Court overrides 6 of its own Judgements which held that from the dates of those initial appointments as part-time librarians, they should be held to be full-time librarians.

 Court: THE HIGH COURT OF JUDICATURE AT BOMBAY
              Case Details: W.P NO. 11525 OF 2018 AND Ors.
Parties: Sunil Subhash Ekhande Vs State of Maharashtra and Ors.
          Corum : Justice Neela Gokhale, J and  Justice G. S. Patel, J.
Date of Decision:01.08.2023.

Click here to read the Court Judgment.

 

• Ø       Prayer before Hon’ble Court:

1.    Clauses No. 1, 3 and 4 of the Government Resolution (“GR”) dated 3rd August 2006. as being illegal and contrary to the recommendations of Chiplunkar Samiti accepted by the State and further seek status The Petitioners were all initially appointed as part-time librarians in various institutions. They now seek an order that from the dates of those initial appointments as part-time librarians, they should be held to be full-time libraries. They claim this is only ‘notional’ but agree that such an order will indeed have monetary implications (for any difference in pay scales and retiral benefits). They also say that the GR in question is contrary to the recommendations of the Chiplunkar Committee, and which recommendations the State Government accepted. They seek orders that they be reckoned as full-time librarians- PARA 1.

    

Ø Fact of the Case:

 

1.    The Petitioners are employed in their respective Respondent educational institutions as part-time librarians. The 2nd Respondent in all Petitions is the corresponding Education Officer/Director of Education of various regions in the 1st Respondent, State of Maharashtra. -PARA 3.

2.    The Petitioners were working as part-time librarians in various aided schools across Maharashtra. In 1994, the State Government appointed a committee under the chairmanship of Shri VV Chiplunkar, former Director of Education of the State, to ascertain the prevailing scope of work of non-teaching staff in educational institutions, the terms and conditions of their engagement and make recommendations in that regard. The Chiplunkar Committee submitted a report. The State accepted the report and resolved to amend the provisions of Secondary and Higher Secondary Code to the extent of such acceptance. Accordingly, it notified a GR dated 28th June 1994.- PARA 4-7.

3.    The legal issue that arises is whether the impugned GR of 3^rd August 2006 can be given retrospective effect to the extent of creating (or being deemed to have created) full-time posts of librarian from the earlier part-time posts, thus entailing salary and retiral benefits with effect from the dates of initial appointments as part-time librarians.

 

Ø Case of Petitioners:

1.    Several Petitions were filed earlier with a similar grievance. Mr Limaye, Learned Counsel for the Petitioners, has placed the following decisions of this Court: - PARA 9.

a)      Shri Pramod Shriram Salunke v State of Maharashtra & Ors, W.P.No.7087 of 2010. decided on 17th April 2015.

b)     Vithoji Dinkar Rane v. State of Maharashtra & Ors. W.P. No. 11224 of 2017. decided on 4th October 2018.

c)      Uttam Badak & Ors v. State of Maharashtra & Ors, W.P. No. 10426 of 2015. decided on 22nd February 2019.

d)     Balasaheb Munde v. State of Maharashtra & Ors, W.P. No. 15008 of 2017.decided on 9th October 2019.

e)      Anil Parasram Shende v. State of Maharashtra & Ors;W.P.No. 1994 of 2018., decided on 9th December 2019.

f)      Ganesh Narhar Chavan & Ors v State of Maharashtra & Ors, W.P. No. 14935 of 2017 decided on 11th March 2022.

2.    In all these decisions, the Court took the view that since the State Government had accepted the Chiplunkar Committee recommendations and treated the report as being part of Secondary and Higher Secondary School Code, the State could not have refused the benefits of the recommendations to the petitioners, who are treated as part-time librarians even after the strength of students increased beyond 1000. This Court also negatived the objections of the State Government regarding a delay in approaching the Court in seeking the retrospective effect of the August 2006 GR. This Court directed that the petitioners in those petitions be considered as full-time librarians from the date of their initial appointments as part time librarians. That date was to be considered for notional pay fixation and other retiral and pensionary benefits. It is important to note that although back wages were not granted, all the Petitioners were made entitled to pensionary benefits computed from the date of their initial appointments as part-time librarians.

Ø Case of Respondents:

1.    Relied upon a decision in Satish Ganpatrao Patil & Ors v State of Maharashtra & Ors. MANU/MH/0547/2015.

a)    This decision is dated 31st March 2015 and therefore pre-dates all six decisions relied on by Petitioners.

b)     The Satish Patil judgment deals in detail with the legality and consequences of the claimed retrospective application of the 3rd August 2006 GR.

c)     The Court upheld the GR and held that since the part-time librarians had willingly accepted the benefits of the GR without a murmur, they could not now challenge it.

d)    The Court has also held that, in the regular course, when posts of full-time librarians were to be filled, the schools would have been obliged to follow the recruitment procedure in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (“MEPS Act”).

e)    As such, the Petitioners would have been required to apply pursuant to an advertisement for recruitment and compete with several applicants. Their ‘selection’ under the impugned GR would then have been subject to the result of a selection procedure.

f)      The Court said that, evidently, the Petitioners had derived the benefits of the GR by ensuring their appointments as full-time librarians. Having acquired these benefits, there was no justification for questioning the 2006 GR or any of its clauses.

g)    The general principle in law is clear: no one can simultaneously derive a benefit and yet sustain a challenge. If the challenge is to be maintained, the benefit must be foresworn. Whether this is traced to the principle in equity of an estoppel in pais, an election, or a prohibition against approbating and reprobating matters little. -PARA 11.

Ø Decision of the Hon’ble Court with reasoning:

1.    Every one of the decisions relied on by the Petitioners are all subsequent to the decision in Satish Patil. Some of the decisions notice the view of this Court in Satish Patil but fail to distinguish it. The decision in Satish Patil is a judgment. It has a ratio. It was binding on all later benches of coordinate strength, unless distinguished (or held to be rendered per incuriam). Orders made after Satish Patil do not consider the legality of a retrospective effect of 2006 GR. Furthermore, in the orders preceding Satish Patil, there is neither any discussion nor consideration in relation to a challenge to the vires of the offending clauses of the GR. Pensionary benefits and notional pay-scale are granted to the Petitioners in those petitions without striking down the impugned provisions of the GR. -PARA 12.

2.    The orders prior to Satish Patil lay down no law and have no discernible ratio, and therefore constitute no binding precedent. On any fundamental principle of stare decisis,8 the attempt to wholly elide the jurisprudentially binding effect of Satish Patil on all later benches of coordinate strength cannot succeed. For it is well settled that a decision is a binding precedent only for what it actually decides.9 In Sarva Shramik Sanghatana (KV), Mumbai v State of Maharashtra & Ors,10 the Supreme Court said: The ratio of any decision must be understood in its factual context.11 Observations of courts are neither to be read as Euclidean theorems nor as statutes. -PARA 14.

3.    Nobody has ever urged that Satish Patil is not good law, or not a binding precedent. It has not been overturned in appeal. It has never been held to be a decision rendered per incuriam. What we are being asked to do today is, in our view, the unthinkable: to wholly ignore a decision of a bench of coordinate strength, one that interprets the law and therefore constitutes a binding precedent, by simply — we dare say, even mechanically — following a slew of later decisions, not one of which followed Satish Patil, although all were bound by it. Some did not even notice it.

4.    A Constitution Bench of the Apex Court in M Ramanatha Pillai v The State of Kerala & Anr13 held that the power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of government policy. Every sovereign government has this power in the interest and necessity of internal administration. The creation or abolition of a post is an executive or legislative function, involving economic factors and dictated by policy decisions, exigencies of circumstances and administrative necessities.14 Courts cannot direct the creation of posts. A status of permanency cannot be granted by the Court where no such posts exist. Executive functions and powers (regarding the creation of posts) are not judicial functions.- PARA 16.

5.    We have considered the material on record and the orders and judgments cited. Of the decisions cited by Petitoners those that noticed the decision in Satish Patil failed to distinguish it. The others did not reference it at all. Furthermore, the decisions preceding Satish Patil did not consider the legal position settled by a Constitution Bench of the Supreme Court in the Ramanatha and other Supreme Court decisions. The legal issues discussed in Satish Patil have neither been considered nor distinguished at all. The legal ramifications of having enjoyed benefits under the assailed GR and then challenging it have been totally ignored.- PARA 17.

6.     A plain reading of the GR of 28th June 1994 does not indicate the ‘creation’ of posts. It simply declares the contents of the Chiplunkar Committee report and resolves to accept it by creating full-time posts. That GR did not actually create these posts. It is only by the GR of 3rd August 2006 that the government acted in furtherance of its earlier resolutions and upgraded the earlier posts to full-time posts with conditions. - PARA 18.

7.    The present cases show that the Petitioners admittedly enjoyed the benefits of the impugned 2006 GR, by accepting the status of full-time librarians without facing any selection procedure. It is only now that they claim retrospective effect from the date of their initial appointments. The Petitioners cannot be permitted to approbate and reprobate. We find that without dealing with the challenge to the impugned GR of 3rd August 2006, many of the orders cited by Mr Limaye simply proceeded to grant pensionary benefits and notional pay-scale to the Petitioners. In doing so, they impliedly created posts of full-time librarians retrospectively. - PARA 19.

8.    There is an unreasonable delay on the part of the Petitioners in approaching this court. Further, she says that once having accepted the prospective effect of the impugned GR and enjoyed the benefits of the same even to the extent of accepting confirmation and approval as a full-time librarian, without having to face a selection procedure, the Petitioners shall not be permitted to now challenge the same. - PARA 20. 

9.    The full-time librarian post was with a condition attached, viz., that it would be an appointment (not a selection) from the date of the appointment. The Petitioners cannot accept the appointment — take the benefit — and simultaneously assail the condition. Without an acceptance of the condition, there could be no question of availing of the benefit. Conversely, an acceptance of the benefit was an acceptance of the attached condition. There is much law in this regard, i.e., the prohibition against approbating and reprobating, and of accepting a benefit and therefore being estopped from assailing the attached condition. - PARA 21.

10. 23. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English common law and often applied by courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.

11. 24. The Supreme Court then re-affirmed the decision in Nagubai Ammal v B Shama Rao: no party can accept and reject the same instrument’; and the principle is not confined to instruments; it is an application of the doctrine of election. In N Murugesan, the Supreme Court also reaffirmed State of Punjab v Dhanjit Singh Sandhu: once a party derives a benefit under an order or an instrument, he cannot challenge it on any ground. No one can simultaneously accept and reject the same instrument. Where a person wittingly accepts the benefits under an order, that party is estopped from denying its validity or binding effect. Yet this is precisely what these Petitioners attempt in these Petitions: all of them want the benefit of appointment as full-time librarians, without undergoing a selection procedure, and yet they assail the condition on which that benefit was granted, viz., that the post of full-time librarian would operate only from the date of the appointment and not from any prior date.

12.  These dates clearly shows that the Petitioners have accepted the status of full-time librarians from the year 2006 and have filed petitions after a delay of more that 11 years after accepting the benefits of their full-time status. There is no explanation for the delay. Ms Diwan is correct in criticising the Petitioners for selectively taking benefits of the GR and at the same time assailing it. - PARA 26.

13. Moreover, all orders and decisions that ignore Satish Patil or fail to distinguish it are orders or judgments rendered per incuriam whether on the question of the 2006 GR, on the aspect of delay or on the impermissibility of petitioners simultaneously obtaining benefit and yet seeking to challenge the very instrument that confers the very benefit. Our view is fortified by the failure of those orders to consider the settled legal position as laid down by the Constitution Bench of the Supreme Court in the Ramanatha case and other judgments cited above. - PARA 27.

14. Decisions cited by Mr Limaye do not lay down the correct position in law. It is the decision in Satish Patil that is binding so far as the 2006 GR is concerned. We will not upset the operative portions of those decisions; we only hold them not to constitute binding precedent.- PARA 28.

15.  For these reasons, we hold that the prayers in the Writ Petitions are unsustainable. We, therefore, do not find the assailed clauses of the GR dated 3rd August 2006 to be in any way arbitrary or in violation of Articles 14 or 21 of the Constitution of India. - PARA 29.