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2020 DIGILAW 392 (ALL)

Sharwan Kumar v. State of U. P.

2020-02-05

KARUNESH SINGH PAWAR, P.K.JAISWAL

body2020
JUDGMENT : Karunesh Singh Pawar, J. 1. Heard Sri Divyanshu Sahay, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State and Sri Himanshu Hemant Gupta, learned counsel appearing for the respondent Corporation. 2. This intra Court appeal arises against judgment and order dated 17.10.2019 passed in Writ Petition No. 34236 (SS) of 2018, Shanvan Kumar v. State of U.P. and others, whereby learned Single Judge had dismissed the writ petition as not maintainable taking into consideration principles of res-judicata/constructive res-judicata enshrined in Order II, Rule 2 C.P.C. 3. The appellant/petitioner was an employee of the Institute of Tool Room Training U.P. (hereinafter referred to as the ITTUP) who retired on 30.4.2011. The petitioner had filed Writ Petition No. 375 of 1985, Shanvan Kumar v. Institute of Tool Room Training, U.P. and others before this Court praying for the following reliefs: "(i) issue a writ, order or direction in the nature of Mandamus commanding the opposite parties No. 1 to 3 not to make any hostile discrimination between the petitioner and the opposite parties No. 4 to 6 regarding grant of annual increments in the wage revision. (ii) issue a writ, order or direction in the nature of Mandamus commanding the opposite parties No. 1 to 3 to grant petitioner also at least five annual increments. (iii) issue any other writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case, in favour of the petitioner. (iv) award costs of this petition to the petitioner." 4. The aforesaid writ petition was disposed of with a direction to the respondents to decide the representation of the petitioner and when the representation of the petitioner was rejected, he filed Writ Petition No. 9651 of 1988, Shanvan Kumar v. State of U.P. and others, which was dismissed vide judgment and order of this Court dated 27.7.1999. Against the judgment and order dated 27.7.1999 the petitioner filed Special Appeal No. 354 of 1999, which too was dismissed vide judgment and order dated 21.8.2008. Against the judgment and order dated 27.7.1999 the petitioner filed Special Appeal No. 354 of 1999, which too was dismissed vide judgment and order dated 21.8.2008. Against judgment and order dated 21.8.2008, Civil Appeal No. 8902 of 2010 In re: Sharwan Kumar v. State of U.P. and others was filed by the petitioner before the Hon'ble Apex Court wherein the following order was passed: "This appeal by special leave is directed against the judgment and order dated 21.8.2008 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal No. 354 (SB) of 1999. After hearing learned counsel for the parties, we do not find any reason to interfere with the impugned order. This appeal is, accordingly, dismissed. However, learned counsel appearing for the appellant submitted that the salary of the appellant was with-held for about 10 years and it was released only after the contempt petition was filed, that too, without giving any increment and revision of pay. The respondents are directed to took into the matter and see that if the salary was not paid, as per the revised pay scale and increments have not been given, the same shall be calculated and released in favour of the appellant within a period of two months from today." 5. Hon'ble Apex Court vide order dated 29.7.2015 while dismissing the Civil Appeal directed the respondents to look into the matter and see if the salary has not been paid as per revised pay scale and increments have not been given, the same shall be calculated and released in favour of the appellant within a period of two months. Since the judgement and order dated 29.7.2015 was not complied with, the petitioner filed Contempt Petition (C) No. III of 2016, Sharwan Kumar v. Mahesh Kumar Gupta and others before the Hon'ble Apex Court which was disposed of vide order dated 27.11.2017. Relevant portion of order dated 27.11.2017 is reproduced as under: "We have seen the reply filed by the respondent No. 3. We are satisfied that the order has been substantially complied with. In case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. The contempt petition is hereby dismissed with the aforesaid observations." 6. We are satisfied that the order has been substantially complied with. In case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. The contempt petition is hereby dismissed with the aforesaid observations." 6. Vide order dated 27.11.2017, liberty was granted to the petitioner that in case he is still aggrieved by the action taken, he can question it in the appropriate proceedings. In the meantime, another Writ Petition (S/S) No. 2766 of 2011, Shrawan Kumar v. State of U.P. and others was filed challenging order dated 18.4.2011 passed by the ITTUP whereby the petitioner was superannuated at the age of 58 years instead of 60 years. In this petition, the petitioner further prayed for payment of salary on the basis of 5th and 6th Pay Commission. This writ petition was disposed of vide judgment and order dated 29.1.2014 with a direction to the Principal Secretary, Industrial Development Department as well as the Secretary of the Department of Technical Education to take a decision in the matter. Aggrieved by the said judgment and order dated 29.1.2014, the petitioner filed Special Leave to Appeal (Civil) No. 12015 of 2014, Sharwan Kumar v. State of U.P. and others, which was dismissed as withdrawn. However, petitioner was given time to submit representation. The representation of the petitioner was rejected, hence he filed another Writ Petition No. 217 (SS) of 2015, Sharwan Kumar v. State of U.P. and others in which the following prayers were made: "i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.7.2014 passed by the opposite party No. 1 and order dated 4.4.2014 passed by the opposite party No. 2 as contained in Annexure Nos. 1 and 2 respectively to this writ petition; ii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.4.2011 passed by the opposite party No. 8 and subsequent order dated 30.4.2011 passed by an incompetent authority on behalf of opposite party No. 8 as contained in Annexure Nos. 1 and 2 respectively to this writ petition; ii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.4.2011 passed by the opposite party No. 8 and subsequent order dated 30.4.2011 passed by an incompetent authority on behalf of opposite party No. 8 as contained in Annexure Nos. 3 and 4 respectively to this writ petition; iii) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.5.2013 passed by opposite party No. 8, order dated 2.7.2013 passed by the opposite party No. 4, order dated 10.7.2013 passed by the opposite party No. 8, order dated 29.7.2013 passed by the opposite party No. 6 and order dated 12.8.2013 passed by opposite party No. 8 as contained in Annexure 5, 6, 7, 8 and 9 respectively to this writ petition; iv) issue a writ, order or direction in the nature of mandamus directing the opposite parties to provide the benefits of retirement at the age of 60/62 years instead of 58 years; v) issue a writ, order or direction in the nature of mandamus directing the opposite parties to sanction and pay the difference amount of encashment of leave forthwith, alongwith compound interest @ 18% per annum since the due date till the actual payment to the petitioner; vi) issue a writ, order or direction in the nature of mandamus directing the opposite parties to sanction and give the benefits, of 5th and 6th Pay Commission report as paid to the other diploma level technical institutions; vii) issue a writ, order or direction in the nature of mandamus directing the opposite party No. 1 and 4 to take action against the opposite party Nos. 7 and 8 for not completing the norms of AICTE and Board of Technical Education U.P., and to direct the opposite party No. 3 to take action against the opposite party Nos. 5 and 6 for not complying the norms of AICTE and Board of Technical Education, U.P." 7. In Writ Petition No. 217 (SS) of 2015, a preliminary objection was taken by respondents/Corporation that the writ petition is not maintainable on the principles of res-judicata and constructive res-judicata. This Court while considering the preliminary objections, disposed of the said writ petition vide judgment and order dated 28.1.2016. In Writ Petition No. 217 (SS) of 2015, a preliminary objection was taken by respondents/Corporation that the writ petition is not maintainable on the principles of res-judicata and constructive res-judicata. This Court while considering the preliminary objections, disposed of the said writ petition vide judgment and order dated 28.1.2016. While deciding the writ petition, finding was given by the learned writ Court and held that it was not open for the petitioner to raise the said issue of entitlement to the revised pay-scale as recommended by 5th and 6th pay commission as the same were held to be barred by principles res-judicata or constructive res-judicata. 8. The petition filed before the learned Single Judge, the petitioner again prayed for the reliefs) which he had already prayed in the earlier round of litigations alongwith the prayer that he may be disbursed the arrears of salary alongwith the payment of leave encashment, annual increments, Assured Career Progression and dearness allowance in terms of GO. dated 10.7.1998 read with CO. dated 17.12.1998 and Office Order dated 28.1.2017 (Annexure-16) and GO. dated 8.12.2008 read with GO. dated 29.12.2016 and Resolution dated 6.6.2018 of ITTUP (Annexure-23) after giving benefit of the policy of Assured Career Progression notified by G.O. dated 2.12.2000; and dearness allowance payable in terms of GO. dated 22.9.2005 but not paid since 1.1.2001. Learned Single Judge, vide judgment and order dated 17.10.2019, had given a detailed finding regarding the prayer made by the petitioner as well as his entire litigation history, which reads as under (para 18 to 23): "18. From a perusal of the pleadings on record and the arguments raised by the learned counsel for the contesting parties, it comes out that the petitioner had earlier filed writ petition in the year 1985 praying for being granted 5 annual increments. The said petition was disposed of with a direction to the respondents to consider the representation of the petitioner. On the representation being rejected, the petitioner challenged the said order by filing writ petition in the year 1988 namely Writ Petition No. 9651 of 1988, which petition was dismissed vide judgment and order dated 27.7.1999. The said petition was disposed of with a direction to the respondents to consider the representation of the petitioner. On the representation being rejected, the petitioner challenged the said order by filing writ petition in the year 1988 namely Writ Petition No. 9651 of 1988, which petition was dismissed vide judgment and order dated 27.7.1999. Though a copy of the said writ petition has not been brought on record yet from a perusal of the judgment and order dated 27.7.1999 it comes out that the reliefs that had been prayed for by the petitioner in the said writ petition were for grant of increments in the wage revision, 5 annual increments and promotion, meaning thereby that there was no prayer for being granted the 5th and 6th Pay Revision as has been prayed for in the instant petition. Upon the said petition having been dismissed vide judgment and order dated 27.7.1999, the petitioner filed Special Appeal No. 354 of 1999 which special appeal was also dismissed vide judgment and order dated 21.8.2008. The petitioner raised a challenge to the said judgment by filing Civil Appeal No. 8902 of 2010 before the Apex Court and the Apex Court vide order dated 29.7.2015 did not interfere with the judgment and order dated 21.8.2008 passed in the special appeal but considering the submission of the learned counsel for the appellant that his salary was withheld for about 10 years, directed the respondents to look into the matter and see that if the salary was not paid as per the revised pay scale and increments had not been given, the same would be calculated and released in favour of the appellant. Thus the order dated 29.7.2015 passed by the Apex Court would have to be seen in the context of the reliefs that had been prayed for by the petitioner before the writ Court which were not for payment of the 5th and 6th pay revision but were for grant of annual increments in the wage revision, grant of 5 annual increments and for grant of promotion. When the compliance of the order passed by the Apex Court dated 29.7.2015 was not made, the petitioner filed Contempt Petition (C) No. III of 2016 alleging contempt of the order dated 29.7.2015 passed by the Apex Court which could only have been to the extent of the reliefs that had been prayed for by the petitioner in the writ Court. However, the petitioner cleverly worded the contempt petition and indicated in paragraphs 1 and 2 of the contempt petition that the alleged violation by the respondents is by not paying the revised pay scale and increments to the appellant. At the risk of repetition, it is to be noted that in the writ Court in the petition of 1985 and thereafter in the year 1988, there was no prayer for payment of revised pay scales as per the 5th and 6th Pay Revision. After the Apex Court issued notice of contempt, the matter remained pending before the Apex Court. The petitioner being perfectly aware that no relief had either been prayed for by him in the writ petition of 1985 or 1988 for payment of the pay scales as per the 5th and 6th Pay Revision, filed Writ Petition (S/S) No. 2766 of 2011 before this Court praying for various reliefs including payment of salary on the basis of 5th and 6th Pay Revision. Why this fact is essential is that the petitioner was perfectly conscious of the fact that the issue before the Apex Court in Civil Appeal No. 8902 of 2010 was not covering the 5th and 6th Pay Revision and payment of salary on the basis of 5th and 6th Pay Revision. The said writ petition was disposed of by this Court vide judgment and order dated 29.1.2014 with a direction to the respondents to look into the matter. Being unsatisfied with the said order, the petitioner preferred Special Leave to Appeal (Civil) No. 12015 of 2014 which was dismissed as withdrawn but after extending the time to enable the petitioner to present the matter in pursuance of the judgment of the writ Court. Being unsatisfied with the said order, the petitioner preferred Special Leave to Appeal (Civil) No. 12015 of 2014 which was dismissed as withdrawn but after extending the time to enable the petitioner to present the matter in pursuance of the judgment of the writ Court. "When the representation of the petitioner was rejected, he preferred another petition namely Writ Petition (S/S) No. 217 of 2015, inter alia, praying for quashing the order whereby his representation was rejected as well as making a specific prayer, apart from other reliefs, of being given the benefits of 5th and 6th Pay Revision. Again, while filing the said petition, the petitioner was conscious of the fact that the issue before the Apex Court in Civil Appeal No. 8902 of 2010 was not pertaining to 5th and 6th Pay Revision. 19. The writ Court in Writ Petition (S/S) No. 217 of 2015 vide judgment and order dated 28.1.2016, so far as relief pertaining to revised pay scales was concerned, categorically held that it was not open for the petitioner to raise the said issue all over again as the same would be barred by principles of res-judicata and constructive res-judicata. However, considering the order dated 29.7.2015 passed by the Apex Court directing that the revised pay scale and increments shall be calculated and released in favour of the appellant, the writ Court observed that as there is already an order of the Apex Court, the respondents are bound to comply with the same. However, no positive mandamus was issued by the writ Court for compliance of any order. Sri Sahai has categorically stated that the judgment of this Court dated 28.1.2016 has attained finality as the same has not been challenged either before this Court by filing special appeal or before the Apex Court, hence the findings recorded therein pertaining to res-judicata or constructive res-judicata so-far as it pertains to the 5th and 6th Pay Revision have attained finality. Subsequent thereto, the Apex Court decided the contempt petition after perusal of the reply filed by the respondents and being satisfied that the order (dated 29.7.2015) has been substantially complied with. However, it was provided that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. 20. Subsequent thereto, the Apex Court decided the contempt petition after perusal of the reply filed by the respondents and being satisfied that the order (dated 29.7.2015) has been substantially complied with. However, it was provided that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings before the appropriate forum. 20. What would be relevant is that the order of the Apex Court dated 27.11.2017 has to be seen in the "context of the order dated 29.7.2015 against which the contempt petition had been filed by the petitioner. As already indicated above, the order dated 29.7.2015 cannot be construed to be an order with respect to 5th and 6th Pay Revision as no such prayer had been made in the petition against which special leave petition had been filed by the petitioner. Thus, the liberty granted by the Apex Court vide order dated 27.11.2017 that in case the petitioner is still aggrieved by the action taken, he can question it in the appropriate proceedings, has to be seen in the context of what had been prayed for in the writ petition against the order in which initially order dated 29.7.2015 had been passed by the Apex Court, meaning thereby that neither before the writ Court in the year 1988 in Writ Petition No. 9651 of 1998 or before the Apex Court, the 5th and 6th Pay Revision were involved. This would also be apparent from the conduct of the petitioner that he was perfectly conscious of the fact that the Apex Court while dealing with the Civil Appeal No. 8902 of 2010 was not seized with the relief pertaining to 5th and 6th Pay Revision as in the interregnum period, the petitioner had already filed two writ petitions before the writ Court i.e. Writ Petition (S/S) No. 2766 of 2011 and Writ Petition (S/S) No. 217 of 2015 in which apart from other reliefs, the relief pertaining to 5th and 6th Pay Revision had also been prayed for. Thus, by no analogy or by any stretch of imagination can the liberty of the Apex Court dated 27.11.2017 be considered as giving liberty to the petitioner to again file a writ petition for grant of 5th and 6th Pay Revision in view of the detailed discussion made above. 21. Thus, by no analogy or by any stretch of imagination can the liberty of the Apex Court dated 27.11.2017 be considered as giving liberty to the petitioner to again file a writ petition for grant of 5th and 6th Pay Revision in view of the detailed discussion made above. 21. Having thus summed up the litigations as entered into between the petitioner and the respondents and the issues involved therein, the preliminary objection pertaining to maintainability of the present petition would have to be seen. 22. The present petition, as already indicated above, has been filed for payment of salary alongwith emoluments, gratuity, leave encashment as also annual increments after giving benefit of the policy of Assured Career Progression, dearness allowance and for arrears of salary on account of 5th and 6th Pay Revision. The Orders as have been referred to by the petitioner as detailed above pertain to the orders that had been passed by the ITTUP for extending the benefit of 6th Pay Revision. Thus, primarily the reliefs as have been prayed for by the petitioner pertain to fixation of salary in terms of the 5th and 6th Pay Revision alongwith consequential benefits of dearness allowance, salary, gratuity, leave encashment, annual increments etc. The reliefs can be viewed in two ways. Firstly, when the petitioner had approached this Court by filing two petitions, namely, Writ Petition (S/S) No. 2766 of 2011 and Writ Petition (S/S) No. 217 of 2015 praying for being given the benefit of 5th and 6th Pay Revision and in Writ Petition (S/S) No. 217 of 2015 it was categorically held that the said relief was barred on account of principle of res-judicata or constructive res-judicata, consequently the present petition would not be maintainable praying for the said relief. Once the ACP, dearness allowance, gratuity, leave encashment would all flow out after fixation of the pay of the petitioner in terms of the 5th and 6th Pay Revision keeping in view the judgment of the Apex Court in the case of Balbir Singh Turn (supra) but once the relief pertaining to 5th and 6th Pay Revision cannot be granted to the petitioner in the present petition keeping in view the judgment of this Court in Writ Petition (S/S) No. 217 of 2015, consequently there cannot be any occasion for granting the consequences flowing therefrom in the present petition i.e. gratuity, leave encashment, annual increments, ACP etc. 23. Secondly, if the gratuity, leave encashment ACP and dearness allowance are said to not flow after giving benefit of 5th and 6th Pay Revision then too the present petition would not be maintainable taking into consideration the principle of Order II, Rule 2 of the CPC wherein in case the petitioner did not pray for any relief to the said effect in the earlier two petitions filed by him in the year 2011 and 2015, consequently he would be precluded from making the said prayer by means of the present petition. Thus in both the views, the present petition would not be maintainable taking into consideration the principle of res-judicata or constructive res-judicata and principle of Order II, Rule 2 of the C.P.C." 9. On due consideration to the submission advanced and perusal of the record, we are in full agreement with the finding recorded by learned Single Judge except the finding with regard to the bar of res-judicata on resolution dated 6.6.2018. The relevant finding is as under: Hon'ble Apex Court while deciding the Contempt Petition (C) No. III of 2016, Sharwan Kumar v. Mahesh Kumar Gupta and others, vide its order dated 27.11.2017 granted liberty to the petitioner that in case he is still aggrieved by the action taken he can question it in the appropriate proceedings before the appropriate forum. It appears that this liberty was granted to the petitioner considering the reply of the contemnor before the Hon'ble Apex Court vide their affidavit dated 15.11.2017, which is at page 346 of the appeal, particularly para 9 and 10. It appears that this liberty was granted to the petitioner considering the reply of the contemnor before the Hon'ble Apex Court vide their affidavit dated 15.11.2017, which is at page 346 of the appeal, particularly para 9 and 10. In the affidavit reference was given to the 60th meeting of the Board of Directors of IITUP wherein the Board of Directors pursuant to the Government order dated 29.12.2016 considered the matter and resolved to provide the pay scale to the employees of ITTUP to be revised w.e.f. 1.1.2017 as per 6th Pay commission. 10. Thereafter on the joint recommendations made by the employees of IITUP including the petitioner, the State Government inquired/required the details of burden of expenditure arising if arrears, according to the recommendations of the 5th and 6th pay commission w.e.f. 1.1.2006 were paid to the employees of ITTUP. In reply, respondent No. 3 has submitted a report dated 21.11.2017 to the Government giving details of expenditure, to be incurred in case the recommendations of the 6th pay commission are implemented and the benefits of pay revision is given to the employees of ITTUP w.e.f. 1.1.2006. In the letter dated 21.12.2017 (supra) respondent No. 3 has further conveyed that the Government has already informed that the ITTUP is capable to bear the expenditure which may be incurred on payment of arrears w.e.f. 1.1.2006 to the employees of ITTUP. 11. In the backdrop, it appears that Board of Directors in its 61st meeting held on 6.6.2018 took a decision on point No. 5 of the agenda and approved the payment of arrears as per 6th pay commission recommendation w.e.f. 1.1.2006, and also provided the budgetary allocation for the purpose of said payment and the matter was directed to be referred to State Government. It is in this background the fresh cause of action has accrued to the petitioner. The letter dated 21.12.2017 of respondent No. 3 and respondent No. 2 giving details of the burden of the expenditure and also the resolution of the Board of Directors passed in its 61st meeting held on 6.6.2018 was not there before the Apex Court when the liberty was granted to the petitioner. 12. The letter dated 21.12.2017 of respondent No. 3 and respondent No. 2 giving details of the burden of the expenditure and also the resolution of the Board of Directors passed in its 61st meeting held on 6.6.2018 was not there before the Apex Court when the liberty was granted to the petitioner. 12. Considering the aforesaid, we are of the view that the resolution of the Board of Directors dated 6.6.2018 by which a decision has been taken to make payment of arrears arising out of 6th pay commission recommendation w.e.f. 1.1.2006 to the employees of the ITTUP, read with letter dated 21.12.2017 coupled with the direction of Hon. Supreme Court undoubtedly give rise to the fresh cause of action to this limited extent. 13. Law in this regard is settled that if there is fresh cause of action, principle of res-judicata will not apply. Hon'ble Supreme Court in Hope Plantations Ltd., v. Taluk Land Board, Peermade and another, (1999) 5 SCC 590 , has held as under: "31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various Courts on these subjects. As noted above, the plea of res judicata, through technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action......" 14. Considering the affidavits filed by the contemnor coupled with the fact that there was subsequent resolution of the Board of Directors dated 6.6.2018 passed in the 61st meeting whereafter respondent No. 2 having approved the payment of arrears arising out of 6th pay commission w.e.f. 1.1.2006 and the budgetary allocation having also been provided and the matter was referred to the State Government, as also keeping in view the law laid down by Hon. Apex Court, we are of the opinion that to this limited extent, the writ petitioner has a fresh cause of action with respect to the payment of arrears of his salary in the light of sixth pay commission recommendation w.e.f. 1.1.2006 which also included the petitioner for the first time. The resolution dated 6.6.2018 was not before any Court earlier, which has factually changed the entire situation. The resolution dated 6.6.2018 was not before any Court earlier, which has factually changed the entire situation. Hence, we direct the State Government to take a decision on the recommendation of the Board of Directors in their 61st meeting for grant of benefit available under 6th pay commission report to the petitioner w.e.f. 1.1.2006. 15. To the aforesaid extent, the order impugned in this appeal is modified. 16. The appeal is, accordingly, partly allowed.