JUDGMENT - DHABE H.W., J.:—This is a writ petition in which the petitioner has prayed that the respondent Zilla Parishad should be directed to pay full wages from the date of his transfer i.e. 6-12-1985 to the date he was re-posted on his original post on 4-8-1986. The facts giving rise to the instant petition are that the petitioner is working in the respondent Zilla Parishad as a stenographer since last 18 years. According to the petitioner, he is confirmed in the said post. By an order dated 6-12-1985, the petitioner was transferred from the post of stenographer to the post of senior assistant in the same pay-scale which he was drawing as a stenographer. The petitioner challenged the said order of transfer by a Writ Petition bearing No. 2625/1985, which was dismissed by this Court on 7-2-1986. After the above writ petition was dismissed, the petitioner filed an appeal before the Divisional Commissioner under the rules of the Zilla Parishad. In the said appeal the Commissioner held that in view of the amendment to the relevant Rules of the Zilla Parishad, he should make a suitable representation to the Zilla Parishad authorities. After the order of the Commissioner was passed, the petitioner filed another Writ Petition bearing No. 1164/1986, on the ground that at the time he filed the previous writ petition, he was not aware of the amendment under the relevant recruitment rules. His case was that by the Maharashtra Zilla Parishads District Services (Recruitment) (Third Amendment) Rules, 1985, which came into force on 22-8-1985 against the Entry No. 3, relating to the District Service Class III (Ministerial) Grade III in Column 4 under the heading “qualification for and Method of Appointment” a new Rule was substituted in regard to the appointment and promotion to the post of senior assistant. Although under the original entry under Column 4, the temporary appointment by transfer of a stenographer to the post of senior assistant was permissible under the new Rule introduced by the aforesaid amendment, such a transfer was not permissible because the said provision viz. the appointment by temporary transfer of a stenographer was not contained in the new Rule. 2. Although under the original entry under Column 4, the temporary appointment by transfer of a stenographer to the post of senior assistant was permissible under the new Rule introduced by the aforesaid amendment, such a transfer was not permissible because the said provision viz. the appointment by temporary transfer of a stenographer was not contained in the new Rule. 2. When the petition came up for admission on 17-6-1986, after hearing the learned Counsel for the petitioner, this Court held that the Commissioner had observed that the petitioner should move the Zilla Parishad in view of the amended Rules. In view of the above observations made by the Commissioner, this Court did not entertain the aforesaid writ petition. The Court was informed that the petitioner had not joined the transferred post and that he was only on leave. In view of the above statement, this Court directed that the Zilla Parishad shall not enforce the impugned order of transfer till two months from the date of the order of this Court during which time the representation if any, made by the petitioner should be disposed of by the Zilla Parishad. 3. It appears that after the aforesaid judgment of this Court the petitioner made a representation to the Chief Executive Officer, Zilla Parishad. After aforesaid representation was made, the Chief Executive Officer of the Zilla Parishad passed an order on 25/27-7-1986 by which the petitioner was reposted in his original post of stenographer in the same capacity and scale of pay. Accordingly, the petitioner joined his original post of stenographer on 4-8-1986. The question however, to be considered was how the period of absence from 6-12-1985 to 4-8-1986 should be dealt with. This was so because according to the Zilla Parishad, the petitioner remained absent for that period. As per the order dated 20-11-1986 the petitioner was granted earned leave for 43 days with effect from 7-12-1985 to 18-1-1986 and leave without pay for 198 days with effect from 19-1-1986 to 4-8-1986. According to the Zilla Parishad such an order was passed taking a sympathetic view despite the fact that the petitioner had not filed any application for leave. Being aggrieved by the above order treating the intervening period as earned leave and leave without pay, the petitioner has preferred the instant writ petition in this Court. 4. According to the Zilla Parishad such an order was passed taking a sympathetic view despite the fact that the petitioner had not filed any application for leave. Being aggrieved by the above order treating the intervening period as earned leave and leave without pay, the petitioner has preferred the instant writ petition in this Court. 4. The grievance of the petitioner in the instant petition is that the intervening period from 7-12-1985 could not be treated as earned leave or leave without pay because the impugned order of transfer passed by the Zilla Parishad was itself illegal and void and, therefore, the petitioner was entitled to full wages according to the pay of the post of stenographer, which he was getting prior to his transfer. He has also claimed compensation for mental agony and the loss which he has suffered during the intervening period in addition to interest upon the wages for the period from 7-12-1983 to 4-8-1986. 5. The learned Counsel for the petitioner has urged before us that as per the amendment to the relevant Rules, which came into force from 22-8-1985 as per the Maharashtra Zilla Parishads District Services (Recruitment) (Third Amendment) Rules, 1985, a stenographer could not be transferred to the post of a senior assistant. It may be seen in this regard that according to Clause (b) of the original Rules, appointment to the post of senior assistant could be made by temporary transfer of a stenographer. The whole of this Rule was substituted by the aforesaid Amending Rules. While substituting the Rule, Clause (b) relating to temporary transfer of stenographer was deleted. According to the learned Counsel for the appellant, after these Amending Rules came into force on 22-8-1985, a stenographer could not be transferred to the post of senior assistant. He has further urged before us that the post of senior assistant is lower than the post of stenographer because the pay scale attached to the stenographer is higher i.e. Rs. 395/- to Rs. 800/- while the pay scale attached to the post of senior assistant is Rs. 335-650. He has, however, not disputed that his transfer to the post of senior assistant was in the same pay-scale which he was getting as a stenographer. 395/- to Rs. 800/- while the pay scale attached to the post of senior assistant is Rs. 335-650. He has, however, not disputed that his transfer to the post of senior assistant was in the same pay-scale which he was getting as a stenographer. However, since the post of a stenographer was a higher post and even his temporary transfer could not be made as per the Amended Rules to the post of senior assistant, the submission is that such a transfer is illegal and void. His further submission is that the said order of transfer was in fact reviewed by the Zilla Parishad pursuant to the representation made by him after he has exhausted his remedies in the Courts and, therefore, the submission is that he should have been paid back his due wages even assuming that he was absent without leave during the intervening period. As regards the claim of damages, the submission is that during the intervening period the petitioner was not paid anything by the Zilla Parishad due to which he had to borrow money by paying interest resulting in mental agony to him and financial loss as well. 6. The learned Counsel for the Zilla Parishad at the outset, has urged that there is an adequate remedy available to the petitioner under rule 14(a) of the Maharashtra Zilla Parishads (Discipline and Appeal) Rules. The submission, therefore, is that since there is an adequate and alternate remedy available to the petitioner, the instant writ petition should not be entertained. He has also urged that since the petitioner remained absent and was in fact entitled to no leave, by taking a sympathetic view only his intervening period is treated as leave admissible to him. In support of his submission, he has relied upon Rule 48 of the Maharashtra Civil Services (Leave) Rules, 1981 which according to the learned counsel for the Zilla Parishad, is applicable. The learned Counsel for the Zilla Parishad also submitted that a claim in the nature of damages cannot be awarded in the writ jurisdiction of this Court. 7. Before proceeding to consider the merits, it is necessary to consider the preliminary objection raised by the learned counsel for the Zilla Parishad. The learned Counsel for the Zilla Parishad also submitted that a claim in the nature of damages cannot be awarded in the writ jurisdiction of this Court. 7. Before proceeding to consider the merits, it is necessary to consider the preliminary objection raised by the learned counsel for the Zilla Parishad. As regards the question of alternate and efficacious remedy, it is urged that an appeal is provided under Clause (a) of sub-rule (1) of Rule 14 of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules, 1964. The submission is that if there is a grievance that the pay of the Zilla Parishad employee is denied or varied to his disadvantage, an appeal would lie to the Divisional Commissioner. In answer to the above submission on behalf of the Zilla Parishad, it is pointed out on behalf of the petitioner that the order dated 20-11-1986 granting earned leave and treating the rest of the intervening period as leave without pay was passed by the Zilla Parishad during the pendency of this writ petition. It is, therefore, the submission on behalf of the petitioner that since the petition is already entertained by this Court and the impugned order is passed thereafter, the petitioner should not now be relegated to his remedy under the Rules. Moreover, according to him, the lis in this writ petition does not involve any determination of question of fact and, therefore, this Court should not now throw out the petition on the ground of alternate and adequate remedy. 8. In examining the above preliminary objection it must be borne in mind that the existence of an alternate and efficacious remedy is not a bar for entertaining a writ petition, but the same may be taken into consideration by the Court in exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India. In the instant case it is clear from the facts narrated above that the petitioner is carrying on a protracted litigation and is being sent from pillar to post when in fact at the first opportunity the Zilla Parishad should have corrected its action. In the instant case it is clear from the facts narrated above that the petitioner is carrying on a protracted litigation and is being sent from pillar to post when in fact at the first opportunity the Zilla Parishad should have corrected its action. It is only after the petitioner has filed the instant writ petition on or about 18-9-1986 claiming wages for the intervening period, that the Zilla Parishad passed the order on 20-11-1986 treating some intervening period as earned leave and the rest as the period of leave without pay. Long time has also elapsed since the Rule was issued in this writ petition on 19-9-1986 and it would therefore, be unjust to relegate the petitioner to his departmental remedy under the Rules even assuming that such a remedy is available to him. We are not, therefore, inclined to accept the preliminary objection raised on behalf of the Zilla Parishad that the instant writ petition should be rejected on the ground of alternate and efficacious remedy. 9. Proceeding now to consider the submission on merit, it may be seen that the impugned order of transfer passed on 6-12-1985 transferring the petitioner from the post of stenographer to the post of senior assistant was clearly illegal after the amended Rules came into force. It can also not be disputed that the post of stenographer is a higher post as compared to the post of senior assistant or at any rate, the scale of the post of stenographer is higher than the pay scale of the post of senior assistant. Moreover, the nature of work done by the stenographer is also different from the nature of work which is to be done by the senior assistant. It is because of this difference in the two posts that it appears to us that the relevant Rule was amended and even temporary transfer from the post of stenographer to the post of senior assistant was deleted from the Rules. It is true that while transferring, the pay of the petitioner as stenographer was protected but nonetheless it is clear that the transfer is from a higher post or grade to the lower post or grade. At any rate, such a transfer is not authorised by the Rules and it is clearly illegal. It is true that while transferring, the pay of the petitioner as stenographer was protected but nonetheless it is clear that the transfer is from a higher post or grade to the lower post or grade. At any rate, such a transfer is not authorised by the Rules and it is clearly illegal. Although the order dated 25/27-7-1986 re-posting the petitioner to his original post of stenographer does not give any reasons, it is clear that the said order is made pursuant to the representation made by the petitioner as directed by the Divisional Commissioner in an appeal preferred by him against the illegal order of his transfer. It is therefore, clear that the original order of transfer is reviewed by the Chief Executive Officer because it was found that as per the amended Rules, it was illegal and unauthorised. 10. The next question which arises for consideration is how the intervening period between the date of transfer and the date of joining in the original post pursuant to the order dated 25/27-7-1986 should be treated. To determine this question, it is first necessary to refer to certain relevant rules of the Zilla Parishad. It may be seen that under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, the Rules are framed by the State Government in regard to the conditions of service of the Zilla Parishad employees. There are, however, no separate Rules framed by it upon some matters relating to conditions of service of the Zilla Parishads employees and therefore, in such matters, the Civil Services Rules of the State Government are adopted. In Rule 4 of the Maharashtra Zilla Parishads District Services Rules, 1986, the provisions of the revised leave Rules of 1935 applicable to the Government servants are mutatis mutandis made applicable in relation to the leave and matters connected therewith so far as the Zilla Parishad employees are concerned. Rule 8 of the aforesaid rules which is relevant for our purpose in the instant writ petition, makes the provisions of the Bombay Civil Services Rules relating to the terms and conditions of service of the Government employees applicable to the Zilla Parishad employees mutatis mutandis in relation to such matters other than those for which the provisions are made under the Zilla Parishad Rules. 11. 11. It is not in dispute that so far as the question as to how the intervening period in question in the instant case should be treated is concerned, there are no Rules framed in regard to the Zilla Parishad employees. It is, therefore, necessary to refer to the Bombay Civil Services Rules to find out whether such a contingency is considered in the said Rules. The learned Counsel for the Zilla Parishad has relied upon Rule 48 of the Maharashtra Civil Services (Leave) Rules, 1981 to justify the impugned order dated 20-11-1986 in regard to the question how the intervening period should be treated. Rule 48 of the aforesaid Rules deals with the question of absence after expiry of leave. It is provided in sub-rule (1) that a Government servant, who remains absent after expiry of his leave, is entitled to no leave salary for the period of such absence and the said period would be debited against his leave account to the extent such leave is due and the period in excess of such leave due being treated as extraordinary leave. Sub-rule (2) of the said section provides that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. From reading of the aforesaid rule it is apparent that the said Rule is not applicable to the facts of the instant case. It is applicable in a case where the Government servant remains absent without leave after expiry of his original leave which is sanctioned. The problem in the instant case is entirely different. The question in the instant case is that if the employee remains absent without leave and without challenging the order of his illegal transfer, how the intervening period should be treated if the said order of transfer is found to be illegal. Rule 48 has thus no application to the above contingency arising in the instant case. 12. However, we find that such a contingency is covered by Rule 43 of the Maharashtra Civil Services (Pay) Rules, 1981, which is analogous to old Rule 55-A of the Bombay Civil Services Rules. According to us, even though it may not be applicable in terms, the principle enunciated in the said Rule can be invoked if it is found that such a contingency is not covered by any of the Rules. According to us, even though it may not be applicable in terms, the principle enunciated in the said Rule can be invoked if it is found that such a contingency is not covered by any of the Rules. Rule 43 of the Maharashtra Civil Services (Pay) Rules, 1981 provides as follows: “43. When an order of withholding increment or reduction is set aside or modified.—Where an order of penalty of withholding of increment of a Government servant on his reduction to a lower service, grade or post, or to a lower time-scale, or to a lower stage in a time-scale is set aside or modified by a competent authority on appeal or review, the pay of the Government servant shall, notwithstanding anything contained in these Rules, be regulated in the following manner:— (a) if the said order is set aside, he shall be given for the period for which such order has been in force, the difference between the pay to which he would have been entitled had that order not been made and the pay he had actually drawn; (b) if the said order is modified, the pay shall be regulated as if the order as so modified had been made in the first instance. Explanation.—If the pay drawn by a Government servant in respect of any period prior to the issue of the orders of the competent authority under this rule is revised, the leave salary and allowances (other than travelling allowance), if any, admissible to him during that period shall be revised on the basis of the revised pay.” 13. It is clear from the aforesaid Rule 43 that if an order of penalty by which the employee is reduced to a lower service, grade or post, or to a lower time-scale, or to a lower stage in a time-scale is set aside or modified by the competent authority on an appeal or review, then on such order being set aside the employee is entitled to the difference between the pay to which he would have been entitled had that order been not passed and if the said order is modified, his pay would be regulated as if the order so modified had been made in the first instance. It is, however, urged on behalf of the Zilla Parishad that the impugned order of transfer is not an order of penalty and, therefore, the above Rule 43 is not attracted. 14. In appreciating the above submission, it may be seen that it is well settled after the decision in (Parshotam Lal Dhingra v. Union of India)1, A.I.R 1958 S.C. 36 that if a confirmed employee is posted in a post carrying lower scale of pay, the impugned order would be punitive (see para 26). It is clear from the facts narrated above that the petitioner is a confirmed employee and has put in about 18 years of service as a stenographar. Although the word used is 'transferred' to a lower post, such an order would amount to reduction in rank and would be punitive since the transfer is in a post carrying lower pay scale. The fact that his pay is protected would not make any difference. It will have, therefore, to be held that the order of transfer dated 6-12-1985 was punitive within the meaning of Rule 43 of the aforesaid Rules. On that order being set aside or being modified, the petitioner would be entitled to the pay scale of his original post. In fact, sub-rule (2) of Rule 43 upon which reliance is placed by the Zilla Parishads against it because it says that the modified order would be applicable as if it is made in the first instance that is from the date the impugned order of transfer is passed. If Rule 43 is not applicable, there is no other rule brought to our notice which would govern the present contingency. 15. The Supreme Court has in the case of (Nawabkhan Abbaskhan vs. State of Gujarat)2, A.I.R 1974 S.C. 1471 held that it is not necessary to obey an order which is illegal and void and without obeying that order, that order can be challenged by the person concerned. In that case the question was whether the person who was externed should have obeyed the order before challenging it. The Supreme Court held that such an order was illegal and void being in violation of the fundamental rights of the petitioner and, therefore, it was not necessary to obey the same. In that case the question was whether the person who was externed should have obeyed the order before challenging it. The Supreme Court held that such an order was illegal and void being in violation of the fundamental rights of the petitioner and, therefore, it was not necessary to obey the same. In the instant case, the order dated 6-12-1985 being contrary to the statutory rules was illegal and void and, therefore, even assuming that the petitioner did not obey the same and was absent during the intervening period, he would be entitled to the wages for the said period if such an illegal order is set aside. If not, Rule 43 in terms, the principles underlying the said Rule 43, in our view would clearly be attracted in the present contingency. At any rate, as a general principle of law it is necessary that the State must make good the loss occasioned to the petitioner by reason of its illegal order. 16. It has, therefore, to be held that the petitioner is entitled to wages in his original pay scale of the post of stenographer although he might have absented himself during the said period. The leave which is admissible to the petitioner cannot be adjusted during this period. The impugned order dated 20-11-1986, therefore, deserves to be set aside and it has to be held that the Zilla Parishad is liable to pay to the petitioner the wages admissible to him as if the impugned order of transfer dated 6-12-1985 was not passed. 17. The last question which remains to be considered is whether the petitioner can be granted damages on account of mental agony as urged by him in this petition. As regards the claim of damages on account of mental agony alleged to be suffered by the petitioner, in our view, it would raise complicated questions of law and fact if the said claim for damages for torturous act were to be considered. In our view, such a claim can be considered in a properly instituted civil suit and not in the instant writ petition. We are, therefore, not inclined to entertain the above claim of the petitioner in the instant writ petition. In the result, the instant writ petition is partly allowed. In our view, such a claim can be considered in a properly instituted civil suit and not in the instant writ petition. We are, therefore, not inclined to entertain the above claim of the petitioner in the instant writ petition. In the result, the instant writ petition is partly allowed. The respondent Zilla Parishad is directed to pay wages to the petitioner for the intervening period from 7-12-1985 to 4-8-1986 on the basis of the pay-scale of the stenographer ignoring the order of transfer dated 6-12-1985. The impugned order dated 20-11-1986 treating the period of 43 days as earned leave and the remaining period of 43 days as leave without pay is set aside and it is directed that the leave admissible to the petitioner should not be adjusted in this intervening period. The petitioner would be entitled to his costs from the respondents. Rule is made absolute in the above terms. Writ petition partly allowed. -----