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2018 Supreme(Bom) 617
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, B.P. COLABAWALLA, JJ.
Shikshakbharati & Others - Petitioner
Versus
The State of Maharashtra, Through Principal Secretary, Finance Department & Others - Respondent
Writ Petition (L) Nos. 2039 of 2017 & 175 of 2018
Decided On : 09-02-2018
For the Petitioners:Rajiv Patil, Senior Counsel, a/w. Sachin S. Punde, Mihir Desai, Senior Counsel, a/w. Chetan Mali, Advocate.
For the Respondents:A.A. Kumbhakoni, Advocate General, a/w. Kedar Dighe, AGP, Girish Godbole, a/w. Akhilesh Chaubey, I/by M/s. ABG Associates, Advocates.
The main legal point established in the judgment is that the decision-making process of the State Government in passing the impugned Government Resolution was vitiated due to various grounds, including irrationality, lack of rationale behind the sudden change in policy, and malice in law.
Headnote:
Government Resolution - Payment of Salaries to Teaching and Non-Teaching Staff - GR of 2005, GR of 2011 - The court found that the impugned Government Resolution (GR) dated 03.06.2017, which stopped the practice of making payment to the teaching and non-teaching staff of aided and unaided private primary, secondary, and higher secondary schools in Mumbai and Mumbai Suburban District, was not sustainable in law. The court held that the decision-making process in passing the impugned GR was vitiated due to various grounds, including irrationality, lack of rationale behind the sudden change in policy, and malice in law. The court also found that the GR of 2005, which was incorporated in the GR of 2011, gave freedom to the employees to choose a bank from a list of 14 banks, and the departure from this without reasonable cause, and on the insistence of a cooperative bank, vitiated the decision-making process of the State Government.
Fact of the Case:
The petitions impugned the Government Resolution dated 03.06.2017, which stopped the practice of making payment to the teaching and non-teaching staff of aided and unaided private primary, secondary, and higher secondary schools in Mumbai and Mumbai Suburban District, and resolved to pay the salaries of the said employees through a District Central Cooperative Bank. The petitioners claimed that the State Government had previously resolved to make the payment of salaries of the teaching and non-teaching staff of the said schools through a nationalized bank, with the avowed object of securing the interest of the teachers to receive timely payment of salaries.
Finding of the Court:
The court found that the impugned GR was not sustainable in law and deserved to be allowed. The court also rejected the request for a stay of the judgment, as it found that no change was required in the system of paying salaries to the teachers, and the only change would be the operation of the 'pool account' by a nationalized bank instead of a cooperative bank.
Issues: The issues included the sustainability of the impugned GR, the rationale behind the sudden change in policy, the freedom of employees to choose a bank for salary payments, and the decision-making process of the State Government.
Ratio Decidendi: The court held that the decision-making process in passing the impugned GR was vitiated due to various grounds, including irrationality, lack of rationale behind the sudden change in policy, and malice in law. The court also found that the GR of 2005, which was incorporated in the GR of 2011, gave freedom to the employees to choose a bank from a list of 14 banks, and the departure from this without reasonable cause, and on the insistence of a cooperative bank, vitiated the decision-making process of the State Government.
Final Decision: The court made the rule absolute in terms of the prayer clause in the petitions, quashing and setting aside the impugned GR. The court also rejected the request for a stay of the judgment, as no change was required in the system of paying salaries to the teachers.
B.R. GAVAI, J.
1. Both these petitions impugn the Government Resolution dated 03.06.2017 (hereinafter referred to as “2017 GR”) vide which the State Government has resolved to stop the practice of making payment to the teaching and non-teaching staff of aided and unaided private primary, secondary and higher secondary (junior colleges) schools, in the area of Mumbai and Mumbai Suburban District (hereinafter referred to as “the said schools” and “the said employees”) and has further resolved to pay the salaries of the said employees through Respondent No.7 bank, which is a District Central Cooperative Bank.
2. The Petitioner in WP No.2039/2017 claims to be the only Government Recognised Teachers Association working within the State of Maharashtra for the benefit, upliftment and welfare of the employees working in the education field. The Petitioner in WP No.175/2018 is also an Association of Teachers, registered under the provisions of Maharashtra Public Trust Act.
3. It is the contention of the Petitioners that, the State Government had taken a conscious policy decision vide GR dated 29.08.2005 (hereinafter referred to as the said “2005 GR”) to make the payment of salaries of the employees of the State Government, as well as the employees who are paid their salaries from the Government exchequer through the Nationalized Banks as well as the private banks, the list of which is annexed alongwith the said 2005 GR. It is further the case of the Petitioners that, vide GR dated the State Government took a conscious policy decision thereby resolving to make the payment of the salaries of the teaching and non-teaching staff of the said schools through the Union Bank of India. It is the contention of the Petitioners that, the said was done with an avowed object of securing the interest of the teachers, so that they receive timely payment of the salaries. It is the contention of the Petitioners that, though the system of making the payment through the Union Bank of India was working smoothly, in an arbitrary manner, abruptly the said system was stopped and the said 2017 GR provided that the payment of salary should be made through Respondent No.7.
4. Mr. Rajiv Patil as well as Mr. Mihir Desai, learned Senior Counsels have made submissions on behalf of the Petitioners, in the respective petitions. It is submitted by the learned Senior Counsels that, though the impugned GR makes a reference that, the said resolution has been issued for promoting the cooperative movement, the perusal of said GR itself would reveal that, the same has been issued at the request of Respondent No.7. Mr. Patil learned Senior Counsel further submits that, the perusal of document at Page No.49 would reveal that, the Hon'ble Minister of School Education, who in the year 2013, was the Leader of Opposition of Maharashtra Legislative Council, had made a representation to the various authorities, pointing out therein the various illegalities and irregularities in the functioning of Respondent No.7. It is further submitted that, the said same person, who now holds the office of the Minister of School Education has taken a decision to allot the work of payment of the salaries to Respondent No.7. Learned Counsel submits that, though the Petitioners have made certain allegations in the petitions with regard to malice in facts, the Petitioners are not pressing the same in as much as the present case would be squarely covered under “malice in law”.
5. Mr. Desai further submitted that, though the GR of 2005 has been issued by the Finance Department, which department is concerned with the finance of the State, the impugned resolution has been issued by the school education department. It is further submitted that, such an important issue which pertains to the Finances of the State Government, could not have been issued by the School Education Department, but ought to have been considered by the Finance Department. Learned Senior Counsels have further relied on the answer
