Bombay High Court
Umesh Devaji Burande vs State Of Maharashtra, Thr. Its ... on 2 September, 2021
Author: Anil S. Kilor
Bench: Sunil B.Shukre, Anil S. Kilor
Judgment 1 wp4832.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4832 OF 2018
Umesh Devaji Burande,
aged about 30 years,
Occupation:Unemployed
R/o. Ramnagar, Ward No.6,
Behind Shivaji Mahavidyalaya,
Gadchiroli,Taluka and District:
Gadchiroli.
.... PETITIONER.
// VERSUS //
1. State of Maharashtra,
through its Secretary,
Department of Education and Sports,
Mantralaya extension office,
Madam Cama Road, Rajguru Chowk,
Mumbai - 400032.
2. Deputy Director,
Directorate of Sports and Youth Services
Nagpur Division, Koradi Road, Nagpur.
3. The Maharashtra Ball Badminton Association
Recognized by Maharashtra State Sports Council
No. MSKK(8)L/8702/KMA/1998
Through its General Secretary
Dr. Suresh Bhongade
J.B. College of Science, Wardha
Taluka and District Wardha.
4. Maharashtra State Road Transport Corporation,
Through its Divisional Controller
State Transport Gadchiroli.
Tq. & District - Gadchiroli.
.... RESPONDENTS.
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______________________________________________________________
Shri V.N.Morande, Advocate for petitioner.
Ms N.P.Mehta, A.G.P. for Respondent Nos.1 & 2.
Shri S.W.Sambre, Advocate for Respondent No.3.
______________________________________________________________
CORAM : SUNIL B.SHUKRE AND ANIL S. KILOR, JJ.
DATE OF RESERVING THE JUDGMENT : 24/06/2021.
DATE OF PRONOUNCING THE JUDGMENT:02/09/2021
JUDGMENT :(Per : Anil S. Kilor, J.)
1. Heard.
2. In this petition, the challenge is raised to the vires of the Government Resolution dated 01/07/2016, providing 5% reservation in Government or Semi Government service, only to the players in sport competitions in respect of the games played in Olympic Games, Asian Games and Commonwealth Games, including the games chess, Kabaddi and Kho-Kho.
3. The brief facts emerge from the petition, are as follows:
4. The petitioner is a sportsperson and plays 'Ball Badminton' which is promoted by the Maharashtra Ball Badminton Association affiliated to Ball Badminton Association of India and also recognized by the Maharashtra State Sports Council and Maharashtra State Olympic Association.
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5. The State of Maharashtra on recognizing the importance of the sports culture in the cultural life of Nation as well as States, issued Government Resolution dated 30/04/2005 providing 5% reservation to the players in various State Government/ Semi- Government Department mentioned in the said resolution.
6. The object behind providing 5% reservation in service was that, the players who earn name for Nation, State or their District through sports, devote most of their time for practice and could not concentrate on their studies, resultantly, they cannot compete with the students who concentrate on their academic career only.
7. The list of the sports relating to which the reservation had been provided, was given in the Appendix-A attached to the aforesaid Government Resolution dated 30/04/2005, includes 'Ball Badminton'.
8. The said benefit for the sport 'Ball Badminton' was continued till the date of issuance of impugned Government Resolution dated 01/07/2016, which has override all the earlier Government Resolutions, including Government Resolution dated 30/04/2005.
9. The State of Maharashtra vide impugned Government Resolution has restricted its applicability to all the games which are not ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 ::: Judgment 4 wp4832.18.odt played in Olympic Games, Asian Games and Commonwealth Games including Chess, Kabaddi and Kho-kho. Resultantly, the benefit of 5% reservation as promised vide Government Resolution dated 30/04/2005, had been withdrawn for the sport "Ball Badminton".
10. Hence, this petition has been filed raising a grievance that because of reservation in service provided vide Government Resolution dated 30/04/2005, the petitioner who has devoted his crucial years of life for the sport 'Ball Badminton', has now been denied such benefits by withdrawing the applicability of the benefit to the spot 'Ball Badminton'.
11. We have heard the learned counsel for the respective parties.
12. Shri Morande, learned counsel for the petitioner submits that the petitioner had been participating in 'Ball Badminton' sport regularly since the year 2002 and has performed excellently and brought name and fame for the State in the said sport. It is submitted that the petitioner devoted crucial time of his life in promotion and practice of 'Ball Badminton'. It is pointed out that the petitioner has been awarded many participation certificates during the said period and therefore, the petitioner became eligible for benefit of reservation in service as provided vide Government Resolution dated 30/04/2005. ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 :::
Judgment 5 wp4832.18.odt However, because of subsequent impugned notification, the promise of providing reservation has been withdrawn arbitrarily and in most unreasonable manner. He, therefore, submits that a legitimate expectation that the petitioner would be considered for employment in 5% quota reserved as per aforesaid Government Resolution, has not been fulfilled.
13. It is further submitted that the benefit of Government Resolution dated 30/04/2005 has been withdrawn with retrospective effect, which is not permissible.
14. Per contra, the learned A.G.P. opposed the present application on the ground that in view of the Government Resolution dated 01/07/2016, the sportspersons who play 'Ball Badminton' are not eligible for 5% reservation in service as earlier provided vide Government Resolution dated 30/04/2005. Attention of this Court has been drawn to the judgment of Co-ordinate Bench of this Court at Aurangabad, dated 22/04/2019, passed in Writ Petition No.4409 of 2019, whereby similar challenge was dismissed. The learned A.G.P. therefore, prays for dismissal of the present writ petition.
15. To consider the rival contentions of the parties, we have gone through the record and also perused the relevant judgments including the judgment delivered at Aurangabad Bench. ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 :::
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16. There is no dispute that with the laudable object stated in the Government Resolution dated 30/04/2005, 5% reservation had been provided for the sports enlisted in Appendix-A attached to the Government Resolution, which includes sport 'Ball Badminton'.
17. In this case, no dispute is raised by the respondent as regards the fact that the petitioner had participated in numerous competitions relating to the sport 'Ball Badminton' and brought laurel and fame for the State. The opposition is only on the ground that, before the petitioner applied for employment in the year 2017, the Government Resolution dated 01/07/2016 came into force, overriding the earlier Government Resolution dated 30/04/2005 and in the new Government Resolution the sport 'Ball Badminton' is not included to get benefit of 5% reservation in service.
18. Thus, from the facts of the present case and looking to the purpose and object for issuance of the Government Resolution dated 30/04/2005, we have no hesitation to say that a promise was made to the sport-persons like the petitioner for providing 5% reservation in service in various Government, Semi-Government Departments mentioned in the said Government Resolution for the sports enlisted in Appendix-A attached to the said Government Resolution. It is also apparent that the said promise has been suddenly withdrawn as far as sport 'Ball Badminton' is concerned vide impugned Government Resolution dated 01/07/2016, to the detriment of the petitioner. ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 :::
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19. The Hon'ble Supreme Court of India in the case of Union of India..vs.. Anglo Afghan Agencies1, has held as follows:
"20. This case, is in our judgment, a clear authority that even though the case does not fall within the terms of Section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution."
20. The Hon'ble Supreme Court of India in the case of State of Rajasthan vs.. Mahaveer Oil Industries 2, in paragraphs 14 and 15 observed thus:
"14. Are the respondents justified in holding the State to the promise made by it in the form of an incentive scheme which is made available for a specified period of time, when new industries are set up on the basis of that scheme relying on the promise of benefits held out by it? Public interest requires that the State be held bound by the promise held out by it in such a situation. But this does not preclude the State from withdrawing the benefit prospectively even during the period of the scheme, if public interest so requires. Even in a case where a party has acted on the promise, if there is any supervening public interest which requires that the benefit be withdrawn or the scheme be modified, that supervening public interest would prevail over any promissory estoppel.
15. After examining a large number of authorities, this Court in the case of Kasinka Trading and Anr. v. Union of India and Anr. (1995 (1) SCC 274) held that when there was a supervening public interest in withdrawing the promise held out, the Government cannot be estopped from withdrawing the benefit held out under an existing scheme. In 1 AIR 1968 SC 718 2 (1999) 4 SCC 357 ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 ::: Judgment 8 wp4832.18.odt the case of Shrijee Sales Corporation and Anr. v. Union of India (1997 (3) SCC 398), once again this Court after examining a number of authorities has held that if any supervening public interest so demands, the benefit under any incentive scheme can be withdrawn. The same view has been again reiterated in Union of India and Ors. v. Godhawani Brothers and Anr. (1997 (11) SCC 173)."
21. The Hon'ble Supreme Court of India in the case of Bannari Amman Sugars Ltd...vs..CTO1, has considered in detail the Doctrine of Promissory Estoppel and Legitimate Expectation. The relevant paras of the said judgment are reproduced herein under which read thus:
"5. Estoppel is a rule of equity which has gained new dimensions in recent years. A new class of estoppel has come to be recognized by the courts in this country as well as in England. The doctrine of 'promissory estoppel' has assumed importance in recent years though it was dimly noticed in some of the earlier cases. The leading case on the subject is Central London Property Trust Ltd. v. High Trees House Ltd., [1947] 1 KB 130. The rule laid down in High Trees case, again came up for consideration before the King's Bench in Combe v. Combe, [1951] 2 KB 215. Therein the court ruled that the principle stated in High Trees's case, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. But that principle does not create any cause of action, which did not 1 (2005) 1 SCC 625 ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 ::: Judgment 9 wp4832.18.odt exist before; so that, where a promise is made which is not supported by any consideration, the promise cannot bring an action on the basis of that promise. The principle enunciated in the High Trees case was also recognized by the House of Lords in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd., [1955] 2 All ER 657. That principle was adopted by this Court in Union of India v. Indo-Afghan Agencies Ltd., AIR (1968) SC 718 and Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd., [1972] 1 SCC 857. Doctrine of "promissory estoppel" has been evolved by the courts, on the principles of equity, to avoid injustice. "Promissory Estoppel" is defined in Black's Law Dictionary as an estoppel "which arises when there is a promise which promisor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does induce such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise. ..."
22. In view of the aforesaid touchstone, we revert back to the facts of the present case. In the present matter, admittedly, the petitioner has given almost 10 crucial years of his life for the sport 'Ball Badminton' with legitimate expectation that the State of Maharashtra would act on its promise to provide 5% reservation in service in Government Department or Semi-Government Department. However, on 01/07/2016 suddenly the aforesaid promise was withdrawn as regards the sport 'Ball Badminton'. The ultimate result of the Government Resolution dated 01/07/2016 nothing but denying the benefit to the persons like the petitioner who have spent long years of their life for sports to bring laurel and fame to the State. ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 :::
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23. It is noteworthy that the sports persons like the petitioner who have been denied such benefit cannot get back their important years of life and therefore, such an act on the part of the State of Maharashtra to withdraw its promise in highly unreasonable manner, would amount to acting contrary to the 'Promissory Estoppel' or the 'Principle of Legitimate Expectation'. Moreover, we are of the opinion that withdrawal of such benefits without giving any future cut-off date for the sport persons like petitioner, it amounts to application of the said impugned Government Resolution dated 01/07/2016, with retrospective effect.
24. Having observed so, it is clear that all these aspects have not been considered in the judgment dated 22/04/2019 of the Division Bench at Aurangabad. The relevant observations made in the aforesaid judgment in para Nos. 7 and 6, read thus:
"7. The policy as reflected in the Government Resolution dated July 1, 2016, is framed with an intention to simplify and maintain transparency in the process of selection and appointment of the candidates seeking public employment against the quota reserved for sports persons. The policy is framed after considering the earlier policy dated April 30, 2005, the difficulties faced by the sport persons while applying for grant of public employment and also in verification of the sports certificate. The Government noticed that at times, such sports persons are required to agitate their grievance before the Administrative Tribunal or High Court and so as to overcome all these difficulties, a simplified and transparent policy is brought into force by the Government. The Government, in the new policy, instead of identifying a ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 ::: Judgment 11 wp4832.18.odt particular sport event like the event conducted by Indian/Maharashtra Olympic Association, has tried to recognise the merit of sports persons in individual or team work. The State Government has also considered such achievements que the sport event conducted at national, international, rural, women, universities, schools levels and the sports event for specially abled.
8. In the aforesaid background, if the policy framed in the Government Resolution dated July 1, 2016 is appreciated, it does not appear to be the intention of the Government to single out a particular game or sport. If a particular game like the petitioners claim to have played Throw Ball is part of a sport event mentioned in the Government Resolution, then of course, a sports person will be entitled to draw benefit in the public employment."
25. In the circumstances, we are of the considered view that the principle of 'Promissory Estoppel' or 'Legitimate Expectation' needs to be considered and also to examine the effect of withdrawal of benefits of the Government Resolution dated 30/04/2005 for the sport 'Ball Badminton', on the prospects of sports persons like petitioner, in light of promise made to them vide Government Resolution dated 30/04/2005.
26. It is in this context this Court is of the opinion that the controversy needs to be put to rest by an authoritative pronouncement of a Larger Bench of this Court, on above questions. ::: Uploaded on - 02/09/2021 ::: Downloaded on - 03/09/2021 07:38:11 :::
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27. In view of the above, the Registry is directed to place the papers before the Hon'ble the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court on the following questions:
I) Whether in a given facts and circumstances of the present case, principles of Promissory Estoppel and Legitimate Expectation would apply?
II) Whether the impugned Government Resolution dated 01/07/2016 has been retrospectively applied to the case of the petitioner?
Order accordingly.
(ANIL S. KILOR, J) (SUNIL B. SHUKRE, J)
RRaut..
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