SECRETARY MAHATAMA GANDID MISSION & ANOTHER v. BHARTIYA KAMGAR SENA & OTHERS

A of which one part is constitutional, the court examines whether the legislation must be invalidated as a whole or only in respect of the unconstitutional part. It was also said that severance always cuts down the scope oflegislation but can never enlarge it and in the present case the scheme as it stands would not cover pensioners such as the petitioners and if by severance an B attempt is made to include them in the scheme it is not cutting down the class or the scope but enlarge the ambit of the scheme which is impermissible even under the doctrine of severability. In this context it was lastly submitted that there is not a single case in India or elsewhere where the court has included some c category within the scope of provisions of a law to maintain its constitutionality." This court rejected the submission based on the lack of precedent, holding: "41. The last submission, the absence of precedent need not deter us for a moment. Every new norm of socio-economic justice, every new measure of social justice commenced for the first time at some point of history. !fat that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be pragmatic is not to be unconstitutional. In its onward march law as an institution ushers in socio-economic justice. In fact, social security in old age commended itself in earlier stages as a moral concept but in course of time it acquired legal connotation. The rules of natural justice owed their origin to ethical and moral code. Is there any doubt that they have become the integral and inseparable parts of rule of law of which any civilised society is proud? Can anyone be bold enough to assert that ethics and morality are outside the field oflegal formulations? Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations. Overemphasis on precedent furnishes an insurmountable road-block to the onward march towards promised millennium. An overdose of precedents is the bane of our system which is slowly getting stagnant, stratified and atrophied. Therefore, absence of a precedent on H

SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 281 BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

this point need not deter us at all. We are all the more happy for the chance of scribbling on a clean slate." and the Court finally concluded as follows: "65. That is the end of the journey. With the expanding horizons of socio-economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exp9sed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion: "being in service and retiring c subsequent to the specified date" for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pensiorr and the eligibility criteria devised being thoroughly arbitrary, we are of D the view thatthe eligibility for liberalised pension scheme of"being in service on the specified date and retiring subsequent to that date" in impugned memoranda, Exs. P-l & P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down. E ... Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as' per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs."

80Copy pinpoint80. When Justice Mathew declared that Article 14 interdicts the State from creating inequalities, he was stressing the obvious. Further, he articulated the remedial measures the State has been enjoined to take recourse to: eliminate the existing inequalities through positive~affinnative­ action, rather than passive neutrality. What is the remedy open to the citizen and the corresponding obligation of the judiciary to deal with such a situation, where the H

282 SUPREME COURT REPORTS (2017] 2 S.C.R.

A inequalities are created either by the legislation or executive action ? Traditionally, this Court and the High Courts have been declaring any law, which created inequalities to be unconstitutional, but in Nakara's case this Court realised that such a course of action would not meet with the obligations emanating from a combined reading of the directive principles and Article 14. Therefore, this Court emphatically laid down B in Nakara's case that it is possible to give an appropriate inductive relief by eliminating the factors, which creates the artificial classification leading to a discriminatory application oflaw.

81Copy pinpoint81. Though this Court is not bound by the law declared by the municipal courts of other countries, this court in the last 70 years always c examined with due regard decisions of the American Supreme Court on questions of constitutional law. In a comparable situation, American courts did exercise jurisdiction by granting appropriate injunctive orders compelling the State to comply with the constitutional mandate by ignoring the legislative command and extending the benefit provided under a D legislation to a certain class of people who were expressly excluded from receiving that benefit provided by the legislation. [See: James Plyler 1'. J. and R. DOE et al. (supra)"

82Copy pinpoint82. Notwithstanding the wholly unsatisfactory reasoning adopted by the High Court for allowing the claims of the writ petitioners, (the respondents herein), we are convinced that the conclusion of the High Court could be justified on basis of the principle enunciated in D.S. Nakara's case.

83Copy pinpoint83. We must at this stage mention that the appellants made elaborate submissions during the course of the arguments regarding the inter play between Entry 66 of the List I and Entry 25 of the List III of the Seventh Schedule and the judgments of this Court in the line of

"The facts of J<1mes PLYLER are as follows: The Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not "legally admitted" into the G United States ..A class action was brought on behalf of certain school-age children of Mexican origin who could not establish that they had been legally admitted into the United States, complaining of discrimination. The District Court held that the children were entitled for the protection of the Fourteenth Amendment (Equal Protection Clause) and injuncted the State from denying the funds for their education. On appeal, the Court of Appeals for the Fifth Circuit upheld the injunction. Eventually, the matter reached the Supreme Court of the United States, which affirmed the injunction. H

SECRETARY MAHATAMA GANDHI MISSION & ANOTHER v. 283 BHARTIYA KAMGAR SENA & OTHERS [CHELAMESWAR, J.]

84Copy pinpoint84. ln view of our conclusion that the State of Maharashtra has taken a decision in exercise of the power allowable to it·under Section 8(3) of the Maharashtra Universities Act, the question whether AICTE c is the competent body to regulate the service conditions of the employees of engineering colleges in our opinion is wholly irrelevant to the issue and academic. Even if the appellant's submissions in this regard were to be accepted, it only leads to the inevitable conclusion that the Maharashtra D State legislature is the competent body to deal with the subject. It did deal with the subject under Section 8(3) of the Maharashtra Universities Act. Section 8(3) clearly authorises the State Government to frame rules dealing with the service conditions of the employees (both teaching and non-teaching) of various educational institutions. The power is duly exercised. While exercising such power is that State of Maharashtra drew an artificial distinction between aided and unaided educational institutions.

85Copy pinpoint85. Another submission of the appellants that is required to be dealt with is that since the appellant does not receive any financial aid from the State, calling upon the appellants to pay its employees in term§'" of the revised pay scales would be compelling them to perform an impossible task. The appellants submitted that their only source of revenue is the fee collected from the students. Their right to collect fee is regulated pursuant to judgments of this Court in incoherence T.M.A. G Pai Foundation & Otlters v. St(lte of Karnataka & Otlters, (2002) 8 SCC 481 38 and lsf(lmic Academy of Education & Anotlter v. State of Karnataka & Others, (2003) 6 SCC 697 39 • Therefore, if they are

'"See Paras 56 to 58 and 161 39 See Paras 6, 7 and 19 H

284 SUPREME COURT REPORTS [2017] 2 S.C.R.

A compelled to pay their staff higher salaries they would be without any financial res~mrces as they do not receive any aid from the State.

86Copy pinpoint86. On the other hand it is argued by the respondent that the determination of the fee structure and the amount of the fee that could be collected by the appellants from the students is madti by the Fee B Regulatory Committee and such a body is bound under law and does in fact take into account the various relevant factors in determining the fee structure. It is, therefore, submitted that it is always open to the managements to make an appropriate application before the Fee Regulatory Committee bringing all the relevant factors to the notice of the body competent to determine the fee structure and raise appropriate c revenue.

87Copy pinpoint87. At the outset, we make it clear that at least insofar as non- teaching staff are concerned, the appellants have no excuse for making such a submission because in the earlier round oflitigation the respondents - non-teaching employees of the appellants, though succeeded both before D the High Court and this Court in obtaining appropriate directions to the appellant and other authorities to revise the pay scales of the employees in tune with the Fifth Pay commission, entered into a settlement dated 30'h January, 2006, the terms of which have already been taken note in this judgment at para 5.

88Copy pinpoint88. Under the said agreement, the management agreed to revise the pay scales from time to time in tune with the revision of the pay scales of the employees of the State. Therefore, the submission of the management in this regard is liable to be rejected on that ground alone.

89Copy pinpoint89. Even otherwise, if the appellants are obliged under law, as we have already come to the conclusion that they are in fact obliged, it is for the appellants to work out the remedies and find out the ways and means to meet the financ-ial liability arising out of the obligation to pay the revised pay scales.

90Copy pinpoint90. In the result, the appeals being devoid of merit are dismissed with no ordei; as to costs.

Nidhi Jain Appeals dismissed.