High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3300 OF 2024Shivaji Rambhau KirnaleVERSUSThe State Of Maharashtra Through Its Chief Secretary And OthersMr. E. S. Murge, Advocate for the Petitioner Mr. V. M. Kagne, AGP for Respondent Nos.1 and 2Mr. A. G. Vasmatkar, Advocate for Respondent Nos. 3 to 7CORAM : RAVINDRA V. GHUGE AND R. M. JOSHI, JJ.DATE : 1st April, 2024PER COURT :-1.The Petitioner has put forth prayer clauses ‘B’, ‘C’ and ‘D’ asunder:“B)This Hon’ble court it is hold and declares that, theGovernment Resolution dt. 24/08/2017 issued by theRes. No.2 shall not be made applicable to the petitioners.C)This Hon’ble court by issuing writ of certiorari orany appropriate writ, order or direction in like nature,impugned decision dt. 29/07/2017 passed by the Res.No. 5 thereby withdrawing 2 additional incrementgranted to the petitioner for excellent work andrecovering amount of Rs.1,18,019/- from salary of thepetitioner may kindly be quash and set aside.D)This Hon’ble court by issuing writ of mandamus orany other appropriate writ, order or direction in likenature the respondent No. 4 to 7 may kindly be directedto refund recovered amount of Rs.1,18,019/- to thepetitioner and pay all the consequential retirementbenefit by adding benefit of 2 additional increment to thepetitioner.”19.wp3300.24.odt1 of 6 2.Since this Court has dealt with hundreds of identical matters,we requested the learned Advocate representing Respondent Nos. 3 to 7(Maharashtra Jeevan Pradhikaran), to cause his appearance. On request,he has appeared in this matter.3.The dispute has essentially arisen on account of theGovernment Resolution dated 24/08/2017, by which a decision wastaken, not to grant the benefit of advance increments during the 6th PayCommission regime from 01/10/2006 to 01/10/2015. 4.In various judgments of this Court, it was consistently heldthat the Government Resolution dated 24/08/2017 would operateprospectively and would not have the effect of retrospective denial ofadvance increments. The State Government and various Zilla Parishadshad filed Review Petitions seeking review of various orders passed by thisCourt. It was inter alia sought to be contended in the said reviewpetitions that, even though the ultimate decision for stoppage of thescheme for advance increments might have been taken on 24/08/2017,it was earlier directed by way of a Circular dated 03/07/2009 toundertake the exercise of pay fixation as per the 6th Pay Commission Payscales without taking into consideration the advance increments.5.By judgment and order dated 30/08/2022, this Court has19.wp3300.24.odt2 of 6
Legal Reasoning
rejected the Review Petitions after considering all the objections raisedby the State Government. It was held that, no specific instructions wereissued before 24/08/2017 for discontinuation of the scheme of advanceincrements. Paragraph Nos.12 to 15 of the judgment and order dated30/08/2022, passed in Review Application (Civil) No.170 of 2022 in WritPetition No.13760 of 2019 (The State of Maharashtra and Anr. Vs.Rupchand S/o. Narayan Shinde and Ors.), read as under :-“12. After having heard learned Counsels at length, we findthat the review applicants have not been able to point out anyspecific instructions issued prior to 24.08.2017 / 04.09.2018for discontinuation of the schemes for grant of advanceincrements. Government Resolution dated 27.02.2009 andCircular dated 03.07.2009 do not indicate that any finaldecision was taken for discontinuation of schemes for advanceincrements. We proceed to examine the GovernmentResolution dated 27.02.2009 and Circular dated 03.07.2009 indetails.13. Government Resolution dated 27.02.2009 came to beissued by the State Government essentially for conveying thedecision of the State Government about acceptance orotherwise of various recommendations made by the HakimCommittee constituted for implementation of recommendationsof the 6th Central Pay Commission. In Annexure to the saidGovernment Resolution, each recommendation and decision ofthe State Government thereon have been enumerated. So faras the scheme for advance increment is concerned, the same isto be found at serial number 27 of the Annexure (para 3.24 ofCommittees Report). In that paragraph, the Committeerecommended that for employees/Officers renderingoutstanding service, increment @ 4% be awarded instead of3% and such increment be granted once in 5 years. It was19.wp3300.24.odt3 of 6 further recommended that since increment at higher rate wasbeing granted, the then existing scheme for grant of one or twoadvance increments be discontinued. However, in the column‘Decision of State Government’ against para 3.24, remark ismade stating that ‘separate action would be taken by GeneralAdministration Department’. As against various otherrecommendations, the remark ‘accepted’ has been made. Therecommendation made in para 3.24 by the Hakim Committeewas not accepted at least on the date of issuance ofGovernment Resolution dated 27.02.2009 and GeneralAdministration Department was to take a decision thereonseparately. Thus, it cannot be inferred that any specific decisionwas taken by the State Government on 27.02.2009 fordiscontinuation of scheme for grant of advance increment.Therefore, we do not find that the orders under review need tobe disturbed on the basis of the Government Resolution dated27.02.2009. 14. Now, we come to the Circular dated 03.07.2009. By thesaid Circular, it was directed that the issue of discontinuation ofscheme for grant of advance increment was underconsideration with the State Government and that some timewas required for taking final decision. Therefore, it was furtherdirected that temporarily the pay fixation of the employees inthe 6 th Pay Commission scales be made without consideringthe advance increments. Thus, the Circular dated 03.07.2009was clearly issued as a temporary measure. The said circulardid not communicate any decision to the effect that the StateGovernment discontinued the scheme for grant of advanceincrements. Therefore, we find that the reliance of Mr. Dixit onthe Circular dated 03.07.2009 is again of no avail. 15. We have carefully gone through the Government Resolutiondated 24.08.2017 and Circular dated 04.09.2018. By theGovernment Resolution dated 24.08.2017, final decision cameto be taken in respect of recommendation made by the HakimCommittee in para 3.24 of its report directing that during theperiod from 01.10.2006 to 01.10.2015 when revised pay scales19.wp3300.24.odt4 of 6 as per 6th Pay Commission were admissible, the benefit ofadvance increments should not be granted. Thus, the finaldecision on para 3.24 of Committees Report was taken by theState Government only on 24.08.2017. However, instead ofsimply directing that the scheme for grant of advanceincrements is discontinued, the State Government sought togive retrospective effect to its decision by directing that thebenefit of such advance increments be not given during theperiod from 01.10.2006 to 01.10.2015. While issuing suchorders having retrospective effect, the State Government lostsight of the fact that several employees were already grantedthe benefit of advance increments during the relevant period.As we have observed earlier, the deliberations fordiscontinuation of the scheme started only on 27.02.2009 /03.07.2009 and prior to that, admittedly, the issue ofdiscontinuation of the scheme for grant of advance incrementwas not even under consideration. The instructions fortemporarily doing pay fixation without advance incrementswere issued on 03.07.2009. This means that several employeesmust have already been granted advance increments duringthe period from 01.10.2006 to 03.07.2009. We, therefore, failto comprehend as to how the State Government could haveissued directions on 24.08.2017 that the benefit of advanceincrements should not be granted from 01.10.2006 onwards.Even in respect of employees becoming eligible for grant ofadvance increments after 27.02.2009, we do not find any errorin the view taken by this Court that the Government Resolutiondated 27.08.2017 would only have prospective effect.” 6.Thus, it is now a well settled position that the scheme ofgrant of advance increments was discontinued for the first time byGovernment Resolution dated 24/08/2017 and that, such decision wouldoperate only prospectively.19.wp3300.24.odt5 of 6
Decision
7.This Writ Petition is, therefore, disposed off with thedeclaration that the Government Resolution dated 24/08/2017 wouldapply prospectively. The Petitioner is held to be eligible for grant ofadvance increments for outstanding work prior to 24/08/2017. Since thePetitioner is not claiming interest, the recovered amount shall be paid tothe Petitioner within a period of 45 days, failing which, the amount shallcarry interest at the rate of 6% from the date of recovery till it is actuallypaid. All consequential benefits be calculated by adding up the saidadvance increments. Since the Petitioner has superannuated, allconsequential benefits post recalculation, be paid to the Petitioner within90 days.( R. M. JOSHI, J. )( RAVINDRA V. GHUGE, J. )ssp19.wp3300.24.odt6 of 6