MARUTI TUKARAM BAGAWE AND ORS.versusTHE STATE OF MAHARASHTRA AND ANR.

1034                      [2020]REPORTS
                SUPREME COURT   3 S.C.R. 1034               [2020] 3 S.C.R.


 A             SHRI 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 MOHAN
                       M. SHANTANAGOUDAR, JJ.]
             Service Law:
 C            Service Career Development Scheme – Government Resolution
       dated 8.6.1995 provided Group C and D employees pay-scale of
       next promotional post after completion of 12 years of continuous
       service – By Resolution dated 26.10.2004 accorded sanction to grant
       pay-scale of ‘Deputy Accountant’ to the ‘Junior Clerks’ who had
       passed Account Clerk examination and completed 12 years of
 D
       continuous Service – Senior clerks moved Administrative Tribunal
       stating that the post of ‘Deputy Accountant’ being promotional post
       for ‘Senior Clerk’ and not ‘Junior Clerk’, upgradation of pay-scale
       of ‘Junior Clerk’ resulted in anamoly to ‘Senior Clerks’ – Tribunal
       struck down the Resolution dated 26.10.2004 – Writ Petition was
 E     filed by ‘Junior Clerks’ – During pendency of the writ, Government
       by Resolution dated 11.9.2009 withdrew the Resolution dated
       26.10.2004 – By letter dated 6.10.2009 Government stated that the
       benefit under Resolution dated 26.10.2004 would continue subject
       to undertaking by the beneficiaries that if High Court approved the
       Resolution dated 11.9.2009, the government would recover the
 F
       benefits – Accordingly undertaking taken from the beneficiaries –
       In the meantime ‘Junior Clerks’ challenged the Resolution dated
       11.9.2009 – Writ Petition of the Senior Clerks was disposed of
       directing that benefit given pursuant to letter dated 6.10.2009 not
       to be withdrawn till the Administrative Tribunal decides the challenge
 G     to Resolution dated 11.9.2009 – Administrative Tribunal by order
       dated 4.12.2014 upheld the Resolution dated 11.9.2009 – In writ
       petition against the order of Tribunal, High Court upheld the
       Resolution dated 11.9.2009 – However, the Government directed
       that recovery of excess amount as per undertaking would be of the
       amount paid after 11.9.2009 and not prior thereto – Appeal to
 H
                                       1034
SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                        1035
             MAHARASHTRA AND ANR.

Supreme Court – Held: State Government withdrew the Resolution         A
dated 26.10.2004 by its Resolution dated 11.9.2009 realizing that
the former Resolution created anomalous situation – Therefore
Tribunal rightly upheld the Resolution dated 11.9.2009 – Junior
Clerks were not entitled for the pay-scale of Deputy Accountant as
this was not the promotional post for the post of Junior Clerks –
                                                                       B
The benefits received by the Junior clerks till 4.12.2014 (date of
order 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 dated                C
26.10.2004 providing for scale of Deputy Accountant to Junior
Clerks, who have passed the prescribed departmental
examination w as 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       D
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 later realised that such an           E
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 coming in the scale of Senior Clerks and had
started drawing salary higher to the various Senior Clerks.
[Para 10][1041-F-H; 1042-A]                                            F

      1.2 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           G
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 continuous service is still admissible.
Thus,the Tribunal did not commit any error in upholding the
Government Resolution dated 11.09.2008. [Paras 10 & 11][1042-          H
B-D]
1036           SUPREME COURT REPORTS                      [2020] 3 S.C.R.


 A           2.1 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
 B
       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
 C     post, i.e., post of Deputy Accountants, which is filled up by
       promotion of Senior Clerks. [Para 14][1043-D-E]
             2.2 The appellants 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
 D     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 accepted. [Para 15][1043-F-H]
 E
              3. The High Court by the impugned judgment 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
 F     benefits, which were received by the appellants till 04.12.2014
       were under the order of the High Court dated 05.12.2009.
       Therefore the benefit received by the appellant till 04.12.2014
       be not withdrawn when it was pronounced that the Resolution
       dated 11.09.2008 was valid, the benefit received by the appellants
 G     thereafter can only be withdrawn. Thus, in the facts of the present
       case, ends of justice be served in modifying the directions of the
       High 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]

 H
 SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                             1037
              MAHARASHTRA AND ANR.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1759                    A
of 2020.
      From the Judgment and Order dated 18.06.2018 of the High Court
of 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.                             B

     Kunal Cheema, Rahul Chitnis, Sachin Patil, Advs. for the
Respondents.
         The Judgment of the Court was delivered by
         ASHOK BHUSHAN, J.                                                   C
      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.
                                                                             D
         2. Brief facts of the case to be noticed for deciding this appeal
are: -
       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     E
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.     F
       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.
      2.3. By Government resolution dated 20.07.2001, the State              G
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        H
1038            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A     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
 B     as a Junior Clerk in District Treasury at District level who received
       benefits under Government resolution dated 26.10.2004.
              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
 C     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
 D     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
 E     judgment of the Tribunal dated 17.11.2006, 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
 F     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
 G     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 and they were continued
       the benefit which was received by them under Government resolution
       dated 06.10.2014.
 H
SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                            1039
   MAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

       2.7. The respondents herein thereafter filed Original Application   A
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,
                                                                           B
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        C
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: -                                                        D
      “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:
                                                                           E
      (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 benefits secured by the    F
          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    G
          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     H
1040             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A     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 submits that even if Resolution dated
 B
       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
 C     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
 D     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 were granted to appellants in pursuance of Government
 E     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.

 F           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
 G     recovery of the amount which was received by them consequent to
       undertaking.
             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
 H     have been allowed to be retained by them till 11.09.2008. Thus, substantial
 SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                              1041
    MAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

justice has been done and the judgment of the High Court need no              A
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            B
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            C
          withdrawn?
      (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?                                       D
      (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?            E
      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
                                                                              F
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            G
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
                                                                              H
1042            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A     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
 B
       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
 C     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
 D     upholding the Government Resolution dated 11.09.2008.
             Point No.2
              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
 E     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:
 F
             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
 G           be given as per annexure appended to this resolution. The other
             main features and procedure for implementation of this scheme
             are as under:
                             XXXXXXXXXXXXXXXX”

 H
 SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                             1043
    MAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

      13. The procedure for recruitment to the post of Senior Clerks is      A
provided by Resolution of the 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:       B

      (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
                                                                             C
      (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      D
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        E
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       F
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
                                                                             G
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 accepted.
                                                                             H
1044            SUPREME COURT REPORTS                            [2020] 3 S.C.R.


 A           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
 B     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
 C     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
 D     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
 E     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
 F           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
 G           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.

 H
SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                            1045
   MAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

                                                                   Sd/-    A
                                        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      B
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,      C
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                                     D
      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”            E
      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                                                    F
      Place : Gondia
                                                                   Sd/-
                                                          (J.C.Jaulkar)
                                                           Senior Clerk
                                              District Treasury Office,    G
                                                               Gondia”




                                                                           H
1046             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A           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
 B           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
 C           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
 D           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.)
 E                                                           (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
 F     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
 G     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
 H     04.12.2014. Thus, the benefits, which were received by the appellants
 SHRI MARUTI TUKARAM BAGAWE AND ORS. v. STATE OF                                 1047
    MAHARASHTRA AND ANR. [ASHOK BHUSHAN, J.]

till 04.12.2014 were under the order of the High Court dated 05.12.2009.         A
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.
We, thus, are of the view that in the facts of the present case ends of
                                                                                 B
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             C
       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 04 th            D
       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.
                                                                                 E

Kalpana K. Tripathy                                     Appeal partly allowed.




                                                                                 F




                                                                                 G




                                                                                 H