[Cites 21, Cited by 0]
Jharkhand High Court
The State Of Jharkhand vs Mansidh Surin on 10 December, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:37282-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 190 of 2025
-----
1. The State of Jharkhand.
2. Home Department, Government of Jharkhand through
its Additional Chief Secretary, having its office at
Project Building, P.O. and P.S.-Dhurwa, Dist- Ranchi.
3. The Director General -cum-Inspector General of Police,
having its office at Police Head Quarter, P.O. and
P.S.Dhurwa, Dist-Ranchi.
4. The Director General -cum-Commandant General,
Home Guard & Fire Extinguishing Services,
Jharkhand, having its office at Police Headquarter, P.O.
and P.S.-Dhurwa, Dist- Ranchi.
... ... Appellants
Versus
1. Mansidh Surin, about aged 52 years, son of Patras
Surin, Resident of Mohalla Krishnapuri Road No.11,
P.O. and P.S.- Chutia, District Ranchi.
2. Niral Kerketta, aged about 48 years, Son of-Late Simon
Kerketta, Resident of Village Murga Patratoli, P.O. Gara,
P.S. Kamdara, District- Gumla.
3. Md. Javed Iqbal Ansari, aged about 41 years, son of Md.
Luqman Ansari, Resident of Jealgora No.16,
P.O.Jealgora, P.S.-Jorapokhar, District- Dhanbad.
4. Ranjeet Kumar, aged about 40 years, Son of-Late
Surendra Pandit, Resident of Village-Ghatamarpur,
P.O.-Korkaghat, P.S. Pathargama, District Godda.
5. Roshan Oraon, aged about 40 years, Son of Erush
Oraon, Resident of Village Chiri, P.O. Chiri, P.S.-Kuru,
District- Lohardaga.
6. Anand Nayak, aged about 43 years, Son of Budhwa
Nayak, Resident of Village Durin, P.O. Hatia,
P.S.Dhurwa, District Ranchi.
7. Arbind Kumar, aged about 37 years, Son of-Padum
Kumar Singh, Resident of Village- Jori, P.O. and P.S.
Jori, District Chatra.
8. Jaypal Kujur, aged about 45 years, Son of Benjamin
Kujur, Resident of Village Konkel, P.O. Konkel, P.S.
Raidih, District- Gumla.
9. Rajendra Ram Bediya, aged about 42 years, Son of-
Late Chakrawati Bediya, Resident of Village-
Chokarbera, P.O. Sondimra, P.S.-Gola, District
Ramgarh.
1
2025:JHHC:37282-DB
10. Suman Kumar, aged about 49 years, son of Rabindra
Nath Singh, Resident of C/o Devendra Prasad, Bihar
Colony, Chas, P.O.Godhadih More, Chas, P.S. Chas,
District Bokaro.
11. Shreya Alankar, aged about 40 years, Son of- Uday
Shankar, Resident of-Ashok Vatika Colony, Darku
Nagar, P.O. Jodhadih More, Chas, P.S.-Chas, District-
Bokaro.
12. Rishikesh aged about 46 years, son of Nand Kumar
Pathak, Resident of Village-Neema, P.O.-Naudiha
Bazar, P.S.-Chhattarpur, District Palamau.
13. Sanjeev Kumar Sharma, aged about 41 years, Son of
Nagendra Sharma, Resident of Village Tupudana,
P.O.-Hatia, P.S.-Dhurwa, District Ranchi.
... ... Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-------
For the Appellants : Mr. Indranil Bhaduri, S.C.-IV
: Mr. Suman Marandi, A.C. to S.C.-IV
For the Respondents : Mr. Atanu Banerjee, Advocate
------
C.A.V. on 21.11.2025 Pronounced on 10/12/2025
Per Sujit Narayan Prasad, J.
Prayer
1. The instant appeal under Clause 10 of the Letters
Patent is directed against the order/judgment dated
17.01.2025 passed by learned Single Judge in W.P.(S) No.
504 of 2024, whereby and whereunder the learned Single
Judge has allowed the writ petition holding the writ
petitioners entitled for the benefit with effect from 2012 in
the light of Annexure-15 as well as the order of the
coordinate Bench in light of W.P.(S) No.2820 of 2016 and
also on the principle of reinstatement and on the point of
2025:JHHC:37282-DB
equity. Further, the respondent State has been directed to
provide the benefit to the petitioners with effect from 2012
within eight weeks.
Factual Matrix
2. The brief facts of the case as per the pleading made in
the writ petition, which are required to be enumerated, read
as under: -
An Advertisement being Advt. No. 01/2008 was
published in the local newspaper inviting applications from
the eligible candidates for appointment on the post of Sub
Inspector/Sergeant and Company Commander and further
to indicate their order of preference. In inter-se seniority in
case two of candidates having scored same marks, then it
shall be decided on the basis of their performance in written
examination as per Clause-13.
3. The writ petitioners submitted application and were
called to appear in the selection process. The petitioners, as
per their preference and on the basis of their performance in
the selection procedure, were selected and appointed in
different category in pursuance of the Advertisement. In the
appointment letter it was mentioned that the petitioners
would be sent for training for one year which may be
extended or curtailed and shall be on probation for two years.
Further if their services were found to be unsatisfactory, they
would be removed and if found engaged in misconduct,
2025:JHHC:37282-DB
furnished any wrong or misleading information, then their
services can be terminated without issuance of notice.
4. The writ petitioners joined their services on 30.11.2012
on the post of Company Commander in the Home Guard
Headquarters as contained in Memo No. 1610 dated
24.10.2014.
5. The training of the petitioners commenced from
13.12.2012 at Police Training Centre College, Hazaribagh
and thereafter Final Examination of internal subjects were
taken.
6. Pursuant to an enquiry conducted in relation to the
selection of the petitioners, a decision was taken to rectify
the earlier select list. After rectification in the earlier select
list, direction was issued to remove the petitioners from their
services under different categories. 42 candidates including
the petitioners were removed from services vide order dated
26.02.2014.
7. Against the removal order, the petitioners approached
before this Court by filing W.P(S) No.1553/2014 with
analogous cases. This Court vide order dated 12.08.2016 in
W.P(S) No.1562/2014 and analogous writ petitions has been
pleased to quash and set aside the order of termination and
directed to reinstate the petitioners in services against
existing/anticipated future vacancies treating it to be fresh
2025:JHHC:37282-DB
appointment, and on their reinstatement, they shall be
placed at the bottom of seniority list of the revised merit list.
8. The respondent State of Jharkhand, preferred an
appeal being L.P.A. No.473/2016 against the order dated
12.08.2016 passed in W.P(S) No.1562/2014. The Division
Bench vide order dated 18.07.2019 dismissed the said
appeal.
9. The State Government as well as the interveners in the
writ petitions, being dissatisfied with the dismissal of the
appeal, moved before the Hon'ble Supreme Court of India in
various Civil Appeals being Civil Appeal No. 429-430/2021,
Civil Appeal No. 431-434/2021, Civil Appeal No. 435/2021,
Civil Appeal No. 436-477/2021 and Civil Appeal No.
478/2021.
10. The aforesaid Civil Appeals were dismissed by the
Hon'ble Apex Court by a Common Judgment/Order dated
18.02.2021, upholding the judgment passed by this Hon'ble
Court.
11. During the pendency of the aforesaid Civil Appeals
before the Hon'ble Supreme Court, a decision was taken by
the Home Department for compliance of the order dated
12.08.2016 passed in W.P(S) No. 1562/2014 and other
analogous matters, and the petitioners were reinstated in
service in May 2021.
2025:JHHC:37282-DB
12. Though as many as 42 candidates including the
petitioners were removed by the Police Headquarters vide
Memo No. 90/P dated 17.01.2014. However, out of the said
42 candidates including the petitioners, the order of
appointment of 15 Sergeants was issued on 21.12.2020 by
the order of DGP, Jharkhand vide Memo No. 1332 dated
21.12.2020 under the signature of D.I.G.(Training),
Jharkhand.
13. The order of reinstatement of petitioners/twenty-four
Company Commander in service was issued from the Office
of the DGP, Jharkhand vide Memo No. 1333 dated
21.12.2020.
14. Thereafter, the petitioners have given rejoining on the
post of Company Commander on 03.06.2021, 23.06.2021,
28.06.2021, 29.06.2021 & 07.07.2021 respectively in their
respective place of posting where they were posted at the time
of their removal.
15. The names of the petitioners were included in the
gradation list prepared in 2023 with the Company
Commanders appointed in the year 2012 in seriatim at the
bottom, but the petitioners have not been considered for the
purpose of continuity of their services from 2012 and the
petitioners have not been given increment of pay since from
date of their original appointment 2012.
2025:JHHC:37282-DB
16. The provisional seniority list for the Sergeant Cadre has
been published on 04.08.2021. The Sergeants who were
removed along with petitioners were reinstated pursuant to
the order of this Hon'ble Court, they have been given
continuity of benefit and consequential benefits and the
petitioners are entitled for their salary and back wages for
the period they were out of service.
17. It is the case of the petitioners that the pay increment,
since from 2012 ought to have been granted to the petitioners
in view of the termination of service of the petitioners being
quashed and set aside.
18. The petitioners being bonafide appointee having
undergone training could not be deprived from their
legitimate claim of pay increment and consequential
monetary benefit.
19. The petitioners moved before this Court claiming pay
increment since from date of their original appointment being
made in the year 2012 and consequential monetary benefit.
20. The respondent-State appeared in the writ petition and
filed counter affidavit taking the ground that the petitioners
were not in service during the period 12.08.2016 to
04.09.2020 and that in terms of the Order passed by the
Hon'ble Court, appointment letter was issued for fresh
appointment on the post of Company Commander and as
2025:JHHC:37282-DB
such the financial benefits and seniority will be determined
from the date of joining.
21. The fresh appointment letter was issued on
21.12.2020 and the joining on the post of Company
Commander by the petitioners entitled them for all financial
benefits thereafter.
22. The stand has also been taken that the financial benefit
and seniority of the recruited employees in connection with
the advertisement was determined from the date of joining
on the given post. Also, in terms of the order dated
12.08.2016 passed in W.P(S) No. 1562/2014, the
reinstatement of the petitioners was to be treated as fresh
recruitment and they shall be placed at the bottom of
seniority list of the revised merit list. Thus, no reliefs could
be granted to the petitioners as prayed in the writ petition.
23. Learned Single Judge, after hearing the parties, has
come to the conclusion that the petitioners are entitled for
the benefit with effect from 2012 in light of Annexure-15 as
well as in the light of the order of the co-ordinate Bench in
W.P. (S) No.2820 of 2016 and also on the principle of
reinstatement and on the point of equity.
24. The learned Single Judge has also directed the
respondent State to provide the benefit to the petitioners with
effect from 2012 within eight weeks.
2025:JHHC:37282-DB
25. With the aforesaid direction the writ petition has been
allowed vide order dated 17.01.2025 which has been
challenged in the present appeal by the State.
26. The factual aspect reflects that the writ petitioners who
have been removed from service vide dismissal orders dated
26.02.2014/26.02.2013, have preferred writ petition being
W.P.(S) No.1562 of 2014 and other analogous cases seeking
therein issuance of appropriate writ in the nature of
certiorari for quashing the, revised result of different posts
pursuant to the advertisement dated 08.08.2009 and for
issuance of appropriate writ in the nature of certiorari for
quashing the orders passed by the respondents pertaining to
removal from their services in purported exercise of power
under Rule 668 (a) of the Jharkhand Police Manual and
further prays for issuance of appropriate writ in the nature
of mandamus commanding upon the respondents to
reinstate the petitioner after quashing the order of removal
alongwith the consequential service benefits.
27. The writ petition was decided in favour of the
respondents-writ petitioners herein on the basis of the
reason given in the said order coupled with applying the
judgment rendered in the case of Vikas Pratap Singh &
Others v. State of Chhattisgarh & Others reported in
(2013) 14 SCC 494 and the following order was passed :-
2025:JHHC:37282-DB
"15 In view of the reasons stated in the foregoing paragraphs
and as the view of this Court gets fortified by the judgment of
the Hon'ble Apex Court rendered in the case of Vikas Pratap
Singh (Supra) and as a logical sequitor to the aforesaid
reasoning, the impugned order of termination of services of the
petitioners are hereby quashed and set aside and the
respondents are directed to pass orders for reinstatement of the
petitioners in services against existing/anticipated or future
vacancies, treating it to be fresh appointments. and on their
reinstatement, they shall be placed at the bottom of the
seniority list of the revised merit list. The whole exercise be
completed expeditiously, preferably within a period of four
weeks from the date of receipt/production of a copy of this
order."
28. The said order was challenged by the State of
Jharkhand by preferring Letters Patent Appeal being L.P.A.
No.473 of 2016 along with other analogous appeals.
29. The appeal was dismissed by order dated 18.07.2019,
against which Special Leave Petition was filed, converted into
appeal being Civil Appeal No.429-430 of 2021 with other
analogous Civil Appeals.
30. The judgment passed by this Hon'ble court has been
upheld up to the level of Hon'ble Apex Court by judgment
dated 18.02.2021, wherein S.L.P. was dismissed.
31. The respondent State of Jharkhand, thereafter, has
come out with the order of reinstatement of the
respondents/writ petitioners in service on 21.12.2020
specially specifying therein as per the terms and conditions
as contained in Condition No.2 that the appointees will only
2025:JHHC:37282-DB
be able to get the monetary benefit from the date of giving
joining and their seniority will be put in the bottom of the
seniority list of the other candidates who have been
appointed in terms of the said advertisement, for ready
reference, the aforesaid condition of the appointment letter
is being referred herein :-
(2) नियुक्त कम्पिी कमाण्डर को आनथिक लाभ योगदाि
की निनथ से दे य होगा िथा इिकी वरीयिा उक्त नवज्ञापि
में पूवि से नियुक्त कनमियोों से िीचे से निर्ाि ररि की जायेगी।
32. The writ petitioners have joined their services.
Thereafter they have raised the claim for back wages by filing
writ petition being W.P.(S) No.504 of 2024. The relief as
sought for on behalf of the writ petitioners in the writ
petitions are being referred herein:-
"i) For issuance of an appropriate Writ(s)/
Order(s)/Direction(s) particularly a writ in the nature of
mandamus commanding upon the concerned
Respondent to consider the case of the petitioners for
grant of pay increments since from the date of their
original appointment being made in the year 2012 and
accordingly the current pay of the petitioners may be
fixed and consequential monetary benefits may be
released in favour of the petitioners.
AND
ii) For issuance of an appropriate
Writ(s)/Order(s)/Direction(s) particularly a writ in the
nature of mandamus commanding upon the concerned
Respondent to consider the case of the petitioners for
grant of continuity of their services since from the date
of their original appointment made from the year 2012
in view of the fact that the services of the petitioners
2025:JHHC:37282-DB
reinstated in pursuance of the order and direction of
this Hon'ble court passed in W.P(S) No. 1562/2014 and
other analogous cases on 12.08.2016 on quashing and
setting aside of the order of termination of services of
the petitioners.
AND
iii) For issuance of an appropriate
Writ(s)/Order(s)/Direction(s) particularly a writ in the
nature of mandamus commanding upon the concerned
Respondent to pay the full pay and allowances in the
applicable scale of pay to the petitioners for the period
from 26.02.2014 i.e. when the petitioners were
dismissed from their services of the State till their
reinstatement in pursuance of individual reinstatement
letters dated 24.05.2021 and 17.06.2021 respectively of
the concerned petitioners and accordingly arrears
thereof may be paid to the petitioners."
33. The learned Single Judge of this Court, by passing the
judgment impugned dated 17.01.2025, has passed order
holding the writ petitioners entitled for the benefit with effect
from 2012 in the light of Annexure-15 as well as the order of
the co-ordinate Bench in light of W.P.(S) No.2820 of 2016
and also on the principle of reinstatement and on the point
of equity, the writ petition has been allowed, for ready
reference, the operative part of the said order is being
referred herein :-
"29. In view of the above facts, reasons and analysis,
this Court comes to the conclusion that the petitioners
are entitled for the benefit with effect from 2012 in light
of Annexure-15 as well as the order of the co-ordinate
Bench in light of W.P. (S) No.2820 of 2016 and also on
the principle of reinstatement and on the point of equity,
as such this writ petition is allowed.
2025:JHHC:37282-DB
30. The respondent State is directed to provide the
benefit to the petitioners with effect from 2012 within
eight weeks."
34. The State is before this Court by preferring the instant
appeal.
Argument advanced on behalf of Appellant-State
35. Learned counsel for the appellant-State has taken the
following grounds in assailing the impugned judgment
passed by the learned Single Judge: -
(i) The learned Single Judge while passing the order
holding the writ petitioners entitled for the benefits from
2012 has not taken into consideration the specific
direction passed by the learned Single Judge dated
12.08.2016 in W.P.(S) No.1562 of 2014 and analogous
cases wherein while quashing the order of termination,
it has specifically been referred therein that the
reinstatement of the writ petitioners is to be treated to
fresh appointment and on their reinstatement they
shall be placed at the bottom of the seniority list.
(ii) It has been contended that when the specific
observation has been made treating the reinstatement
to be a fresh appointment, then there cannot be any
direction for treating the reinstatement from the date of
the order of termination holding the writ petitioners
entitled for the back wages for the aforesaid period.
2025:JHHC:37282-DB
(iii) It has been contended that the said part of the order
has not been challenged by the writ petitioners, rather,
the same has been accepted and it has been upheld up
to the level of Hon'ble Apex Court and, as such, in that
view of the matter, the appointment was to be treated
to be fresh appointment and in that view of the matter
there cannot be any back wages as has been directed
by learned Single Judge by passing the impugned
judgment.
(iv) The learned Single Judge has gone into the premise of
the meaning of "reinstatement" as has been dealt with
in paragraph 15 of the impugned judgment by making
reference of the definition of the word "reinstatement"
by taking it from the Black's Law Dictionary which led
the learned Single Judge in coming to the conclusion
by taking the implied meaning of the word
"reinstatement" and holding the writ petitioners
entitled for the back wages which cannot be said to be
proper in view of the specific observation made by the
learned Single Judge in the order dated 12.08.2016
passed in W.P(S) No.1562 of 2014 holding the
appointment of the writ petitioners to be fresh
appointees.
(v) The learned Single Judge has applied the principle laid
down by Hon'ble Apex Court in the case of Deepali
2025:JHHC:37282-DB
Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed) & Ors. reported in (2013) 10
SCC 324 but on fact the ratio of the said judgment is
not applicable particularly in view of the specific
observation made by the learned Single Judge treating
the appointment of the writ petitioners to be a fresh
appointee keeping them in the bottom of seniority list
of the appointees who have been appointed in terms of
the said advertisement.
(vi) The learned counsel has submitted that once the
observation made by the learned Single Judge has been
upheld upto the level of Hon'ble Apex Court, then the
same will be merged upon the order passed by the
Hon'ble Apex Court the moment the leave has been
granted and in that view of the matter, the part of the
direction whereby and whereunder the appointment
has been treated to be fresh appointment will also be
said to be merged with the order of the Hon'ble Apex
Court and the appointment of the writ petitioners will
be said to be fresh appointment in pursuance to the
order dated 12.08.2016 passed in W.P(S) No.1562 of
2014 and in that view of the matter the petitioners
cannot be held entitled for the back wages.
(vii) Learned counsel for the State appellant has further
submitted that Condition No.2 of the order dated
2025:JHHC:37282-DB
21.12.2020 whereby and whereunder one or the other
writ petitioners have been held entitled for the
monetary benefit from the date of assuming the charge
having not been challenged in the writ petition and
directly the prayer was made for issuance of mandamus
directing the State to hold the writ petitioners entitled
for the back wages is also not proper, reason being that
the prayer ought to have been made by seeking
quashing of the condition No.2 of the order dated
21.12.2020, thereafter, the consequential relief ought
to have been made seeking command upon the State
holding one or the other writ petitioners entitled for the
back wages.
36. Learned State counsel, based upon the aforesaid
grounds, has submitted that the order impugned, therefore,
suffers from an error and fit to be quashed and set aside.
Argument advanced on behalf of the writ petitioners/
respondents
37. Per contra, Mr. Atanu Banerjee, learned counsel
appearing for the respondents/writ petitioners has taken
following ground in defending the impugned judgment: -
(i) It has been submitted that there is no fault lies on the
part of the one or the other writ petitioners in the
matter of delay, rather, the same has been caused by
the State.
2025:JHHC:37282-DB
(ii) Further, one or the other writ petitioners have
genuinely been appointed but it is the State who had
terminated them from service for no fault of their own
and the court having found the aforesaid fact and with
the specific observation made therein that no fraud or
misrepresentation has been committed, has quashed
the order of termination with a direction of
reinstatement, meaning thereby, the order of
termination is not in existence ever and in that view of
the matter, they are entitled for back wages.
(iii) Learned Single Judge has also taken into
consideration the implied meaning of "reinstatement"
by taking note and referring the definition of
"reinstatement" from the Black Law Dictionary implied
meaning of which has been referred therein that the
moment the order of reinstatement will be passed the
person concerned will be said to be reinstated in the
service from the date of termination if the order of
termination has been quashed and set aside.
(iv) The learned Single Judge has also taken into
consideration the ratio laid down by Hon'ble Apex
Court in the case of Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya (D.Ed) &
Ors. (Supra) wherein it has been held that if the court
is coming to the conclusion that the order of
2025:JHHC:37282-DB
termination is per se illegal, then one or the other will
be entitled for the back wages and the learned Single
Judge while adopting the said ratio, the same cannot
be said to suffer from an error.
(v) Learned counsel has submitted that by taking into
consideration the aforesaid aspect of the matter if the
learned Single Judge has passed the order holding the
writ petitioners entitled for back wages, it cannot be
said to suffer from an error.
38. Learned counsel for the writ petitioner/respondents,
based upon the aforesaid grounds, has submitted that the
order passed by the learned Single Judge, therefore, suffers
from no error.
Analysis
39. We have heard learned counsel for the parties and gone
through the finding recorded by the learned Single Judge as
also the material available on record.
40. The issue which require consideration herein are -
(i) Whether in the facts and circumstances of the present
case, particularly on the basis of the specific
observation made by the learned Single Judge in the
order dated 12.08.2016 passed in W.P(S) No.1562 of
2014 wherein it has been ordered that the
reinstatement of one or the other writ petitioners will
be treated to be fresh appointment, are they entitled
2025:JHHC:37282-DB
for the back wages for the aforesaid period of
termination?
(ii) Whether the principle as laid down in the case of
Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra)
will be applicable in the facts and circumstances of the
present case?
(iii) Whether the implied meaning of reinstatement as has
been considered by the learned Single Judge in the
impugned judgment by making reference of the
dictionary meaning is applicable in the facts and
circumstances of the present case, particularly, when
the specific observation has been made treating the
reinstatement to be fresh appointment in order dated
12.08.2016 passed in W.P(S) No.1562 of 2014?
41. Since all the issues are interlinked, as such, are being
taken up together.
42. Before considering the aforesaid issues, this Court
needs to refer herein that pursuant to advertisement being
Advertisement No.1/2008 for appointment of Sub Inspector
/ Sergeant and Company Commander the petitioners have
applied for that post. The petitioners have qualified in terms
of advertisement and they have been issued appointment
letters in the year 2012. The petitioners gave their joining on
2025:JHHC:37282-DB
30.11.2012 on the post of Company Commander in the
Home Guard Head Quarter.
43. An enquiry was conducted in relation to the selection of
the petitioners and decision was taken to rectify the earlier
selection list. In view thereof, a direction was issued to
remove petitioners from their services under different
categories under Rule 668 (Ka) of the Police Manual. The
forty-two candidates including the petitioners were removed
from services and dismissal orders dated
26.02.2014/26.02.2013 was issued whereby the petitioners
were dismissed.
44. The petitioners, when terminated, have approached by
filing writ petitions being W.P.(S) No.1562 of 2014 and
analogous cases. The learned Single Judge by order dated
12.08.2016, quashed the order of termination with a
consequential direction of reinstatement with specific
observation that the reinstatement will be treated to be fresh
appointment and they will be placed in the bottom of the
seniority list with the appointees who have been appointed
in pursuance to the said advertisement. The operative part
of the said order, although has been referred hereinabove,
but at the risk of repetition the same is being referred
herein:-
"15 In view of the reasons stated in the foregoing paragraphs
and as the view of this Court gets fortified by the judgment of
the Hon'ble Apex Court rendered in the case of Vikas Pratap
2025:JHHC:37282-DB
Singh (Supra) and as a logical sequitor to the aforesaid
reasoning, the impugned order of termination of services of
the petitioners are hereby quashed and set aside and the
respondents are directed to pass orders for reinstatement
of the petitioners in services against existing/anticipated
or future vacancies, treating it to be fresh appointments.
and on their reinstatement, they shall be placed at the
bottom of the seniority list of the revised merit list. The
whole exercise be completed expeditiously, preferably within
a period of four weeks from the date of receipt/production of
a copy of this order."
45. The said order has been upheld by the Division Bench
of this Court in L.P.A. No.473 of 2016 and analogous cases
and finally the same has been upheld by the Hon'ble Apex
Court vide judgment dated 18.02.2021, passed in Civil
Appeal No. 429-430/2021 with other analogous Civil
Appeals.
46. It needs to refer herein that the order passed by the
learned Single Judge dated 12.08.2016 in W.P(S)
No.1562/2014 and analogous cases has ultimately
culminated into Civil Appeal No. 429-430/2021 with other
analogous Civil Appeals, in which the aforesaid judgment
passed by the learned Single Judge has been upheld, as
such, on the principle of merger the judgment passed by the
learned Single Judge has been merged with the judgment
passed by the Hon'ble Apex Court in Civil Appeal No.
429430/2021 with other analogous Civil Appeals.
47. The reason for making reference of principle of merger
is that the binding effect of the observation of the learned
2025:JHHC:37282-DB
Single Judge in the order dated 12.08.2016 passed in W.P(S)
No.1562/2014 holding the reinstatement of one or the other
writ petitioners to be fresh appointment.
48. The writ petitioners, in the backdrop of the aforesaid
direction passed by the Hon'ble Apex Court, finally have been
appointed vide order dated 21.12.2020 referring specific
condition therein that one or the other appointees will be
entitled for the monetary benefit from the date of joining, the
part of the order has been quoted hereinabove.
49. The admitted position herein is that the writ petitioners
joined the service in pursuance to the order dated
12.08.2016 passed in W.P(S) No.1562/2014. It is also
admitted fact that the Condition No.2 of the order dated
21.12.2020 has not been challenged seeking a direction for
holding one or the other writ petitioners entitled for back
wages.
50. The writ petitions have been filed which is the subject
matter of the present appeal seeking specific direction upon
the State for holding one or the other writ petitioners entitled
for the back wages and the principle as laid down by the
Hon'ble Apex Court in the case of Deepali Gundu Surwase
v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors.
(Supra) was relied on by the petitioners.
51. This Court is of the view that once the order dated
21.12.2020 has been passed in the light of the order passed
2025:JHHC:37282-DB
by Hon'ble Apex Court in Civil Appeal No. 429-430/2021
with other analogous Civil Appeals on the subject and when
the condition has been stipulated in order dated 21.12.2020,
by the State, in compliance to the judgment passed by this
Court in the order dated 12.08.2016 passed in W.P(S)
No.1562/2014, which finally culminated into direction
passed by the Hon'ble Apex Court in the aforesaid Civil
Appeals, then it was incumbent upon one or the other writ
petitioners to challenge the part of the order also wherein the
denial of the monetary benefit for the back period was there
making specific reference therein that one or the other writ
petitioners will be entitled or the monetary benefit from the
date of assumption of charge.
52. It is settled position of law that if any decision has been
taken by way of order passed by the State in terms of the
order passed by the Hon'ble Apex Court and if any decision
has been taken contrary to the interest of one or the other
writ petitioners, it is the bounden duty of one or the other
writ petitioners to challenge that part of the order which is
adverse to their interest and only doing that the
consequential relief ought to have been made.
53. Herein, the main grievance of one or the other writ
petitioners before the writ court was to hold them entitled for
the back wages for the period they have not been allowed to
discharge their duty. But, the same has been negated by the
2025:JHHC:37282-DB
learned Single Judge in order dated 12.08.2016 passed in
W.P.(S) No. 1562 of 2014,by making specific observation that
their services will be treated to be fresh appointment and in
terms thereof, after upholding the said order by Hon'ble Apex
Court in Civil Appeal No. 429-430/2021 with other
analogous Civil Appeals and on the basis of the merger
principle, the same will be said to be an order passed by the
Hon'ble Apex Court, the State Government has come out with
the condition stipulating in the reinstatement letter dated
21.12.2020,that one or the other writ petitioners will be
entitled for the monetary benefit from the date of their
joining.
54. The question is that when the Condition No.2 as
contained in the reinstatement letter dated 21.12.2020, has
not been challenged, where is the occasion for one or the
other writ petitioners to seek a direction for grant of back
wages?
55. According to our considered view, the same is not
permissible otherwise if there will be direction holding one or
the other writ petitioners entitled for back wages, then what
will happen to the decision dated 21.12.2020,so taken by
the State holding the writ petitioners for monetary benefit
from the date of their joining which is in terms of the order
passed by this Court upheld up to the level of Hon'ble Apex
Court.
2025:JHHC:37282-DB
56. We have already referred herein the principle of merger.
The purpose is that the moment this Court has passed order
under Article 226 of the Constitution of India and if the same
has been upheld by Hon'ble Apex Court granting leave in an
appeal, then the order passed by this Court under Article 226
of the Constitution of India will be said to be merged by
virtue of principle of merger and in that view of the matter,
the order passed by the learned Single Judge will have no
existence, rather, the order passed by the Hon'ble Apex Court
will be in existence.
57. The principle of merger is well settled that the moment
the order passed by the lower forum is being affirmed by the
higher forum, the order passed by the lower forum will lost
its existence due to its merger with the order passed by the
higher forum.
58. It needs to refer herein that the Hon'ble Apex Court in
the case of Kunhayammed & Ors. Vrs. State of Kerala and
Anr. (2000) 6 SCC 359, has appreciated the principle of
merger wherefrom, it is evident that the Hon'ble Apex Court
has delved upon the issue on doctrine of merger and after
taking aid of the judgment rendered in U.J.S. Chopra Vrs.
State of Bombay, AIR 1955 SC 633, wherein it has been
held:
"A judgment pronounced by the High Court in the exercise of its
appellate or revisional jurisdiction after issue of a notice and a
2025:JHHC:37282-DB
full hearing in the presence of both the parties... would replace
the judgment of the lower court, thus constituting the judgment
of the High Court the only final judgment to be executed in
accordance with law by the court below.'' Further reference of
the judgment has been made rendered in the case of S.S.
Rathore Vrs. State of M.P., (1989) 4 SCC 582, wherein, a larger
Bench of the Hon'ble Apex Court (Seven Judges) has been
pleased to hold that the distinction made between courts and
tribunals as regards the applicability of doctrine of merger is
without any legal justification; where a statutory remedy was
provided against an adverse order in a service dispute and that
remedy was availed, the limitation for filing a suit challenging
the adverse order would commence not from the date of the
original adverse order but on the date when the order of the
higher authority disposing of the statutory remedy was passed.
59. It has further been held at paragraphs-12, 14, 15, 17,
34, 40, 41, 43 and 44 thereof to the effect which read
hereunder as:-
"12. The logic underlying the doctrine of merger is that
there cannot be more than one decree or operative orders
governing the same subject-matter at a given point of time.
When a decree or order passed by an inferior court,
tribunal or authority was subjected to a remedy available
under the law before a superior forum then, though the
decree or order under challenge continues to be effective
and binding, nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the lis before it
either way -- whether the decree or order under appeal is
set aside or modified or simply confirmed, it is the decree
or order of the superior court, tribunal or authority which
is the final, binding and operative decree or order wherein
merges the decree or order passed by the court, tribunal
or the authority below. However, the doctrine is not of
universal or unlimited application. The nature of
jurisdiction exercised by the superior forum and the
2025:JHHC:37282-DB
content or subject-matter of challenge laid or which could
have been laid shall have to be kept in view.
14. The exercise of jurisdiction conferred on this Court by
Article 136 of the Constitution consists of two steps: (i)
granting special leave to appeal; and (ii) hearing the
appeal. This distinction is clearly demonstrated by the
provisions of Order 16 of the Supreme Court Rules framed
in exercise of the power conferred by Article 145 of the
Constitution. Under Rule 4, the petition seeking special
leave to appeal filed before the Supreme Court under
Article 136 of the Constitution shall be in Form No. 28. No
separate application for interim relief need be filed, which
can be incorporated in the petition itself. If notice is
ordered on the special leave petition, the petitioner should
take steps to serve the notice on the respondent. The
petition shall be accompanied by a certified copy of the
judgment or order appealed from and an affidavit in
support of the statement of facts contained in the petition.
Under Rule 10 the petition for grant of special leave shall
be put up for hearing ex parte unless there be a caveat.
The court if it thinks fit, may direct issue of notice to the
respondent and adjourn the hearing of the petition. Under
Rule 13, the respondent to whom a notice in special leave
petition is issued or who had filed a caveat, shall be
entitled to oppose the grant of leave or interim orders
without filing any written objections. He shall also be at
liberty to file his objections only by setting out the grounds
in opposition to the questions of law or grounds set out in
the SLP. On hearing, the Court may refuse the leave and
dismiss the petition for seeking special leave to appeal
either ex parte or after issuing notice to the opposite party.
Under Rule 11, on the grant of special leave, the petition
for special leave shall, subject to the payment of additional
court fee, if any, be treated as the petition of appeal and it
shall be registered and numbered as such. The appeal
2025:JHHC:37282-DB
shall then be set down for hearing in accordance with the
procedure laid down thereafter. Thus, a petition seeking
grant of special leave to appeal and the appeal itself,
though both dealt with by Article 136 of the Constitution,
are two clearly distinct stages. In our opinion, the legal
position which emerges is as under:
(1) While hearing the petition for special leave to appeal,
the Court is called upon to see whether the petitioner
should be granted such leave or not. While hearing such
petition, the Court is not exercising its appellate
jurisdiction; it is merely exercising its discretionary
jurisdiction to grant or not to grant leave to appeal. The
petitioner is still outside the gate of entry though
aspiring to enter the appellate arena of the Supreme
Court. Whether he enters or not would depend on the
fate of his petition for special leave;
(2) If the petition seeking grant of leave to appeal is
dismissed, it is an expression of opinion by the Court
that a case for invoking appellate jurisdiction of the
Court was not made out;
(3) If leave to appeal is granted the appellate jurisdiction
of the Court stands invoked; the gate for entry in the
appellate arena is opened. The petitioner is in and the
respondent may also be called upon to face him, though
in an appropriate case, in spite of having granted leave
to appeal, the Court may dismiss the appeal without
noticing the respondent. (4) In spite of a petition for
special leave to appeal having been filed, the judgment,
decree or order against which leave to appeal has been
sought for, continues to be final, effective and binding
as between the parties.
Once leave to appeal has been granted, the finality of the
judgment, decree or order appealed against is put in
jeopardy though it continues to be binding and effective
between the parties unless it is a nullity or unless the
2025:JHHC:37282-DB
Court may pass a specific order staying or suspending the
operation or execution of the judgment, decree or order
under challenge. Dismissal at stage of special leave --
without reasons-- no res judicata, no merger.
15. Having so analysed and defined the two stages of the
jurisdiction conferred by Article 136, now we proceed to
deal with a number of decisions cited at the Bar during the
course of hearing and dealing with the legal tenor of an
order of the Supreme Court dismissing a special leave
petition. In Workmen v. Board of Trustees of the Cochin
Port Trust [(1978) 3 SCC 119 : 1978 SCC (L&S) 438] a
three-Judge Bench of this Court has held that dismissal of
special leave petition by the Supreme Court by a non-
speaking order of dismissal where no reasons were given
does not constitute res judicata. All that can be said to
have been decided by the Court is that it was not a fit case
where special leave should be granted. That may be due to
various reasons. During the course of the judgment, their
Lordships have observed that dismissal of a special leave
petition under Article 136 against the order of a tribunal
did not necessarily bar the entertainment of a writ petition
under Article 226 against the order of the tribunal. The
decision of the Madras High Court in Western India Match
Co. Ltd. v. Industrial Tribunal [AIR 1958 Mad 398, 403 :
(1958) 2 MLJ 74 : (1958) 2 LLJ 315] was cited before their
Lordships. The High Court had taken the view that the
right to apply for leave to appeal to the Supreme Court
under Article 136, if it could be called a "right" at all,
cannot be equated to a right to appeal and that a High
Court could not refuse to entertain an application under
Article 226 of the Constitution on the ground that the
aggrieved party could move the Supreme Court under
Article 136 of the Constitution. Their Lordships observed
that such a broad statement of law is not quite accurate,
although substantially it is correct.
2025:JHHC:37282-DB
17. Thereafter the employer approached the High Court by
preferring a petition under Article 226 of the Constitution
seeking quashing of the award of the Labour Court. On
behalf of the employee the principal contention raised was
that in view of the order of the Supreme Court dismissing
the special leave petition preferred against the award of the
Labour Court it was not legally open to the employer to
approach the High Court under Article 226 of the
Constitution challenging the very same award. The plea
prevailed with the High Court forming an opinion that the
doctrine of election was applicable and the employer
having chosen the remedy of approaching a superior court
and having failed therein he could not thereafter resort to
the alternative remedy of approaching the High Court. This
decision of the High Court was put in issue before the
Supreme Court. This Court held that the view taken by the
High Court was not right and that the High Court should
have gone into the merits of the writ petition. Referring to
two earlier decisions of this Court, it was further held:
(SCC pp. 148-50, paras 6 & 8) "The effect of a non-
speaking order of dismissal of a special leave petition
without anything more indicating the grounds or reasons
of its dismissal must, by necessary implication, be taken
to be that this Court had decided only that it was not a fit
case where special leave should be granted. This
conclusion may have been reached by this Court due to
several reasons. When the order passed by this Court was
not a speaking one, it is not correct to assume that this
Court had necessarily decided implicitly all the questions
in relation to the merits of the award, which was under
challenge before this Court in the special leave petition. A
writ proceeding is a wholly different and distinct
proceeding. Questions which can be said to have been
decided by this Court expressly, implicitly or even
constructively while dismissing the special leave petition
2025:JHHC:37282-DB
cannot, of course, be reopened in a subsequent writ
proceeding before the High Court. But neither on the
principle of res judicata nor on any principle of public
policy analogous thereto, would the order of this Court
dismissing the special leave petition operate to bar the trial
of identical issues in a separate proceeding namely, the
writ proceeding before the High Court merely on the basis
of an uncertain assumption that the issues must have
been decided by this Court at least by implication. It is not
correct or safe to extend the principle of res judicata or
constructive res judicata to such an extent so as to found
it on mere guesswork.
It is not the policy of this Court to entertain special
leave petitions and grant leave under Article 136 of the
Constitution save in those cases where some substantial
question of law of general or public importance is involved
or there is manifest injustice resulting from the impugned
order or judgment. The dismissal of a special leave petition
in limine by a non-speaking order does not therefore justify
any inference that by necessary implication the
contentions raised in the special leave petition on the
merits of the case have been rejected by this Court. It may
also be observed that having regard to the very heavy
backlog of work in this Court and the necessity to restrict
the intake of fresh cases by strictly following the criteria
aforementioned, it has very often been the practice of this
Court to grant special leave in cases where the party
cannot claim effective relief by approaching the High Court
concerned under Article 226 of the Constitution. In such
cases also the special leave petitions are quite often
dismissed only by passing a non-speaking order especially
in view of the rulings already given by this Court in the two
decisions aforecited, that such dismissal of the special
leave petition will not preclude the party from moving the
High Court for seeking relief under Article 226 of the
2025:JHHC:37282-DB
Constitution. In such cases it would work extreme
hardship and injustice if the High Court were to close its
doors to the petitioner and refuse him relief under Article
226 of the Constitution on the sole ground of dismissal of
the special leave petition."
34. The doctrine of merger and the right of review are
concepts which are closely interlinked. If the judgment of
the High Court has come up to this Court by way of a
special leave, and special leave is granted and the appeal
is disposed of with or without reasons, by affirmance or
otherwise, the judgment of the High Court merges with
that of this Court. In that event, it is not permissible to
move the High Court by review because the judgment of
the High Court has merged with the judgment of this
Court. But where the special leave petition is dismissed --
there being no merger, the aggrieved party is not deprived
of any statutory right of review, if it was available and he
can pursue it. It may be that the review court may
interfere, or it may not interfere depending upon the law
and principles applicable to interference in the review. But
the High Court, if it exercises a power of review or deals
with a review application on merits -- in a case where the
High Court's order had not merged with an order passed
by this Court after grant of special leave -- the High Court
could not, in law, be said to be wrong in exercising
statutory jurisdiction or power vested in it.
40. A petition seeking grant of special leave to appeal may
be rejected for several reasons. For example, it may be
rejected (i) as barred by time, or (ii) being a defective
presentation, (iii) the petitioner having no locus standi to
file the petition, (iv) the conduct of the petitioner
disentitling him to any indulgence by the court, (iv) the
question raised by the petitioner for consideration by this
Court being not fit for consideration or deserving being
dealt with by the Apex Court of the country and so on. The
2025:JHHC:37282-DB
expression often employed by this Court while disposing of
such petitions are -- "heard and dismissed", "dismissed",
"dismissed as barred by time" and so on. May be that at
the admission stage itself the opposite party appears on
caveat or on notice and offers contest to the
maintainability of the petition. The Court may apply its
mind to the meritworthiness of the petitioner's prayer
seeking leave to file an appeal and having formed an
opinion may say "dismissed on merits". Such an order may
be passed even ex parte, that is, in the absence of the
opposite party. In any case, the dismissal would remain a
dismissal by a non-speaking order where no reasons have
been assigned and no law has been declared by the
Supreme Court. The dismissal is not of the appeal but of
the special leave petition. Even if the merits have been
gone into, they are the merits of the special leave petition
only. In our opinion neither doctrine of merger nor Article
141 of the Constitution is attracted to such an order.
Grounds entitling exercise of review jurisdiction conferred
by Order 47 Rule 1 CPC or any other statutory provision
or allowing review of an order passed in exercise of writ or
supervisory jurisdiction of the High Court (where also the
principles underlying or emerging from Order 47 Rule 1
CPC act as guidelines) are not necessarily the same on
which this Court exercises discretion to grant or not to
grant special leave to appeal while disposing of a petition
for the purpose. Mere rejection of a special leave petition
does not take away the jurisdiction of the court, tribunal
or forum whose order forms the subject-matter of petition
for special leave to review its own order if grounds for
exercise of review jurisdiction are shown to exist. Where
the order rejecting an SLP is a speaking order, that is,
where reasons have been assigned by this Court for
rejecting the petition for special leave and are stated in the
order still the order remains the one rejecting prayer for
2025:JHHC:37282-DB
the grant of leave to appeal. The petitioner has been turned
away at the threshold without having been allowed to enter
in the appellate jurisdiction of this Court. Here also the
doctrine of merger would not apply. But the law stated or
declared by this Court in its order shall attract
applicability of Article 141 of the Constitution. The reasons
assigned by this Court in its order expressing its
adjudication (expressly or by necessary implication) on
point of fact or law shall take away the jurisdiction of any
other court, tribunal or authority to express any opinion
in conflict with or in departure from the view taken by this
Court because permitting to do so would be subversive of
judicial discipline and an affront to the order of this Court.
However this would be so not by reference to the doctrine
of merger.
41. Once a special leave petition has been granted, the
doors for the exercise of appellate jurisdiction of this Court
have been let open. The order impugned before the
Supreme Court becomes an order appealed against. Any
order passed thereafter would be an appellate order and
would attract the applicability of doctrine of merger. It
would not make a difference whether the order is one of
reversal or of modification or of dismissal affirming the
order appealed against. It would also not make any
difference if the order is a speaking or non-speaking one.
Whenever this Court has felt inclined to apply its mind to
the merits of the order put in issue before it though it may
be inclined to affirm the same, it is customary with this
Court to grant leave to appeal and thereafter dismiss the
appeal itself (and not merely the petition for special leave)
though at times the orders granting leave to appeal and
dismissing the appeal are contained in the same order and
at times the orders are quite brief. Nevertheless, the order
shows the exercise of appellate jurisdiction and therein the
2025:JHHC:37282-DB
merits of the order impugned having been subjected to
judicial scrutiny of this Court.
43. We may look at the issue from another angle. The
Supreme Court cannot and does not reverse or modify the
decree or order appealed against while deciding a petition
for special leave to appeal. What is impugned before the
Supreme Court can be reversed or modified only after
granting leave to appeal and then assuming appellate
jurisdiction over it. If the order impugned before the
Supreme Court cannot be reversed or modified at the SLP
stage obviously that order cannot also be affirmed at the
SLP stage.
44. To sum up, our conclusions are:
(i) Where an appeal or revision is provided against an
order passed by a court, tribunal or any other authority
before superior forum and such superior forum
modifies, reverses or affirms the decision put in issue
before it, the decision by the subordinate forum merges
in the decision by the superior forum and it is the latter
which subsists, remains operative and is capable of
enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the
Constitution is divisible into two stages. The first stage
is upto the disposal of prayer for special leave to file an
appeal. The second stage commences if and when the
leave to appeal is granted and the special leave petition
is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal
or unlimited application. It will depend on the nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or capable of
being laid shall be determinative of the applicability of
merger. The superior jurisdiction should be capable of
reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the
2025:JHHC:37282-DB
Supreme Court may reverse, modify or affirm the
judgment-decree or order appealed against while
exercising its appellate jurisdiction and not while
exercising the discretionary jurisdiction disposing of
petition for special leave to appeal. The doctrine of
merger can therefore be applied to the former and not to
the latter.
(iv) An order refusing special leave to appeal may be a
non-speaking order or a speaking one. In either case it
does not attract the doctrine of merger. An order
refusing special leave to appeal does not stand
substituted in place of the order under challenge. All
that it means is that the Court was not inclined to
exercise its discretion so as to allow the appeal being
filed.
(v) If the order refusing leave to appeal is a speaking
order, i.e., gives reasons for refusing the grant of leave,
then the order has two implications. Firstly, the
statement of law contained in the order is a declaration
of law by the Supreme Court within the meaning of
Article 141 of the Constitution. Secondly, other than the
declaration of law, whatever is stated in the order are
the findings recorded by the Supreme Court which
would bind the parties thereto and also the court,
tribunal or authority in any proceedings subsequent
thereto by way of judicial discipline, the Supreme Court
being the Apex Court of the country. But, this does not
amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the
Supreme Court rejecting the special leave petition or
that the order of the Supreme Court is the only order
binding as res judicata in subsequent proceedings
between the parties.
(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the
2025:JHHC:37282-DB
order passed in appeal would attract the doctrine of
merger; the order may be of reversal, modification or
merely affirmation.
(vii) On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an
appeal before the Supreme Court the jurisdiction of High
Court to entertain a review petition is lost thereafter as
provided by sub-rule (1) of Rule 1 of Order 47 CPC."
60. It is evident from the aforesaid judgment that doctrine
of merger is not a doctrine of universal or unlimited
application rather it will depend upon the nature of
jurisdiction exercised by the superior forum and the content
or subject-matter of challenge laid or capable of being laid
shall be determinative of the applicability of merger. The
superior jurisdiction should be capable of reversing,
modifying or affirming the order put in issue before it. Under
Article 136 of the Constitution of India, the Supreme Court
may reverse, modify or affirm the judgment- decree or order
appealed against while exercising its appellate jurisdiction
and not while exercising the discretionary jurisdiction
disposing of petition for special leave to appeal. The doctrine
of merger can therefore be applied to the former and not to
the latter.
61. The decision in Kunhayammed v. State of Kerala
(Supra) was followed by a three-Judge Bench decision of
Hon'ble Apex Court in Chandi Prasad v. Jagdish Prasad
2025:JHHC:37282-DB
reported in (2004) 8 SCC 724, wherein at paragraphs 23
and 24 it has been held which read hereunder as:-
"23. The doctrine of merger is based on the principles of
propriety in the hierarchy of the justice delivery system. The
doctrine of merger does not make a distinction between an
order of reversal, modification or an order of confirmation
passed by the appellate authority. The said doctrine
postulates that there cannot be more than one operative
decree governing the same subject-matter at a given point of
time.
24. It is trite that when an appellate court passes a decree, the
decree of the trial court merges with the decree of the appellate
court and even if and subject to any modification that may be
made in the appellate decree, the decree of the appellate court
supersedes the decree of the trial court. In other words, merger
of a decree takes place irrespective of the fact as to whether
the appellate court affirms, modifies or reverses the decree
passed by the trial court."
62. The decision in Chandi Prasad v. Jagdish Prasad
(Supra) was followed by a two-Judge Bench of Hon'ble
Apex Court in Shanthi v. T.D. Vishwanathan reported in
(2018) SCC OnLine SC 2196 wherein it has been held at
paragraph 7 which reads as under:-
"7. ... When an appeal is prescribed under a statute and the
appellate forum is invoked and entertained, for all intents and
purposes, the suit continues. When a higher forum entertains
an appeal and passes an order on merit, the doctrine of merger
would apply. The doctrine of merger is based on the principles
of the propriety in the hierarchy of the justice delivery system.
The doctrine of merger does not make a distinction between an
order of reversal, modification or an order of confirmation
passed by the appellate authority. The said doctrine postulates
that there cannot be more than one operative decree governing
the same subject-matter at a given point of time."
2025:JHHC:37282-DB
63. Herein, the moment the order dated 12.08.2016 passed
in W.P.(S) No. 1562/2014, by this Court has been merged
with the order dated 18.02.2021 passed by the Hon'ble Apex
Court in in Civil Appeal No. 429-430/2021 with other
analogous Civil Appeals and in that view of the matter, if the
State has come out with the order of reinstatement dated
21.12.2020, holding one or the other writ petitioners entitled
for the monetary benefit from the date of joining, there
cannot be any direction contrary to the order passed by
Hon'ble Apex Court on the basis of principle of merger and
further without challenging the said part of the order of
reinstatement dated 21.12.2020, passed by the authority.
64. So far as the question of challenge to the Condition
No.2 of the order of reinstatement dated 21.12.2020, is
concerned, although there is no occasion to challenge that
once the same has been passed by this Court affirmed in
Civil Appeal by the Hon'ble Apex Court, but, even then it
ought to have been challenged before seeking a direction by
way of command holding one or the other writ petitioners
entitled for back wages.
65. This Court, therefore, is of the view that the question of
entitlement for back wages since has been accepted by one
or the other writ petitioners as per the direction passed by
the learned Single Judge in the order dated 12.08.2016 in
W.P(S) No.1562/2014 which has not been challenged by one
2025:JHHC:37282-DB
or the other writ petitioners, rather, when the State has
challenged the same has been upheld, meaning thereby, one
or the other writ petitioners have accepted their status that
if they will be appointed in pursuance to the order dated
12.08.2016 passed by this Court in W.P(S) No.1562/2014,
upheld by the Hon'ble Apex Court in Civil Appeal No.
429430/2021 with other analogous Civil Appeals, they will
be treated as fresh appointees and once they have accepted
the status of fresh appointees, it will not be available for
them to get entitlement for the back wages.
66. Adverting to the facts herein, this Court, after going
through the impugned judgment dated 17.01.2025 in
W.P(S)No. 504 of 2024, passed by the learned Single Judge
has found that the learned Single Judge has considered the
issue of reinstatement by taking reference of the definition of
"reinstatement" in the Black's Law Dictionary, as has been
referred in paragraph-15 of the impugned judgment, which
is being referred herein:-
"15. Reading the judgment of learned Single Judge in its
entirety, he has come to a finding that the petitioners have not
made any fraud or misrepresentation and if any wrong has
been committed that was on the part of the State and in the
light of that the reinstatement is directed by the learned Single
Judge. In the Black's Law Dictionary "reinstatement" is
defined to reinstall, to re-establish, to place again in a former
state, condition or office, to restore to a state or position from
which the object or person had been removed. The term
"reinstatement" has been considered by Hon'ble Supreme
Court in the case of Deepali Gundu Surwase v. Kranti
2025:JHHC:37282-DB
Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. reported
in (2013) 10 SCC 324 wherein, at paragraph No.21 and 22,
it has been held as under :
21. The word "reinstatement" has not been defined in
the Act and the Rules. As per Shorter Oxford English
Dictionary, Vol. 2, 3rd Edn., the word "reinstate" means
to reinstall or re-establish (a person or thing in a place,
station, condition, etc.); to restore to its proper or
original state; to reinstate afresh and the word
"reinstatement" means the action of reinstating;
reestablishment. As per Law Lexicon, 2nd Edn., the
word "reinstate" means to reinstall; to re-establish; to
place again in a former state, condition or office; to
restore to a state or position from which the object or
person had been removed and the word "reinstatement"
means establishing in former condition, position or
authority (as) reinstatement of a deposed prince. As per
MerriamWebster Dictionary, the word "reinstate" means
to place again (as in possession or in a former position),
to restore to a previous effective state. As per Black's
Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a
former state, condition, or office; to restore to a
state or position from which the object or person
had been removed."
22. The very idea of restoring an employee to the
position which he held before dismissal or removal or
termination of service implies that the employee will be
put in the same position in which he would have been
but for the illegal action taken by the employer. The
injury suffered by a person, who is dismissed or
removed or is otherwise terminated from service cannot
easily be measured in terms of money. With the passing
of an order which has the effect of severing the
employer-employee relationship, the latter's source of
income gets dried up. Not only the employee concerned,
but his entire family suffers grave adversities. They are
deprived of the source of sustenance. The children are
deprived of nutritious food and all opportunities of
2025:JHHC:37282-DB
education and advancement in life. At times, the family
has to borrow from the relatives and other acquaintance
to avoid starvation. These sufferings continue till the
competent adjudicatory forum decides on the legality of
the action taken by the employer. The reinstatement of
such an employee, which is preceded by a finding of the
competent judicial/quasi-judicial body or court that the
action taken by the employer is ultra vires the relevant
statutory provisions or the principles of natural justice,
entitles the employee to claim full back wages. If the
employer wants to deny back wages to the employee or
contest his entitlement to get consequential benefits,
then it is for him/her to specifically plead and prove that
during the intervening period the employee was
gainfully employed and was getting the same
emoluments. The denial of back wages to an employee,
who has suffered due to an illegal act of the employer
would amount to indirectly punishing the employee
concerned and rewarding the employer by relieving him
of the obligation to pay back wages including the
emoluments."
61. There is no dispute that if the order of reinstatement is
passed, the normal and implied meaning would be that there
is no order of termination of one or the other, in whose favour
the order of reinstatement has been passed, will be treated
to be reinstated in service from the date of termination and
in that view of the matter, the court is to give finding that if
there is no fault lies on the part of one or the other public
servant who have been terminated from service and
forcefully have not been allowed to discharge their duty, then
in such circumstances they are entitled to get the back
wages, as has been held by Hon'ble Apex Court in the case
2025:JHHC:37282-DB
of Union of India and Others v. K.V. Jankiraman reported
in (1991) 4 SCC 109, for ready reference, the relevant
paragraph of the said judgment is being quoted hereunder
as :-
"25. We are not much impressed by the contentions advanced
on behalf of the authorities. The normal rule of "no work no
pay" is not applicable to cases such as the present one where
the employee although he is willing to work is kept away from
work by the authorities for no fault of his. This is not a case
where the employee remains away from work for his own
reasons, although the work is offered to him. It is for this reason
that F.R. 17(1) will also be inapplicable to such cases."
62. Likewise, in Commissioner, Karnataka Housing
Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 it has
been held at paragraph 34 as hereunder: -
"34. We are conscious and mindful that even in absence of
statutory provision, normal rule is 'no work no pay'. In
appropriate cases, however, a Court of law may, nay must, take
into account all the facts in their entirety and pass an
appropriate order in consonance with law. The court, in a given
case, may hold that the person was willing to work but was
illegally and unlawfully not allowed to do so. The court may in
the circumstances, direct the authority to grant him all benefits
considering 'as if he had worked'. It, therefore, cannot be
contended as an absolute proposition of law that no direction of
payment of consequential benefits can be granted by a Court of
Law and if such directions are issued by a Court, the Authority
can ignore them even if they had been finally confirmed by the
Apex Court of the country (as has been done in the present
case). The bald contention of the appellant-Board, therefore,
has no substance and must be rejected."
63. The aforesaid principle has been carved out by
visualizing the situation that if one or the other public
2025:JHHC:37282-DB
servant is willing to discharge duty but has been restrained
from discharging duty, then in such circumstances, he will
be entitled for back wages holding therein that 'no work no
pay' cannot be said to be normal rule. However, vice versa to
that situation, one or the other employee is not willing to
discharge duty, then in such circumstances he will not be
entitled for back wages.
64. Here the situation is totally different, since, the
petitioners although have come to this Court by challenging
the order of termination in W.P.(S) No. 1562 of 2014,but
while quashing the order of termination, this Court has
passed specific direction in order dated 12.08.2016, treating
the services of one or the other writ petitioners to be fresh
appointees, which having not been challenged, rather, has
been upheld upto the level of the Hon'ble Apex Court in Civil
Appeal No. 429-430/2021 with other analogous Civil
Appeals, hence, it is not a case where the implied meaning
of "reinstatement" is to be made applicable, rather, it is to be
tested on the touchstone of the order passed by the learned
Single Judge in W.P.(S) No. 1562 of 2014.
65. It requires to refer herein that it is also not available to
the one or the other writ petitioners to take the ground by
questioning the one part of the order passed by the learned
Single Judge which suits them and discard the other part of
the order which is adverse to their interest on the principle
2025:JHHC:37282-DB
that there cannot be approbate and reprobate, reference in
this regard be made to the judgment rendered by Hon'ble
Apex Court in the case of R. N. Gosain vs. Yashpal Dhir,
(1992) 4 SCC 683. Paragraph-10 of the said judgment is
being reproduced as hereunder:
"10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that "a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to
which he could only be entitled on the footing that it is valid,
and then turn round and say it is void for the purpose of
securing some other advantage". [See : Verschures Creameries
Ltd. v. Hull and Netherlands Steamship Co. Ltd, Scrutton, L.J.]
According to Halsbury‟s order (for example for the payment of
costs) a party may be precluded from saying that it is invalid
and asking to set it aside". (para 1508)"
66. In Suzuki Parasrampuria Suitings Private Limited
vs. Official Liquidator of Mahendra Petrochemicals
Limited (In Liquidation) and Ors., (2018) 10 SCC 707 the
Hon'ble Apex Court at paragraphs 12 has laid down which
reads as hereunder:-
"12. A litigant can take different stands at different times but
cannot take contradictory stands in the same case. A party
cannot be permitted to approbate and reprobate on the same
facts and take inconsistent shifting stands. The untenability of
an inconsistent stand in the same case was considered in Amar
Singh v. Union of India [Amar Singh v. Union of India, (2011) 7
SCC 69], observing as follows: (SCC p. 86, para 50)
"50. This Court wants to make it clear that an action at law
is not a game of chess. A litigant who comes to court and
invokes its writ jurisdiction must come with clean hands. He
cannot prevaricate and take inconsistent positions."
2025:JHHC:37282-DB
67. The learned Single Judge in the impugned order dated
17.01.2025 passed in W.P.(S) No.-504 of 2024, has not
considered the aforesaid fact and merely has gone through
the definition of reinstatement, which according to our
considered view, is not fit to be accepted.
68. The learned Single Judge in the impugned order has
also considered the judgment rendered by Hon'ble Apex
Court in Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra).
69. We have considered the said judgment, particularly,
paragraphs 21 and 22, as has been taken note by the
learned Single Judge as also paragraph 38 thereof. We, for
ready reference, are again referring the aforesaid paragraphs
Deepali Gundu Surwase(supra) along with paragraph 38:-
"21. The word "reinstatement" has not been defined in
the Act and the Rules. As per Shorter Oxford English
Dictionary, Vol. 2, 3rd Edn., the word "reinstate" means
to reinstall or re-establish (a person or thing in a place,
station, condition, etc.); to restore to its proper or
original state; to reinstate afresh and the word
"reinstatement" means the action of reinstating;
reestablishment. As per Law Lexicon, 2nd Edn., the
word "reinstate" means to reinstall; to re-establish; to
place again in a former state, condition or office; to
restore to a state or position from which the object or
person had been removed and the word "reinstatement"
means establishing in former condition, position or
authority (as) reinstatement of a deposed prince. As per
MerriamWebster Dictionary, the word "reinstate" means
to place again (as in possession or in a former position),
2025:JHHC:37282-DB
to restore to a previous effective state. As per Black's
Law Dictionary, 6th Edn., "reinstatement" means:
"To reinstall, to re-establish, to place again in a
former state, condition, or office; to restore to a
state or position from which the object or person
had been removed."
22. The very idea of restoring an employee to the
position which he held before dismissal or removal or
termination of service implies that the employee will be
put in the same position in which he would have been
but for the illegal action taken by the employer. The
injury suffered by a person, who is dismissed or
removed or is otherwise terminated from service cannot
easily be measured in terms of money. With the passing
of an order which has the effect of severing the
employer-employee relationship, the latter's source of
income gets dried up. Not only the employee concerned,
but his entire family suffers grave adversities. They are
deprived of the source of sustenance. The children are
deprived of nutritious food and all opportunities of
education and advancement in life. At times, the family
has to borrow from the relatives and other acquaintance
to avoid starvation. These sufferings continue till the
competent adjudicatory forum decides on the legality of
the action taken by the employer. The reinstatement of
such an employee, which is preceded by a finding of the
competent judicial/quasi-judicial body or court that the
action taken by the employer is ultra vires the relevant
statutory provisions or the principles of natural justice,
entitles the employee to claim full back wages. If the
employer wants to deny back wages to the employee or
contest his entitlement to get consequential benefits,
then it is for him/her to specifically plead and prove that
during the intervening period the employee was
gainfully employed and was getting the same
emoluments. The denial of back wages to an employee,
who has suffered due to an illegal act of the employer
would amount to indirectly punishing the employee
concerned and rewarding the employer by relieving him
2025:JHHC:37282-DB
of the obligation to pay back wages including the
emoluments.
XXXXXXXXX XXXXXXX XXXXXXXXXXXX
38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
38.2. The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the court may take into consideration the
length of service of the employee/workman, the nature
of misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
38.3. Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make
a statement before the adjudicating authority or the
court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the
employer wants to avoid payment of full back wages,
then it has to plead and also lead cogent evidence to
prove that the employee/workman was gainfully
employed and was getting wages equal to the wages
he/she was drawing prior to the termination of service.
This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the
person who makes a positive averment about its
existence. It is always easier to prove a positive fact than
to prove a negative fact. Therefore, once the employee
shows that he was not employed, the onus lies on the
employer to specifically plead and prove that the
employee was gainfully employed and was getting the
same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the
2025:JHHC:37282-DB
employee/workman is consistent with the rules of
natural justice and/or certified standing orders, if any,
but holds that the punishment was disproportionate to
the misconduct found proved, then it will have the
discretion not to award full back wages. However, if the
Labour Court/Industrial Tribunal finds that the
employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false
charge, then there will be ample justification for award
of full back wages.
38.5. The cases in which the competent court or
tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimising the
employee or workman, then the court or tribunal
concerned will be fully justified in directing payment of
full back wages. In such cases, the superior courts
should not exercise power under Article 226 or 136 of
the Constitution and interfere with the award passed by
the Labour Court, etc. merely because there is a
possibility of forming a different opinion on the
entitlement of the employee/workman to get full back
wages or the employer's obligation to pay the same. The
courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and the sufferer is the employee/workman
and there is no justification to give a premium to the
employer of his wrongdoings by relieving him of the
burden to pay to the employee/workman his dues in the
form of full back wages.
38.6. In a number of cases, the superior courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalisation of litigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to
grave injustice to an employee or workman if he is
2025:JHHC:37282-DB
denied back wages simply because there is long lapse of
time between the termination of his service and finality
given to the order of reinstatement. The courts should
bear in mind that in most of these cases, the employer
is in an advantageous position vis-à-vis the employee or
workman. He can avail the services of best legal brain
for prolonging the agony of the sufferer i.e. the employee
or workman, who can ill-afford the luxury of spending
money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt
the course suggested in Hindustan Tin Works (P) Ltd. v.
Employees [Hindustan Tin Works (P) Ltd. v. Employees,
(1979) 2 SCC 80 : 1979 SCC (L&S)
53] .
38.7. The observation made in J.K. Synthetics
Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC
(L&S) 651] that on reinstatement the
employee/workman cannot claim continuity of service
as of right is contrary to the ratio of the judgments of
three-Judge Benches [Hindustan Tin Works (P) Ltd. v.
Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] ,
[Surendra Kumar Verma v. Central Govt. Industrial
Tribunal-cum-Labour Court, (1980) 4 SCC 443 : 1981
SCC (L&S) 16] referred to hereinabove and cannot be
treated as good law. This part of the judgment is also
against the very concept of reinstatement of an
employee/workman."
68. The implication of paragraphs 21 and 22 is to be read
out along with paragraph 38.5 which we have discussed in
another Letters Patent Appeal being LPA No. 189/2023 vide
order dated 22.07.2024 and against the said order appeal
being Special Leave to Appeal (C) No(s). 23902/2025 had
been preferred but the same has been dismissed. The
relevant paragraphs of the said order i.e. order dated
22.07.2024 are being referred herein:
2025:JHHC:37282-DB
41. It is evident from the aforesaid judgment, more
particularly para-38.3 which starts as "Ordinarily, an
employee or workman whose services are terminated and who
is desirous of getting back wages is required to either plead or
at least make a statement before the adjudicating authority or
the court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the employer
wants to avoid payment of full back wages, then it has to plead
and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was getting
wages equal to the wages he/she was drawing prior to the
termination of service. This is so because it is settled law that
the burden of proof of the existence of a particular fact lies on
the person who makes a positive averment about its existence.
It is always easier to prove a positive fact than to prove a
negative fact. Therefore, once the employee shows that he was
not employed, the onus lies on the employer to specifically
plead and prove that the employee was gainfully employed
and was getting the same or substantially similar
emoluments."
It is, thus, evident from the aforesaid paragraph
that the ordinarily a pleading is to be made before the
adjudicating authority of the court of first instance that
he/she was not gainfully employed.
42. Further, from paragraph-38.4, it would be evident that the
Hon'ble Apex Court has been pleased to lay down that the case
in which the Labour Court/Industrial Tribunal exercises
power under Section 11-A of the Industrial Disputes Act, 1947
and finds that even though the enquiry held against the
employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds that
the punishment was disproportionate to the misconduct
found proved, then it will have the discretion not to award full
back wages.
However, if the Labour Court/Industrial Tribunal finds
that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false charge,
2025:JHHC:37282-DB
then there will be ample justification for award of full back
wages.
43. Further, from paragraph-38.5, it would be evident that the
cases in which the competent court or tribunal finds that the
employer has acted in gross violation of the statutory
provisions and/or the principles of natural justice or is guilty
of victimising the employee or workman, then the court or
tribunal concerned will be fully justified in directing payment
of full back wages. In such cases, the superior courts should
not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the
Labour Court, etc. merely because there is a possibility of
forming a different opinion on the entitlement of the
employee/workman to get full back wages or the employer's
obligation to pay the same. The courts must always keep in
view that in the cases of wrongful/illegal termination of
service, the wrongdoer is the employer and the sufferer is the
employee/workman and there is no justification to give a
premium to the employer of his wrongdoings by relieving him
of the burden to pay to the employee/workman his dues in
the form of full back wages.
44. Further, from paragraph-38.6, it would be evident that in
a number of cases, the superior courts have interfered with
the award of the primary adjudicatory authority on the
premise that finalisation of litigation has taken long time
ignoring that in majority of cases the parties are not
responsible for such delays. Lack of infrastructure and
manpower is the principal cause for delay in the disposal of
cases. For this the litigants cannot be blamed or penalised. It
would amount to grave injustice to an employee or workman
if he is denied back wages simply because there is long lapse
of time between the termination of his service and finality
given to the order of reinstatement. The courts should bear in
mind that in most of these cases, the employer is in an
advantageous position vis-à-vis the employee or workman. He
can avail the services of best legal brain for prolonging the
agony of the sufferer i.e. the employee or workman, who can
ill-afford the luxury of spending money on a lawyer with
2025:JHHC:37282-DB
certain amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works (P) Ltd. v. Employees.
45. It is, thus, evident that the guidelines as under para-38 of
aforesaid judgment, according to the considered view of this
Court, is in two parts, first part deals with the part of pleading
to be made by the concerned workman of having not gainfully
employed, however, if the learned labour court or the
industrial tribunal is exercising the power conferred under
Section 11-A of the Act, 1947 and if the punishment has been
found to be disproportionate to the misconduct found proved,
then the discretion is upon the adjudicator not to award full
back wages. But, if the Labour Court/Industrial Tribunal
finds that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false charge,
then there will be ample justification for award of full back
wages."
69. Analysing the aforesaid consideration with the facts of
the present case herein, in view of the specific observation
made by the learned Single Judge in order dated 12.08.2016
passed in W.P.(S) No. 1562 of 2014, treating the services of
one or the other writ petitioners to be fresh appointment and
the same having not been challenged by one or the other writ
petitioners before the higher forum, rather, they have
accepted and in that view of the matter, they cannot be held
entitled for back wages for the aforesaid period on the ground
that for no fault of their own they have been deprived from
service, rather, the aforesaid point ought to have been raised
or taken by one or the other writ petitioners by challenging
that part of the order of the learned Single Judge treating
their services as fresh appointment but one or the other writ
2025:JHHC:37282-DB
petitioners have chosen not to do so, meaning thereby that
part of the order has been accepted by them. Once accepted,
it is not available for one or the other writ petitioners to claim
by going back to that direction claiming the back wages for
the aforesaid period.
70. The case of Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra) is totally
on the different premise wherein the question of
consideration of back wages in a case of termination
simplicitor with a direction of reinstatement on
consideration of the hardship was the subject matter. There
was no observation in that case and no consideration also of
the fact that if the order has been passed by the Court under
Article 226 of the Constitution of India holding the
appointment to be fresh appointment in a case of direction
of reinstatement, as to whether the back wages is to be given.
71. The learned Single Judge ought to have taken into
consideration the aforesaid aspect of the matter, having not
taken, hence, the ratio of the judgment Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed) & Ors. (Supra), as has been applied in the present
case, cannot be said to be proper consideration given by the
learned Single Judge.
72. This Court, in view of the aforesaid and while
answering the aforesaid issues, is of the view that the
2025:JHHC:37282-DB
judgment passed by the learned Single Judge needs
interference.
73. Accordingly, the instant appeal is allowed and in
consequence thereof, the impugned order is hereby quashed
and set aside.
74. In the result, the writ petition stands dismissed.
75. Interlocutory application, if any, also stands disposed
of.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Date : 10/12/2025
Birendra/ A.F.R.
Uploaded on 11.12.2025
