State Of U.P. And Others vs Ramesh Bahadur Singh
2016 Latest Caselaw 2938 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 32
 

 
Case :- SPECIAL APPEAL No. - 494 of 2013
 

 
Appellant :- State Of U.P. And Others
 
Respondent :- Ramesh Bahadur Singh
 
Counsel for Appellant :- M.S. Pipersenia, S.C.
 
Counsel for Respondent :- V.K. Srivastava
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

Heard learned Standing counsel and Sri Vinay Kumar Srivastava, learned counsel for the respondent-petitioner.

The State has filed this appeal contending that the learned Single Judge has virtually modified the earlier judgement of another learned Single Judge in relation to the claim of the respondent-petitioner with regard to his date of reinstatement.

The submission is that the judgement dated 4.7.2006 in Civil Misc. Writ Petition No. 6351 of 2000 directing the extension of benefit to the respondent-petitioner on the same terms as another Constable Sri Virendra Kumar Mishra was on the same terms that was provided for in the reinstatement order of Virendra Kumar Mishra, and therefore the said terms became final as per the judgment dated 4.7.2006 which could not be altered subsequently by an order in a fresh writ petition that has given rise to this appeal.

The background in which the aforesaid grounds have been raised are that the respondent-petitioner Ramesh Bahadur Singh was subjected to a punishment of  dismissal while posted as a constable in the Provincial Armed Constabulary  of the  State of U.P. A dismissal order was passed after a departmental enquiry against which the respondent-petitioner approached this Court by filing writ petition No. 6351 of 2000. The writ petition was considered on both grounds namely that the procedure of the disciplinary proceedings adopted was in violation of that which is prescribed, and the respondent-petitioner having been acquitted in the criminal case was entitled to avail all service benefits with reinstatement; the second ground raised was that another co-accused in the same establishment namely Virendra Kumar Mishra had already been reinstated by the Appellate Authority vide order dated 22.9.1999 and therefore the respondent-petitioner deserves to be at least given the benefit at par with Virendra Kumar Mishra.

The dismissal order, the subsequent appellate order and the revisional order that were under challenge came to be set aside by the judgement dated 4.7.2006 but the final relief which was granted to the respondent-petitioner was to the effect that the respondent-petitioner shall be entitled to the benefit at par with Virendra Kumar Mishra on the ground that the respondent-petitioner deserves the same treatment.

It is undisputed between the parties that Virendra Kumar Mishra had been reinstated in service subject to the condition that he shall not receive salary from the date of dismissal till the date of reinstatement and joining and that he shall stand reduced to the minimum of the pay scale and be reverted accordingly.  However, all other consequential service benefits would be available without any benefit of increment.

In the case of the respondent/petitioner Ramesh Bahadur Singh what happened was that he filed the writ petition in the year 2000 claiming the same benefits. The writ petition remained pending and was ultimately allowed by the judgement dated 4.7.2006. While allowing the writ petition, the learned Single Judge clarified that the benefit available to the respondent/petitioner would be to the same extent as given to Virendra Kumar Mishra. Thus, the condition of non-payment of salary from the date of dismissal till the date of joining remained the same under the said judgement. The writ petition was allowed on 4.7.2006, whereafter, the respondent/petitioner was made to join under the aforesaid judgement. He was therefore not paid salary from the date of dismissal till the date of joining in the year 2006.

The respondent-petitioner filed a fresh writ petition that has given rise to the present appeal being Civil Misc. Writ Petition No. 63564 of 2006 contending that he should at least also be paid salary with effect from the date of reinstatement of Virendra Kumar Mishra. This argument of the counsel for the respondent-petitioner found favour with the learned Single Judge who allowed the writ petition and has further recorded that the petitioner's reinstatement in service would mean that he would be entitled to salary with effect from 22.9.1999. Thus arrears of salary upto 4.7.2006 was also allowed by the Court.

Learned counsel for the appellant contends that this was impermissible and this relief could be granted by the learned Single Judge only in the earlier writ petition and no modification was permissible through a second writ petition. Sri Vinay Kumar Srivastava submits that the respondent-petitioner would stand discriminated, inasmuch as Virendra Kumar Mishra had been paid salary from 1999 and merely because the writ petition of the respondent-petitioner was allowed in the year 2006, he could not be denied salary from 1999 onwards as he stands on the same footing as Virendra Kumar Mishra.

Having regard to the aforesaid submissions raised and having considered the decision in the case of Rajendra Yadav vs. State of Madhya Pradesh and others {2013 Vol. 1 Supreme Court Cases (Labour and Service)} page 476, we find that the direction in the judgement dated 4th July, 2006 was clearly to the effect that the benefit available to the respondent-petitioner would be only to the extent as given to Virendra Kumar Mishra. The direction in the case of Virendra Kumar Mishra by the Competent Authority at the time of reinstatement was with a clear condition that he was not entitled to salary with effect from the date of dismissal to the date of reinstatement.

In our considered opinion, the learned Single Judge could not have modified the aforesaid condition that had already become final in the earlier judgment dated 4.7.2016. No appeal had been filed against the judgment dated 4.7.2016 nor any review was sought in relation thereto. A subsequent writ petition therefore did not lie for reviewing or modifying the judgment dated 4.7.2006. The procedure therefore was impermissible moreso when the respondent-petitioner had already accepted the aforesaid terms and conditions as was available in the case of Virendra Kumar Mishra and stood recorded in the judgment dated 4.7.2006. The learned Single Judge could not have introduced an element of fiction by preponing the date of joining of the respondent-petitioner to match it with the date of joining of Virendra Kumar Mishra.  The date of joining of the respondent-petitioner and that of Virendra Kumar Mishra factually remained different and they cannot be fused together so as to raise a presumption of discrimination. The date of actual joining of the respondent-petitioner in 2006 could not be shifted backwards to 1999. This fictional retreat to the date of joining was unattributable, nor it could be made the basis of an alleged unequal treatment. Merely because the respondent-petitioner was reinstated in 2006, which was later in point of time on account of the pendency of his writ petition, the same cannot be construed to be an act of discrimination. The only course open to the respondent-petitioner was to have challenged the judgment dated 4.7.2006 or could have sought a review if it was permissible in law. The respondent-petitioner could have prayed in the same writ petition at the time when it was disposed of for extending any such benefit which was claimed in the subsequent writ petition. The learned Single Judge therefore by the judgment dated 22.9.2011 could not have entered upon any such modification as it was beyond the terms of the judgment dated 4.7.2006. Consequently, the same cannot be sustained.

We accordingly allow the appeal and set aside the judgment dated 22.9.2011 with a clarification that the respondent-petitioner will be entitled to all the benefits as was extended to him under the judgment dated 4.7.2006.

Order Date :- 24.5.2016

atul