1 aswp-3570-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3570 OF 2011 The State of Maharashtra and ors. .. Petitioners Vs. Yunus I. Shaikh .. Respondent Mr. A.B. Vagyani, AGP petitioners. Ms. S.P. Manchekar for respondent. CORAM: B. H. MARLAPALLE & SMT.NISHITA MHATRE, JJ. NOVEMBER 15, 2011. P.C. 1. This petition has been filed by the State of Maharashtra challenging the order of the Maharashtra Administrative Tribunal passed on 16/12/2010 in O.A. No. 699 of 2010. The Tribunal was pleased to quash the impugned orders dated 17/12/2008 and 26/8/2009. The Tribunal further directed that the Original Applicant (present respondent) shall be entitled to the pay scale of Rs.5500-175-9000 from the date of joining of the Sales Tax Department and that the said order shall be applicable to all other similarly placed employees. 2. The respondent was appointed on compassionate ground as a Clerk-cum-Typist on 15/2/1993 with the Government Dairy at Worli. The 2 aswp-3570-11 said establishment is part of the Dairy Development Department of the Government of Maharashtra. On completion of 12 y ears of service, he was granted next pay scale of Rs.4000-6000 under the Assured Career Progression Scheme with effect from 15/2/2005 and as per the order dated 13/5/2005. However, on 24/7/2003 itself the Government of Maharashtra had decided to absorb the surplus – Class III employees working under the Dairy Development Department to the office of the Commissioner of the Sales Tax and 60 such Clerk-cum-Typists came to be re-absorbed. The respondent was one of the said 60 Clerk-cum-Typists and he reported to the Commissioner of Sales Tax on 15/6/2005. On 31/7/2006, the Deputy Commissioner of Sales Tax (Admn.), Borivli, Mumbai fixed the respondent’s salary in the pay scale of Rs.5500-175-9000. On 25/4/2007 the respondent was transferred at his request to Pune. On 17/12/2008 his salary was refixed in the pay scale of Rs.4000-100-6000 without issuing any show cause notice and on 26/8/2009 recovery of Rs.1,28,875/- was ordered and, therefore, the respondent approached the Tribunal. 3. Admittedly, the respondent had not passed the departmental examination after he joined the office of the Commissioner of the Sales Tax and, therefore, he would not be entitled for the benefit of the Assured Career Progression Scheme under the new establishment. Passing of the departmental examination is a condition precedent and, therefore, as of now he is not eligible for being placed in the pay scale of Rs.5500-9000. At the same time, the judgment of the Supreme Court in the case of Syed Abdul Quadir and ors. vs. State of Bihar and ors. [(2009) 3 SCC 475] supports the order of the Tribunal to the extent it has quashed and set aside 3 aswp-3570-11 the order dated 26/8/2009 and there was no reason to quash and set aside the order dated 17/12/2008 by which the respondent was informed that he was not entitled for the pay scale of Rs.5500-9000. The decision of the three Judge Bench in the case of Syed Abdul Quadir (Supra) squarely applies to the respondent’s case. 4. Hence, this petition succeeds partly. The impugned order passed by the Tribunal to the extent it quashed the order dated 17/12/2008 and directing to give the pay scale of Rs.5500-9000 to the respondent (original applicant) is hereby quashed and set aside. However, it is made clear that the respondent shall be entitled for the pay scale of Rs.4000-6000 from December, 2008. We also further clarify that the respondent shall be entitled for the pay scale of Rs.5500-9000 (old scale) only after he passes the departmental examination and is granted the Assured Career Progression Scheme benefit in future. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)