Shri Maruti Tukaram Bagawe vs The State Of Maharashtra on 27 February, 2020


Supreme Court of India

Shri Maruti Tukaram Bagawe vs The State Of Maharashtra on 27 February, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, Navin Sinha

                                                                                      1


                                                                            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
Signature Not Verified
deciding this appeal are: –

Digitally signed by
MEENAKSHI KOHLI
Date: 2020.02.27
15:22:47 IST
Reason:

2

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.

3

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.

4

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,
5

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
6

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
7

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
8

benefits secured by the
petitioners prior to
th
11 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
9

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
10

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.

11

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?

                                                                        12


     (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
13

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.
14

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
15

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
16

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
17

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
18

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
19

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
20

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
21

(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
22

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
23

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
24

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
25

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.



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