Bombay High Court
Raosaheb S/O. Shripati Desai And ... vs The State Of Maharashtra Through ... on 4 May, 2021
Bench: K.K. Tated, N. R. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO.12531 OF 2019
Raosaheb S/o. Shripati Desai & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
WITH
WRIT PETITION NO.1034 OF 2021
Vidyadhar Anant Pujari & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
WITH
WRIT PETITION NO.12846 OF 2019
Satish S/o. Nana Barage & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
.........
Mr.Shivkumar K. Mathpati for the Petitioners
Mrs.S.S.Bhende, A.G.P. for the State
CORAM: K.K.TATED &
N.R.BORKAR, JJ.
DATED : MAY 04, 2021
(VIDEO CONFERENCING)
P.C.
. Heard.
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2. Today the matter is placed on board pursuant to the
praecipe dated 28.04.2021 fled by the learned counsel for
the Petitioners.
3. The learned counsel for the Petitioners states that the
appearance of the learned Counsel for the Petitioners be
substituted as under:
"None for the Petitioners in WP No.1034 of 2021
Mr.Satish Chavan i/b Mr.S.K.Mathpati for the
Petitioners in WP Nos.12531 of 2019 and 12846 of
2019."
4. Rest of the order remains as it is.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12531 OF 2019
Raosaheb S/o. Shripati Desai & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
WITH
WRIT PETITION NO.1034 OF 2021
Vidyadhar Anant Pujari & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
WITH
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WRIT PETITION NO.12846 OF 2019
Satish S/o. Nana Barage & Ors. ... Petitioners
Versus
The State of Maharashtra
Thru Principal Secretary ... Respondents
.........
None for the Petitioners in WP No.1034 of 2021.
Mr.Satish Chavan i/b Mr.S.K.Mathpati for the Petitioners in
WP Nos.12531 of 2019 and 12846 of 2019.
Mrs. S.S. Bhende, AGP for State.
Mr. Sameer Tambekar, for Respondent Nos.5 & 6.
.........
CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
DATE : 1st APRIL, 2021.
ORAL JUDGMENT (Per R.I. CHAGLA, J.) :-
1 By these Petitions filed under Article 226 of the
Constitution of India, the Petitioners are challenging the
Government Resolution dated 24.08.2017 issued by Respondent
No.1 - State of Maharashtra by which the State has decided that
the additional increment will not be paid to the employees for the
period in which revised pay has been given to them as per the
VIth Pay Commission i.e. for the period 01.10.2006 - 01.10.2015.
These Petitioners further seek directions against the Respondents
to give / release the benefits of one or two additional increments
to the Petitioners forthwith as per the earlier existing policy of the
Government / Resolutions issued by the Respondent Authority.
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2. The Petitioners in these Petitions are duly appointed
as Assistant Teachers in their respective places/primary/girls
primary school run by the Zilla Parishad. The Petitioners are
admittedly working in the said schools run by the Zilla Parishad,
Kolhapur but some of them have retired from service.
3. It is the case of the Petitioners that in the year 1974
and thereafter in the year 1989, there were Government
Resolution issued by the State of Maharashtra by virtue of which
the employees who had rendered outstanding work were decided
to be given certain incentives by the Government. These
Government servants whose work was found to be outstanding
for a period of three years, would be eligible for one advance
increment and those whose work were found to be outstanding
for a period of five years, were eligible for two advance
increments. By virtue of Government Resolution dated
31.10.1989, the employees of the Zilla Parishad were also to be
given two advance increments. The Government Resolution
dated 31.10.1989, inter alia, provided that for granting advance
increment to the employees of the Zilla Parishad, a Committee
has to be formed which would be presided under the
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chairmanship of the Chief Executive Officer of the Zilla Parishad.
The Petitioners have relied upon the Government Resolutions
dated 20.06.1989; 29.10.1989/90; 05.11.1992; 04.08.1994
18.04.1996; 22.11.2000 and 14.12.2006 which all concerned the
incentives/advance increments which were to be given to the
Government employees for their excellent/outstanding work.
4. The Petitioners have been recommended pursuant to
the verification Committee of the Zilla Parishad, Kolhapur, having
verified the C.R. reports of the Petitioners on the basis of the then
existing policy, for grant of one or two advance/ additional
increments for their excellent work. Respondent No.5 - the Chief
Executive Officer, Kolhapur, had granted/sanctioned the benefit
of one or two advance/additional increments in favour of the
Petitioners vide orders issued in the year 2009 and declared that
the Petitioners were entitled for the benefits which will be
different from the regular yearly increments.
5. The Central Government then introduced the VIth
Pay Commission. The State of Maharashtra on the
recommendation of the Central Government, appointed a
Committee under the Chairmanship of P. M. Hakkim on
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23.09.2008 which is the State Pay Amendment Committee, 2008.
The Committee presented its report on 20.12.2008 to the
Principal Secretary, Finance Department, State of Maharashtra
being Respondent No.2 herein. Government Resolution dated
27.02.2009 was issued by Respondent No.2 accepting the
recommendations of the Hakkim Committee report with certain
modification in respect of revised pay structure and revised
pension formula as per the VIth pay Commission. Clause No.3.24
of the Government Resolution dated 27.02.2009 provided that
"other employees except P.B - 4 5% Officers / employee for the
excellent work in their field instead of 3% general rate, 4%
additional pay should be sanctioned. These additional
increments will be paid once within five years. So additional
increment as referred by higher rate will be granted in favour of
the employee, therefore, method of one or two additional
increments should be closed". As against this Clause, it was
noted that separate action will be taken by the General
Administration Department.
6. A Circular was issued dated 03.07.2009 by the State
of Maharashtra through its Secretary, General Administrative
Department, State of Maharashtra being Respondent No.3 herein,
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by which it was pointed out that the VIth Pay Commission was
sought to be implemented and considering the various facts and
circumstances, it was decided that the payment to the concerned
employees who were already granted advance increments as on
01.10.2006, 01.10.2007 and 01.10.2008 should be made without
taking into consideration those advance increments. It was
further mentioned that the Government would take appropriate
decision with respect to those employees for the purpose of
fixation of the payment and payment schedule would be revised
thereafter.
7. The Government of Maharashtra failed to take any
decision on Clause No.3.24 of the Government Resolution dated
27.02.2009 till 24.08.2017. This resulted in fixation of pay of
some of the Petitioners which was done with additional
increments being refixed without additional increments. The
Petitioners have relied upon the copies of the service book in this
context.
8. Respondent No.5 had orally communicated to the
Petitioners that the provision of advance/additional increment is
not available in the VIth Pay Commission and that issue was
pending before the Government and as and when Government
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takes decision, the benefit of the advance/additional increment
will be provided to the Petitioners. On the basis of the
recommendations of Clause No.3.24 of the State Pay Revised
Committee, 2008 and Government Circular dated 03.07.2009,
Respondent No.3 issued the impugned Government Resolution
dated 24.08.2017 by which the benefits of additional increments
were denied by giving retrospective effect. The said Government
Resolution provided that the "Benefits of additional increments
should not be granted to those employees, revised pay has been
paid as per Sixth Pay Commission (01.01.2006 to 01.10.2015)".
The Petitioners being aggrieved by the issue of the impugned
Government Resolution by which the benefits of additional
increments have been denied by giving retrospective effect, has
filed the present Writ Petitions.
9. Mr. Sachin Chavan, the learned Counsel appearing
for the Petitioners has submitted that the issue whether the
impugned Government Resolution dated 24.08.2017 is
prospective or retrospective is no longer res-integra. He has
relied upon the decision of this Court (Aurangabad Bench) where
similarly situated employees/ teachers approached this Court by
filing Writ Petition No.14950 of 2017 challenging the
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Government Resolution dated 24.08.2017 to the extent of its
applicability and seeking extension of benefits, restoration of
orders passed by the competent authority on the basis of existing
Government Resolutions and continuity of them up to the
issuance of Government Resolution dated 24.08.2017 and for
grant of the benefits of advance increments. This Court
(Aurangabad Bench) disposed of the Petitions by observing that
the Government Resolution dated 24.08.2017 will have
prospective effect and not retrospective effect and in the case that
benefits have been afforded to the Petitioners therein for excellent
work in the years 2006, 2007 and 2008, such additional
increments shall not be withdrawn and if any recovery is made
pursuant to the same, the same shall be refunded to the
Petitioners. This Court disposed of the Writ Petition by judgment
and order dated 03.04.2019 passed in Writ Petition No.14950 of
2017 and other connected matters. The same view has been
taken by this Court i.e. Aurangabad Bench in Ganpat Vitthal
Dapute and Ors. v/s. The State of Maharashtra and Ors 1. which
has also held that the Government Resolution dated 24.08.2017
will have prospective effect. Accordingly, it has been held that as
the benefit of advance increments was granted as per policy of
1 Writ Petition No.14797 of 2017 decided on 11th June, 2019.
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the Government prevailing at that time, the same would not be
withdrawn on the basis of subsequent Government Resolution
dated 24.08.2017.
10. The learned Counsel for the Petitioners have also
relied upon the decisions of this Court in Writ Petition No.4050 of
2017 in the matter of Uday J. Godave & Ors. Vs. The State of
Maharashtra & Ors.2, which has been followed by this Bench in
the order dated 24.03.2021 in Shri Appasaheb N. Mali and others
vs. State of Maharashtra and others .3. He has submitted that it
has been the consistent view of this Court that the Government
Resolution dated 24.08.2017 which has been impugned herein
will have prospective effect and the benefit of additional
increments granted to the Petitioners as per the then prevailing
policy of Respondent-State dated 11.02.1974 and 31.10.1989
ought to be given effect to in the revised VIth Pay Scale and
cannot be withdrawn by virtue of the Circular dated 12.07.2009
and the Government Resolution dated 24.08.2017. He has
accordingly submitted that similar cause of action be adopted by
this Court in these matters.
11. We have heard the learned Counsel for the parties
2 Writ Petition No.4050 of 2017 decided on 22nd October, 2020.
3 Writ Petition (St.) No.532 of 2021decided on 24th March, 2021.
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and with their assistance perused the papers and proceedings in
these matters. This Court has considered the submissions made
on behalf of the Petitioners as well as taken into consideration the
various orders passed by this Court in the various Writ Petitions
referred to and relied upon by the learned Counsel for the
Petitioners the fact that the Respondents have already
implemented the orders passed in those Writ Petitions by
affording the benefit of advance increment granted to the
Petitioners.
12. We have noted that the Zilla Parishad, Kolhapur -
Respondent Nos.5 and 6 opposed these Petitions and have
maintained that they are not ready to give the same benefits /
advance increments to these Petitioners. In response to this, this
Court had directed the learned Advocate for the Respondent Zilla
Parishad, Kolhapur, to take instructions from his client whether
the Zilla Parishad is ready and willing to afford benefits of one or
two advance increments to the Petitioners therein as per the
policy of the State Government dated 11.02.1974 and 31.10.1989
in the revised VIth pay scale without giving the effect to the
Circular dated 03.07.2009 and Government Resolution dated
24.08.2017. Respondent Nos.5 and 6 - Zilla Parishad, Kolhapur,
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have filed their Affidavit dated 22.03.2021 in the above Writ
Petition No.1034 of 2021. Respondent Nos.5 and 6 - Zilla
Parishad, Kolhapur, have stated that neither any representation
nor any communication has been made by the Petitioners for
grant of similar benefits, as afforded to the Petitioners in Writ
Petition No.4050 of 2017. However, taking into consideration the
order dated 22.10.2020 passed by this Court, the Zilla Parishad,
Kolhapur, shall follow all the directions if given by this Court in
the instant Writ Petitions. Paragraphs 3 and 4 of the affidavit of
Respondent Nos.5 and 6 Zilla Parishad, Kolhapur, dated
22.03.2021 reads thus :
"3. I say that this Hon'ble Court vide order dated 22nd
October, 2020 was pleased to direct the Zilla Parishad
to accord benefits of one or two advance increment to
the petitioners therein as per policy of State
Government dated 11/02/1974 and 31/10/1989 in
revised Sixth Pay Scale without giving effect to circular
dated 03/07/2009 and G.R. dated 24/08/2-17. I say
that said order has been complied with and all the
petitioners therein were granted benefit as per the
policy of State Government.
4. As far as present petitioners are concerned neither
any representation nor any communication has been
done by them in respect of granting similar benefits as
accorded to the petitioners in W. P. No.4050 of 2017.
Still taking into consideration the order dated
22/10/2020 passed by this Hon'ble Court, the Zilla
Parishad shall follow all the directions if given by this
Court in the instant Writ Petition.
13. It is beyond our comprehension as to what is the
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necessity for the Petitioners to file a representation/
communication to Respondent - Zilla Parishad, Kolhapur, to
follow the directions given by this Court by order dated
22.10.2020 in Writ Petition No.4050 of 2017 in the case of
similarly placed Petitioners. This would cause unnecessary
burden on the Petitioners who have already been made to wait
for long.
14. 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
3rd July, 2009 and Government Resolution (G.R.) dated 24 th
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 1st October 2006, 1st October,
2007 and 1st 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 1st October, 2006, 1st October, 2007 and 1st
October, 2008. It is stated that the Respondent - State
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then issued the G. R. dated 24 th August, 2017 and
reiterated the instructions issued by Circular dated 3rd 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
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
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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 11 th 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:-
"(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
3rd 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."
15. It is observed that the issue of challenge to Circular
dated 3rd July, 2009 and G. R. dated 24 th August, 2017 issued by
Respondent No.1 - State Government in these Petitions, have
already been decided by this Court in the case of Uday J. Godave
(supra) and Shri Appasaheb M. Mali (Supra) as well as the other
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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 in the above
Writ Petitions as per the policy of the Respondent-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
24th August, 2017.
(b) Recovery, if any, made pursuant to the Circular dated
3rd July, 2009 or G. R. dated 24th August, 2017 from the
Petitioners in the above Writ Petitions shall be refunded to
them.
(c) Rule is accordingly made absolute in the above
terms.
(d) No order as to costs.
( R.I. CHAGLA, J. ) ( K.K. TATED, J. )
The original order shall stand corrected
accordingly as above.
( N.R. BORKAR, J. ) ( K.K. TATED, J. )
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