JUDGMENT : M.S. KARNIK, J. 1. Rule. By consent rule is made returnable forthwith and the matter is heard finally. 2. The petitioners – State of Maharashtra has filed this Petition challenging the order dated 18/09/2017 passed by the Maharashtra Administrative Tribunal, Mumbai (for short 'Tribunal') in OA/1004/2015. 3. The respondents who are 73 in number filed OA before the Tribunal challenging the order whereby the benefits of the Assured Career Progression Scheme [Time Bound Promotion] (for short 'ACPS') are being sought to be withdrawn and recovery of the amounts paid is being sought to be made. The respondents were holding the posts as Foresters/Forest Guard when the impugned decision was taken by the petitioners. The material facts in brief are as under: 4. The Recruitment Rules for the post of Range Forest Officer (for short 'RFO') were framed in the year 1976. Between the period 1994 to 1998, respondents were given benefits of first time bound promotion as per G.R. dated 08/06/1995 since they had completed 12 years of service without any promotion. 5. Revised Recruitment rules for the post of RFO were formulated on 06/04/1998. As per these Recruitment Rules, educational qualification for the post of RFO was passing Degree Certificate with at least one or more subject mentioned in the said Rules and Secondary School Certificate (10th standard) or should have passed matriculation for promotion from lower cadre to RFO. The petitioners issued G.R. dated 01/04/2010 and modified ACPS which came to be termed as Modified Assured Career Progression Scheme (MACPS) and the same was implemented from 01/10/2006. While granting the benefits under the scheme, it has been made mandatory that the respective employee must fulfill the minimum average of the confidential reports of the last 5 years and fulfill the educational criteria laid down for promotion from the feeder cadre to higher promotional post. 6. It would be pertinent to mention here that similar situate Forest Guards who did not receive second benefit of MACPS had filed OA/882/2012 before the Tribunal. OA/882/2012 was rejected. The Tribunal took into consideration clause (D)(1) of G.R. dated 01/04/2010 which provides as under: “HINDI” 7. 6. It would be pertinent to mention here that similar situate Forest Guards who did not receive second benefit of MACPS had filed OA/882/2012 before the Tribunal. OA/882/2012 was rejected. The Tribunal took into consideration clause (D)(1) of G.R. dated 01/04/2010 which provides as under: “HINDI” 7. The Recruitment Rules for RFO promulgated by notification dated 06/04/1999 provide that a Forester can be promoted to the post of RFO, if he has minimum qualification of S.S.C. The Tribunal was of the opinion that as per clause mentioned in the G.R. dated 01/04/2010, the employees should fulfill all the terms and conditions required for promotion to the post of RFO. As the employees do not have the necessary minimum educational qualifications of S.S.C., they were held not eligible to get second benefit of ACP. The Tribunal while dismissing OA/882/2012 held that getting second benefit under ACP by employee is not a right and it can be given only if he fulfills terms and conditions required for getting this benefit. The Tribunal was therefore pleased to dismiss OA/882/2012. 8. Insofar as present respondents are concerned, they filed OA 1004/2015 before the Tribunal. The petitioners relied upon the decision of the Tribunal in OA/882/2012 and prayed for dismissal of the OA. The Tribunal however relying upon the decision of the Apex Court in the case of State of Punjab and ors. Vs. Rafiq Masih (White Washer) (2014) 8 SCC 883 was of the opinion that in view of the observations made by Hon'ble Supreme Court no recovery can be effected. The Tribunal was further of the view that at the time when the respondents were initially appointed, the condition of minimum qualification of S.S.C was admittedly not there and therefore at this stage petitioners cannot insist that the respondents must possess requisite qualification of S.S.C for getting the benefit of the second ACP. 9. We have heard learned Counsel. We have also gone through the order passed by the Tribunal. In our opinion the Tribunal in OA/882/2012 was considering the very same challenge by similar situate Foresters. The Tribunal was pleased to dismiss the OA on the ground that provisions of Recruitment Rules have to be adhered while extending the benefit of MACPS. The candidates not fulfilling eligibility condition of educational qualification of passing cannot claim the benefit of MACPS. In our opinion the Tribunal in OA/882/2012 was considering the very same challenge by similar situate Foresters. The Tribunal was pleased to dismiss the OA on the ground that provisions of Recruitment Rules have to be adhered while extending the benefit of MACPS. The candidates not fulfilling eligibility condition of educational qualification of passing cannot claim the benefit of MACPS. The Tribunal came to the conclusion that as the respondents do not have necessary minimum educational qualification of S.S.C, they are obviously not eligible for getting second benefit of ACP. In the light of the G.R. dated 01/04/2010 relevant portion of which is quoted in para 6, the same is admissible only if the employees fulfill all terms and conditions required for promotion to the post of RFO. The Tribunal opined that getting second benefit under ACP by employees is not a right and it can be given only if he fulfills terms and conditions required for getting this benefit. 10. In our opinion, view taken by the Tribunal in OA/882/2012 cannot be said to be untenable. The decision in OA/882/2012 was pointed out to the Tribunal while deciding the OA 1004/2015 which order is impugned in this Petition. The Tribunal however placing reliance on the decision in the case of Rafiq Masih (supra) which was rendered later in point of time to the decision of the Tribunal in OA/882/2012 was of the opinion that the issue is squarely covered by the decision in Rafiq Masih and therefore proceeded to decide the entitlement as well as the issue of recovery. 11. The Tribunal in OA 882/2012 having come to the conclusion regarding non-eligibility of the second benefit of ACP in case of similar situate Foresters, the Coordinate Bench of Tribunal was not justified in taking a contrary view. The decision in OA/882/2012 was brought to the notice of the Tribunal. The Tribunal went into question as to whether the respondents are eligible to get second benefit of ACP when the issue was already concluded by the Tribunal in OA/882/2012. The Tribunal has reconsidered the entitlement to the second ACP in the light of the decision of the Apex Court in Rafiq Masih's case which judgment was rendered by the Hon'ble Supreme Court after the decision of the Tribunal in OA/882/2012. 12. The Tribunal has reconsidered the entitlement to the second ACP in the light of the decision of the Apex Court in Rafiq Masih's case which judgment was rendered by the Hon'ble Supreme Court after the decision of the Tribunal in OA/882/2012. 12. We are of the opinion that once the Tribunal has in OA/882/2012 held that similar situate Foresters are not entitled to the benefit of second ACP, the Coordinate Bench of the Tribunal ought not to have taken a contrary view. 13. In our opinion, the decision of the Hon'ble Supreme Court in Rafiq Masih's case would govern employees on the issue of recovery where payments have been mistakenly made by the employer in excess of their entitlement. The Apex Court has summarised situations wherein recoveries by employers would be impermissible in law. The Tribunal has virtually proceeded to hold that not only the excess amount may not be recovered but it has also held that the respondents would continue to get the benefit of second ACP. The Tribunal in OA/882/2012 has already held that the Foresters are not entitled to second benefit of ACP as they do not have SSC qualification. Second benefit of ACP can be given only if an employee fulfills the terms and conditions required for getting this benefit. The Tribunal in OA/882/2012 was justified in coming to the conclusion that getting second benefit under ACP by employee is not a right and always subject to fulfillment of terms and conditions required for getting this benefit. Admittedly, the respondents did not fulfill the terms and conditions. In fact G.R. dated 01/04/2010 which prescribes conditions for grant of benefit of second ACP has not been challenged by the respondents. 14. It would be material to mention that the respondents had submitted an undertaking that if the respondents are found ineligible for getting benefit of second ACP, the same would be withdrawn. The reason for obtaining the undertaking was that the respondents were contemplating relaxing the eligibility criteria of passing S.S.C. in the G.R. dated 01/04/2010 for grant of second ACP to the respondents. The proposal mooted for relaxing the condition was to enable the respondents to get benefit of second ACP. Pending decision of the proposal the respondents were given the benefit of second ACP subject to the undertaking furnished by them that in case they are found ineligible, the benefit would be withdrawn. The proposal mooted for relaxing the condition was to enable the respondents to get benefit of second ACP. Pending decision of the proposal the respondents were given the benefit of second ACP subject to the undertaking furnished by them that in case they are found ineligible, the benefit would be withdrawn. The respondents therefore were aware that the benefit of second ACP was given to them subject to the decision on the proposal for relaxing the eligibility mentioned in the G.R. However, the petitioners took a decision not to relax the eligibility and therefore withdrew the benefit of second ACP and ordered recovery. 15. In this view of the matter, in our opinion decision of the Hon'ble Supreme Court in Rafiq Masih's case will not be applicable in the case of respondents as this was not a case where the benefit of second ACP was mistakenly granted to the respondents. The respondents were well aware that benefit of second ACP is given to them subject to fulfilling the eligibility of G.R. dated 01/04/2010 and subject to the decision on the proposal submitted for relaxing the eligibility. Grant of benefit of second ACP is not a matter of right but subject to fulfillment of the eligibility mentioned in the G.R. dated 01/04/2010. The respondents also furnished an undertaking to this effect. 16. In our opinion, therefore the impugned order passed by the Tribunal needs to be interfered with. 17. It is however pointed out that of the 73 respondents, 28 have already retired and many of respondents are on the verge of superannuation. As the petitioners have already effected some recovery, in the interest of justice, we direct that no further recovery shall be made from the respondents. 18. Subject to what is stated hereinabove, Rule is made absolute in terms of prayer clause (a) with order no as to costs.