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Advocating The Rights of Staff Employed in Private Unaided Universities

 Introduction
The word Education is derived from the Latin word ‘educatum’ which means ‘to bring up’ or ‘to draw out.’
Definition of Education: Concurrent list; Entry 25: Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.[1] Under this entry it includes establishment and administration of educational institution and “Administration” includes within itself the regulation of an activity of employment by an educational institution irrespective of whether it is established by state, its instrumentalities or private sector.
Access to education beyond higher secondary schooling is a mere 10% among the university-age population in India.In a population of more than a billion not every child gets the luxury of education like food. 9 out of 10 students still remain handicapped by social and economic reasons. Disparity exists between the poor and the rich in terms of opportunity and income, the apex court in the present case has tried to abridge the existing gap. Education is in scarcity and good education needs a minimum of 25 years of hefty investment which cannot be provided by the state or its instrumentalities to those who cannot afford by their own. Teachers hold a very sacred place for imparting education and to protect their welfare is the responsibility of the state.
Sometimes state spends less on education if comparing to politics,as its expenditure circumvents education. It was also observed in the budget that the education budget was same as the previous year’s budget inferring that considering inflation it has been reduced.
HUMAN RESOURCES
Civilized citizens are by products of education. Literacy rate is more in developed countries. Investment in human resources yields benefit which are not restricted to economy. The transmission of knowledge will be hampered if the welfare of the teachers and professors are threatened, it is a lifelong process. Therefore, such radical steps should be taken more to fulfil what our constitutions seeks to achieve. 
DOCTRINE OF EQUAL PAY FOR EQUAL WORK.
Is the doctrine of equal pay for equal work is an abstract one and that the doctrine cannot be invoked invariably particularly in the area of professional services?
In one case[2], the supreme court has held that it is open to the state to prescribe different scales of pay for different posts having regards to educational qualifications, duties and responsibilities of the post. In another case[3], the principle was reinstated in holding the doctrine of equal pay for equal work cannot be put in straitjacket. Although the doctrine finds its place in the directive principles but the supreme court in various judgement has authoritatively pronounced that right to equal pay for equal work is an accompaniment of equality clause enshrined in articles 14 and 16 of Constitution of India. Nevertheless, less the abstract doctrine of equal pay for equal work cannot be read in article 14. Reasonable classification based on intelligible criteria having nexus with the object sought to be achieved, is permissible. In yet another case, the supreme court has held that allowing higher scales of pay to the employees of some trades from an earlier date and to members of another trade from a later will violate the equality clauses under article 14 and 16 of Constitution of India as well as the principles of equal pay for equal work.[4]
In Jaipal v State of Haryana, the supreme court said  the doctrine of equal pay for equal work would apply on the premise of similar work but it does not mean that there should be complete identity in all respect. If the two classes of persons do some work under the same employer, with similar responsibility, under similar working conditions, the doctrine of equal pay for equal work, would apply and it would not be open to the state to discriminate one class with the other in paying salary.
But it cannot be said that being a DPSP, it is not enforceable in the court of law because it is also a part of Article 14, the FR and DPSP are not supposed to be exclusively of each other; they are complimentary to each other.[5]
People who are employed in Central, State or Private aided universities get the benefit of central pay commission but when it comes to Private Unaided Universities the scenario is different. Professors in such institutions are paid according to the University’s Discretion which sometimes is not enough to meet the financial requirements of the people working there despite the fact that they discharge same duties as people employed in aided and state run universities. According to UGC (Establishments of And Maintenance of Standards in Private Universities) Regulations, 2003 Private University is defined as:-
 (Section 2.1)-
Means a university established through a State/Central Act by a sponsoring body viz. a Society registered under the Societies Registration Act 1860 or any other corresponding law for the time being in force in a state or a public trust or a company registered under Section 25 of the Companies Act, 1956”
The above-mentioned act monitors the activities of Private University except pay scale of private unaided universities. All the Universities no matter whether they are run by state actors or non-state actors are governed by UGC and According to 3.3.3 of the above regulations if the functioning of the University is found to be unsatisfactory then the University is instructed by UGC to close down. Therefore, if Pay Commission recommendations are extended to the pay scale of people working in the Central, State or Aided universities then why people working in Unaided universities discharging similar services do not get such benefits. The Issue came to Highlight in the Case below
Secretary Mahatma Gandhi Mission v. Bhartiya KamgarSena
This case is one such case that brought such an important issue to the Highlight. In this case the debate was over the issue that pay revision regulations of the government should be applicable to the pay scale of teaching and non-teaching staff of the unaided private educational institutes or not. In this case KamgarSena an unregistered body that comprised of teaching and non-teaching staff of two private engineering colleges in Maharasthra filed a writ petition in Bombay High Court so as to get the benefit of 5th Pay Commission. The KamgarSena and Mission even settled that arrears will not be paid according to the 5th Pay Commission but future salaries will be paid according to the 5th pay commission. But then Government released the order that salaries to the staff working in Central, State and Aided Universities will be paid according to the 6th Pay commission. As a consequence of which the staff of unaided institutions also demanded to be paid according to the 6th pay commission. The Mission raised the contention that there is no express mention that staff in unaided private educational institutions is to be paid according to the revised pay scales. The pay scale recommendations are only for those working in aided, central and state universities. To this KamgarSena Pointed out in Supreme Court that Artificial Classifications between the teaching and non-teaching staff of all educational institutions and between the employees of aided and unaided educational institutions had no nexus with object that is sought to be achieved by the pay revision regulations. It was observed by the Hon’ble Apex Court that the object sought to be achieved by the periodic revision of the pay scales is obviously to comply with the constitutional mandate emanating from Article 43 of the Constitution of India. Therefore, there is no justification for classifying and treating unequally the staff working in Aided and Unaided educational institutes.
Pay Commission regulations are not applicable on the pay scale of staff working in Private Unaided Institutions because of which financial requirements of teachers are not met. Despite the fact that staff of both the Aided and Unaided Universities discharge same duties yet because of this unreasonable classification people working in educational institutions set up by non-state actors are not treated kindly by the market forces and the economy.
If a law is found violative of Article 14 then it is declared unconstitutional. But striking down a law which is beneficial for a class of people ignoring those who are on equal footing is not to be done as a matter of course.
[this judgement is good in law as it abridges the divorce between aid and non-aided institutions]
The Hon’ble Supreme Court in this case said:
“If the Benefit sought to be conferred by such a law is not repugnant to the Directive Principles of State Policy, striking down the same would virtually amount to throwing away the baby with bath water”
Apex Court in this case observed the DKS Nakara v. Union of India case and provided for a innovative procedure for filling the lacuna in the state policy by extending the benefit uniformly to all the people who are otherwise similarly situated. The Court in DKS Nakarav. Union of India case did not declared the law to be unconstitutional rather it focused on eliminating the factors that created inequalities. So, court directed the management authorities to pay the Staff employed in the University as per the Central Pay Commission recommendations. University raised the Argument that since the fees collected from the students were the only source of revenue so this was not possible, to this Court directed the management to constitute the fee Regulatory Committee and make changes in the fee structure as per the need.
Concluding Remark:
As said in the case above that striking down a law as a whole if found to be violative of Article 14 will not be an ideal solution in each and every scenario because then benefits to other class of people also gets hampered. Following DKS Nakara case Court in this case was right by directing the Mission to make the change in the mechanism of fees regulatory committee and fulfill the needs of the staff working in the unaided universities because eliminating the factors of inequality is the idol solution rather than striking down the regulation as a whole.
Education is a social concept, philosophically evolved, psychologically developed and socially based. It is no more mere instruction, communication of knowledge or the accusation of useful skills. If the teachers and professors are not paid properly or if any education which escapes from the fatal lacuna is disastrous and accentuates inequality.

REFERENCES

[1] Constitution of india

[2]Mewa Ram Kanojia v All India Institute of Medical Sciences, 1989-I CLR 671.

[3] V. Markendeya &Ors. V State of Andhra Pradesh, 1989-I CLR 658.

[4]Bhagwan Sahai, Carpenter v Union of India, 1989 Lab IC 1336.

[5]MP Jain page 1037 6thedi re print 2011

ABOUT THE AUTHOR(S)

 

 

Shantanu Anand is 3rd year B.A.LL.B.(Hons.) Student at Dr. Ram Manohar Lohiya National Law University, Lucknow

 

 

 

 

 

Animesh Upadhyay is a 4thyear B.A.LL.B.(Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow

 

 

 

In content picture credits: healthyteachingonline

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