Bombay High Court
Shikshak Bharati vs The State Of Maharashtra And 6 Ors on 9 February, 2018
Author: B.R. Gavai
Bench: B. R. Gavai, B. P. Colabawalla
WPL-2039-17&WP-175-18
agp/bdpsps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2039 OF 2017
SHIKSHAK-BHARATI, A Government
Recognized Union of Teachers and also a
Public Charitable Trust registered under the
provisions of Bombay Public Trusts Act
1951 and having its registered address as
Poybawadi Municipal Primary School,
Near KEM Hospital, Near Kamgar Maidan,
Parel, Mumbai - 400 012.
i) Through its President,
Shri. Ashok Belsare, Age:-68 years,
ii) Through its Working President,
Shri. Subhash More, Age :-39 years,
iii) Through its Secretary General,
Shri. Jalindar Sarode, Age:-38 years,
All having address Poybawadi Municipal
Primary School, Near KEM Hospital,
Near Kamgar Maidan, Parel,
Mumbai. ..Petitioner
Versus
1] The State of Maharashtra,
Through Principal Secretary,
Finance Department,
Mantralaya, Mumbai - 400 032.
2] The State of Maharashtra,
Through its Principal Secretary,
School Education & Sports Department,
Mantralaya, Mumbai - 400 032.
3] The Deputy Director of Education,
Mumbai Division Mumbai,
Having address as Jawahar Bal Bhawan,
1/32
::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 :::
WPL-2039-17&WP-175-18
Charni Road, Mumbai - 400 004.
4] The Education Inspector,
Brihan-Mumbai, North Zone, Mumbai,
New Administrative Building No.2,
Second Floor, R.C.Road,
Chembur (East), Mumbai - 400 071.
5] The Education Inspector,
Brihan-Mumbai, South Zone, Mumbai,
E Vita Building, Second Floor,
Near Nirlep House, Parel Village,
G.D.Ambekar Road, Parel,
Mumbai - 400 012.
6] The Education Inspector,
Brihan-Mumbai, West Zone, Mumbai,
Ismile Yusuf College Campus,
Jogeshwari (East), Mumbai - 400 060.
7] Mumbai District Central Co-operative
Bank Limited
Through its Chairman/Secretary,
Having its registered Office at
Mumbai Bank Bhavan,
207, Dr. D.N.Road,
Fort, Mumbai - 400 001. ..Respondents
WITH
WRIT PETITION NO.175 OF 2018
Mumbai Teachers Democratic Front
Through its President Janardhan Jangle,
Having office at Ganga, 53B/26,
Teachers Colony, Vinobha Bhave Nagar,
Kurla (W), Mumbai - 400 070. ..Petitioner
Versus
1] The State of Maharashtra
2/32
::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 :::
WPL-2039-17&WP-175-18
Through Secretary, Education Department,
Mantralaya, Mumbai - 400 032.
2] Mumbai District Central Co-op.Bank
Through, CMD, having office at
D.N.Road, Fort,
Mumbai - 400 001. ..Respondents
Mr. Rajiv Patil, Senior Counsel, a/w. Mr. Sachin S. Punde for the
Petitioner in WPL/2039/2017.
Mr. Mihir Desai, Senior Counsel, a/w. Mr. Chetan Mali for the
Petitioner in WP/175/2018.
Mr. A.A. Kumbhakoni, Advoate General, a/w. Mr. Kedar Dighe, AGP
for Respondent Nos.1 to 6 in WPL/2039/2017 and for Respondent
No.1 in WP/175/2018.
Mr. Girish Godbole, a/w. Mr. Akhilesh Chaubey, i/by M/s ABG
Associates for Respondent No.7 in WPL/2039/2017 and for
Respondent No.2 in WP/175/2018.
CORAM : B. R. GAVAI &
B. P. COLABAWALLA, JJ.
DATE : 9th February, 2018
ORAL JUDGMENT: (Per 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 3/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 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 4/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 05.10.2011 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 5/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 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 6/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 considered by the Finance Department. Learned Senior Counsels have further relied on the answer given by the Hon'ble Minister of Finance, to a question put by a member of the Legislative Council, which shows that the Finance Department has not taken a decision to make the payment of disbursement of salary through the cooperative banks. Learned Counsels therefore submitted that, when the State Government was following a policy of making the payment of salaries through Nationalized Banks with an intention to secure the payment of salaries of the said employees, there was no reason to abruptly change the said policy and allot the said work to Respondent No.7, which is a cooperative bank. It is the case of the Petitioners that, when the said bank has been found to have been involved in serious illegalities by a responsible political leader who happened to be a Leader of Opposition in the year 2013, the fact of allotting the said work to Respondent No.7, when the same person occupies the office of the Minister of the school education, would certainly show that the action is not bonafide and not in the interest of the said employees.
6] Learned Advocate General appearing on behalf of the State 7/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 has vehemently opposed the petitions. It is submitted that the petitions are totally misconceived. Learned Advocate General submitted that, as a matter of fact, right from 1973 it is the policy of the State Government to make the payment of salaries to the teaching and non-teaching staff of the aided schools, only through the cooperative banks. It is submitted that, the departure in 2011 was made since at that time it was found that, the cooperative banks were charging much more service charges as compared to the service charges charged by the Nationalized Banks and as such in the larger interest, the said decision was taken. It is further submitted that, now the State Government has found that, the services, which are being offered by Respondent No.7 are much more beneficial as compared to the Union Bank of India, and therefore, in the larger interest of the teaching and non-teaching staff of the said schools, the impugned decision has been taken in a bonafide manner.
7] Learned Advocate General submitted that, the GR of 2005 is not at all applicable to the teaching and non-teaching staff of the said schools. Learned Advocate General has placed on record a 8/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 note which shows as to how and in what manner, the payment is made to the teaching and non-teaching staff of the said schools. It is submitted that, the GR of 2005 is restricted only to the employees of the State Government, who are directly paid the salaries by the State Government and not to the teaching and non-teaching staff of the said schools, who are not directly paid the salaries by the State Government. It is submitted that, the first liability to make the payment is on the management of such institutions and only on account of the grant-in-aid being provided, the salaries are being paid by the State Government through an appropriate channel. 8] Learned Advocate General submitted that, when the State Government has taken a considered decision in the larger interest of the teaching and non-teaching staff, the Petitioners have no right to challenge the same.
9] Learned Advocate General further submitted that, the scope for entertaining a challenge to a policy decision by the State Government is very limited. It is further submitted that, when a State Government has taken a policy decision in the larger interest of the teaching and non-teaching staff of the said schools, this Court 9/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 while exercising the jurisdiction under Article 226 of the Constitution of India cannot interfere with the same. 10] Mr. Godbole, learned Counsel appearing on behalf of Respondent No.7 raised a basic objection of the locus of the Petitioners, to challenge the policy decision relying on the judgment of Apex Court in the case of Ayaaubkhan Noorkhan Pathan V/s. State of Maharashtra & Ors.1. Learned Counsel submitted that, the Petitioners do not have a locus to maintain the present petitions. Learned counsel relying on the judgment of the Apex Court in the case of Asif Hameed And Ors. V/s. State of Jammu And Kashmir And Ors.2 submitted that, in the Government policy matters, this Court should not interfere and leave it for the judgment of the executive, unless it is contrary to the statutory provisions. Reliance is also placed on the judgment of the Apex Court in the case of State of H.P. & Ors. V/s. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh 3 in support of the same proposition. Learned Counsel also relied on the judgment of the Constitution Bench of the Apex Court in the case of Shri Sitaram Sugar 1 (2013) 4 Supreme Court 465 2 1989 Supp (2) Supreme Court 364 3 2011(6) SCC 597 10/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 Company Limited & Anr. V/s. Union of India & Ors. 4 in support of the submission that, the scope of judicial review by this Court in administrative matters is very restricted.
11] We will first deal with the preliminary objection raised by Mr. Godbole, learned Counsel appearing on behalf of the Respondents with regard to locus of the Petitioners. We find that the objection is without substance.
12] The Petitioner is a recognised association of the teaching and non-teaching employees working in the State of Maharashtra. Not only this but the Government of Maharashtra itself has issued a GR dated 04.01.2014 vide which the Petitioner in W.P.No.2039/2017 has been granted recognition by the State Government. In so far as the judgment of the Apex Court in the case of Ayaaubkhan Noorkhan Pathan (cited supra) is concerned, the reliance on the said judgment is totally misplaced. In the said case, issue was as to whether a stranger would have a locus, to challenge a caste certificate/validity granted in favour of a particular person. In that background, the Lordship of Apex Court 4 (190)3 SCC 223 11/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 has held that, a stranger has no locus to challenge the caste certificate and validity granted in favour of a particular person. Such is not the case herein. The Petitioner is an association which is duly recognised by the State Government itself working for the teaching and non-teaching staff of the aided primary, secondary and higher schools. In that view of the matter, contention with regard to locus needs to be rejected.
13] Having rejected the contention with regard to preliminary objection, we proceed to consider the rival submissions on merits. 14] At the outset, we may state that in the policy matters, this Court will be very slow in interfering with the decision of the State Government. Unless it is found that, the policy decision of the State Government is arbitrary, malafide or unreasonable, it will not be permissible for this Court to interfere with the same. We are equally conscious that, we cannot find out the correctness or otherwise of the ultimate decision taken by the State Government, but only examine the decision making process of the State Government. No doubt that, the reliance placed by Shri. Godbole on the aforesaid judgments of the Apex Court is well placed. 12/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 :::
WPL-2039-17&WP-175-18 However, law is so well settled that a reference to the said would not be necessary.
15] No doubt that the learned Advocate General has relied on the GR of 1973 vide which the State Government has resolved to promote the cooperative movement by providing that, the salaries of teaching and non-teaching staff of the said schools would be paid through the cooperative banks. However, the perusal of the material placed on record itself would reveal that, the State Government is not following the said policy consistently. It is not even the case of the State Government that, in all the districts in the State, the payments are made only through the cooperative banks. It appears that in some of the districts, the State Government is making the payment through the cooperative banks, while in some other districts it is making the payment through the Nationalized Banks.
16] However, it is to be noted that, the State Government in the Finance Department has issued a GR dated 29.08.2005. The perusal of the preamble of the said GR would reveal that, the State Government has initially on a trial basis implemented the scheme of 13/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 making payment to the employees of the State Government in Mumbai and Pune through the Nationalized Banks. It goes on further to state that, after examining the working of the said system, certain additional beneficial factors were found and now the State Government has resolved that, the payment of salaries of the employees of State Government would be done only through the 14 banks, list of which is annexed alongwith the said 2005 GR. The perusal of the GR further reveals that, this has been done with an object of protecting the funds of the State Government. It further provides that, only such of the banks who are recognized by the Reserve Bank of India and who have accepted the terms and conditions given by the State Government, are included in the annexure to the said GR. It further states that, the Government has also entered into an agreement with such of the banks. 17] Perusal of the GR dated 05.10.2011 would further reveal that, the State Government in the School Education Department, considered that the Co-operative Banks were charging services charges and the Nationalized Banks were not charging the same. It also took into consideration that, the scheme which was 14/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 provided in GR dated 29.08.2005 issued by Finance Department was successfully saving revenue of the State Government and therefore decided to make the provisions made under 2005 GR, applicable to teaching and non-teaching staff of the said schools in the area of Greater Mumbai.
18] It could thus be seen that, vide 2011 GR the State Government in the department of School Education and Sports has resolved to adopt the provisions laid down in the GR's dated 29.08.2005 and 07.04.2008, both issued by the Finance Department, for payment of salaries to the teaching and non- teaching staff of the said schools within the area of Greater Mumbai from 01.11.2011. It could further be seen that, the GR dated 05.10.2011 also refers to the GR dated 29.05.1973. It could thus clearly be seen that, vide GR dated 05.10.2011, the GR of 1973 in so far as the payment of salaries of the teaching and non-teaching staff in the Greater Mumbai stands specifically superseded and substituted by the said GR.
19] It could thus be seen that, the contention of the learned Advocate General that, the GR of 2005 is applicable only to the 15/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 Government servants, who are directly receiving salary from the State Government and not to the teaching and non-teaching employees of the said schools does not hold water. In the GR dated 05.10.2011 issued by the School Education Department, the 2005 and 2008 GRs issued by the Finance Department of the State of Maharashtra have been specifically referred to and it is stated that, the system which is provided under the GR of the Finance Department of 2005 and 2008, would be applicable as it is for making payment to the teaching and non-teaching employees of the said schools within the area of Greater Mumbai. 20] As already discussed hereinabove, the perusal of the GR of 2005 clearly shows that, the same has been issued to ensure that the payment of salary of the employees of the State Government is secured on one hand and at the same time there is a benefit to the public exchequer, on the other hand.
21] No doubt that the scope of interference in policy matters by this Court is very limited. It is equally true that, the scope of judicial review of an administrative action is also very limited. However, the least that is expected from the State Government is, as 16/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 to when a particular policy has been framed by the State Government and the said policy has been functioning smoothly for a considerable period of time, then at least there should be some rationale behind the change of policy.
22] No doubt that various arguments are sought to be advanced by the learned Advocate General as well as Mr. Godbole to show that, the said decision has been taken in the larger interest of the teaching and non-teaching staff of the said schools. However, in view of the law laid down by the Apex Court in the case of Mohinder Singh Gill & Anr. V/s. The Chief Election Commissioner, New Delhi & Anr.5 the State cannot be permitted to improve its order by subsequent affidavit. The reasons as to for what purpose the said GR has been issued will have to be found from the said GR itself. The perusal of the impugned GR would reveal that, the change in policy has been made since Respondent No.7 itself has requested the State Government for payment of salary to the said employees through it. One of the reason given in the GR is that this has been done in order to strengthen the cooperative movement. In the background of this reasoning given, 5 AIR 1978 SC 851 17/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 we will have to examine certain facts.
23] The present incumbent in the office of the Hon'ble Minister for School Education, also happened to be the leader of opposition in the Maharashtra Legislative Council in the year 2013. The then Leader of Opposition, who is now the Hon'ble Minister for School Education has addressed a communication to various authorities including the Hon'ble Governor of Maharashtra, pointing out various illegalities and irregularities in the functioning of Respondent No.7. It will be relevant to reproduce a true translated version of certain part of the said communication, which reads thus :-
"After having made the study of this report and upon obtaining information from some higher officers of the Co- operation department, he has expressed a fear that the extent of such scam might go upto about 1000 to 1200 crores. The fodder scam of Lalu Prasad Yadav was of 38 crore rupees. In this regard the Court has held Lalu Prasad Yadav alongwith four bureaucratic officers and 45 officers guilty and sentenced them. Unfortunately, in the Maharashtra which brags for being progressive, till this day no action has been taken against a single Director, despite lakhs of depositors have been cheated.
The unlawful appointment of the directors in the said Mumbai Bank, loss of six and half crore on account of selling off the securities of 172 crores of the Bank, recruitment of 100 and 150 employees under the name of outsourcing, loss of 1.75 crores caused due to making payment of excess price than ready reckoner for opening the branches of the bank in slum and elsewhere, loss of 129 crores caused due to bogus disbursement of 18/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 loans to the Co-operative Societies made by the Board of Directors and Officers collusively, loss of 259 crores caused due to unlawful investment made in Madhya Pradesh Industrial Development Corporation, without the permission of Reserve Bank, NABARD and State Government (The recovery of which is not possible ever). Moreover, cheating on the Bank of 6 crores in developing Disaster Recovery Site and loss of rupees 7 crores 61 lakhs caused, for not following prescribed procedure, while purchasing computer software, router, computer hardware, thus stated in the report.
In the enquiry into the complaints made with the Co- operation Department, a scam of 412 crores has been unraveled. However, as the extent of the scam is huge, it is necessary to make in depth enquiry and to take stringent action. In this regard, my demands are as follows :-
1) Mumbai Bank's audit for last five years shall be got done through Reserve Bank of India.
2) The audit for last 5 years shall be got done through the independent auditors of the Co-operation Department.
3) An Administrator shall be appointed immediately on the Bank and responsibility shall be fixed on the guilty directors, as per Section 88 of Co-operative Act, 1960.
4) Some offences have been lodged with the Economic Offences Wing of the police. But, thorough investigation is not made into the same and it is avoided to register many such offences. Therefore, action shall be taken against the concerned guilty directors and officers immediately.
You are hereby requested to take such action to enable the lakhs of depositors to retain their faith."
24] We do not propose to go into the question as to whether the allegations made by the then Hon'ble Leader of Opposition, who is now the Hon'ble Minister are correct or not. However, the perusal of the observations made by the then Hon'ble Leader of Opposition would clearly show that, a serious doubt has been casted on the 19/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 functioning of Respondent No.7. Not only that but serious illegalities and irregularities have been pointed out therein. 25] Mr. Godbole, learned Counsel appearing on behalf of Respondent No.7 submitted that, all statements therein are totally incorrect and Respondent No.7 is in pink of health. At the cost of repetition, we may state that we are not concerned with the decision but the decision making process of the authority. 26] The same person who has addressed the aforesaid communication in the year 2013 has taken a policy decision for issuance of the impugned GR. No doubt that, the Government has freedom to change its policy. However, while changing the policy, atleast why a departure from the earlier policy which was found necessary in order to secure the interest of the employees on one hand and the public exchequer on the other hand, was found necessary, should have been reflected. Atleast some reason, as to why the same person who while occupying the office of the Hon'ble Leader of Opposition found serious illegalities and irregularities in the functioning of Respondent No.7, has now found that entrustment of the work to Respondent No.7 is in the better interest 20/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 of the employees and the public exchequer should have been given. None of that has been done.
27] As already stated hereinabove, the learned Counsel for the Petitioners have not pressed the case on malice in fact. However, we find that the present case would squarely come within the ambit of malice in law. A reference in this respect would be made to the judgment of the Apex Court in the case of Kalabharati Advertising vs. Hemant Vimalnath Narichania and Others 6. Paras 25 and 26 of the said Judgment read thus :-
"25. The State is under obligation to act fairly without ill will or malice in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts."
"26. Passing an order for an unauthorised
6 (2010) 9 SCC 437 21/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of India v. V. Ramakrishnan [(2005) 8 SCC 394)".
It could thus be seen that the case would come under "legal malice"
or "malice in law" when something has been done without lawful excuse. "Legal malice" would mean an act wrongfully or willfully done without reasonable or probable case. For bringing the case within the ambit of "legal malice", it is not necessary that the act has to be done with ill feeling and spite. As held by Their Lordships, when malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. In the light of these legal principles, we will have to examine the facts in the present case.
28] When the same person while holding the office as a Leader of Opposition finds Respondent No.7 to have indulged into serious illegalities and irregularities, then atleast what was expected of the same person while acting as a Hon'ble Minister of School Education, was to point out as to how the same Respondent No.7 which was full of illegalities and irregularities in 2013, is now 22/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 competent to protect the interest of the State employees and the public exchequer.
29] There is an another angle. In the present matter, 2005 GR is issued by Finance Department. 2011 GR issued by School Education Department, adopts 2005 and 2008 GRs issued by Finance Department and makes them applicable insofar as payment of salaries to the said employees in Greater Mumbai area is concerned. However, the impugned GR is issued by the School Education Department. No doubt that learned Advocate General has relied on the noting in the file by Finance Department. It states that, School Education Department would be free to take its own decision. However, in this respect it would be relevant to refer to the debate in the Legislative Council with respect to the said issue.
The true translation thereof reads thus :-
"Regarding making payment of salary of teaching and non teaching staff through District Co-operative Banks instead of Nationalised Banks:-
(66)*35015 Shri. Kapil Patil : Whether Hon'ble Finance Minister will clarify below mentioned things ? :-23/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 :::
WPL-2039-17&WP-175-18 (1) Is it true that the Finance Department has taken a decision to make the payment of salary of government/semi-government employees/teaching staff of aided school, colleges, through District Co-operative Banks instead of Nationalized Bank ?
(2) If so, then whether there are orders from the Finance Department to open the account of employees (non-
teaching) and teaching staff compulsorily in district or co- operative bank, when there has been a demand from them to pay their salary through nationalized bank ? (3) If so, then what is a policy of Finance Department about diverting the salary of all the government employees of Nagpur and Mumbai Division, to the District Banks which are in crisis financially ?
Shri. Sudhir Mungantiwar : (1) No. (2) There are no orders.
(3) Question does not arise."
30] It could thus be seen that the Hon'ble Minister of Finance Department has stated that, Finance Department has taken a decision to make payment of employees of the aided Schools through District Central Co-operative Banks instead of Nationalized Banks. The Hon'ble Minister has further stated that, Finance 24/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 Department has not issued any directions for compulsorily opening of account of the said employees in the District or other Co- operative Banks, though such employees have demanded to make payment of salary from the Nationalized Banks. He has further stated that there is no question of State Government having a policy of making payment of salaries of State Government employees through District Central Co-operative Banks, which are in financial difficulties. The State Government is expected to function as one Government. One Department of the State Government is not expected to take a stand totally contrary to the other Department of the State Government. From what has been stated hereinabove, there is no consistency in the stand taken by Finance Department on one hand and the School Education Department on the other. We find that on this ground also, the decision making process in passing the impugned Resolution would stand vitiated. 31] The argument that 2005 GR which is of the Finance Department is applicable only to the employees, who are directly receiving the salary from the State Government and not to the employees like the present employees, who are not directly 25/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 receiving the salary from the State Government also in our view is untenable. We ask a question to ourselves, as to whether it is the case of State Government that, only when salaries are required to be paid directly by it to the employees of the State Government, they are required to be secured and the interest of public exchequer safeguarded. Is it the case of the State Government that, when salaries are being paid by the same public exchequer, though not directly, it is not necessary to secure the salaries and the interest of the public exchequer? We are of the considered view that, the argument sought to be advanced by the learned Advocate General in this regard is without any substance.
32] We may take judicial note of the fact that, in the present assignment itself we have noticed that, in view of the serious malpractice in some of the District Central Cooperative Banks, the banks were required to be liquidated. We have recently come across a matter, wherein on account of liquidation of one of the District Central Cooperative Bank, the employees in the Sangli Miraj Municipal Corporation could not be paid salary. Not only this but even pension could not be paid to the retired employees. We may 26/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 clarify that we do not wish to mention anything about the functioning of Respondent No.7 herein. However, what we are concerned with is that, the State has abruptly changed the policy, without there being any rationale behind the sudden change. The present matter is required to be looked into in the backdrop of the observations of the present Hon'ble Minister of School Education, with regard to functioning of Respondent No.7 when he was the Leader of Opposition in 2013.
33] The scope of judicial review of administrative matters has been succinctly summarised by their Lordship of Apex Court in the case of Tata Cellular V/s. Union of India, which reads thus :-
"77. The duty of the court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers ?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or, 27/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :
(i) Illegality : This means the decision-
maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". It could thus be seen that, the Court would be permitted to interfere with the decision making process in administrative matters when it finds that such a decision making process suffers from illegality, irrationality or procedural impropriety. If this Court finds that the 28/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 decision maker has not understood correctly the law which regulates the decision making power, the Court can very well interfere with the same. The Court can also interfere if the decision making process is found to be vitiated by irrationality and the case is of "Wednesbury unreasonableness". The Court would also be empowered to interfere, if it finds that the procedural impropriety has erupted in the decision making process. We find that, in the present case, the decision making process is vitiated on various grounds. The Hon'ble Minister has taken a decision of awarding work to Respondent No.7, which Respondent he himself finds in 2013 to have indulged in serious illegalities and irregularities and demanded probe into it. We have no hesitation to say that applying the principle of "Wednesbury unreasonableness", such an act would come within the ambit of "irrationality". It is further to be noted that, though the system which was working in the interest of employees and public exchequer smoothly for years together, has been abruptly changed. No rationale in doing so has been provided. On the contrary, the Government Resolution itself shows that this has been done at the request of Respondent No.7. Though, learned Advocate General has made a statement that the 29/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 Government is not insisting on the communication dated 19/07/2017, it would show that the State Government has attempted to compel the said employees to open an account in Respondent No. 7 - Bank. When 2005 GR, which is incorporated in 2011 GR, gives freedom to the employees to choose a Bank from the list of 14 Banks annexed with 2005 GR, departure therefrom without there being any reasonable cause and that too on the insistence of Respondent No.7, in our view, would vitiate the decision making process of the State Government. 34] In that view of the matter, we find that though the reliance placed by Shri. Godbole on the various judgments of the Apex Court is well placed, the same would not be applicable to be facts of the present case. As already discussed hereinabove, we find that there is no rationale in the decision taken by the State Government of abruptly changing the system, which was working smoothly in the interest of the employees as well as the public exchequer. Another reason which we find would entitle us for such interference in the impugned decision, is as to how a same person who while holding an office of the Hon'ble Leader of Opposition of 30/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 the Maharashtra Legislative Council in 2013 finds the functioning of Respondent No.7 to be so precarious and full of illegalities and/or irregularities, while occupying the office of the Hon'ble Minister of School Education finds the same Respondent No.7 to be fit for substituting the system, which has been functioning smoothly for number of years and that too in the interest of employees and the public exchequer.
35] In the result, we find that the impugned GR is not sustainable in law. The petition deserves to be allowed. 36] Rule is made absolute in terms of prayer clause (b) in W.P. No.2039/2017 and prayer clause (a) in W.P.No.175/2018. 37] At this stage, Mr. Godbole, learned Counsel appearing on behalf of Respondent No.7 and Mr. Dighe, learned Counsel appearing on behalf of Respondent Nos.1 to 6 request for stay of the judgment.
38] The learned Advocate General in the morning session himself submitted that, there was total freedom to the employees 31/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 ::: WPL-2039-17&WP-175-18 and the schools to open their accounts in whichever bank they desired. Learned Advocate General fairly submitted that, though the communication dated 19.07.2017 addressed by Respondent No.5 compels the headmaster of the schools and the teachers to open the account in Respondent No.7 bank, the same is not being implemented. He further stated that even as of now the salaries are being paid to the teachers in their account in the bank of their choice. We find that, even after the GR is quashed and set aside, no change is required to be done in that system. The only change would be the "pool account", which is being operated by Respondent No.7, would be operated by the Nationalized Bank. Hence the prayer for stay is rejected.
39] At this stage, Mr. Godbole further states that, Respondent No.7 has already paid salaries for the month of January on 01.02.2018. Needless to state that, Respondent No.7 would be entitled to reimbursement of the amount paid towards the said salaries from the State Government.
(B. P. COLABAWALLA, J.) (B. R. GAVAI, J.) 32/32 ::: Uploaded on - 16/02/2018 ::: Downloaded on - 17/02/2018 00:43:14 :::