Case: SHRI MARUTI TUKARAM BAGAWE Vs. THE STATE OF MAHARASHTRA

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 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 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 (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 Honble High Court, Mumbai. Honble High Court, Mumbai had given Ad-interim stay vide order dated 13.02.2007 which is still in operation. If Honble 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 : 28.10.2009Place : GondiaSd/- (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 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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. 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 years continues service is still admissible, which could be very well be availed by them11. We, thus, hold that Tribunal did not commit any error in upholding the Government Resolution dated 11.09.200814. 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 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 Clerks15. 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 appellants that they are entitled for pay-scale of Deputy Accountant despite withdrawal of Resolution dated 26.10.2004 cannot be acceptedAs 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 passed17. 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 Resolution19. 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 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 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.