Madhya Pradesh High Court
Rakesh Kumar Mishra vs State Of M.P. on 11 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.8186 of 2013
Rakesh Kumar Mishra
Vs.
State of M.P. & Others
Writ Petition No.6349 of 2014
Atul Kumar Lumba
Vs.
State of M.P. & Others
APPERANCE
Shri Amit Lahoti - Advocate for the petitioner.
Shri Sohit Mishra - Government Advocate for the State.
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Reserved on : 01/03/2025
Delivered on : 11/3/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
]This order shall also govern final disposal of Writ Petition
No.6349 of 2014.]
The present petition, under Article 226 of the Constitution of
India, has been preferred by the petitioner being aggrieved by the order
dated 04.03.2013 passed by the Under Secretary, GAD, Bhopal, Govt.
of M.P. whereby he has been held entitled to claim Samman Nidhi
under Rule 3(1) of the Loknayak Jai Prakash Narayan (MISA/DIR
Rajnaitik Ya Samajik Karno Se Niruddh Vyakti), Samman Nidhi
Niyam, 2008, from the date of the order.
2. The petitioner is further aggrieved by the order dated 04.03.2013
passed by respondent No.2/Collector & District Magistrate, Guna
whereby without calculating actual parole period of the petitioner, he
has been found entitled only for honorarium amounting to Rs.10,000/-
per month instead of Rs.15,000/- as per amended Rule 3 of the Rules of
Loknayak Jai Prakash Narayan (supra) vide Gazette Notification dated
04.01.2012.
3. Learned counsel for the petitioner has contended that the
petitioner has been held entitled to such honorarium with effect from the
date of the order passed by the Collector in terms of the Gazette
Notification dated 4.1.2012 amending the 2008 Rules and substituting
the earlier Sub-Rule (3) of Rule 3 wherein the date of entitlement was
mentioned as 1.4.2008 with effect from the date of the order passed by
the District Magistrate/State Government, though this amendment was
prospective and not retrospective.
4. It was further contended that admittedly, the petitioner being
detained under MISA had submitted an application for grant of Samman
Nidhi on 07.08.2008 before the Collector/District Magistrate, Guna, but
the aforesaid application was rejected on 17.09.2009 thus, aggrieved the
petitioner had submitted a representation to the respondent
No.1/Princiapl Secretary, GAD, Govt. of M.P. on 27.10.2009 as per
Rule 8 of the Rules of 2008 but the same was not considered for more
than 04 years and in between, Rules of 2008 were amended vide
Gazette Notification dated 04.01.2012. Thereafter, on 04.02.2013,
respondent No.1 had passed the impugned order holding that the
petitioner was in detention under MISA from 23.02.1976 to 05.11.1976
including the period of parole and after excluding the period of parole,
the detention period was less than 06 months and he has been found
entitled for honorarium amount of Rs.10,000/- per month as per
amended Rule 3 of the Rules of Loknayak Jai Prakash Narayan (supra)
vide Gazette Notification dated 04.01.2012.
5. While placing reliance on the judgment of the Hon'ble Supreme
Court in the matte of A.A. Calton vs. the Director of Education &
Another reported in AIR 1983 SC 1143, it was submitted that if
proceedings were commenced prior to coming into force of amendment,
the amendment will not have retrospective effect and amendment would
not have any effect on the earlier proceedings.
6. Further while placing reliance on the judgment of the Hon'ble
Supreme Court in the matter of P. Mahendran & Ors. vs. State of
Karnataka reported in AIR 1990 SC 405, it was submitted that every
statute or statutory Rule is prospective unless it is expressly or by
necessary implication made to have retrospective effect and unless there
are words in the statute or in the Rules showing the intention to affect
existing rights the Rule must be held to be prospective.
7. It was further submitted that since there is no law which bars
counting of the period of custody/detention of the period of parole,
therefore it is required to be counted, accordingly benefit, has to be
given for detention of more than six months to the petitioner, as he
remained under custody from 23.2.1976 till 5.11.1976.
8. On the basis of the aforesaid arguments, it was submitted that the
impugned order dated 04.02.2013 and order dated 04.03.2013 to the
extent of giving the Samman Nidhi at the rate of Rs.15,000/- per month
from the date of commencement of the Rules i.e. w.e.f. 01.04.2008 as
per Rule 3 of the Rules of 2008 may be modified and arrears whereof be
also directed to be paid accordingly.
9. On the other hand, learned Govt. Advocate for the State has
opposed by the prayer so made by counsel for the petitioner by
submitted that there was a criminal cases pending against the petitioner
and, therefore, he was not found entitled for extending the benefit of
Samman Nidhi and even otherwise, the amendment in the Rule as
notified on 04.01.2012 have not been put to challenge by the petitioner.
10. Heard counsel for the parties and perused the record.
11. The Hon'ble Supreme Court in the matter of P. Mahendran &
Ors. vs. State of Karnataka (supra) in para 5 has held as under:-
"It is well-settled rule of construction that every
statute or statutory Rule is prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Unless there are words in the statute
or in the Rules showing the intention to affect existing
rights the Rule must be held to be prospective. If a Rule is
expressed in language which is fairly capable of either
interpretation it ought to be construed as prospective only.
In the absence of any express provision or necessary
intendment the rule cannot be given retrospective effect
except in matter of procedure. The amending Rule of 1987
does not contain any express provision giving the
amendment retrospective effect nor there is anything
therein showing the necessary intendment for enforcing the
Rule with retrospective effect. Since the amending Rule
was not retrospective, it could not adversely affect the
right of those candidates who were qualified for selection
and appointment on the date they applied for the post,
moreover as the process of selection had already
commenced when the amending Rules came into force. The
amended Rule could not affect the existing rights of those
candidates who were being considered for selection as
they possessed the requisite qualifications prescribed by
the Rules before its amendment moreover construction of
amending Rules should be made in a reasonable manner to
avoid unnecessary hardship to those who have no control
over the subject matter."
12. The Hon'ble Supreme Court in the matter of A.A. Calton vs. the
Director of Education (supra) has held as under:
" ...................It is true that the Legislature may pass
laws with retrospective effect subject to the recognised
constitutional limitations. But it is equally well settled that
no retrospective effect should be given to any statutory
provision so as to impair or take away an existing right,
unless the statute either expressly or by necessary
implication directs that it should have such retrospective
effect. In the instant case admittedly the proceedings for
the selection had commenced in the year 1973 and after
the Deputy Director had disapproved the
recommendations made by the Selection Committee twice
the Director acquired the jurisdiction to make an
appointment from amongst the qualified candidates who
had applied for the vacancy in question. At the instance of
the appellant himself in the earlier writ petition filed by
him the High Court had directed the Director to exercise
that power. Although the Director in the present case
exercised that power subsequent to August 18, 1975 on
which date the amendment came into force, it cannot be
said that the selection made by him was illegal since the
amending law had no retrospective effect. It did not have
any effect on the proceedings which had commenced prior
to August 18, 1975. Such proceedings had to be continued
in accordance with the law as it stood at the
commencement of the said proceedings. We do not,
therefore, find any substance in the contention of the
learned counsel for the appellant that the law as amended
by the U.P. Act 26 of 1975 should have been followed in
the present case."
13. In the present matter, since the petitioner had made the
application on 7.8.2008 and as per the parameters prescribed under
Rules, he has been found to be eligible for extending such benefit of
Samman Nidhi and there is no iota of doubt that such entitlement would
be from 01.04.2008 inasmuch as the date of the amendment is
prospective in the light of law laid down by the Hon'ble Supreme Court
in the cases of P. Mahendran & Ors. vs. State of Karnataka (supra)
and A.A. Calton vs. the Director of Education (supra), and that
amendment will be applicable only to those persons who had applied
for claim of such Samman Nidhi after 4.1.2012 .
14. In view of the aforesaid, the order dated 04.03.2013 is set aside
directing the respondents to calculate the arrears of Samman Nidhi and
pay the same to the petitioner within three months from the date of
receipt of certified copy of the order. To this extent, the present
petition is allowed.
15. So far as entitlement of honorarium amount of Rs.15,000/- per
month (as awarded by the Collector and District Magistrate, Guna vide
order dated 04.03.2012) in place of Rs.10,000/- per month to the
petitioner is concerned, from bare perusal of relevant Rules of 2008 and
2012 which reads as under:
Rules of 2008
4.2 ''यद जल म जन य छटन क एक र कर उपलब ह औ जल पमण त
कत ह ककशष र कर जलमउपलब नह#$ ह ऐस' स)*तत मकमसकमएकमह क तन,
मन ज क तदन.रप सममन तनध )2'क3त क4 ज सकग'. इन पक 7 म तनरद ह,न क4
प.स8ट कन हत. , अनय तनरद वयस<तय7 क पम 'क क4 शत लग नह#$ ह,ग'.'' ''ऐस
वयस<त ज, म'स/र'.आई.आ. क अ 'न जनततक ए2$ समसजक क 7 स एक मह य एक
मह सअध कककनत. छ: मह तकक4 अ2ध कललय तनरद ह ह,. उनह रपय 3,000/-
पततमह त* ऐसवयस<त ज, छ: मह सअध कक4 कल2ध कललए तनरद ह ह7 उनह रपय
6,000/- पततमह क4 ससममन तनध क4 पतत ह,ग'.
Rules of 2012
5.(1) ऐस म'स/र'.आई.आ. जनततक य समसजक क 7 स तनरद वयस<त
ज, एक मह स अध क ककनत. छह मह स कम अ2ध क ललए तनरद ह उनह रपए
10,000/- पततमह त* ऐस वयस<त ज, छह मह य उसस अध क क4 कल2ध क ललए
तनरद ह ह7, उनह रपए 15,000/- पततमह, क4 ससममन तनध क4 पतत ह,ग'.
it is reveled that the person, who has been detained in custody for
more than one month but less than six months as per unamended Rules
of 2008, would be entitled to get Rs.3,000/- per month as Samman
Nidhi and the person, who was detained in custody for more than six
months, would been entitled to get Rs.6,000/- per month as Samman
Nidhi and as per the amended Rules of 2012, the amount of Rs.3,000/-
per month as Samman Nidhi had been enhanced to Rs.10,000/- per
month and the amount of Rs.6,000/- per month as Samman Nidhi had
been enhanced to Rs.15,000/- per month. Herein case, the petitioner
remained in jail under MISA for less than six months, therefore, he is
entitled to get an amount of Rs.10,000/- per month as Samman Nidhi as
per amended Rules of 2012 from the date of of amendment in Rules of
2008 i.e. 04.01.2012 and not from the order passed by the District
Magistrate and Collector dated 04.03.2013 and prior to that from
07.08.2008, he would be entitled to get an amount of Rs.3,000/- till
04.01.2012. In light of the aforesaid provisions, the order dated
04.03.2012 is in accordance with law.
16. Let arrears of Samman Nidhi be calculated and paid to the
petitioner forthwith.
17. With the aforesaid observation, the present petition and Writ
Petition No.6349 of 2014 are partly allowed and disposed of.
(Milind Ramesh Phadke)
Judge
PAWAN
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cn=PAWAN KUMAR
Date: 2025.03.11 14:01:42 +05'30'
