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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.1759 OF     2020  (arising out of SLP (C) No. 25048 of 2018)

SHRI MARUTI TUKARAM  BAGAWE & ORS. ...APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA  AND ANR.       ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

1.  This  appeal  has  been  filed  against  the

judgment of High Court of Bombay dated 18.06.2018

by  which  writ  petition  filed  by  the  appellant

challenging  the  order  dated  04.12.2014  of

Maharashtra  Administrative  Tribunal  has  been

partly allowed.  

2.  Brief facts of the case to be noticed for

deciding this appeal are: -

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2.1.The  Government  of  Maharashtra,  Finance

Department  by  resolution  dated  01.02.1965

decided  to  constitute  Maharashtra  Finance

and  Accounts  Service  under  the

administrative  control  of  the  Finance

Department. The service included different

categories of posts including Class-3 posts.

In the District Treasury, there were posts

of Senior Clerk as well as Junior Clerk.  By

resolution  dated  28.12.1970  Procedure  for

recruitment to the post of Senior Clerk was

provided for, which also contained one of

the  modes  of  appointment  on  the  post  of

Senior Clerk by promotion of clerks, borne

on the establishment of District Treasury.

2.2. By Government resolution dated 08.06.1995,

it was provided that employees holding posts

in group C and D (previously Class-III and

Class-IV) shall be given the pay scale of

next  promotional  post  in  the  promotional

hierarchy  after  completing  12  years  of

continuous service.  

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2.3.By Government resolution dated 20.07.2001,

the  State  Government  decided  to  implement

under Service Career Development Scheme to

State Government Employees.  By a subsequent

resolution  dated  26.10.2004  issued  by  the

Government  of  Maharashtra,  Sanction  was

accorded to grant the pay scale of Deputy

Accountant instead of Senior Clerk to the

Treasury/Sub-Treasury  Clerks  under  the

control  of  Directorate  of  Accounts  and

Treasuries,  who  had  passed  Maharashtra

Account Clerk examination and completed 12

years of continuous service.  

2.4.In  pursuance  of  the  aforesaid  resolution,

the respondents herein were granted the pay

scale  of  Deputy  Accountant  from  different

date  beginning  from  01.10.1994.  All  the

respondents herein were working as a Junior

Clerk in District Treasury at District level

who  received  benefits  under  Government

resolution dated 26.10.2004.

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2.5.An Original Application No. 936 of 2005 was

filed  in  the  Maharashtra  State

Administrative  Tribunal,  Shri  Vijay  A.

Dangat  &  Others  Versus  The  State  of

Maharashtra and others. The applicants were

working as Senior Clerks/Deputy Accountant,

who were directly appointed on the post of

Senior Clerk through Staff Selection Board

and on passing the prescribed Departmental

Accountant examination, they were confirmed

as Senior Clerk. The case of Senior Clerk

was that the scale of pay now granted to

Junior  Clerk  for  the  post  of  Deputy

Accountant is not the promotional post for

Junior Clerk but is the promotional post for

the Senior Clerk as per Rule. They claimed

that they should also be granted the higher

pay so that the anomaly be set right.  

2.6.The  Tribunal  vide  its  judgment  and  order

dated 17.11.2006 struck down the Government

resolution  dated  26.10.2004.  Against  the

judgment of the Tribunal dated 17.11.2006,

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the writ petition No.946 of 2007 was filed

in the High Court. The High Court passed an

interim  order  for  staying  the  order  of

Tribunal.  During  the  pendency  of  writ

petition, the Government of Maharashtra vide

its resolution dated 11.09.2008 withdrew the

resolution dated 26.10.2004. The Government

thereafter issued a letter dated 06.10.2009

in  continuation  of  resolution  dated

11.09.2008  stating  that  there  is  no

objection to give benefit in connection with

service to all related employees and retired

employees  which  benefit  shall  be  given

subject to final judgment of the High Court

by  taking  undertaking  from  the  employees

that in event the High Court approved the

resolution dated 11.09.2008, the employees

shall  have  no  objection  in  recovery  of

financial benefits payable to the employees

from  his  retirement  salary.  After  the

aforesaid  order  dated  06.10.2009,  an

undertaking  was  taken  from  the  respondent

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and they were continued the benefit which

was  received  by  them  under  Government

resolution dated 06.10.2014.  

2.7.The  respondents  herein  thereafter  filed

Original  Application  in  Maharashtra

Administrative  Tribunal  questioning  the

Government Resolution dated 11.09.2008. W.P.

No. 946 of 2007 came for consideration on

05.12.2009. The High Court disposed of the

writ petition directing that if any benefits

are  already  given  to  the  petitioners

(respondents  herein),  pursuant  to  the

decision  contained  in  letter  dated

06.10.2009, they shall not be withdrawn till

the  Original  Application  filed  by  the

petitioners (respondents herein) is decided

by the Maharashtra Administrative Tribunal.

2.8. The Original Application No.161 of 2009 and

other  connected  Original  Applications

questioning  the  subsequent  Government

resolution  dated  11.09.2008  came  to  be

dismissed  by  Maharashtra  Administrative

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Tribunal  by  order  dated  04.12.2014.

Aggrieved  by  the  order  dated  04.12.2014,

writ petition No.1765 of 2015 was filed by

respondent  in  the  High  Court.  The  writ

petition came to be decided by the judgment

dated  18.06.2018.  The  writ  petition  was

partly  allowed  by  the  High  Court  in

following manner: -

“16.  For  all  the  aforesaid reasons,  we  partly  allow  this petition and dispose it of with the following order:

(A) The  impugned  judgment and order to the extent it upholds the GR dated 11th September  2008  is upheld:

(B) However,  the  direction in  the  impugned judgment and order for recovery of the excess payments  is  modified. The  Respondents  shall accordingly  be  at liberty  to  recover excess payments made to the  petitioners  after 11th September 2008, by way  of  monthly instalments  but  the respondents  are restrained  from effecting  recovery  or

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benefits secured by the petitioners  prior  to 11th September 2008;

(C) Rule  is  made  partly absolute  in  the aforesaid terms.  

(D) There shall be no order as to costs.

(E) All concerned to act on basis  of  authenticated copy 666666666 of this order.”

2.9.This appeal has been filed challenging the

judgment of the High Court.

3. Shri Sudhanshu S. Choudhari, learned counsel

for  the  appellant  submits  that  the  appellants

were correctly granted the benefits of pay scale

of  Deputy  Accountant  under  Resolution  dated

24.10.2004 which ought not to have been withdrawn

by  subsequent  Government  Resolution  dated

11.09.2008.  Referring  to  the  Government

Resolution  dated  01.02.1965  and  08.06.1995,

learned counsel contends that the appellants were

entitled  for  scale  of  Deputy  Accountant  after

completion of 12 years of continuous service. He

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submits that even if Resolution dated 24.10.2004

is withdrawn by the State Government, their right

to receive the salary of Deputy Accountant after

completion  of  12  years  of  service  cannot  be

affected  which  flows  from  Resolution  dated

08.06.1995.  

4. It  is  submitted  that  in  any  view  of  the

above, no recovery can be made form the appellant

for  any  period  earlier  to  04.12.2014  when  the

Tribunal rejected the Original Application filed

by the appellant. It is submitted that under the

judgment of the High Court dated 05.12.2009, the

benefits which were given to the appellants under

Resolution  dated  24.10.2004  were  not  to  be

withdrawn  till  the  Original  Application  was

decided  by  the  Tribunal.  The  effect  of  the

judgment would be that no recovery can be made

for any amount received by the appellant for the

period prior to 04.12.2014.

5. Shri Kunal Cheema, learned counsel appearing

for the respondent, refuting the submissions of

the appellant contends that the benefits which

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were  granted  to  appellants  in  pursuance  of

Government  Resolution  dated  24.10.2004  having

been withdrawn by the Government Resolution dated

11.09.2008. The appellants were not entitled to

any  benefits  and  benefits  received  thereafter

were on the basis of undertaking given by the

appellant that they shall refund the amount in

case the Government Resolution dated 11.09.2008

is approved by the High Court.

6. It  is  submitted  that  any  benefit  taken

subject to an express undertaking is entitled to

be  recovered  as  per  undertaking  given  by  the

appellant. It is submitted that Resolution dated

08.06.1995 did not provide an avenue for Junior

Clerk to get pay scale of Deputy Accountant after

completion of 12 years of continuous service. The

appellants having given undertaking are bound by

the undertaking and cannot object to the recovery

of  the  amount  which  was  received  by  them

consequent to undertaking.

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7. It is submitted that High Court had already

protected the appellants by directing recovery of

excess amount only w.e.f. 11.09.2008. The legal

benefits which some of the appellants received

from 24.10.1994 have been allowed to be retained

by  them  till  11.09.2008.  Thus,  substantial

justice has been done and the judgment of the

High Court need no interference by this Court.  

8. Learned counsel for the parties have placed

reliance on several judgments of this Court which

shall be referred to and considered hereinafter.  

9. From  the  submissions  made  by  the  learned

counsel for the parties and material on record,

following points arise for consideration in this

appeal:-

(i) Whether  Maharashtra  Administrative

Tribunal  erred  in  upholding  the

Government Resolution dated 11.09.2008

by which earlier Government Resolution

dated 24.10.2004 was withdrawn?

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(ii) Whether  despite  withdrawal  of  the

Government  Resolution  dated

24.10.2004,  the  appellants  were

entitled  to  the  pay-scale  of  Deputy

Accountant  by  virtue  of  Government

Resolution dated 08.06.1995?

(iii) Whether  the  appellants  are  right  in

their submission that amounts received

by  them  till  04.12.2014,  i.e.,  the

date  when  Maharashtra  Administrative

Tribunal  rejected  the  claim  of  the

appellant  could  not  have  been

recovered and the recoveries, if any,

can be made for the period subsequent

thereto?

Point No.1

10. The  Resolution  of  the  Government  dated

24.10.2004  providing  for  scale  of  Deputy

Accountant to Junior Clerks, who have passed the

prescribed departmental examination was withdrawn

by  subsequent  Government  Resolution  dated

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11.09.2008.  The Tribunal is right in its view

that the Government Resolution dated 26.10.2004

and  11.09.2008  were  issued  by  the  State

Government in exercise of its executive powers.

Both the above Resolutions do not seek to alter

the service conditions of the appellants provided

by  Government  Resolution  dated  08.06.1995.

Government  Resolution  dated  26.10.2004  extended

certain  additional  benefits  to  Finance

Department. The State Government letter realise

that  such  an  action  will  create  an  anomalous

situation  and  which  actually  created  anomalous

situation.  Junior Clerks, who were lower to the

Senior  Clerks  were  able  to  march  in  the  next

higher scale of the Senior Clerks without being

coming  in  the  scale  of  Senior  Clerks  and  had

started  drawing  salary  higher  to  the  various

Senior  Clerks  due  to  which  Senior  Clerks  had

filed  Original  Application  in  the  Maharashtra

Administrative  Tribunal,  which  was  allowed

setting aside the order dated 26.10.2004, which

was  subsequently  set  aside  by  the  High  Court.

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The  State  Government  reconsidered  its  earlier

decision and a Government Resolution was passed

on 11.10.2008 recalling its earlier decision. The

service  condition  of  the  employees  working  in

various departments is in the domain of the State

Government.  The recruitment and promotion of the

Junior  Clerks,  Senior  Clerks,  in  District

Treasury  were  governed  by  the  executive

instructions, which can be modified, altered in

the same manner in which it was provided by the

State Government.  The Maharashtra Administrative

Tribunal did not commit any error in upholding

the Government Resolution dated 11.09.2008.  The

benefit, which was available to Junior Clerks of

next higher grade after completion of 12 year’s

continues  service  is  still  admissible,  which

could be very well be availed by them.   

11. We, thus, hold that Tribunal did not commit

any error in upholding the Government Resolution

dated 11.09.2008.

Point No.2

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12. The submission, which has been pressed by the

learned counsel for the appellant is that despite

withdrawal  of  the  Resolution  dated  26.10.2004,

the appellants were still entitled to receive the

salary  of  Deputy  Accountant  by  virtue  of

Government  Resolution  dated  08.06.1995.   The

Government Resolution dated 08.06.1995 has been

brought on record as Annexure P-3.  The scheme

for promotion as contained in paragraph 2 is as

follows:-

“2. The detailed scheme for promotion is as under:

Employees holding posts in Group “C & D” (previously Class-III & Class IV) shall be given the pay scale of the next  promotional  post  in  the promotional hierarchy after completing 12 years of continuous service.  For those  employees,  where  there  is  not post for promotion in the promotional hierarchy  higher  pay  scale  shall  be given as per annexure appended to this resolution.  The other main features and  procedure  for  implementation  of this scheme are as under:

XXXXXXXXXXXXXXXX”

13. The procedure for recruitment to the post of

Senior Clerks is provided by Resolution of the

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Finance Department dated 28.12.1970.  Paragraph 1

of the Resolution is as follows:-

“RECRUITMENT  RULES  FOR  THE  POST  OF SENIOR CLERKS IN DISTRICT TREASURIES

1.Appointment  to  the  post  of  Senior Clerk shall be made either:

(a) by promotion of clerks borne on the  Establishment  of  the District Treasury who has passed or  exempted  from  passing  the Post  Recruitment  (Ministerial) Examination  in  order  of  his Seniority in the District list, or

(b) by nomination of candidates who (i)  unless  already  in  the service  of  Government  of Maharashtra are not more than 25 years  of  age  (ii)  possess  a Degree in Art, Science, Commerce or  Law  of  any  recognized University.”

14. The post of Junior Clerks is borne in the

District Cadre and they are also called Treasury

Clerks.  The post of Senior Clerks is filled up

by promotion and nomination in the ratio of 3:1.

Junior Clerks, who have passed the examination

are  eligible  for  promotion.  The  Government

Resolution dated 08.06.1995 provides for grant of

pay-scale  of  the  next  promotional  post  in  the

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promotional  hierarchy  after  completion  of  12

years  of  continuous  service.   Vide  Resolution

dated  08.06.1995,  Junior  Clerks  were  only

entitled  for  the  next  promotional  post,  i.e.,

promotional  post  of  Senior  Clerks  and  under

Resolution  dated  08.06.1995,  they  were  not

entitled to receive a higher promotional post,

i.e., post of Deputy Accountants, which is filled

up by promotion of Senior Clerks.  

15. We, thus, do not find any substance in the

submission of the appellant that appellants were

entitled  for  grant  of  pay-scale  of  Deputy

Accountant despite withdrawal of the Resolution

dated 26.10.2004.  The appellant themselves have

filed  Annexure  P-2  as  the  statement  showing

service particulars of appellants, which indicate

that  the  pay-scale  of  Deputy  Accountant  was

granted  to  the  appellants  on  the  basis  of

Government  Resolution  dated  26.10.2004.   The

appellants,  thus,  were  not  granted  scale  of

Deputy Accountant by virtue of Resolution dated

08.06.1995,  hence  the  submission  of  the

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appellants that they are entitled for pay-scale

of  Deputy  Accountant  despite  withdrawal  of

Resolution dated 26.10.2004 cannot be accepted.  

Point No.3

16. The High Court by the impugned judgment by

directions  issued  in  paragraph  16(B)  permitted

the respondents to recover excess payments made

to  the  petitioners  after  11.09.2008  by  way  of

monthly  instalments  and  the  respondents  were

restrained  from  effecting  recovery  or  benefits

secured by the petitioners prior to 11.09.2008.

The  appellants’  submission  is  that  they  were

entitled  to  retain  the  higher  pay-scale  and

excess payments made to them till the Maharashtra

Administrative  Tribunal  rejected  their

application  on  04.12.2014  whereas  the  learned

counsel  for  the  respondents  submits  that  the

appellants being bound by their undertaking to

refund  the  excess  amount,  which  were  given  to

them in pursuance of the Government Resolution

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dated  06.10.2009,  they  cannot  be  allowed  to

retain  excess  amount  received  by  them  after

having given undertaking to refund the amount. As

noted above, the Resolution dated 26.10.2004 was

set  aside  by  the  Maharashtra  Administrative

Tribunal in O.A. No.936 of 2005 by judgment dated

17.11.2006.  A Writ Petition No.946 of 2007 was

filed by the appellants challenging the order of

the  Tribunal.   During  pendency  of  the  Writ

Petition  No.946  of  2007,  the  Government

Resolution  dated  11.09.2008  was  passed.   The

order of the Tribunal dated 17.11.2006 was stayed

by  the  High  court  by  interim  order  dated

13.02.2007,  hence  when  the  Resolution  dated

11.09.2008  was  passed,  a  Government  Resolution

dated 06.10.2009 provided for following:-

“For the decision of the Tribunal on dated 17.11.2006, Hon. High Court has stayed interim at the hearing on the first dated 13.02.2007 and as the said stay is permanent, the implementation of  Government  Resolution  of  Finance Department  on  dated  11.09.2008, subject of final judgment of Hon. High Court, there is no objection to give benefit in connection with services to all  related  employees  and  retired employees.  However,  showing  to  all

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related  employees  to  have  given  the benefits subject to final judgment of Hon. High Court, “if Hon. High Court is agreed the Government Resolution of Finance  Department  on  dated 11.09.2008, pursuant to this, I have no  objection  to  recover  arising complete  amount  from  financial benefits  payable  to  me  or  from  my retirement  salary.   Such  undertaking shall  be  taken  from  all  related employees also retired employees.

Sd/- Joint Director (Administration)

Accounts & Treasuries, Maharashtra, Mumbai.  

17. The  above  Resolution  contemplated  that

benefit  in  connection  with  services  to  all

related employees and retired employees be given

subject to final judgment of the High Court and

if the High Court is agreed with the Government

Resolution  dated  11.09.2008,  the  employee

undertakes to return the benefits.  In pursuance

of  the  above  Resolution  dated  06.10.2009,

appellants and similarly situated employees had

submitted  their  undertakings.   The  undertaking

given by the employees, thus, was subsequent to

the above Resolution.  One of the undertakings

given by one of the appellants – J.C. Jaulkar

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(appellant  No.3)  has  been  placed  before  us  by

learned counsel for the respondents, which is to

the following effect:-

“UNDERTAKING I  solemnly  affirm  that  benefits  to awarded  under  Career  Assured Progression  Scheme  vide  G.R.  dated 26.10.2004  are  withdrawn  vide  G.R. dated  11.09.2008.   Therefore,  Shri M.T.  Bagwe  and  Others  have  filed appeal No.946 of 2007 in Hon’ble High Court,  Mumbai.   Hon’ble  High  Court, Mumbai  had  given  “Ad-interim”  stay vide order dated 13.02.2007 which is still in operation.  If Hon’ble High Court  upheld  the  G.R.  dated 11.09.2008, I shall refund the entire amount payable to the Government from monetary  benefits  payable  to  me  or through my salary.  

Date : 28.10.2009 Place : Gondia

Sd/- (J.C.Jaulkar) Senior Clerk

District Treasury Office, Gondia”

18. The Writ Petition No. 946 of 2007 was decided

by  the  High  Court  by  its  judgment  dated

05.12.2009.  Paragraph 3 of the judgment of the

High Court is as follows:-

“3. Now  taking  overall  view  of  the matter,  it  is  clear  that  as  the

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Government Resolution dated 26.10.2004 itself  has  been  withdrawn  by  the Government,  the  Original  application no.936  of  2005  filed  by  the petitioners itself become infructuous. Consequently, the order passed by the Maharashtra Administrative Tribunal in that  Original  application  is  set aside.  However,  the  Maharashtra Administrative  Tribunal  shall  be  at liberty to consider the fresh Original Application  filed  by  the  petitioners in accordance with law and make orders thereon  in  accordance  with  law. However,  considering  that  certain benefits  have  been  extended  to  the petitioners  because  of  the  decision contained  in  letter  dated  6.10.2009, it  is  directed  if  any  benefits  are already   given  to  the  petitioners pursuant to the decision contained in letter dated 6.10.2009, they shall not be  withdrawn  till  the  Original application  filed  by  the  petitioners is  decided  by  the  Maharashtra Administrative Tribunal. The petition is disposed of. No order as to costs.

(D.K. DESHMUKH, J.) (K.K. TATED, J.)”

19. The final order passed by the High Court in

the writ petition No.946 of 2007 provided that

benefit, which have been given to the petitioner

shall  not  be  withdrawn  till  the  original

application filed by the petitioner is decided by

the  Maharashtra  Administrative  Tribunal.   The

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High Court in its judgment dated 05.12.2009 did

not pronounce on the validity of the Government

Resolution  dated  11.09.2008.  The  undertaking

which  was  given  by  the  appellants  and  other

employees  was  to  the  effect  that  if  the  High

Court  upheld  the  Government  Resolution  dated

11.09.2008,  they  shall  refund  the  amount

received.  The High Court vide its judgment dated

05.12.2009 in fact permitted the appellants to

retain the benefits till the original application

filed  by  the  appellant  is  decided.   Original

Application filed by the appellant was ultimately

decided on 04.12.2014 by which it was rejected.

By  order  dated  04.12.2014  the  Maharashtra

Administrative  Tribunal  upheld  the  Resolution

dated  11.09.2008,   thus,  the  correctness  of

Resolution dated 11.09.2008 was upheld only on

04.12.2014.   Thus,  the  benefits,  which  were

received by the appellants till 04.12.2014 were

under  the  order  of  the  High  Court  dated

05.12.2009.   We,  thus,  find  substance  in  the

submission  of  the  learned  counsel  for  the

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appellant that the benefit received by them till

04.12.2014 be not withdrawn  when it pronounced

that the Resolution dated 11.09.2008 was valid,

the benefit received by the appellants thereafter

can only be withdrawn.  We, thus, are of the view

that in the facts of the present case ends of

justice be served in modifying the directions of

the High Court in paragraph 16(B) only to the

extent that in place of date 11.09.2008, the date

04.12.2014 be substituted.  The direction No.(B)

as contained in paragraph 16 of the judgment of

the  High  Court,  thus,  stand  modified  to  the

following extent:-

(B) However,  the  direction  in  the impugned  judgment  and  order  for recovery of the excess payments is modified.  The  Respondents  shall accordingly  be  at  liberty  to recover  excess  payments  made  to the  petitioners  after  04th

December, 2014, by way of monthly instalments  but  the  respondents are  restrained  from  effecting recovery  or  benefits  secured  by the  petitioners  prior  to  04th

December, 2014.

20. The rest of the judgment of the High Court is

upheld.  We, thus, partly allow the appeal of the

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appellants by modifying the direction (B) to the

above  effect.   Parties  shall  bear  their  own

costs.  

........................J.                            ( ASHOK BHUSHAN )

........................J.                       ( MOHAN M. SHANTANAGOUDAR ) New Delhi, February 27, 2020.