby all above benefits except voluntary retirement were extended mutatis mutandis to Full Time approved Teaching and non-teaching employees in recognized non-government aided Engineering, Technical and / or Technological Colleges, Polytechnics and Pharmacists Colleges with retrospective effect from 01.10.1982. However, the benefit of Pension and DCRG was not made applicable to Teaching and non-teaching employees of non-government aided Ayurvedic and Unani Colleges. Division Bench considered the controversy in this background.

25. The State Government contended that the scheme has not been extended to Ayurvedic staff as they are not government employees but employees of private management. The Division Bench did not find any substance in it. The said staff was made eligible and thus found eligible to get UGC benefits. They were put at par with their counterparts in allopathic disciplines and this, according to this Court, left no room of doubt that Ayurvedic staff was also made eligible for Pension and Gratuity. Its denial was in violation of right of equality and right to have equal opportunity. It noted that said staff was singled out for hostile discriminatory treatment and the resulting disparity in service conditions, was thus held unsustainable. Said Division Bench found that Maharashtra Pension Rules and Family Pension Scheme were applied to approved Teaching and Non-teaching staff in recognized non-government Arts, Science, Commerce and Educational Colleges and the non-agricultural Universities in the State, and later on, to the Teaching and non-teaching employees of non-government aided Engineering Technical and Technological Colleges, Polytechnic and Pharmacist institutes. Thus its non extension to the petitioners before it was found discriminatory. The State Government was directed to implement the Pension and Gratuity Scheme for the petitioners in respect of employees in Colleges and Hospitals in any event with effect from 25.05.1981 upon such staff exercising their option in writing within four weeks from Government declaration to extend scheme to such employees. Twelve weeks time was given to Government to extend the scheme. It is this order which was then questioned before the Hon'ble Apex Court.

26. In said challenge in State of Maharashtra v. Hari Shankar Vaidhya (Dr), (supra), the Hon'ble Apex Court has held:-

“3. The admitted position is that the respondents are teachers working in Ayurvedic, Unani and Homeopathic private-aided educational institutions. One of the questions which requires examination is whether they are eligible for pension and gratuity scheme on par with State Government Civil Servants under the Maharashtra State Government Civil Service (Pension) Rules, 1982 (for short “the Rules”). Admittedly, per se, the Rules do not apply to them. Pursuant to the recommendations made by the UGC, the Government of Maharashtra by its Resolution dated 26-5-1981 have adopted the uniform pay scales being paid to the non-teaching staff and teachers working in aided educational institutions, i.e., Ayurvedic, Unani and Homeopathic colleges. By another Resolution dated 29-7-1983, they extended the benefit to the non-government organisations on par with the government organizations. Since the Government have not extended the benefit of pension and gratuity scheme, a writ petition was filed in the High Court in that behalf. The High Court has disposed it of in the impugned order. Thus, these appeals by special leave.

4. As regards the grant-in-aid, this is not in controversy and, therefore, we need not go into the question. The only question is whether the respondents are entitled to the pension and gratuity on a par with government servants. Shri Mohta, learned Senior Counsel appearing for the State, has contended that in view of the huge financial outlay, the Government has been, in a phased manner, extending the benefits from time to time and, therefore, the direction cannot be given to tie down the hands of the Government to extend all the benefits to all of them at a stretch. Shri D.A. Dave, learned Senior Counsel for the respondents, on the other hand, has contended that when the grant-in-aid and the pension were not being extended to the teachers working in the private law colleges, the High Court has given direction to extend the benefit which was affirmed by this Court in State of Maharashtra v. Manubhai Pragaji Vashi1. Therefore, the same benefit may be extended to them. He also cited State of H.P. v. H.P. State Recognized and Aided Schools' Managing Committees2 wherein this Court has directed to extend grants-in-aid to the private educational institutions, middle class and lower middle class aided schools.

5. In view of the respective contentions, the only question that arises for consideration is whether the High Court would be justified to grant the pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided institutions. It is seen that pursuant to the direction issued by this Court, the pension and gratuity scheme were extended to the Law Colleges from 1995. Whether the scheme could be extended or not is a question of an executive policy and the Court would not take the responsibility of directing the Government to extend the policy. The Court requires examination as to how the policy laid down is being worked out. It is stated that since huge financial outlay is involved in extending the benefits and the Government is not intending to deny the benefit to the segment of the teachers, we appreciate the stand taken by the Government. The Government is, therefore, directed to consider extension of the benefit of pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner, as was done with respect to the other aided institutions.”

27. This precedent and application of mind by the Hon'ble Apex Court is utilized by the Division Bench judgment of this Court in case of Dr. Suresh Shrikrishna Naik vs. Karmveer Hire Rural Institute and others (2000 (2) All M.R. 94). Claim of Petitioners in Writ Petition Nos. 682 of 2011 and 3277 of 2012 springs from this division bench judgment. This Court takes notes that Petitioner Dr. Suresh retired from service on 30th April, 1994 after serving as Lecturer in Social Work in Karamveer Hire Rural Institute, Gargoti, Dist. Kolhapur in institutes not only recognized by the Social Welfare Department of the Government of Maharashtra, but also receiving grant-in-aid. Dr. Suresh's grievance was that though he had worked for 32 years in the said Institutes and eligible for pension scheme, yet retirement benefits such as gratuity, pension, etc. were denied to him and it was discriminatory treatment. He challenged denial of pension-cum-gratuity to him as discriminatory and claimed parity in terms of other teachers as per government resolution dated 21-7-1983, but the said benefits were not extended to teaching and non-teaching staff of the Social Work Institutions/ Colleges. In said matter, the State of Maharashtra in defence relied upon a policy decision on 8-7-1998 reached by it after considering the financial implications and position of the State exchequer to justify denial of such benefits to teaching/ non-teaching staff of Social Work Colleges. It submitted that the State was unable to meet huge financial burden on account of limited financial resources. The provisions of the Maharashtra Civil Service (Pension) Rules are not applicable to the case of that petitioner and that even in the case of employees of aided non-Government Institutes/Colleges working under the Public Health Department, the Government had taken a policy decision that no pension and gratuity scheme would be made applicable to them. The said policy was challenged before this Court and this Court had granted relief in favour of the petitioners therein, but in the Special Leave Petition filed by the State Government before the Apex Court, it has been held that whether the scheme could be extended or not is a question of an executive policy and the Court would not take the responsibility of directing the Government to extend the policy. Thus, the earlier judgment of the Division Bench of this Court and of the Hon'ble Apex Court in Ayurvedic and Unani staff matter in State of Maharashtra v. Hari Shankar Vaidhya (Dr), (supra) was pressed before said Bench also. We find the following conclusion of said Bench relevant in all three writ petitions before us:-

“6. The petitioner claims retirement benefits on parity with the teaching and non-teaching staff of non-Government aided Arts, Science, Commerce and Education Colleges and non-Agricultural Universities in the State to whom pension-cum-gratuity scheme and other retirement benefits have been extended by the State Government side Resolution dated 21-7-1983. His grievance is that when such benefits are granted to teaching and non-teaching staff of the Colleges under the Department of Education and Cultural Affairs, there is no reason or justification to deny such benefits to the teaching and non-teaching staff of the Institutes/Colleges under the Social Welfare Department. The Institutes/Colleges under the Social Welfare Department as well as the Colleges under the Department of Education and Cultural Affairs are affiliated to the same Universities, viz., Shivaji University and Pune University and all norms of the University Grants Commission are equally applicable to the Colleges under the Department of Education and Cultural Affairs as well as Social Welfare Department. In the facts and circumstances, there is considerable merit in the grievances of the petitioner. The only difference is the Department of the Government under which the Institutes fall in which the petitioner and others are working. In a welfare State, the Government is bound to look after the interest of all the employees similarly situated alike without any discrimination whatsoever.

7. The ground on which the State Government had taken the policy decision to deny benefit of pension scheme to the teaching and non-teaching staff of Social Welfare Department is financial burden/crunch. The State Government had earlier denied such benefits to the teachers working in Ayurvedic, Unani and Homeopathic private aided educational institutions on the ground of huge financial outlay which was the subject-matter of litigation before this Court as well as the Apex Court in State of Maharashtra and others v. Dr. Shri Hart Shankar Vaidhya and others (supra). In that case, the learned Senior Counsel appearing on behalf of the State had contended that in view of huge financial outlay, the Government has been, in a phased manner, extending the benefits from time to time, but directions cannot be given to tide down the hands of the Government to extend all the benefits to all of them at a stretch. It was pointed out before the Apex Court in the said case that in State of Maharashtra v. Manubhai Pragaji Vashi, 1995 (5) S.C.C. 730, directions were given to extend similar benefits to the teachers working in private Law Colleges. In this view of the matter, the Apex Court had observed that whether the scheme could be extended or not is a question of executive policy and the Court will not take, he responsibility of directing the Government to extend the policy. The Apex Court appreciated the stand taken by the Government that in view of huge financial outlay, the policy of extending benefits could be implemented only in a phased manner. Accordingly, the Government was directed to consider the extension of benefit of pension and gratuity scheme to the teachers working in Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner as was done in respect of other aided institutions.”

28. The judgment of Hon'ble Apex Court therefore finds that the Court of Law would not normally direct the State to extend the scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided institutions from a particular date as determination of such date essentially depends upon various factors including finance, budgetary provisions and therefore belongs to the province of policy decision. Other obligations of Executive to public at large and hence, need of its conscious assessment about impact of such a grant on public revenue is held to be one such relevant aspect. But then the Hon'ble Court does not set aside the High Court judgment and its finding on breach of Article 14 as that was not the challenge placed before it. On the contrary, Hon'ble Apex Court takes note of the desire of State not to deny the pension to the segment of teachers i.e. for doing away with the discrimination. It therefore directs State to consider implementation of the pension and gratuity scheme in phases in mode and manner as was done in relation to other aided educational institutions. The challenge to finding of High Court in judgment dated 14.6.1996 invalidating the hostile treatment to teachers and resultant discrimination is not even presented to the Hon'ble Apex Court and was thus given up by the State. The words employed by Apex Court like “to the segment of the teachers” and “as was done with respect to the other aided institutions” confirm the correctness of finding of hostile discrimination between the Ayurvedic teachers/staff and other set of teachers (in other aided institutions) due to partial implementation of the scheme by State and corresponding violation of Article 14 of the Constitution of India recorded by this Court. Judgment of Hon'ble Apex Court is on the foundation of this finding and due to financial repercussions flowing from High Court's directions, the Hon'ble Apex Court gave liberty to the executive to “consider” the implementation of the scheme in phased manner obviously contingent upon the availability of funds. Thus, the unjust discrimination by the executive and therefore, the direction to extend or implement the scheme issued by this Court was not set aside and was only modified by Hon'ble Apex Court. Positive mandate by High Court is substituted with a direction to consider the extension of the benefit of pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner, as was done with respect to the other aided institutions. Primacy was thus given to the constraints upon the executive in the process to be undertaken to make amends by removing the injustice and hence, State was directed to “consider” in phased manner and mandate to extend the pension-cum-gratuity scheme issued by this Court was thus altered. Judgment of this Court dated 14.6.1996, elaborate reasons and application of mind therein has not been even touched by the Hon'ble Apex Court which only modifies the operative part looking to administrative difficulties. We therefore can not accept that Hon'ble Apex Court has even impliedly wiped out the effect of the High Court judgment dated 14.6.1996 completely. Reliance by the State upon the doctrine of merger for said purpose appears to be unsustainable. Later Division Bench judgment of this Court delivered on 18.1.2000 in case of Dr. Suresh Shrikrishna Naik vs. Karmveer Hire Rural Institute and others (supra) also supports this position. This later judgment has not been questioned before the Hon'ble Apex Court and findings therein on violation of Article 14 have attained finality qua petitioners in Writ Petition Nos.682 and 3277 of 2012. Effort of learned additional G.P. to submit that Hon'ble Apex Court has permitted the State to deny the benefit of the scheme all-together to Ayurvedic and Unani staff therefore must fail. By employing the word “consider”, Hon'ble Apex Court has not given any propitious choice to the State Government to continue with the unjust classification already condemned by this Court. A writ Court is competent to grant relief to the sufferers due to the violation of the fundamental rights. However, in the peculiar facts, only due to “huge financial outlay”, the Hon'ble Apex Court noted the need of a studied policy decision by the State Executive on remedial measures to be adopted by the State. It therefore allows State to undertake the said steps or implementation in phased manner. We find that in absence of any such fund-crunch, the Hon'ble Apex Court may not have asked for extending the said benefit in phased manner. Various orders passed by this Court or then by the Hon'ble Apex Court in contempt matters also can not and do not eclipse the findings of High Court on merits in its judgment dated 14.6.1996 in W.P. 3508 of 1992. Hon'ble Apex Court has dismissed the I.A.s summarily while this Court (learned Single Judge) found the import of the word “consider” in judgment dated 7.4.1997 of Hon'ble Apex Court sufficient to negate any wilfull disobedience by the State Government.

29. Discussion on Judgment dated 14.61996 in W.P. 3508 of 1992 Dr. Shrihari Shankar Vaidhya vs. State of Maharashtra (supra) and of the Division Benches of this Court on present demand of staff of Ayurvedic colleges or Social Work Colleges leaves no manner of doubt that the fresh scrutiny of the controversy and that too with reference to Article 14 is not only uncalled for but also not open. The State Government having failed earlier to justify the different treatment to said staff in abovementioned matter and having acquiesced in the finding of this Court, can not now attempt to reopen that finding. Only ground now pressed into service to justify the said treatment is availability of an income source with the ayurvedic colleges i.e., hospitals in which patients are treated for consideration. This plea necessitates delving into factual matrix and hence, in any case, it was obligatory for respondents to plead and prove it emphatically in reply on affidavit. The Colleges have pointed out absence of such plea in defence and claim that hospitals are attached to them to enable students to gain practical experience and they are required to charge fees to patients only at the government rates. All hospitals are therefore in losses. The State Government has neither pleaded such a factor to distinguish between teachers nor produced any material to show its deliberate use before hand to carve out a “segment of teachers” as a separate class to deny pension and gratuity to them. Such a norm/factor must be applied and shown to be evolved as measure to resolve the mischief sought to be remedied during the process of consideration thereof. In any case, rival contentions itself establish a need of proper assertion by the State so as to provide an effective opportunity to the petitioners to counter it. In absence of such a plea by the State, this ground of an income source with employer of petitioners can not be adjudicated upon. Law laid down by Hon'ble Apex Court in D.S. Nakara vs. Union of India (1983) 1 SCC 305 : 1983 SCC (LandS) 145) about further subdividing the otherwise homogeneous class of Pensioners for conferring the benefit of the liberalization, and its further elaboration by it, therefore is not decisive here. In Government of Andhra Pradesh v. N. Subbarayudu, (2008) 14 SCC 702), at page 704, Hon'ble Apex Court observes:

“4. Aggrieved thereby, the respondents preferred writ petition before the High Court. The Division Bench of the High Court, after hearing the parties, was of the view that the cut-off date 1-11-1992 fixed by the Government was arbitrary and discriminatory.

5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.)

6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.

7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.

8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.

9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the court must maintain judicial restraint in matters relating to the legislative or executive domain.

10. For the reasons aforestated, the impugned order of the High Court is set aside. The appeals are allowed.”

In All India Reserve Bank Retired Officers Assn. v. Union of India, (1992 Supp (1) SCC 664), (at page 678) , Hon'ble Apex Court declares:

“10. Nakara judgment has itself drawn a distinction between an existing scheme and a new scheme. Where an existing scheme is revised or liberalized all those who are governed by the said scheme must ordinarily receive the benefit of such revision or liberalization and if the State desires to deny it to a group thereof, it must justify its action on the touchstone of Article 14 and must show that a certain group is denied the benefit of revision/liberalization on sound reason and not entirely on the whim and caprice of the State. The underlying principle is that when the State decides to revise and liberalize an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. That is why in Nakara case this Court drew a distinction between continuance of an existing scheme in its liberalized form and introduction of a wholly new scheme; in the case of the former all the pensioners had a right to pension on uniform basis and any division which classified them into two groups by introducing a cut-off date would ordinarily violate the principle of equality in treatment unless there is a strong rationale discernible for so doing and the same can be supported on the ground that it will sub serve the object sought to be achieved. But in the case of a new scheme, in respect whereof the retired employees have no vested right, the employer can restrict the same to certain class of retirees, having regard to the fact-situation in which it came to be introduced, the extent of additional financial burden that it will throw, the capacity of the employer to bear the same, the feasibility of extending the scheme to all retirees regardless of the dates of their retirement, the availability of records of every retiree, etc. It must be realized that in the case of an employee governed by the CPF scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalization of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasized by this Court in Krishena case.”

Earlier judgments of the Division Benches of this Court have held that the Ayurvedic/Unani staff and the staff of Social Work Colleges could not have been treated differently in the matter of pension-cum-gratuity benefits. They constituted a homogeneous class with other teachers and needed same treatment. Thus, their exclusion was declared a hostile and an unjust discrimination. Directions were issued by Courts to “consider” their restoration back to the same class from which they were removed unconstitutionally. The finding that these petitioners form a homogeneous group with others to whom the benefit of pension-cum-gratuity scheme is already extended by the State Government and law in that respect does not undergo any change in later judgments of Hon'ble Apex Court where D.S. Nakara has been again looked into. Correctness of that finding is now not open and in any case, the State has not pleaded and substantiated any thing in justification of such different treatment. It is therefore not necessary to consider the precedents on Article 14 or then on scope of power of judicial review of this Court under Article 226 of the Constitution of India. It is sufficient to note here that the petitioners are already found to be part of same class and present controversy is not about cut-off date. It is about highhanded pushing of the petitioners out of the class of which they are members without any justification.

30. The objection raised by learned Addl. G.P. that the College is not a juristic entity and hence Writ Petition No. 5177 of 2011 as filed is not tenable now needs scrutiny. The other two petitions are by individual teaching and non-teaching staff members as also their association jointly and hence this issue does not arise there. Colleges have not attempted to demonstrate that they are juristic persons. They remain content with stance that it is the College which receives recognition and grant-in-aid from State, and College only conducts courses which are affiliated to the Universities. Respondent State has not disputed any of these facts. None of the parties have invited our attention to any statutory provisions or to the precedents. We find that in Chief Conservator of Forests, Govt. of A.P. v. Collector, (2003) 3 SCC 472), (at page 480), Hon'ble Apex Court while dismissing the appeal not presented by the State Government observes:

“10. A plain reading of Section 79 shows that in a suit by or against the Government, which is suing or is being sued.

11. Rule 1 of Order 27, as mentioned be verified by any person whom the Government may so appoint.

12. It needs to be noted here that a legal entity — a natural person or an artificial person — can sue or be sued in his/its own name in a court of law or a tribunal. It is not merely a procedural formality but is essentially a matter of substance and considerable significance. That is why there are special provisions in the Constitution and the Code of Civil Procedure as to how the Central Government or the Government of a State may sue or be sued. So also there are special provisions in regard to other juristic persons specifying as to how they can sue or be sued. In giving description of a party it will be useful to remember the distinction between mis-description or misnomer of a party and mis-joinder or non-joinder of a party suing or being sued. In the case of mis-description of a party, the court may at any stage of the suit/proceedings permit correction of the cause-title so that the party before the court is correctly described; however, a mis-description of a party will not be fatal to the maintainability of the suit/proceedings. Though Rule 9 of Order 1 CPC mandates that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that Rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order 1 CPC provides remedy when a suit is filed in the name of the wrong plaintiff and empowers the court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings.

13. The question that needs to be addressed is, whether the Chief Conservator of Forests as the appellant-petitioner in the writ petition/appeal is a mere mis-description for the State of Andhra Pradesh or whether it is a case of non-joinder of the State of Andhra Pradesh — a necessary party. In a lis dealing with the property of a State, there can be no dispute that the State is the necessary party and should be impleaded as provided in Article 300 of the Constitution and Section 79 CPC viz. in the name of the State/Union of India, as the case may be, lest the suit will be bad for non-joinder of the necessary party. Every post in the hierarchy of the posts in the government setup, from the lowest to the highest, is not recognized as a juristic person nor can the State be treated as represented when a suit/proceeding is in the name of such offices/posts or the officers holding such posts, therefore, in the absence of the State in the array of parties, the cause will be defeated for non-joinder of a necessary party to the lis, in any court or tribunal. We make it clear that this principle does not apply to a case where an official of the Government acts as a statutory authority and sues or pursues further proceeding in its name because in that event, it will not be a suit or proceeding for or on behalf of a State/Union of India but by the statutory authority as such.

16. Now, reverting to the facts of the case on hand, we are of the view that Petition (C) No. 3414 of 1982. The Chief Conservator of Forests as the petitioner can neither be treated as the State of Andhra Pradesh nor can it be a case of mis-description of the State of Andhra Pradesh. The fact is that the State of Andhra Pradesh was not the petitioner. Therefore, the writ petition was not maintainable in law. The High Court, had it deemed fit so to do, would have added the State of Andhra Pradesh as a party; however, it proceeded, in our view erroneously, as if the State of Andhra Pradesh was the petitioner which, as a matter of fact, was not the case and could not have been treated as such. As the writ petition itself was not maintainable, it follows as a corollary that the appeal by the Chief Conservator of Forests is also not maintainable. We are unable to accept the contention in accordance with the provisions of the Constitution and CPC. We may also record that in spite of the pattedars taking objection to that effect at the earliest, no steps were taken to substitute or implead the State of Andhra Pradesh in the writ petition in the High Court or in the appeal in this Court.”

In Illachi Devi v. Jain Society, Protection of Orphans India, (2003) 8 SCC 413), (at page 422), Hon'ble Apex Court states:-

“21. A society registered under the Societies Registration Act is not a body corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a society registered under the Societies Registration Act is not a juristic person. The law for the purpose of grant of a probate or Letter of Administration recognizes only a juristic person and not a mere conglomeration of persons or a body which does not have any statutory recognition as a juristic person.

22. It is well known that there exist certain salient differences nor is it capable of ownership of any property or of suing or being sued in its own name.

23. Although admittedly, a registered society is endowed with an existence separate from that of its members for certain purposes, that is not to say that it is a legal person for the purposes of Sections 223 and 236 of the Act. Whereas a company can be regarded as having a complete legal personality, the same is not possible for a society, whose existence is closely connected, and even contingent, upon the persons who originally formed it. Inasmuch as a company enjoys an identity distinct from its original shareholders, whereas the society is undistinguishable, in some aspects, from its own members, that would qualify as a material distinction, which prevents societies from obtaining Letters of Administration.

24. The Patna High Court in K.C. Thomas v. R.L. Gadeock --- ----of suing or being sued. The said decision is not correct.

26. Vesting of property, therefore, does not take place in the society. Similarly, the society cannot sue or be sued. It must sue or be sued through a person nominated in that behalf.”

In Bal Niketan Nursery School v. Kesari Prasad, (1987) 3 SCC 587), (at page 593), Hon'ble Apex Court holds:

“9. Having given our careful consideration to the arguments of the learned counsel and the view taken by the High Court we are of the opinion that the High Court was in error in sustaining the belated objection taken by the tenants regarding the competence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the Small Cause Court for fresh disposal after first considering whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake calls for rectification by allowing the petition filed under Order 1 Rule 10 CPC. The reasons which has prompted us to come to this conclusion are manifold and may be enunciated in the following paras.

10. Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognized institution and by reason of such recognition the school is conferred certain rights and obliged to perform certain duties. One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act. Consequently, the appellant School has acquired rights by reason of the statutory recognition given to it under the U.P. Basic Education Act and to that extent the appellant school stands clothed with legal status. It is not, therefore, a non-entity in the eye of law. Viewed from that perspective the appellant is entitled to file the suits through its manager to seek the eviction of the tenants occupying the superstructures. Of course, the learned counsel for the respondent tried to contend that certain proceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Education Act and as such the appellant's status as a recognized institution cannot be taken for granted. We cannot countenance this argument because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed. Furthermore, the respondent has not produced any material to show that the recognition granted to the school has been subsequently withdrawn.

11. Secondly, apart from the legal status acquired by the school as a recognized institution, it is admittedly the registered owner of the suit property even though the purchase price may have been provided by the society. It is not in dispute that the sale deed pertaining to the land and the superstructures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society. As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents from the tenant came to be collected. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellant's right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed.”

31. College is the only basic unit which imparts higher education at all levels. A Society or a Trust is also formed or created with the aim of running such college. Various activities in college are closely supervised and monitored by the State Government by making provisions therefor in Maharashtra Universities Act,1994. Universities established thereunder in fact assist the State Government in proper discharge of its constitutional duty. Brief perusal of this 1994 Act is essential to understand the importance given by the Legislature as also the State to this institution known as college. A University which evaluates need of a new college, maintains academic standards, conducts all examinations of College students and grants degree is incorporated under S.3(1) of the Maharashtra Universities Act ,1994; referred to as 1994 Act hereafter, and its sub-section (4) enables it to acquire and hold or dispose of the property. Section 24 points out various authorities under the University and the Management Council is most important one out of them. Section 27 makes said Council the principal executive authority to formulate statute and forward the same to Senate for approval and make Ordinances for administer the affairs of the university and perform such other duties not assigned to any other authority. It consists of quite a large number of representatives. Section 28 (b) gives the duties and functions of the Management Council. Its clause "b" empowers it to establish departments, colleges, schools, institutions of higher learning, research and specialized studies, hostels and provide housing for staff, on the recommendation of the Academic Council. Permission to establish/open new college is given by the State as per S. 82 of the 1994 Act. As per S. 82 (1) the university has to prepare a perspective plan for educational development fixing the location of institutions of higher learning in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular, to the needs of non-served and underdeveloped areas within its jurisdiction. Such a plan is to be prepared by its Academic Council and then placed before the Senate through the Management Council. It is to be revised every 5 years. Its sub-section (2) mandates that no application for opening a new college or institution of higher learning, which is not in conformity with such plan can be considered by the university. The management seeking permission to open a new college has to apply in the prescribed form to the Registrar of the university before the last day of October of the year preceding the year from which the college is sought. All such applications received within the aforesaid prescribed time-limit, need to be scrutinized by the Board of College and University Development, and then forwarded to the State Government with the approval of the Management Council on or before the last day of December of the year, with such recommendations supported by relevant reasons, as are deemed appropriate by the Management Council. Thus the role of Management Council in preparation of perspective plan, its revision and power to recommend changes even in proposals received, all prove importance given to it in the formulation of policy matters by the Legislature. Sub-section (5) confers absolute discretion on State to grant permission to such institutions taking into account the Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning. In exceptional cases and for the reasons to be recorded in writing, any application not recommended by the university may also be approved by the State Government for starting a new college or institution of higher learning. Chapter III of 1994 Act deals with officers of the University. S. 9 in its part "A" stipulates the Hon'ble Governor of the State as the Chancellor of University and his powers. Its Part "B" begins with S. 10 and it prescribes other officers of the university. Those include the vice-chancellor, the provice-chancellor, the dean of faculties, the registrar, the controller of examinations, the director of sub-campuses of the university, director-board of college and university development, librarian of university library, the finance and accounts officer, the director of students welfare and such other officer in services of university as may be prescribed by the Statutes framed by Senate of university. Under S.11 and 14, the vice-chancellor is the principal executive and academic officer of university. Amongst other positions, he is also ex-officio chairman of the Management Council. Section 14(6) enables him to defer implementation of any decision taken or the resolution passed by any authority if he is of opinion that the same is not consistent with the Act, Statutes, Ordinances, Regulations. Under S. 17 (5), the registrar acts as secretary of the Management council, under s/s(6) he is appointing and disciplinary authority of university employees. S/s (7), empowers him to enter into agreements, sign documents and authenticate records on behalf of the University. Under S/s (8), he is the custodian of records, the common seal and properties of the university. Section 23 of 1994 Act constitutes all salaried officers, members of authorities, committees or bodies, teachers and other employees of University deemed public servants under S. 21 of the IPC.12.

In this background Section 27 providing the formation of Management Council needs a look. It provides for different personnel who constitute the Management Council. The Management Council consists of eminent persons and educationists. This section is placed in Chapter IV dealing with the authorities of the University. Section 24 prescribes 11 such authorities as the Senate, the Management Council, the Academic Council, the Faculty, the Board of College and University development, the Board of University teaching and research, the Board of studies, the Board of inter-disciplinary studies, the Board of Examinations, the Board of adult and continuing education and extension services, the Students council and such other bodies as are designated by the Statute. Section 27 makes the Management Council principal executive authority to formulate Statutes and forward the same to the Senate for approval and to make ordinances, to administer the affairs of the University and to carry out all such other duties as are not specifically assigned to any other authority. Section 28 deals with its power and duties. We notice few of the important once as Clause "b" enabling it to establish departments, colleges, schools, institutions of higher learning, research and specialized studies, hostels and provide housing for staff, on the recommendation of the Academic Council. Next clause permits it to make, amend or repeal Ordinances and prepare draft Statutes and make recommendation thereon to Senate. Its clause "d" empowers it to hold, control and arrange for administration of assets and properties of University. It lays down policy for administration of funds at disposal of university, enter in to contracts on behalf of university, provide buildings, furniture, premises, apparatus and other means needed to carry work of the university. It can institute and confer such degrees, diplomas etc. as recommended by Academic Council, create posts of university teachers and non-vacation staff upon recommendation of Academic Council, lay down their workload, service conditions, manner of appointment, prescribe fees and other charges, prepare academic calender of the university, confer autonomous status on university departments, affiliated colleges, consider perspective plan for academic development and cause an enquiry to be made into matter concerning