Bombay High Court
Dnyanoba Tukaram Devne And Others vs The State Of Maharashtra And ... on 26 September, 2017
Bench: R.M. Borde
(Judgment) (1) W.P. No. 00972 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 00972 of 2017
District : Aurangabad
1. Shri Dnyanoba Tukaram Devne,
Age : 55 years,
Occupation : Practice in law,
R/o. Thakre Nagar, CIDCO, N-2,
Aurangabad.
2. Shri Sham Babarao Patil,
Age : 55 years,
Occupation : Practice in law,
R/o. Mogra H-2,
Gurushani Nagar,
CIDCO, N-4, Aurangabad.
3. Shaligram Bhiwsanrao Pawar,
Age : - ,
Occupation : Practice in law,
R/o. 10, Yugantar Housing Society,
Plot No.7, N-9, M-2, CIDCO,
Aurangabad.
4. Syed Asif Ali Syed Turab Ali,
Age : 58 years,
Occupation : Practice in law,
R/o. GHATI "Moona" Building,
Aurangabad. .. Petitioners.
versus
1. The State of Maharashtra,
Through its Principal Secretary,
Law & Judiciary Department,
M.S., Mantralaya, Mumbai - 32.
2. The Joint Secretary,
Law & Judiciary Department,
Aurangabad.
3. The Secretary,
Finance Department, M.S.,
Mantralaya, Mumbai - 32.
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(Judgment) (2) W.P. No. 00972 of 2017
4. Chief Presenting Officer,
Maharashtra Administrative Tribunal,
Aurangabad, through its
Superintendent. .. Respondents.
...........
Mr. N.B. Khandare, Advocate, for petitioners.
Mr. A.B. Girase, Government Pleader, for
respondents no.01 to 04.
...........
CORAM : R.M. BORDE &
SMT. VIBHA KANKANWADI, JJ.
Date of reserving
the judgment : 13th September, 2017
Date of pronouncing
the judgment : 26th September, 2017
JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :
01. Rule. Rule made returnable forthwith. By
consent, heard finally.
02. Petitioners have invoked the jurisdiction of
this court under Articles 14 and 226 of the
Constitution of India, in order to challenge the
Government Resolution [For short, "G.R."] dated 01st
June, 2016 issued by the Law & Judiciary Department,
Maharashtra State, Mantralaya, Mumbai, which
stipulates the exclusion of condition regarding outer
(Judgment) (3) W.P. No. 00972 of 2017
limit of fees payable to Law Officers in Maharashtra
Administrative Tribunal [For short, "MAT"] to be made
applicable from 01st June, 2016.
03. Petitioners are practicing advocates. Their
tenure as Chief Presenting Officer [For short, "CPO"]
and Presenting Officers [For short, "POs"] expired in
June, 2016. The Government of Maharashtra framed
rules, namely, 'Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration)
Rules, 1984'. These rules provide for appointment of
Law Officers in various courts including High Court
and MAT. The rules regulate the functions and duties
of Law Officers and also provide for rate of fees
payable to them. Petitioners were appointed as
Presenting Officers to represent the Government
before MAT at Aurangabad in the year 2001 and their
appointments were continued from time to time by
issuing orders.
04. The fees structure for payment of fees was
revised which was framed under the above said rules
from time to time. The fees structure was revised
(Judgment) (4) W.P. No. 00972 of 2017
under Government Resolution dated 11th October, 2013
and revision of rates of fees made under the said
G.R. were made applicable with effect from 01st
November, 2013. Different fees structure for the Law
Officers working in different courts was decided by
the Government including the Chief Presenting Officer
and Presenting Officers working in MAT. It was
mentioned in statement 'B' of the said G.R. that,
prescribed daily ceiling / cap will be of Rs. 4,000/-
for CPOs and Rs. 3,000/- for POs. The outer limit of
monthly ceiling / cap of Rs. 65,000/- for CPOs and
Rs. 60,000/- for POs was also mentioned in statement
'B' in G.R. dated 11th October, 2013. However,
drafting and retainer fee was excluded from such
ceiling / cap. Said G.R. also included the fees
prescribed for Government Pleader, 'A' Panel Counsel,
Additional Government Pleaders and Assistant
Government Pleaders and 'B' Panel Counsel in the High
Court (Original Side & Appellate Side), Mumbai and
its Benches at Nagpur and Aurangabad. Fees payable
to the Law Officers and Panel Counsel in the State of
Maharashtra was revised by issuing G.R. dated 15th
February, 2014.
(Judgment) (5) W.P. No. 00972 of 2017
05. Statement 'B' in the said G.R. relates to
the prescription of fees payable to CPOs and POs of
MAT at Mumbai and its Benches at Nagpur and
Aurangabad. Fees was revised and increased
substantially and according to note no.05, a
quarterly outer limit was placed which prescribed for
Rs. 2,70,000/- for CPOs and Rs. 2,10,000/- for POs.
No corresponding change to meet the situation was
contemplated under note no.05, but the daily
ceiling / cap on fees of Rs. 4,000/- and rs. 3,000/-
for CPOs and POs, respectively remained the same.
However, statement 'C' which was in relation to the
fees to the Government Pleaders, etc. in the High
Court did not mention any daily ceiling / cap. Only
quarterly ceiling / cap was made applicable to them.
06. The disparity in fees payable to the
Government Pleaders / Addl. Government Pleaders
working in the High Court and the CPOs and POs
working in the MAT, so far as it relates to exclusion
of daily ceiling / cap was noticed by the petitioners
and, therefore, they immediately made a
(Judgment) (6) W.P. No. 00972 of 2017
representation to the 1st respondent on 26th March,
2014. The said disparity was brought to the notice
of the Government and the 1st respondent was
requested to issue corrigendum to do away with the
disparity. After great persuasion, Law & Judiciary
Department took necessary steps to correct the
mistake. Office note was put in favour of the
representation by the Law & Judiciary Department and
thereafter a proposal was made to the Finance
Department for lifting the daily ceiling / cap with
effect from 01st November, 2013. Then the file was
forwarded to the Finance Department. Certain queries
were raised and the file was again remitted to the
Law & Judiciary Department. Law & Judiciary
Department had confirmed the mistake as it was an
inadvertent mistake. However, a fresh G.R. was
issued correcting the mistake but the said G.R.
prescribed for lifting of daily ceiling / cap was
made with effect from 01st June, 2016. When it was,
in fact, a typographical mistake in the earlier G.R.,
the effect ought to have been given from 01st
November, 2013. It is discriminatory and, therefore,
by this writ petition, the petitioners have prayed
(Judgment) (7) W.P. No. 00972 of 2017
for quashing the said condition and making it
applicable from 01st November, 2013.
07. Say in the form of affidavit of Shri Shripad
s/o. Devidasrao Digraskar, Joint Secretary to
Government of Maharashtra, Law & Judiciary
Department, Aurangabad, has been filed on behalf of
respondent no.01. The factual aspect about issuance
of G.R. has been accepted. It has been also stated
that the upper cap for quarterly fees was revised to
Rs. 2,70,000/- for CPOs and Rs. 2,10,000/- for POs by
keeping the daily cap unaltered. Receipt of the
representations by the Law Officers from MAT has also
been admitted. It is stated that as per the
provisions of the Manual of Office Procedure of
Government of Maharashtra, it is mandatory to seek
consent of Finance Department of the State for the
proposals containing financial implications. Hence,
the proposal for removal of daily cap of remuneration
prescribed in the G.R. dated 15th February, 2014 with
retrospective effect was referred to the Finance
Department. He has stated that the claim of the
petitioners for removal of the condition of daily
(Judgment) (8) W.P. No. 00972 of 2017
ceiling vide G.R. dated 01st June, 2016 ought to have
been with retrospective effect only is unsustainable.
He has pointed out the note dated 13th January, 2016
of the Law & Judiciary Department which stated that,
'if it was found that arrears were huge, the
dispensation in terms of G.R. dated 15th February,
2014 may be given with effect from 01st January,
2016'. The Government was conscious about issue of
payment of arrears and prospective implementation was
proposed by the Government in the Law & Judiciary
Department. He, therefore, prayed for dismissal of
the petition.
08. Heard Mr. N.B. Khandare, learned Counsel
appearing for the petitioners, and Mr. A.B. Girase,
learned Government Pleader appearing for the
respondents. In order to cut short, we would like to
say that both the counsel have argued in support of
their respective contentions.
09. Learned counsel appearing for the
petitioners has drawn our attention to the note that
was put by the Law & Judiciary Department while
(Judgment) (9) W.P. No. 00972 of 2017
referring the file to the Finance Department which
had stated that deletion of the said daily cap is due
to inadvertence or clerical mistake. He had pointed
out that the said daily cap has been removed from the
notification which was made applicable to the
Government Pleaders and Additional / Assistant
Government Pleaders and 'B' Panel Counsel in the High
Court.
10. Learned Government Pleader appearing for the
respondents accepted the said position in the
Government Resolution but in consonance with the
affidavit filed on behalf of respondent no.01, he has
also pointed out towards the financial implications
and the subsequent note that was put by the Law &
Judiciary Department.
11. It is to be noted that the said Government
Resolution dated 15th February, 2014 was promulgated
for the object that the question of revision of fees
payable to Law Officers in the State of Maharashtra ,
as prescribed by the Maharashtra Law Officers
(Appointment, Conditions of Service and Remuneration)
(Judgment) (10) W.P. No. 00972 of 2017
Rules, 1984 was under consideration. Hearing to the
representations of the Government Pleaders and
representatives of the District Government Pleaders
was taken before issuing the said notification. That
means, the Government had intention to bring
uniformity in the fees not only in respect of rates
but other conditions appended to the same. It is
also to be noted that while revising the fees payable
to the Government Pleaders, Additional & Assistant
Government Pleaders in the High Court, the Government
has removed the daily cap. But the said daily cap
has not been removed in respect of the CPOs and POs
working with MAT at Mumbai and its Benches at Nagpur
and Aurangabad. In fact, the said note no.01 and
note no.05 to the statement 'B' are contrary to each
other and, therefore, after taking into consideration
said discrepancy, the note was put by the Law &
Judiciary Department, that the said note no.01 was by
mistake.
12. The said mistake has also been accepted by
respondent no.01 in its G.R. dated 01st June, 2016.
However, while removing that note no.01, the G.R.
(Judgment) (11) W.P. No. 00972 of 2017
says that the effect of the same would be from 01st
June, 2016. When the said daily cap provision in
respect of Government Pleaders, Additional /
Assistant Government Pleaders in the High Court was
removed and the revised rates were made applicable
from 01st November, 2013, respondent no.01 ought to
have corrected the said mistake and given effect of
deletion of the daily cap from 01st November, 2013,
to the CPOs and POs in the MAT. The CPOs and POs
working before the MAT should have been considered at
par with the Government Pleaders and Additional /
Assistant Government Pleaders working before the High
Court because revision regarding their fees was
revised by a single G.R. The effect of deletion of
note no.01 i.e. removal of daily cap by G.R. dated
01st June, 2016 with effect from 01st June, 2016 is
discriminatory and, therefore, requires to be struck
down. Making it prospective due to financial
implications is equally discriminatory. There is no
substance in that submission.
13. In the result, the writ petition is allowed.
(Judgment) (12) W.P. No. 00972 of 2017
The condition contained in G.R. dated 01st June,
2016, so far as it states that the benefit of
decision deleting note no.01 in statement 'B' to the
G.R. dated 15th February, 2014 is applicable from
01st June, 2016 is hereby quashed and set aside.
Respondents are directed to extend the benefit of the
decision deleting note no.01 in statement 'B' to the
G.R. dated 15th February, 2014 to the petitioners and
similarly placed persons / Law Officers and the pay
in respect of unpaid amount be extended to them.
Respondent no.04 shall prepare and submit bills of
unpaid amount to the Joint Secretary, Law & Judiciary
Department i.e. respondent no.02, forthwith and
respondent no.02 shall accord sanction to the same.
14. Rule made absolute in the above terms. In
the circumstances of the case, there shall be no
order as to costs.
( Smt. Vibha Kankanwadi ) ( R.M. Borde )
JUDGE JUDGE
...........
puranik / resWP972.17
