Appasaheb Maruti Mali And Ors vs State Of Maharashtra Through Its ...
2021 Latest Caselaw 5569 Bom

                                                                                       wpst-532-2021


                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            APPELLATE SIDE CIVIL JURISDICTION

                                             WRIT PETITION (ST.) NO.532 OF 2021


                           Shri Appasaheb M. Mali
                           & Others                                           ..     Petitioners.
                                 v/s.
                           State of Maharashtra
                           & Others                                           ..     Respondents.


                           Mr. Manoj A. Patil, for the Petitioners.
                           Mr. A. P. Vanarase, AGP for the Respondent No.1-State.
                           Mr. Samee Tambekar, for Resolution No.4

Smita   Digitally signed
        by Smita R.                                              CORAM: K.K. TATED
                                                                        ABHAY AHUJA, JJ.

Joshi R. Date:

2021.03.26 Joshi 10:38:43 +0530 DATE : 24th MARCH, 2021.

P.C:-

RULE. Returnable forthwith. Heard finally by consent.

2 By this Petition filed under Article 226 of the Constitution of India, 1950, Petitioners' are challenging Circular dated 3 rd July, 2009 and Government Resolution dated 24th August 2017 issued by the Respondent No.1 - State of Maharashtra. Petitioners are admittedly working in Zilla Parishad, Kolhapur- the Respondent No.4 herein but some of them have retired from service. It is the case of the Petitioners that in the year 1974 and thereafter in the year 1989, there was a Government Resolution which was issued by the State of Maharashtra by virtue of which the employees who had rendered outstanding work were decided to be given certain incentive by the Government. Those Government servants whose

S.R.JOSHI 1 of 9 wpst-532-2021

work was found to be outstanding for a period of three years would be eligible for one advance increment and those whose work would be found outstanding for a period of five years were held to be eligible for two advance increments.

3 It is stated that thereafter by virtue of Government Resolution dated 31st October, 1989, the employees of the Zilla Parishad were also give two advance increments. The Government Resolution dated 31 st October, 1989, inter alia, provides that to grant advance increment to the employees a committee has to be formed which would be presided under the Chairmanship of the Chief Executive Officer of the Zilla Parishad.

4 After the said advance increments were granted the entry of the same was made in the Service Book of the concerned employee. Accordingly, an entry was made in the service book of the Petitioners from 1st October, 2006.

5 The Petitioner state that suddenly on 3rd July, 2009, a circular was issued by the State of Maharashtra inter alia pointing out that, the 6th Pay commission was sought to be implemented, it had further mentioned that after considering the various facts and circumstances, it was decided that, the payment to the concerned employees who were already granted the advance increments as on 1 st October, 2006, 1st October, 2007 and 1st October, 2008 should be made without taking into consideration those advance increments. It was further mentioned in the said letter that the Government would take appropriate decision with respect of these employees for the purpose of fixation of the payment and the payment schedule would be revised thereafter.

S.R.JOSHI                                                                2 of 9
                                                          wpst-532-2021

6           The Petitioners state that after the said circular was issued,

the Respondent, in fact, stopped implementing the 1 or 2 advance increments which were given to the employees and as matter of fact after the implementation of the 6th Pay commission stopped giving effect to the advance increments as per the order of the respective Petitioner's. Although the said increment was granted and in fact the Petitioners drew the same while adjusting the same as per the 6 th Pay commission the same effect was not given, thus the payment which was made to the Petitioners was made after deducting the amount which was already given to the Petitioners. The Respondents by deducting the said payment had in fact recovered the said amount which according to the Petitioner is impermissible in law.

7 The Petitioners state that the Respondent has decided to back on the resolution passed by them. It is submitted that, the Government Resolutions were implemented and after the Petitioners were given one or two increments from the concerned period, it was not open for the Government to abruptly cancel/ hold back the aforesaid orders.

8 It is submitted that similar was the situation of the teachers who were working with the Zilla Parishad. The Petitioners state that, as per the policy of the Respondent State, the State/ National Awardee teachers were eligible for grant of two advance/ additional increments, in view of the Government Resolutions issued from time to time. It was the contention of the Petitioners therein that, the Government had issued resolution dated 4th September, 2014 in which two advance / additional increments were declined to the said State/ National Awardee teachers. The State/ National Awardee teachers therefore had preferred a Writ

S.R.JOSHI 3 of 9 wpst-532-2021

Petition bearing its number 6116 of 2014 and other petitions. The group of Petitions were heard by the Division Bench of this Court at Nagpur where it was observed that, the Government Resolution dated 4 th September, 2014 would operate only prospectively and not retrospectively further holding that, the State Government was not entitled to recall the orders granting two advance/ additional increments to the Petitioners or direct the recovery of the amount.

9 Petitioners, therefore, submits that if such advance/ additional increments are granted to the Petitioner, the same cannot be withdrawn by virtue of an order/ circular/ resolution passed subsequently in as much as the same cannot have retrospective effect. It is, therefore, contended that the Circular dated 3 rd July, 2009 and Government Resolution dated 24th August, 2017 issued by the Respondent No.1 is illegal and therefore the Petitioners have approached this Court for directions of quash and set aside the same.

10 Mr. Patil, learned Counsel for the Petitioners submits that the issue involved in the matter is no longer res integra as the same has already been decided by order dated 22nd August, 2020 passed by this Court in Writ Petition No.4050 of 2017 in the matter of Uday J. Godave & Others v/s. The State of Maharashtra & Others and by the Nagpur Bench of this Court in the order dated 16 th December, 2014 in Writ Petition No.6116 of 2014 with connected matters (Review Petition in respect of whereof has been dismissed on 15th March, 2016) and also in Writ Petition No. 5001 of 2016 (Satish M. Kale & Others v/s. State of Maharashtra & Others) and, therefore, similar course of action be adopted by the Court in this matter also.

S.R.JOSHI                                                                  4 of 9
                                                            wpst-532-2021


11            We have heard learned Counsel for the parties as and with

their assistance perused the papers and proceedings in the matter. We observe that in order dated 2nd February, 2021, this Court recorded the submission made on behalf of the Petitioners that as per the directions of this Court in the above mentioned Writ Petitions, the Respondents had already implemented those orders and issued order dated 10 th November,, 2020 (Exhibit L page 102 to the Petition) and on that basis, this Court be pleased to allow the present Writ Petition and direct the Respondents to issue appropriate orders to that effect. As none had appeared for the Respondent No.4- Zilla Parishad, Kolhapur, this Court had passed the following order:-

"5. .... .... .... .... .... .... .... .... .... .... a. Issue notice to Respondent No.4, stating that if time permits the matter would decided finally, at the stage of admission itself, returnable on 25.02.2021.

b. In addition to usual mode of service, the Petitioners are permitted to serve Respondent No.4 a copy of this order along with entire proceedings, either by registered post AD or by hand delivery and file an affidavit of service to that effect on or before the next date. c. The learned AGP to file his reply on or before 12.02.2021 explaining as to why they are not directing Respondent No.4 to implement the order passed by this Court in Writ Petition No.4050 of 2017.

d. The learned AGP waives service for the State."

12 Thereafter, on 9th March, 2021, it was submitted that Respondent No.4 had filed affidavit in reply dated 22 nd February, 2021. However, since none had appeared for Respondent No.4, the matter was adjourned to 15th March, 2021.

S.R.JOSHI                                                              5 of 9
                                                                wpst-532-2021

13            On 17th March, 2021, the learned Counsel for the Petitioner

submitted that despite the issue involved in the Writ Petition, being covered by order dated 22nd October, 2020 passed by this Court in Writ Petition No. 4050 of 2017, in the case of Uday J. Godave & Others v/s. State of Maharashtra & Others (Exhibit A page 44), Respondent No.4 - Zilla Parishad, Kolhapur is not ready to give same benefits to the Petitioner and that in reply dated 22nd February, 2021, nowhere it was stated by the Deputy Chief Executive Officer that they will follow the same principles as referred to by this Court in order dated 22 nd October, 2020. In view thereof, this Court in paragraph 3 had passed the following order:-

" 3:-(i) The learned Advocate for Respondent- Zilla Parishad is directed to take instructions from his client whether they are ready and willing to follow directions given by this Court in order dated 22.10.2020 in Writ Petition No.4050 of 2017 and file affidavit to that effect. He he further directed to inform the concerned officer to remain present in the Court on the next date.

(ii) Stand over to 23rd March, 2021."

14 Today, when the matter is called out, learned Counsel for Respondent No.4- Zilla Parishad, Kolhapur has tendered another affidavit, stating that neither any representation nor any communication has been made by the Petitioners for grant of similar benefits, as accorded to the Petitioners in Writ Petition No.4050 of 2017 still the Zilla Parishad taking into consideration the order dated 22 nd October, 2020, shall follow the directions given by this Court in the instant Writ Petition.

15 It is beyond our comprehension as to what is the necessity for the Petitioners to file representation/ communication to the Respondent - Zilla Parishad, Kolhapur, to follow the directions given by this Court by

S.R.JOSHI 6 of 9 wpst-532-2021

order dated 22nd October, 2020 in Writ Petition No.4050 of 2017 in the case of similarly placed Petitions. Petitioners act that would cause un-necessary burden on the Petitioners' who have already been waiting for long.

16 We have also perused the order dated 22 nd October, 2020 of the Division Bench of this Court in Writ Petition No. 4050 of 2017 (where one of us K. K. Tated, J was a member) which is quoted as under:-

"1. Rule.

2 By consent of the parties, the matter is heard finally. 3 By this Petition under Article 226 of the Constitution of India, the Petitioners are challenging the Circular dated 3 rd July, 2009 and Government Resolution (G.R.) dated 24th August, 2017. 4 The Petitioners are employees of Zilla Parishad, Kolhapur. Pursuant to the G. R.s dated 11th February, 1074 and 31st October, 1989, the Petitioners in view of their outstanding work were granted either one or two advance increments as on 1 st October 2006, 1st October, 2007 and 1 st October, 2008. The Petitioner state that the Respondent - State, however, by Circular dated 3 rd July, 2009 instructed to fix the pay in a revised pay scale as per the recommendation of sixth pay commission without taking into consideration advance increments granted on 1 st October, 2006, 1st October, 2007 and 1st October, 2008. It is stated that the Respondent - State then issued the G. R. dated 24th August, 2017 and reiterated the instructions issued by Circular dated 3 rd July, 2009. The contention is accrued and vested rights of the Petitioners cannot be taken away by the impugned G. R.

5. On 14th November, 2019, Smt. Geeta R. Kulkarni, Deputy Secretary, General Administration Department, Mantralaya, Mumbai filed an additional Affidavit-in-Reply on behalf of Respondent No.1. Paragraph Nos.3,4 and 5 of the said additional Affidavit-in-Reply read thus:-

"3. I further say and submit that this Hon'ble Court at Aurangabad Bench in Writ Petition No.10348 of 2019 (Dilip Sambhaji Malve and others) has given judgment on 21.08.2019. In said judgment their Lordships has mentioned that the Government Resolution dt. 24.08.2017 will have

S.R.JOSHI 7 of 9 wpst-532-2021

prospective effect that not retrospective and in that case if benefits was accorded to petitioners of excellent work in the year 2006 to 2009, then same shall not be withdrawn and if any recovery is made pursuant to the same, shall be refunded to the petitioners. The copy of the said judgment hereto Annexed and marked as Exhibit-1.

4 I say and submit that this Hon'ble Court at Aurangabad bench in its another judgment in W.P. No.11599/2019 on the subject of Advance Increment to District Awardee Teachers dated 21.09.2019 has given six months period for considering the claim of petitioners. The copy of the said Judgment hereto annexed and marked as Exhibit-II. 5 I say and submit that the Government, in view of this 6 months period granted by this Hon'ble Court, has undertaken steps, to take necessary steps in the issue as stated above. The matter is not only related with petitioners but also all such state employees. Therefore, in this matter, the policy decision has to be taken at the level of Government in consultation with Law and Judiciary Department and Finance Department. For this more time is required. Therefore, by considering period given by the Hon'ble High Court, at Aurangabad bench in above mentioned Writ Petition No.11599 of 2019, I urged this Hon'ble Court to grant period of six months to settle the matter."

In view of paragraph No.5 of additional Affidavit-in-Reply, it was incumbent upon the Respondent -State to take a policy decision with regard to issue in question, within six months. However, no policy decision is placed on record till date.

6. This Court (Aurangabad bench) in Writ Petition No.14797 of 2017 (Ganpat Vitthal Dapute and Ors. v/s. The State of Maharashtra and ors) vide its order dated 11th June, 2019, held that the G. R. dated 24th August, 2017 will have prospective effect. This Court, accordingly, held that the benefit of advance increments granted as per the policy of the Government prevailing at that time, the same would not be withdrawn on the basis of subsequent G.R. dated 24th August, 2017. Considering the fact that the Respondent - State has not yet taken any policy decision with regard to the issue in question, we are constrained to pass similar order. In the result, we pass the following order:-

S.R.JOSHI                                                                8 of 9
                                                              wpst-532-2021

"(a) The Respondents are directed to accord the benefit of advance increments granted to the Petitioners as per the policy of the Respondent- State dated 11 th February, 1974 and 31st October, 1989 in the revise Sixth Pay Scale without giving any effect of subsequent Circular dated 3 rd July, 2009 and G. R. dated 24th August, 2017.

(b) Recovery, if any, made pursuant to the Circular dated 3 rd July, 2009 or G. R. dated 24th August, 2017 from the Petitioners shall be refunded to them.

(c) Rule made absolute accordingly.

(d) No order as to costs."

17 It is observed that the issue of challenge to Circular dated 3 rd July, 2009 and G. R. dated 24th August, 2017 issued by Respondent No.1 - State Government in this Petition, having already been decided by this Court in the case of Uday J. Godave (supra) as well as the other decisions of this Court referred to above. Being in respectful agreement with the same, the Petitioners being similarly placed, we pass the following order:-

(a) Respondents are directed to accord the benefit of advance increments granted to the Petitioners as per the policy of the Re13spondent-State dated 11th February, 1974 and 31st October, 1989 in the revised Sixth Pay Scale without giving any effect of subsequent Circular dated 3rd July, 2009 and G. R. dated 24 th August, 2017.

(b) Recovery, if any, made pursuant to the Circular dated 3 rd July, 2009 or G. R. dated 24th August, 2017 from the Petitioners shall be refunded to them.

(c) Rule is accordingly made absolute in the above terms.

(d)     No order as to costs.



(ABHAY AHUJA,J.)                                     (K.K.TATED,J.)


S.R.JOSHI                                                                 9 of 9