Vishnupant S/O Narayanrao Kashid ... vs The State Of Maharashtra, Thr. ...
2023 Latest Caselaw 9176 Bom

2023:BHC-NAG:13072-DB




              Judgment

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR

                            WRIT PETITION NO.2465 OF 2020

              1. Vishnupant s/o Narayanrao Kashid,
              aged about 75 years, occupation retired,
              r/o Dr.Khadse Layout, Bachelor
              Road, Wardha, taluka and district
              Wardha.

              2. Shankar s/o Daulatrao Mahajan,
              aged about 73 years, occupation retired,
              r/o Wardha, taluka and district Wardha.

                   2-A Shantabai w/o Shankar Mahajan,
                   aged about 75 years, occupation Nil,
                   r/o Sane Guruji Nagar, Arvi Naka, Ward
                   No.1, Wardha, tahsil and district Wardha. ..... Petitioners.

                                    :: V E R S U S ::

              1. The State of Maharashtra,
              through its Secretary, Rural
              Development and Water
              Conservation Department,
              Mantralaya, Mumbai-32.

              2. The Chief Executive Officer, Zilla
              Parishad, Wardha, Taluka and district
              Wardha.                       ..... Respondents.
              ======================================
              Mrs.Smita Dashputre, Advocate h/f Shri S.U.Ghude, Counsel
              for Petitioners.
              Shri N.M.Kolhe, Counsel for Respondent No.2.
              Shri S.M.Ukey, Additional Government Pleader for Respondent
              No.1.
              ======================================
              CORAM : AVINASH G.GHAROTE & URMILA JOSHI-PHALKE, JJ.
              CLOSED ON : 22/08/2023
              PRONOUNCED ON : 01/09/2023



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JUDGMENT (Per : Urmila Joshi-Phalke, J.)

1. Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of learned counsel appearing for

parties.

2. By this petition, petitioners seek direction to

respondent No.2 - the Chief Executive Officer, Zilla Parishad,

Wardha to grant benefit of one additional increment

w.e.f.2.10.1999 and 5.9.2000 respectively as per order of this

court dated 3.9.2019 along with arrears including 9% interest

w.e.f. the date of issuing certificate of the District Awardee

Teachers.

They also claim declaration that circular dated

12.12.2000 issued by respondent No.1 - State Maharashtra is

arbitrary and violative of Article 14 of the Constitution of

India.

3. Petitioners came to be appointed on 19.8.1964

and 19.9.1963 respectively as Assistant Teachers on the

establishment of Zilla Parishad at Wardha. They retired on

30.6.2001 and 30.6.2003 respectively. As per their

contentions, the Zilla Parishad granted District Awards to

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95 wp2465.20

selected teachers in its various schools for their excellent

performance. Petitioners were also selected for the District

Awards for the years October 1999 and September 2000

respectively. They are entitled for the benefit of one

additional/advanced increment as per Government Resolution

dated 12.12.2000. According to them, the said Government

Resolution is unjust and arbitrary as respondent No.1 - State

of Maharashtra ought to have made it applicable

retrospectively to those who were already honoured with the

District Awards earlier to the said Government Resolution.

The act of respondents amounts discrimination between the

similarly situated persons. They have also made

representation on 14.5.2019 which remained unanswered.

Hence, this petition for directions and declarations.

4. Respondent No.2 - the Chief Executive Officer,

Zilla Parishad, Wardha, submitted its affidavit-in-reply and

denied contentions of petitioners. It is submitted that under

the Scheme of District Awardee Teachers, benefit of one

additional increment is implemented from the date of

12.12.2000 as per the said Government Resolution issued by

the Rural Development Department. Before introduction of

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95 wp2465.20

the said Government Resolution, benefit of grant of one

additional increment to the District Awardee Teachers was not

permissible. As far as the judgment dated 3.9.2019 passed

by this Court in Writ Petition No.2343/2008 is concerned, all

petitioners in the said petition had received certificates under

the Scheme of the District Awardee Teachers after

introduction of the said Government Resolution and, therefore,

the present petition is devoid of merits and liable to be

dismissed.

5. The above contentions of respondent No.2 - the

Chief Executive Officer, Zilla Parishad, Wardha, are endorsed

by respondent No.1 - State of Maharashtra and prayed for

dismissal of the petition.

6. Heard Advocate Mrs.Smita Dashputre h/f learned

counsel Shri S.U.Ghude for petitioners, learned counsel Shri

S.M.Ukey for respondent No.2 and learned Additional

Government Pleader for respondent No.1.

7. Learned counsel for petitioners reiterated

contentions and submitted that as petitioners are the District

Awardee Teachers for the years October 1999 and September

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2000, they retired on 30.6.2001 and 30.6.2003 respectively.

They were in service when the said Government Resolution

was issued and, therefore, in view of the said Government

Resolution, they are entitled for the benefit of additional/

advanced increment. She submitted that in Writ Petition

No.2343/2008 petitioners therein received the said benefit

and, therefore, petitioners in the present petition being

similarly situated are also entitled for the said benefit.

8. In support of her contentions, learned counsel for

petitioners placed reliance on the decision of the Honourable

Apex Court in the case of Bannari Amman Suguars ltd. vs.

Commercial Tax Officer and others1.

9. Learned Additional Government Pleader for

respondent No.1 and learned counsel for respondent No.2

submitted that the said Government Resolution cannot be

applied retrospectively unless there is a specific provision to

that effect and, therefore, petitioners are not entitled for such

benefit.

1    (2005)1 SCC 625

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10.             Learned       Additional    Government      Pleader        for

respondent No.1, in support of his submission, placed reliance

on the decision in the case of Pranjali films, Nashik and anr

vs. State of Maharashtra and ors2 wherein it is held that

retrospective operation of resolution is impermissible except

when there is an express provision of a retrospectivity.

11. The issue to be looked into is, whether

Government Resolution dated 12.12.2000 can be made

applicable retrospectively.

12. There is no dispute that petitioners were appointed

on 19.8.1964 and 19.9.1963 as Assistant Teachers on the

establishment of the Zilla Parishad at Wardha. Admittedly,

they received the District Awards for their excellent services

for the years October 1999 and September 2000 and

certificates were issued to them. They retired on 30.6.2001

and 30.6.2003 retrospective. Admittedly, they were selected

as the District Awardee Teachers prior to issuance of the said

Government Resolution. Whether the said Government

Resolution is applicable prospectively or retrospectively, is the

issue.

2 2008(4) Mh.L.J. 789

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13. It is well settled that any new law introduced is

presumed to be prospective in nature unless expressly stated

to be retrospective with date in past from which statute shall

apply.

14. Perusal of the said Government Resolution shows

that issued on 12.12.2000 and there is no express provision

made to make it applicable retrospectively.

15. The Honourable Apex Court had an occasion to

examine concept of retroactive and retrospective in the case

of State Bank's Staff Union (Madras Circle) Vs. Union of India 3

and in paragraph Nos.20 and 21 it has been laid down, as

under:

"20. Judicial Dictionary (13th Edn.) K.J. Aiyar, Butterworth, p. 857, states that the word "retrospective" when used with reference to an enactment may mean (i) affecting an existing contract; or (ii) reopening up of past, closed and completed transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting procedure.

Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a "retrospective or retroactive law" as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new 3 (2005)7 SCC 584

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disability, in respect to transaction or considerations already past.

21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edition, 2005) the expressions "retroactive" and "retrospective" have been defined as follows at page 4124 Vol.4:

"Retroactive- Acting backward; affecting what is past.

(Of a statute, ruling, etc.) extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. (Black, 7th Edn. 1999) 'Retroactivity' is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion......The foundation of these concepts is the distinction between completed and pending transactions...." (T.C. Hartley, The Foundations of European Community Law 129 (1981)."

16. The Honourable Apex Court in the case of Jay

Mahakali Rolling Mill vs. Union Of India 4 held that

"Retrospective" means looking backward, contemplating what

is past, having reference to a statute or things existing before

the Statute in question. Retrospective law means a law which

4 (2007)12 SCC 198

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looks backward or contemplates the past; one, which is made

to affect acts or facts occurring, or rights occurring, before it

comes into force."

17. It is well settled that in absence of Rule having

been given a retrospective effect, it could not have been given

a retrospective effect. The State in exercise of its powers

under Article 309 of the Constitution of India may give

retrospective effect to a Rule. However, the same must be

explicit and clear by making express provision therefor or by

necessary implication. But, such retrospectivity of a Rule

cannot be inferred only by way of surmises and conjectures.

18. Admittedly, the benefit of advanced increment is to

be granted as per the policy of the Government prevailing at

that time.

19. This court has an occasion to consider whether

Government Resolution 24.8.2017 is prospective or

retrospective. Now, this issue is no longer res integra.

20. In the decisions of this court, Uday J.godave and

ors vs. The State of Maharashtra and ors5; Ganpat Vitthal 5 Writ Petition No.4050/2017 decided on 22.10.2020

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Dapute and ors vs. The State of Maharashtra and ors 6, and

Appasahebd Mali and others vs. State of Maharashtra and

others7, it has been held that the Government Resolution has

a prospective effect.

21. The said Government Resolution, which is

questioned in the present petition, nowhere speaks about its

retrospective effect. As already observed that unless it is

specifically stated that it has a retrospective effect, it cannot

be made applicable retrospectively. The benefit of an

advanced increment is granted by this court as per the

judgment dated 3.9.2019 passed in Writ Petition

No.2343/2008 considering that petitioners in the said writ

petition have received certificates under the Scheme of the

District Awardee Teachers after introduction of the

Government Resolution. Thus, the benefit of an advanced

increment granted as per the prevailing Government Policy.

The present petitioners are not entitled for the said benefits

as at the relevant time, when they were selected as District

Awardee Teachers, the Scheme was not in existence and in

absence of any specific provision of retrospective effect,

6 Writ Petition No.14797/2017 decided on 11.6.2019 7 Writ Petition (St.) No.532/2021 decided on 24.3.2021

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petitioners are not entitled for such benefits. As such, the

reliance placed by learned counsel for petitioners is not

relevant as the issue of promissory estoppel is discussed in

the said decision.

22. In the light of the above, the writ petition deserves

to be dismissed and the same is dismissed. No costs.

Rule is discharged accordingly.

(URMILA JOSHI-PHALKE, J.) (AVINASH G.GHAROTE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 02/09/2023 11:02:16