Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 415

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
A.S. CHANDURKAR, AVINASH G. GHAROTE, PUSHPA V. GANEDIWALA, JJ.
Umesh Devaji Burande - Petitioner
Versus
State of Maharashtra, Through its Secretary Department of Education and Sports & Ors. - Respondents
Writ Petition No. 4832 of 2018 With Writ Petition No. 4796 of 2019
Decided On : 15-11-2021

Advocates Appeared:
For the Petitioners: Shri Vijay N. Morande, Shri A.M. Sudame.
For the Respondents: Mrs. K.S. Joshi, Acting Government Pleader, Shri S.W. Sambre, Shri S.C. Mehadia.
For the Intervenor : Mrs. Gouri Venkatraman, Shri Amit Kinkhede.

Point of Law: A legally enforceable right cannot be claimed based upon the principles of promissory estoppel and legitimate expectation in respect of the policy framed under the Government Resolution.

Headnote:
Constitution of India, 1950 - Article 16 - Employment and Service matter - Advertisement - Post of Junior Clerks - Selection - Petitioner is claimed to have continued his game of Ball Badminton and is claimed to have secured various certificates in game - He participated as a player in Maharashtra Ball Badminton 51st State Junior Championship held at Wardha between and secured second place - 2017 responding to advertisement by Maharashtra State Road Transport Corporation (MSRTC) inviting applications for post of Junior Clerks in which one post was reserved for sports quota, petitioner had applied and participated in selection and was included in select list from ‘open sports persons’ quota for post of clerk-typist - Whether in a given facts and circumstances of the present case, principles of Promissory Estoppel and Legitimate Expectation would apply ?
Finding of the Court: A bare perusal of Clause-(xiii) of Government Resolution dated would indicate that Government Resolution dated has been made operational/operative, one month after the date of its publication and thus would come into effect - This clearly indicates that Government Resolution dated is prospective in operation w.e.f. onwards and therefore, is not retrospective in operation – Court therefore need not consider the judgments as cited at bar on this question - Before Court part, it would be appropriate to place on record our appreciation for assistance rendered by learned Counsels named above, who had addressed us during course of arguments and have rendered valuable assistance to Court in arriving at answers to questions referred to Court- Principle of promissory estoppel necessarily requires that there is a promise on the basis of which the party concerned must have acted to its prejudice and that the doctrine of legitimate expectation cannot be claimed as a right in itself, but can be used only when the denial of a legitimate expectation leads to violation of Article 14 of the Constitution. As pointed out above, there is no ground regarding violation of Article 14 of the Constitution -Mere playing of a sport by itself, would not entitle a sportsperson to the benefit of the policy as there were other requirements to be fulfilled for meeting the eligibility prescribed for seeking the benefit of the reservation.
Result: Matter placed before division bench.

ORDER :

AVINASH G. GHAROTE, J.

1. This full Bench has been constituted by the Hon’ble the Chief Justice, for answering the following two questions :-

(1) Whether in a given facts and circumstances of the present case, principles of Promissory Estoppel and Legitimate Expectation would apply ?

(2) Whether the impugned Government Resolution dated 01/07/2016 has been retrospectively applied to the case of the petitioner ?

2. The need for constituting the Full Bench was felt as the learned Division Bench ( Shri Sunil B. Shukre and Shri Anil S. Kilor, JJ.) in Umesh Burande’s case [Writ Petition No.4832/2018] while considering the effect of the Government Resolution dated 1/7/2016 in the background of the earlier Government Resolution dated 30/4/2005, and the judgment of another learned Division Bench of this Court ( Shri Prasanna B. Varale and Shri Nitin W. Sambre, JJ.) in Sandip Phulchand Tandale Vs. The State of Maharashtra and others (Writ Petition No.4409/2019, dated 22/4/2019), which also considered the above two Government Resolutions and had held that since the policy of the year 2005 stood superseded by the new policy of the year 2016, the latter would apply and no claim could be laid on the basis of the former, felt that the principles of ‘Promissory Estoppel’ and ‘Legitimate Expectation’ were required to be considered in the matter of withdrawal of the benefits of the earlier policy and thus was of the opinion that the controversy needed to be put at rest by an authoritative pronouncement of a Larger Bench on the above questions, whereupon the Hon’ble the Chief Justice has constituted this Full Bench.

3. Before we advert to the arguments, the background facts leading to the present position as occurring in Writ Petition No. 4832/2018 are summarized as under :

(a) the petitioner started playing the sport of ‘Ball Badminton’ in the year 2002.

(b) the State of Maharashtra on 30/4/2005 came up with a policy to promote sports, and considering that the persons who were into the sports field were required to concentrate on the game which took a lot of their time and energy, whereby their academic career suffered, mooted a reservation of 5% in all Government and Semi-Government offices in Categories A to D for sportsmen who had performed special feats. The game of Ball Badminton was one which was included as a sport in Appendix-A to the Resolution as a game which would be eligible to the benefit of such reservation policy.

(c) the petitioner is claimed to have continued his game of Ball Badminton and is claimed to have secured various certificates in the game. He participated as a player in the Maharashtra Ball Badminton 51st State Junior Championship held at Wardha between 17/12/2005 to 19/12/2005 and secured second place.

(d) on 1/7/2016 the State of Maharashtra introduced the new policy in supersession of the policy as mooted in the earlier Government Resolution dated 30/4/2005.

(e) in 2017 responding to the advertisement by the Maharashtra State Road Transport Corporation (MSRTC) inviting applications for the post of Junior Clerks in which one post was reserved for sports quota, the petitioner had applied and participated in the selection and was included in the select list from ‘open sports persons’ quota for the post of clerk-typist.

(f) on 20/6/2018 the Divisional Controller, MSRTC, Gadchiroli sent a communication to the Deputy Director Sports and Youth Services, Nagpur for verification of the sports certificate of the petitioner and was after some delay, informed that since the sport of Ball Badminton was not included in the Government Resolution dated 1/7/2016, therefore the certificate could not be verified, which has given rise to Writ Petition No. 4832/2018 being filed by the petitioner.

3.1. In Writ Petition No.4796/2019, the petitioner was playing the game of ‘Softball’.

4. Shri Vijay Morande, learned Counsel for the petitione

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