MARUTI TUKARAM BAGAWE AND ORS. versus THE STATE OF MAHARASHTRA AND ANR. on 27 February 2020

SUPREME COURT REPORTS

[2020] 3 S.C.R.

ASHRI MARUTI TUKARAM BAGAWE AND ORS.

v.

THE STATE OF MAHARASHTRA AND ANR.

(Civil Appeal No. 1759 of 2020)

B

FEBRUARY 27, 2020

[ASHOK BHUSHAN AND MOHANM. SHANTANAGOUDAR, JJ.]

Service Law:

CService Career Development Scheme – Government Resolutiondated 8.6.1995 provided Group C and D employees pay-scale ofnext promotional post after completion of 12 years of continuousservice – By Resolution dated 26.10.2004 accorded sanction to grantpay-scale of ‘Deputy Accountant’ to the ‘Junior Clerks’ who hadpassed Account Clerk examination and completed 12 years ofDcontinuous Service – Senior clerks moved Administrative Tribunalstating that the post of ‘Deputy Accountant’ being promotional postfor ‘Senior Clerk’ and not ‘Junior Clerk’, upgradation of pay-scaleof ‘Junior Clerk’ resulted in anamoly to ‘Senior Clerks’ – Tribunalstruck down the Resolution dated 26.10.2004 – Writ Petition wasEfiled by ‘Junior Clerks’ – During pendency of the writ, Governmentby Resolution dated 11.9.2009 withdrew the Resolution dated26.10.2004 – By letter dated 6.10.2009 Government stated that thebenefit under Resolution dated 26.10.2004 would continue subjectto undertaking by the beneficiaries that if High Court approved theResolution dated 11.9.2009, the government would recover theFbenefits – Accordingly undertaking taken from the beneficiaries –In the meantime ‘Junior Clerks’ challenged the Resolution dated11.9.2009 – Writ Petition of the Senior Clerks was disposed ofdirecting that benefit given pursuant to letter dated 6.10.2009 notto be withdrawn till the Administrative Tribunal decides the challengeGto Resolution dated 11.9.2009 – Administrative Tribunal by orderdated 4.12.2014 upheld the Resolution dated 11.9.2009 – In writpetition against the order of Tribunal, High Court upheld theResolution dated 11.9.2009 – However, the Government directedthat recovery of excess amount as per undertaking would be of theamount paid after 11.9.2009 and not prior thereto – Appeal toH

SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OFMAHARASHTRA AND ANR.

Supreme Court – Held: State Government withdrew the Resolutiondated 26.10.2004 by its Resolution dated 11.9.2009 realizing thatthe former Resolution created anomalous situation – ThereforeTribunal rightly upheld the Resolution dated 11.9.2009 – JuniorClerks were not entitled for the pay-scale of Deputy Accountant asthis was not the promotional post for the post of Junior Clerks –The benefits received by the Junior clerks till 4.12.2014 (date oforder of Tribunal) were under the orders of High Court – Therefore,the benefits received till 4.12.2014 not to be withdrawn.

Partly allowing the appeal, the Court

HELD: 1.1. The Resolution of the Government dated26.10.2004 providing for scale of Deputy Accountant to JuniorClerks, who have passed the prescribed departmentalexamination was withdrawn by subsequent GovernmentResolution dated 11.09.2008. The Tribunal is right in its viewthat the Government Resolution dated 26.10.2004 and 11.09.2008were issued by the State Government in exercise of its executivepowers. Both the above Resolutions do not seek to alter theservice conditions of the appellants provided by GovernmentResolution dated 08.06.1995. Government Resolution dated26.10.2004 extended certain additional benefits to FinanceDepartment. The State Government later realised that such anaction will create an anomalous situation and which actually createdanomalous situation. Junior Clerks, who were lower to the SeniorClerks were able to march in the next higher scale of the SeniorClerks without coming in the scale of Senior Clerks and hadstarted drawing salary higher to the various Senior Clerks.[Para 10][1041-F-H; 1042-A]

1.2 The recruitment and promotion of the Junior Clerks,Senior Clerks, in District Treasury were governed by theexecutive instructions, which can be modified, altered in the samemanner in which it was provided by the State Government. TheMaharashtra Administrative Tribunal did not commit any errorin upholding the Government Resolution dated 11.09.2008. Thebenefit, which was available to Junior Clerks of next higher gradeafter completion of 12 years continuous service is still admissible.Thus,the Tribunal did not commit any error in upholding theGovernment Resolution dated 11.09.2008. [Paras 10 & 11][1042-B-D]

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A2.1 The post of Junior Clerks is borne in the District Cadreand they are also called Treasury Clerks. The post of SeniorClerks is filled up by promotion and nomination in the ratio of3:1. Junior Clerks, who have passed the examination are eligiblefor promotion. The Government Resolution dated 08.06.1995provides for grant of pay-scale of the next promotional post inBthe promotional hierarchy after completion of 12 years ofcontinuous service. Vide Resolution dated 08.06.1995, JuniorClerks were only entitled for the next promotional post, i.e.,promotional post of Senior Clerks and under Resolution dated08.06.1995, they were not entitled to receive a higher promotionalCpost, i.e., post of Deputy Accountants, which is filled up bypromotion of Senior Clerks. [Para 14][1043-D-E]

2.2 The appellants themselves have filed Annexure P-2 asthe statement showing service particulars of appellants, whichindicate that the pay-scale of Deputy Accountant was granted toDthe appellants on the basis of Government Resolution dated26.10.2004. The appellants, thus, were not granted scale ofDeputy Accountant by virtue of Resolution dated 08.06.1995,hence the submission of the appellants that they are entitled forpay-scale of Deputy Accountant despite withdrawal of Resolutiondated 26.10.2004 cannot be accepted. [Para 15][1043-F-H]

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3. The High Court by the impugned judgment permittedthe respondents to recover excess payments made to thepetitioners after 11.09.2008 by way of monthly instalments andthe respondents were restrained from effecting recovery orbenefits secured by the petitioners prior to 11.09.2008. TheFbenefits, which were received by the appellants till 04.12.2014were under the order of the High Court dated 05.12.2009.Therefore the benefit received by the appellant till 04.12.2014be not withdrawn when it was pronounced that the Resolutiondated 11.09.2008 was valid, the benefit received by the appellantsGthereafter can only be withdrawn. Thus, in the facts of the presentcase, ends of justice be served in modifying the directions of theHigh Court only to the extent that in place of date 11.09.2008,the date 04.12.2014 be substituted. [Paras 16 & 19][1044-A-B;1046-H; 1047-A-B]

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SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OFMAHARASHTRA AND ANR.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1759of 2020.

From the Judgment and Order dated 18.06.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 1765 of 2015.

Sudhanshu S. Choudhari, Yogesh Kolte, Govind Venugopal,Ms. Pushpa Devi Sikri, Advs. for the Appellants.

Kunal Cheema, Rahul Chitnis, Sachin Patil, Advs. for theRespondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. This appeal has been filed against the judgment of High Courtof Bombay dated 18.06.2018 by which writ petition filed by the appellantchallenging the order dated 04.12.2014 of Maharashtra AdministrativeTribunal has been partly allowed.

2. Brief facts of the case to be noticed for deciding this appealare: -

2.1. The Government of Maharashtra, Finance Department byresolution dated 01.02.1965 decided to constitute Maharashtra Financeand Accounts Service under the administrative control of the FinanceDepartment. The service included different categories of posts includingClass-3 posts. In the District Treasury, there were posts of Senior Clerkas well as Junior Clerk. By resolution dated 28.12.1970 Procedure forrecruitment to the post of Senior Clerk was provided for, which alsocontained one of the modes of appointment on the post of Senior Clerkby promotion of clerks, borne on the establishment of District Treasury.

2.2. By Government resolution dated 08.06.1995, it was providedthat employees holding posts in group C and D (previously Class-III andClass-IV) shall be given the pay scale of next promotional post in thepromotional hierarchy after completing 12 years of continuous service.

2.3. By Government resolution dated 20.07.2001, the StateGovernment decided to implement under Service Career DevelopmentScheme to State Government Employees. By a subsequent resolutiondated 26.10.2004 issued by the Government of Maharashtra, Sanctionwas accorded to grant the pay scale of Deputy Accountant instead ofSenior Clerk to the Treasury/Sub-Treasury Clerks under the control of A

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ADirectorate of Accounts and Treasuries, who had passed MaharashtraAccount Clerk examination and completed 12 years of continuous service.

2.4. In pursuance of the aforesaid resolution, the respondentsherein were granted the pay scale of Deputy Accountant from differentdate beginning from 01.10.1994. All the respondents herein were workingBas a Junior Clerk in District Treasury at District level who receivedbenefits under Government resolution dated 26.10.2004.

2.5. An Original Application No. 936 of 2005 was filed in theMaharashtra State Administrative Tribunal, Shri Vijay A. Dangat &Others Versus The State of Maharashtra and others. The applicantsCwere working as Senior Clerks/Deputy Accountant, who were directlyappointed on the post of Senior Clerk through Staff Selection Board andon passing the prescribed Departmental Accountant examination, theywere confirmed as Senior Clerk. The case of Senior Clerk was that thescale of pay now granted to Junior Clerk for the post of DeputyAccountant is not the promotional post for Junior Clerk but is theDpromotional post for the Senior Clerk as per Rule. They claimed thatthey should also be granted the higher pay so that the anomaly be setright.

2.6. The Tribunal vide its judgment and order dated 17.11.2006struck down the Government resolution dated 26.10.2004. Against theEjudgment of the Tribunal dated 17.11.2006, the writ petition No.946 of2007 was filed in the High Court. The High Court passed an interimorder for staying the order of Tribunal. During the pendency of writpetition, the Government of Maharashtra vide its resolution dated11.09.2008 withdrew the resolution dated 26.10.2004. The Governmentthereafter issued a letter dated 06.10.2009 in continuation of resolutionFdated 11.09.2008 stating that there is no objection to give benefit inconnection with service to all related employees and retired employeeswhich benefit shall be given subject to final judgment of the High Courtby taking undertaking from the employees that in event the High Courtapproved the resolution dated 11.09.2008, the employees shall have noGobjection in recovery of financial benefits payable to the employees fromhis retirement salary. After the aforesaid order dated 06.10.2009, anundertaking was taken from the respondent and they were continuedthe benefit which was received by them under Government resolutiondated 06.10.2014.H

2.7. The respondents herein thereafter filed Original Applicationin Maharashtra Administrative Tribunal questioning the GovernmentResolution dated 11.09.2008. W.P. No. 946 of 2007 came for considerationon 05.12.2009. The High Court disposed of the writ petition directingthat if any benefits are already given to the petitioners (respondentsherein), pursuant to the decision contained in letter dated 06.10.2009,they shall not be withdrawn till the Original Application filed by thepetitioners (respondents herein) is decided by the MaharashtraAdministrative Tribunal.

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2.8. The Original Application No.161 of 2009 and other connectedOriginal Applications questioning the subsequent Government resolutiondated 11.09.2008 came to be dismissed by Maharashtra AdministrativeTribunal by order dated 04.12.2014. Aggrieved by the order dated04.12.2014, writ petition No.1765 of 2015 was filed by respondent in theHigh Court. The writ petition came to be decided by the judgment dated18.06.2018. The writ petition was partly allowed by the High Court infollowing manner: - C

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

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

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(B) However, the direction in the impugned judgment and orderfor recovery of the excess payments is modified. TheRespondents shall accordingly be at liberty to recover excesspayments made to the petitioners after 11[th] September 2008,by way of monthly instalments but the respondents arerestrained from effecting recovery or benefits secured by theFpetitioners prior to 11[th] 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 666666666Gof this order.”

2.9. This appeal has been filed challenging the judgment of theHigh Court.

3. Shri Sudhanshu S. Choudhari, learned counsel for the appellantsubmits that the appellants were correctly granted the benefits of pay H

Ascale of Deputy Accountant under Resolution dated 24.10.2004 whichought not to have been withdrawn by subsequent Government Resolutiondated 11.09.2008. Referring to the Government Resolution dated01.02.1965 and 08.06.1995, learned counsel contends that the appellantswere entitled for scale of Deputy Accountant after completion of 12years of continuous service. He submits that even if Resolution datedB24.10.2004 is withdrawn by the State Government, their right to receivethe salary of Deputy Accountant after completion of 12 years of servicecannot be affected which flows from Resolution dated 08.06.1995.

4. It is submitted that in any view of the above, no recovery canbe made form the appellant for any period earlier to 04.12.2014 whenCthe Tribunal rejected the Original Application filed by the appellant. It issubmitted that under the judgment of the High Court dated 05.12.2009,the benefits which were given to the appellants under Resolution dated24.10.2004 were not to be withdrawn till the Original Application wasdecided by the Tribunal. The effect of the judgment would be that noDrecovery can be made for any amount received by the appellant for theperiod prior to 04.12.2014.

5. Shri Kunal Cheema, learned counsel appearing for therespondent, refuting the submissions of the appellant contends that thebenefits which were granted to appellants in pursuance of GovernmentEResolution dated 24.10.2004 having been withdrawn by the GovernmentResolution dated 11.09.2008. The appellants were not entitled to anybenefits and benefits received thereafter were on the basis of undertakinggiven by the appellant that they shall refund the amount in case theGovernment Resolution dated 11.09.2008 is approved by the High Court.

F6. It is submitted that any benefit taken subject to an expressundertaking is entitled to be recovered as per undertaking given by theappellant. It is submitted that Resolution dated 08.06.1995 did not providean avenue for Junior Clerk to get pay scale of Deputy Accountant aftercompletion of 12 years of continuous service. The appellants havinggiven undertaking are bound by the undertaking and cannot object to theGrecovery of the amount which was received by them consequent toundertaking.

7. It is submitted that High Court had already protected theappellants by directing recovery of excess amount only w.e.f. 11.09.2008.The legal benefits which some of the appellants received from 24.10.1994Hhave been allowed to be retained by them till 11.09.2008. Thus, substantial SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OFMAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

justice has been done and the judgment of the High Court need nointerference by this Court.

A

8. Learned counsel for the parties have placed reliance on severaljudgments of this Court which shall be referred to and consideredhereinafter.

B

9. From the submissions made by the learned counsel for theparties and material on record, following points arise for consideration inthis appeal:-

(i) Whether Maharashtra Administrative Tribunal erred inupholding the Government Resolution dated 11.09.2008 byCwhich earlier Government Resolution dated 24.10.2004 waswithdrawn?

(ii) Whether despite withdrawal of the Government Resolutiondated 24.10.2004, the appellants were entitled to thepay-scale of Deputy Accountant by virtue of GovernmentResolution dated 08.06.1995?

D

(iii) Whether the appellants are right in their submission thatamounts received by them till 04.12.2014, i.e., the date whenMaharashtra Administrative Tribunal rejected the claim ofthe appellant could not have been recovered and the recoveries,if any, can be made for the period subsequent thereto?E

Point No.1

10. The Resolution of the Government dated 24.10.2004 providingfor scale of Deputy Accountant to Junior Clerks, who have passed theprescribed departmental examination was withdrawn by subsequentGovernment Resolution dated 11.09.2008. The Tribunal is right in itsview that the Government Resolution dated 26.10.2004 and 11.09.2008were issued by the State Government in exercise of its executive powers.Both the above Resolutions do not seek to alter the service conditions ofthe appellants provided by Government Resolution dated 08.06.1995.Government Resolution dated 26.10.2004 extended certain additionalbenefits to Finance Department. The State Government letter realisethat such an action will create an anomalous situation and which actuallycreated anomalous situation. Junior Clerks, who were lower to the SeniorClerks were able to march in the next higher scale of the Senior Clerkswithout being coming in the scale of Senior Clerks and had started drawing F

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Asalary higher to the various Senior Clerks due to which Senior Clerkshad filed Original Application in the Maharashtra Administrative Tribunal,which was allowed setting aside the order dated 26.10.2004, which wassubsequently set aside by the High Court. The State Governmentreconsidered its earlier decision and a Government Resolution was passedon 11.10.2008 recalling its earlier decision. The service condition of theBemployees working in various departments is in the domain of the StateGovernment. The recruitment and promotion of the Junior Clerks, SeniorClerks, in District Treasury were governed by the executive instructions,which can be modified, altered in the same manner in which it wasprovided by the State Government. The Maharashtra AdministrativeCTribunal did not commit any error in upholding the Government Resolutiondated 11.09.2008. The benefit, which was available to Junior Clerks ofnext higher grade after completion of 12 year’s continues service is stilladmissible, which could be very well be availed by them.

11. We, thus, hold that Tribunal did not commit any error inDupholding the Government Resolution dated 11.09.2008.

Point No.2

12. The submission, which has been pressed by the learned counselfor the appellant is that despite withdrawal of the Resolution dated26.10.2004, the appellants were still entitled to receive the salary ofEDeputy Accountant by virtue of Government Resolution dated08.06.1995. The Government Resolution dated 08.06.1995 has beenbrought on record as Annexure P-3. The scheme for promotion ascontained in paragraph 2 is as follows:- “2. The detailed scheme for promotion is as under:F

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

XXXXXXXXXXXXXXXX”

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SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OFMAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

13. The procedure for recruitment to the post of Senior Clerks isprovided by Resolution of the Finance Department dated 28.12.1970.Paragraph 1 of the Resolution is as follows:- “RECRUITMENT RULES FOR THE POST OF SENIORCLERKS 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 theDistrict Treasury who has passed or exempted from passingthe Post Recruitment (Ministerial) Examination in order ofhis Seniority in the District list, or (b) by nomination of candidates who (i) unless already in theservice of Government of Maharashtra are not more than 25years of age (ii) possess a Degree in Art, Science, Commerceor Law of any recognized University.”

14. The post of Junior Clerks is borne in the District Cadre andthey are also called Treasury Clerks. The post of Senior Clerks is filledup by promotion and nomination in the ratio of 3:1. Junior Clerks, whohave passed the examination are eligible for promotion. The GovernmentResolution dated 08.06.1995 provides for grant of pay-scale of the nextpromotional post in the promotional hierarchy after completion of 12years of continuous service. Vide Resolution dated 08.06.1995, JuniorClerks were only entitled for the next promotional post, i.e., promotionalpost of Senior Clerks and under Resolution dated 08.06.1995, they werenot entitled to receive a higher promotional post, i.e., post of DeputyAccountants, which is filled up by promotion of Senior Clerks.

15. We, thus, do not find any substance in the submission of theappellant that appellants were entitled for grant of pay-scale of DeputyAccountant despite withdrawal of the Resolution dated 26.10.2004. Theappellant themselves have filed Annexure P-2 as the statement showingservice particulars of appellants, which indicate that the pay-scale ofDeputy Accountant was granted to the appellants on the basis ofGovernment Resolution dated 26.10.2004. The appellants, thus, werenot granted scale of Deputy Accountant by virtue of Resolution dated08.06.1995, hence the submission of the appellants that they are entitledfor pay-scale of Deputy Accountant despite withdrawal of Resolutiondated 26.10.2004 cannot be accepted.

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APoint No.3

16. The High Court by the impugned judgment by directions issuedin paragraph 16(B) permitted the respondents to recover excesspayments made to the petitioners after 11.09.2008 by way of monthlyinstalments and the respondents were restrained from effecting recoveryBor benefits secured by the petitioners prior to 11.09.2008. The appellants’submission is that they were entitled to retain the higher pay-scale andexcess payments made to them till the Maharashtra AdministrativeTribunal rejected their application on 04.12.2014 whereas the learnedcounsel for the respondents submits that the appellants being bound bytheir undertaking to refund the excess amount, which were given toCthem in pursuance of the Government Resolution dated 06.10.2009, theycannot be allowed to retain excess amount received by them after havinggiven undertaking to refund the amount. As noted above, the Resolutiondated 26.10.2004 was set aside by the Maharashtra AdministrativeTribunal in O.A. No.936 of 2005 by judgment dated 17.11.2006. A WritDPetition 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 ofthe Tribunal dated 17.11.2006 was stayed by the High court by interimorder dated 13.02.2007, hence when the Resolution dated 11.09.2008was passed, a Government Resolution dated 06.10.2009 provided for Efollowing:- “For the decision of the Tribunal on dated 17.11.2006, Hon. HighCourt has stayed interim at the hearing on the first dated13.02.2007 and as the said stay is permanent, the implementationof Government Resolution of Finance Department on datedF11.09.2008, subject of final judgment of Hon. High Court, there isno objection to give benefit in connection with services to all relatedemployees and retired employees. However, showing to all relatedemployees to have given the benefits subject to final judgment ofHon. High Court, “if Hon. High Court is agreed the GovernmentGResolution of Finance Department on dated 11.09.2008, pursuantto this, I have no objection to recover arising complete amountfrom financial benefits payable to me or from my retirement salary.Such undertaking shall be taken from all related employees alsoretired employees.

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Sd/-

Joint Director (Administration)Accounts & Treasuries,Maharashtra, Mumbai.

A

17. The above Resolution contemplated that benefit in connectionwith services to all related employees and retired employees be givensubject to final judgment of the High Court and if the High Court isagreed with the Government Resolution dated 11.09.2008, the employeeundertakes to return the benefits. In pursuance of the above Resolutiondated 06.10.2009, appellants and similarly situated employees hadsubmitted their undertakings. The undertaking given by the employees,thus, was subsequent to the above Resolution. One of the undertakingsgiven by one of the appellants – J.C. Jaulkar (appellant No.3) has beenplaced before us by learned counsel for the respondents, which is to thefollowing effect:- B

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“UNDERTAKING

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“UNDERTAKING

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I solemnly affirm that benefits to awarded under Career AssuredProgression Scheme vide G.R. dated 26.10.2004 are withdrawnvide G.R. dated 11.09.2008. Therefore, Shri M.T. Bagwe andOthers 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. IfHon’ble High Court upheld the G.R. dated 11.09.2008, I shallrefund the entire amount payable to the Government frommonetary benefits payable to me or through my salary.

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Date : 28.10.2009

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Place : Gondia

Sd/-

(J.C.Jaulkar)Senior ClerkDistrict Treasury Office,GGondia”

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[2020] 3 S.C.R.

A18. The Writ Petition No. 946 of 2007 was decided by the HighCourt by its judgment dated 05.12.2009. Paragraph 3 of the judgment ofthe High Court is as follows:- “3. Now taking overall view of the matter, it is clear that as theGovernment Resolution dated 26.10.2004 itself has been withdrawnBby the Government, the Original application no.936 of 2005 filedby the petitioners itself become infructuous. Consequently, theorder passed by the Maharashtra Administrative Tribunal in thatOriginal application is set aside. However, the MaharashtraAdministrative Tribunal shall be at liberty to consider the freshOriginal Application filed by the petitioners in accordance withClaw and make orders thereon in accordance with law. However,considering that certain benefits have been extended to thepetitioners because of the decision contained in letter dated6.10.2009, it is directed if any benefits are already given to thepetitioners pursuant to the decision contained in letter datedD6.10.2009, they shall not be withdrawn till the Original applicationfiled by the petitioners is decided by the MaharashtraAdministrative Tribunal. The petition is disposed of. No order asto costs.

(D.K. DESHMUKH, J.)(K.K. TATED, J.)”

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19. The final order passed by the High Court in the writ petitionNo.946 of 2007 provided that benefit, which have been given to thepetitioner shall not be withdrawn till the original application filed by thepetitioner is decided by the Maharashtra Administrative Tribunal. TheFHigh Court in its judgment dated 05.12.2009 did not pronounce on thevalidity of the Government Resolution dated 11.09.2008. The undertakingwhich was given by the appellants and other employees was to the effectthat if the High Court upheld the Government Resolution dated 11.09.2008,they shall refund the amount received. The High Court vide its judgmentdated 05.12.2009 in fact permitted the appellants to retain the benefitsGtill the original application filed by the appellant is decided. OriginalApplication filed by the appellant was ultimately decided on 04.12.2014by which it was rejected. By order dated 04.12.2014 the MaharashtraAdministrative Tribunal upheld the Resolution dated 11.09.2008, thus,the correctness of Resolution dated 11.09.2008 was upheld only onH04.12.2014. 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 theappellant that the benefit received by them till 04.12.2014 be not withdrawnwhen it pronounced that the Resolution dated 11.09.2008 was valid, thebenefit received by the appellants thereafter can only be withdrawn.We, thus, are of the view that in the facts of the present case ends ofjustice be served in modifying the directions of the High Court inparagraph 16(B) only to the extent that in place of date 11.09.2008, thedate 04.12.2014 be substituted. The direction No.(B) as contained inparagraph 16 of the judgment of the High Court, thus, stand modified tothe following extent:-

(B) However, the direction in the impugned judgment and orderfor recovery of the excess payments is modified. The Respondentsshall accordingly be at liberty to recover excess payments madeto the petitioners after 04[th] December, 2014, by way of monthlyinstalments but the respondents are restrained from effectingrecovery or benefits secured by the petitioners prior to 04[th]December, 2014.

20. The rest of the judgment of the High Court is upheld. We,thus, partly allow the appeal of the appellants by modifying the direction(B) to the above effect. Parties shall bear their own costs.

Kalpana K. Tripathy

Appeal partly allowed.

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