# Awadhesh Kumar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-10
- **Case number:** Writ-A No. 126 of 2022
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-singh-ors-v-state-of-u-p-ors-49998
- **Pages:** 19

## Headnote

Service Law - Constitution of India, 1950Article 226 - Uttar Pradesh Industrial
Disputes Act, 1947-Bunch of writ petitions
filed, the first category of writ petitions
have erupted due to the re-fixation of the
pay-scale from 31.03.1989 to 18.05.1994,
which has resulted in issuance of the
impugned
notice/order
by
the
respondents/St., second category of writ
petition against notice for recovery of this
excess salary paid during the period from
this part-time tube well operators and
coercive
steps
for
recovery
like
attachment/with-holding
of
gratuity
payment
etc.-Impugned
order
is
in
violation of the principles of natural
justice as no opportunity of hearing been
given to the petitioners, before the payscale was re-fixed/reduced giving rise to
civil
consequences-Impugned
orders/
notice quashed-Matters remitted to the
competent
authority
to
evaluate
the
claims of the petitioners bearing in mind
the
various
competing
factors
&
observation
of
the
Hon'ble
CourtCompetent
Authority
shall
give
an
opportunity of explanation and/or hearing
to the writ petitioners before passing a
speaking order in the matter. (Para 13, 14,
58, 59, 60)

Petition disposed of. (E-15)

List of Cases cited:

## Text

_Characters 0–39,859 of 61,486. This is a partial read: ask again with offset=39859 for what follows._

538 INDIAN LAW REPORTS ALLAHABAD SERIES
the selection process is going on, and as
such, it is hereby directed to the competent
authorities to accept the candidature of the
Appellant-Petitioner being the candidate of
O.B.C. category. After considering her merit
points which falls under the cut-off as secured
by the lowest merit holder of O.B.C.
Category.

37. In the light of above, the instant
intra court appeal is hereby allowed. The
respondents are directed to accept the O.B.C.
certificate submitted by the AppellantPetitioner and proceed with the process of
selection of the Appellant-Petitioner for the
post Suitable to the Appellant-Petitioner
under the advertisement.

38. Let aforesaid exercise be completed
within three weeks from the date of
production of certified copy of this order
before the competent authority.
----------
(2023) 4 ILRA 538
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.04.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 126 of 2022
alongwith other connected cases

Awadhesh Kumar Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C.

Service Law - Constitution of India, 1950Article 226 - Uttar Pradesh Industrial
Disputes Act, 1947-Bunch of writ petitions
filed, the first category of writ petitions
have erupted due to the re-fixation of the
pay-scale from 31.03.1989 to 18.05.1994,
which has resulted in issuance of the
impugned
notice/order
by
the
respondents/St., second category of writ
petition against notice for recovery of this
excess salary paid during the period from
this part-time tube well operators and
coercive
steps
for
recovery
like
attachment/with-holding
of
gratuity
payment
etc.-Impugned
order
is
in
violation of the principles of natural
justice as no opportunity of hearing been
given to the petitioners, before the payscale was re-fixed/reduced giving rise to
civil
consequences-Impugned
orders/
notice quashed-Matters remitted to the
competent
authority
to
evaluate
the
claims of the petitioners bearing in mind
the
various
competing
factors
&
observation
of
the
Hon'ble
CourtCompetent
Authority
shall
give
an
opportunity of explanation and/or hearing
to the writ petitioners before passing a
speaking order in the matter. (Para 13, 14,
58, 59, 60)

Petition disposed of. (E-15)

List of Cases cited:

1. (Sanjeevan Lal & ors. Vs Sate of U.P, through
Principal Secretary Irrigation Lucknow & ors.)
Writ-A- 22586 of 2019

2. Engineer-in-Chief, Irrigation Department, U.P.
& ors. Vs Makrand Singh & ors. Writ Petition No.
1502 (S/S) of 1992:

3. Suresh Chandra Tiwari & ors. Vs St. of U.P. &
ors.: Writ Petition No.3558 (S/S) of 1992

4. St. of U.P. Vs Mangra Pd. Verma & ors.
Special Leave Petition (C) No. 16219 of 1994

5. Rajendra Kumar Tewari & ors. Vs St. of U.P &
ors. Writ petition No. 1820/2002

6. St. of U.P Vs Roshan lal & ors. Review petition
No. 26/2012 and SLP (C) No. 5283/2011
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
539
7. (St. of U.P & ors. Vs Munna Lal Trivedi & ors.)
SLP No. 883/2016

8. ( Rakesh Kumar & ors. Vs St. of U.P & ors.)
SLP(C) No. 348612015

9. (Kamlesh kumar Singh & ors. Vs St. of U.P &
ors.) SLP(C) No. 1696-1697/2016

10. (St. of Uttar Pradesh & ors. Vs Irfan Ali &
ors.) SLP (CC) No. 1066/2016

11. (Ramesh Chandra Vs St. of U.P. & ors.) Writ
Petition No. 31262/2017

12. Babloo Singh & ors. Vs St. of U.P : (2019)
12 SCC 403

13. Pradeep Kumar Maskara Vs St. of U.P. (
2015) 2 SCC 653

14. Kalinga Mining Corporation Vs U.O.I., (2013)
5 SCC 252

15. St. of Pun. & ors. Vs Rafiq Masih reported in
2014 (8) SCC 883

16. Jaswant Singh Gill Vs Bharat Coking Coal
Ltd. & ors., (2007) 1 SCC 663

17. Netram Sahu Vs St. of Chhattisgarh & anr.,
(2018) 5 SCC 430.

18. Kunhayammed & ors. Vs St. Of Kerala &
anr.: (2000) 6 SCC 359.

19. (Jai Karan Singh & ors. Vs St. of U.P. & ors.)
Writ Petition No. 103/1996

20. ( St. of U.P & ors. Vs Vinod Kumar & ors.)
Special Appeal No. 548 of 2000

21. Kunhayammed & ors. Vs St. of Ker. &
anr.(2000(6) SCC 359)

22. Mekha Ram & ors. Vs St. of Raj. & ors.
decided on 29/03/2022

23. Smt. Maneka Gandhi Vs U.I.O. & anr., AIR
1978 SC 597

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Mr. A.M. Tripathi, Mr. R.C.
Tiwari, Mr. Y.K. Mishra, learned Counsel
for the writ petitioners and Shri Ramesh
Kumar Singh, learned Additional Advocate
General, assisted by Shri Sanjay Sarin,
learned Additional Chief Standing Counsel
and Shri Tushar Verma, learned Counsel for
the respondents/State.

A. Introduction

(2) The present bunch of writ petitions
is a classic example of litigious employment,
in as much as the Hon'ble Apex Court and
this Court had been flooded with numerous
petitions from ''Tube Well Operators' in the
past on several occasion raising several issues
relating to their service conditions. This Court
also had an opportunity to deal with an issue
relating to regularization of these part time
Tube Well Operators and has passed a
detailed judgment on 23.01.2023 passed in
Writ-A- 22586 of 2019 (Sanjeevan Lal & 26
Ors. Vs Sate of U.P, through Principal
Secretary Irrigation Lucknow and Ors.) and
other connected matters.

(3) Although, the issue engaging the
attention of this Court in the present bunch of
writ petitions is altogether a different issue as
juxtaposed to the issue decided by this court
in its earlier judgment (supra), however both
the cases have a common history. Broadly,
stating, the writ petitioners in this bunch of
writ petitions were initially appointed as part
time Tube Well Operator between the year
1980 to 1990 and subsequently were
regularized in due course and most of them as
of now have also been superannuated.

B. Brief Background

(4) The issue raised and agitated in
the above-captioned petitions had its
beginning in the year 1992, wherein the
540 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Uttar Pradesh issued a Government
Order
dated
20.2.1992,
whereby
the
nomenclature of "Part Time Tube Well
Operator" was changed to "Tube Well
Assistant" and their honorarium was
enhanced from Rs. 299/- per month to Rs.
550/- per month. The other precipitating
issue at that point of time had been the
decision of the Labour Court in two cases,
bearing Case No. 256 of 1988 and Case
No. 20 of 1989, which were filed by some
"Part Time Tube Well Operators", before
the Labour Court claiming pay parity with
regular Tube Well Operators under the
provisions of U.P. Industrial Disputes Act
1947.

(5) As far as the aforesaid Labour
Court cases were concerned, both the
aforesaid cases were decided in favour of
the "Part Time Tube Well Operators" vide
award dated 15.7.1989 and 1.2.1991,
respectively, wherein the Labour Court
returned a finding that since "Part Time
Tube Well Operators" worked just as hard
as regular Tube Well Operator, they were
entitled to pay parity with regular Tube
Well Operators.

(6) Not satisfied with the aforesaid
award of the Labour Court, the State of
Uttar Pradesh challenged the same by filing
Writ Petition No. 1502 (S/S) of 1992:
Engineer-in-Chief, Irrigation Department,
U.P. and others Vs. Makrand Singh and
others. Simultaneously, other writ petitions,
leading writ petition no. 3558 (S/S) of 1992
: Suresh Chandra Tiwari and others Vs.
State of U.P. and others, were also filed
before this Court, challenging the aforesaid
notification dated 20.2.1992, by which
nomenclature of Tube Well Operators was
changed to Tubewell Assistants and an
honoraria of Rs.500/- per month has been
fixed in lieu of pay. A Co-ordinate Bench of
this Court has decided the aforesaid writ
petitions by a common judgment and order
dated 18.5.1994. The operative portion of
the order dated 18.5.1994 reads as under :-

"In the result, I allow all the writ
petitions except Writ Petition No. 1502
(S/S) of 1992 and quash the Notification
dated 20.2.1992 (as contained in AnnexureI to the Writ Petition No. 3558 (S/S) of
1992) by which nomenclature of the
petitioners has been changed to that of
tubewell assistants and honoraria of
Rs.550/- per month has been fixed. The
opposite parties are directed to pay all the
petitioners the same emoluments i.e. in the
same scale of pay in which other regularly
appointed tubewell operators are being
paid.

Writ Petition No. 1502 (S/S) of 1992
filed by the State, Engineer-in-Chief,
Irrigation Department, U.P. and others Vs.
Makrand Singh and others, is dismissed."

(7) The aforesaid judgment and order
dated 18.05.1994 was challenged by the State
of U.P. by filing Special Leave Petition (C)
No. 16219 of 19994 : State of U.P. Vs.
Mangra Pd. Verma and others, before the
Hon'ble
Supreme
Court,
which
was
dismissed by the Hon'ble Supreme Court on
22.03.1995, observing therein that the duties,
qualifications, and hours of working of the
"Part Time Tube Well Operators" are similar
to that of regular Tube Well Operators and
thus based on the principal of ''equal pay for
equal work', the Apex Court dismissed the
SLP of the State. Even, the Review Petitions
No. 1894 to 1897 of 1992 filed by the State
seeking review of the aforesaid judgment and
order dated 22.03.1995, was dismissed on
18.10.1995.

(8) In compliance of the aforesaid
order of the Hon'ble Supreme Court, the
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
541
State of U.P, issued an order on 27.10.1995,
followed by another order on 10.11.1995,
providing the same emoluments of pay,
which were given to the regular Tube Well
Operators to a "Part Time Tube Well
Operators", who were covered by the said
judgment and order dated 18.5.1994 and
other similarly situated petitioners. It may
be noted that the Government Order dated
27.10.1995 was issued for all those persons
who were covered by the judgment and
order
dated
18.05.1994,
whereas
Government Order dated 10.11.1995 was
issued for persons covered by the order of
the Labour Court.

(9) Apparently, Part Time Tube Well
Operators, who were covered by the
judgment
passed
in
Suresh
Chandra
Tewari's case, were given regular pay scale
as that of a regular part time Tube Well
Operator with effect from 18.05.1994,
however, as far as the part time Tube Well
Operators, who had the award of Labour
Court in their favour, were given regular
pay scale as that of the regular part time
Tube Well Operator from 31.03.1989 or
from
the
date
of
their
respective
appointment.

(10) There had been a controversy
related to the date from which the regular
pay-scale as that of the regular Tube Well
Operator was applicable to the part time
Tube Well Operators. Some of the part time
Tube Well Operators claimed that they
were entitled from 31.03.1989 and as such
filed writ petition before this court, which
was allowed by a Co-ordinate Benche of
this Court. Although, the State has filed a
review, however during the pendency of the
said review petition, these part-time tube
well operators filed Contempt petition for
compliance
of
pay-fixation
from
31.03.1989, which the contempt court
allowed subject to the outcome of the
review petition or subsequent appeal of the
State Government. Subsequently, the record
reveals that, both the review petition as
well as the SLP filed by the State against
this pay-fixation from 31.03.1989 to this
part-time tube well operators failed. Thus,
the State Government was obliged to give
the pay-fixation of these part time tube well
operators similar to that of a regular tube
well operators since 31.03.1989 under the
orders of this court.

(11) The whole issue relating to the
date of applicability of the regular pay scale
or pay-parity of part-time tube well
operators with regular tube well operators
was convoluted with the passing of
incongruous judgments by this court over a
passage of time and ultimately vide an
order dated 22.01.2016, the Hon'ble Apex
Court clarified that all the part-time tube
well operators ( except those who were
parties in the labour court proceedings
which
culminated
in
award
dated
15/07/1989), shall be entitled to regular pay
scale only with effect from 18.05.1994 in
the light of the decision of the High Court
in Suresh Chandra Tiwari versus State of
UP. (supra).

(12) In view of the aforesaid
observation and clarity of the Hon'ble Apex
Court, the State Government had started
sending notice for re-fixing the pay-scale
with effect from 18.05.1994 in place of the
earlier date of 31.03.1989, which has
triggered various consequences, including
filing of the present bunch of writ petitions
before this Court. Further, there is a second
leg to the issue, wherein the State
Government has in furtherance to the
aforesaid re-fixing of the pay-scale has
sought recovery of salary paid between
31.03.1989 to 18.05.1994 and has also
542 INDIAN LAW REPORTS ALLAHABAD SERIES
initiated steps to recover the said amount,
including withholding retiral benefits, like
gratuity etc.

C. The controversy

(13) Apparently, the controversy in
the present bunch of writ petitions can be
divided into two categories. The second
category being the consequence of the first
category. The first category of writ
petitions have erupted due to the re-fixation
of the pay-scale from 31.03.1989 to
18.05.1994, which has resulted in issuance
of the impugned notice/order by the
respondents/State.
The
following
writ
petitions would come within the "first
category":

Sr. No.
Details
of
Writ
Petitions
Date
of
Impugned
Order
sought to
be
challenged
(i)
Writ Petition-A-No.
5188/2017
(Rajender
Kr.
Tiwari & 56 others
vs. State of U.P. and
others)
02.02.2017
(ii)
Writ Petition-A-No.
13913/2017
(Ramesh Chandra &
5 others vs. State of
U.P. and others)
02.02.2017
(iii)
Writ Petition-A-No.
13982/2017 (Vijay
Shankar & 69 others
vs. State of U.P. and
others)
19.05.2017
&
26.05.2017
(iv)
Writ Petition-A-No. 08.05.2017
14929/2017
(Mithilesh Chandra
Pandey & 6 others
vs. State of U.P. and
others)
(v)
Writ Petition-A-No.
16920/2017
(Radhey Lal & 11
others vs. State of
U.P. and others)
19.05.2017
&
26.05.2017
(vi)
Writ Petition-A-No.
17658/2017
(Shiv
Kumar Yadav & 8
others vs. State of
U.P. and others)
02.02.2017
&
19.05.2017
(vii)
Writ Petition-A-No.
28446/2017 (Vijay
Kr. Singh & 16
others vs. State of
U.P. and others)
08.05.2017
&
19.05.2017
(viii)
Writ
Petition-ANo.28793/2017
(Mukhu Singh & 12
others vs. State of
U.P. and others)
19.05.2017
&
26.05.2017
(ix)
Writ Petition-A-No.
29077/2017
(Ram
Achal & 5 others vs.
State of U.P. and
others)
19.05.2017
&
26.05.2017
&
08.11.2017
(x)
Writ Petition-A-No.
29933/2017
(Anuradha vs. State
of U.P. and others)
19.05.2017
&
26.05.2017
&
08.11.2017
(xi)
Writ Petition-A-No.
30199/2017 (Bharat
Singh & 23 Others
vs. State of U.P. and
others )
30.05.2017
(xii)
Writ Petition-A-No. 08.05.2017
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
543
431/2018
(Aas
Mohammad
&
7
others vs. State of
U.P. and others)
&
19.05.2017
&
27.05.2017

(14) Further, since salary had been
already disbursed to these part-time tube
well operators on a pay-scale as was
applicable to regular tube well operator
during the duration from 31.03.1989 to
18.05.1994, the State Government after refixing the pay-scale as aforesaid and as a
consequence to its earlier order (which are
impugned in the ''first category' of writ
petitions) has also sent a further notice for
recovery of this excess salary paid during
the period from this part-time tube well
operators and coercive steps for recovery
like attachment/with-holding of gratuity
payment etc. has been taken by the
Respondent-state.
The
following
writ
petitions would come within the "Second
Category" :-

Sr. No.
Details
of
Writ
petitions
Date
of
Impugned
Order sought
to
be
challenged

(i)
Writ
Petition-A-
No.
744/2020
(Wazid Ali & 3
others vs. State of
U.P. and others)
11.02.2019
(ii)
Writ
Petition-ANo.
126/2022
(Awadhesh
Kr.
Singh & 3 others
vs. State of U.P.
and others)
01.10.2021
(iii)
Writ
Petition-ANo.
2377/2022
18.08.2021
(Bharat Singh & 6
others vs. State of
U.P. and others)

D. Contention of the parties

(15) Since common issue has been
raised as far as the "first category" of writ
petitions are concerned, the facts of the writ
petition, bearing Writ-A No. 5188 of 2017
(Rajender Kr. Tiwari & 56 others and
others),
is
being
taken
for
proper
appreciation of the facts in these petitions
as this writ petition is the earliest petition
filed in this bunch of matters. Apparently, it
is
available
from
records
that
the
petitioners in this writ petition have
challenged the impugned order dated
02.02.2017, wherein the pay-fixation with
effect from 31.12.1989 was cancelled
without providing any opportunity of
hearing to them.

(16) As per the petitioners, the effect
of the said cancellation had led the salary
of the petitioners to be reduced by re-fixing
the same with effect from 18.05.1994,
which has civil consequences and could not
had been passed ex parte. The petitioners
giving a brief background of the case,
contended that they were initially appointed
as "part time Tube Well Operators" and
vide notification dated 20.02.1992, they
were
re-designated
as
"Tube
Well
Assistant" with a fixed honorarium of Rs.
550/- per month and presently all of them
were working in a pay scale, which is
Class-III non-gazetted post.

(17) It is the case of the petitioner that
some of the part time Tube Well Operators
raised an industrial dispute in connection
with the payment of wages, which was
544 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded in favour of the part time Tube
Well Operator by the Labour Court, leading
to challenge the same before this Court in
Writ No. 1502 (S/S) 1992 by the
respondents/State. Number of similar cases
came to be filed by other Tube Well
Operators
before
this
Court
also,
challenging the aforesaid notification dated
20.02.1992 and the fixed honorarium and
claiming equal pay as that of the regularly
appointed Tube Well Operators. These
bunch of writ petitions was decided by
means of an order dated 18.05.1994 passed
in writ petition no. 3558/1992 : Suresh
Chandra Tewai and Others Vs State of U.P
& Ors., wherein this Court held that part
time Tube Well Operators were entitled for
equal pay as that of regularly appointed
Tube Well Operators and the notification
dated 20.02.1992 was also quashed. The
respondent/State, although filed special
appeal and special leave petition against the
said order, however, the same was
dismissed.

(18) In the meantime, some part time
tube well operators approached this Court
and claimed regular pay scale with effect
from the date of the Labour Court award
and as such claimed the benefit from
31.03.1989 as had been given to some part
time tube well operators, which was
allowed by a Co-ordinate Bench of this
Court.

(19) The petitioners also approached
this
Court
vide
writ
petition
No.
1820/2002 ( Rajendra Kumar Tewari &
88 others V/s State of U.P & Others)
claiming payment of arrears of salary
with effect from 31.03.1989 on the same
pay scale as applicable to regular pay
scale tube well operators, which was
disposed of vide order dated 23.02.2010
on the basis of another order dated
21.12.2000 passed in Writ Petition no.
7489 (S/S)/2000 ( Awadhesh Kr. Singh
Case) (hereinafter to be referred as
"secondary order"), which in turn was
decided on the basis of another order
dated 18.05.1994 passed in Writ No.
3558/1992
(SS)
(hereinafter
to
be
referred as "Primary order").

(20) Since, the order passed by this
court was not complied, the petitioner
invoked the contempt jurisdiction of this
court, wherein the competent authority
vide an order dated 06.08.2012 complied
with the judgment & order passed by the
Hon'ble Court, thereby providing pay
scale to the petitioner with effect from
31.03.1989, however the same was
subject to final decision of review
petition and other similar matters pending
before the Hon'ble Supreme Court being
review petition No. 26/2012 and SLP (C)
No. 5283/2011 (State of U.P Vs Roshan
lal
&
Ors.),
filed
in
similarly
circumstanced matter. It is reported that
both the review as well as the SLP was
dismissed vide order dated 19.11.2013
and 11.08.2014 respectively.

(21) Further, it has been stated by the
petitioners that SLP (c) No. 1170/2016,
preferred by the State, against order dated
23.02.2010 in Writ Petition No.1820 (S/S)
of 2002 (Rajendra Kr. Tiwari vs. State of
U.P. and others) was also dismissed vide
order dated 22.01.2016, wherein it has been
clarified that except for 73 Tube Well
Operators covered by the Labour Court
award, all other Tube Well Operators shall
be entitled for regular pay scale with effect
from 18.05.1994 i.e the passing of the order
by a Co-ordinate Bench of this Court in
Suresh Chandra Tiwari Vs State of U.P.
(supra). Thus, it has been submitted by the
petitioners that service benefits had been
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
545
granted with effect from 31.03.1989 in the
aforesaid background.

(22) It has been claimed that the
impugned letter dated 12.02.2017 has led to
reduction of salary of the petitioners
between 2000/- to 3,000/- and are of civil
consequences and ought not to have been
passed
by
the
respondents
without
affording an opportunity of hearing. Thus,
they claim that the impugned order is in
violation of the principles of natural justice.

(23) Counter-affidavit was filed by
the State, enumerating the facts leading to
the passing of the impugned order.
According to them, after the passing of
order dated 18.05.1994 in the Suresh
Chandra Tewari's case by a Co-ordinate
Bench of this Court, the State filed SLP No.
16219/1994, which was dismissed vide
order dated 22.03.995, against which a
review was also preferred, which was also
dismissed vide order dated18.10.1995.
Thus, the State, in compliance of the order
passed by this Court, issued an order dated
27.10.1995 providing pay scale of tube
well operators to all the petitioners covered
by judgment and order dated 18.5.1994
from
the
said
date
of
judgment.
Subsequently, another Government Order
was issued on 10.11.1995, wherein those
persons, who were covered by the award of
the Labour Court dated 15.07.1988 were
given benefit of regular pay scale of tube
well operator w.e.f. 31.03.1989. It is the
submission of the respondents/State in their
counter-affidavit that subsequently, several
litigation came to be filed by various tube
well operators, claiming benefit of pay
scale of regular tube well operators w.e.f.
31.03.1989 or from the date of their initial
appointment, which was allowed by this
Court and pursuant to contempt petition
filed by some tube well operators, the
benefit was given of pay-scale w.e.f.
31.03.1989, subject to the outcome of
review and appeal before the Hon'ble
Supreme Court.

(24) It has been stated, further by the
State that in some cases, appeal filed before
the Hon'ble Supreme Court was also
dismissed, however, vide order dated
22.01.2016, the Hon'ble Supreme Court,
while deciding a bunch of SLP's tagged
along with SLP No. 883/2016 (State of U.P
& Ors. V/s Munna Lal Trivedi & Ors.), the
Apex Court clarified that except for the
tube well operators, who are covered by the
order of Labour Court, the other tube well
operators shall be entitled for regular pay
scale with effect from 18.05.1994 only. To
the similar effect is the Order dated
04.01.2016
passed
in
SLP(C)
No.
348612015 ( Rakesh Kumar & Ors V/s
State of U.P & Ors.); Order dated
29.01.2016 passed in SLP(C) No. 16961697/2016 (Kamlesh kumar Singh & Ors.
V/s State of U.P & Ors.); and Order dated
201.07.2016 passed in SLP (CC) No.
1066/2016 (State of Uttar Pradesh & Ors.
V/s Irfan Ali & Ors.).

(25)

It
is
the
case
of
the
respondents/State that the payments of the
petitioners were made conditionally as per
the order of the Court and as such, after
passing the judgment and order by the
Hon'ble Supreme Court, when the issue
stood clarified, their order relating to refixing of the pay-scale and consequent
recovery is well justified. It was stated that
in case recovery was not made from the
petitioners, the other similarly situated
persons about 14990, would demand
payment of salary from the date when the
salary was paid to the petitioners and the
burden of which would come on the State
for about 600 Crores.
546 INDIAN LAW REPORTS ALLAHABAD SERIES

(26) In the second set of writ petition,
it has been alleged that although the
aforesaid interim order was made over to
the respondents, however, they ignored the
same and passed the impugned order of
recovery
from
pension/gratuity.
It
is
common ground that the said order of
recovery has been passed ex parte and
without providing any opportunity of hearing
to the petitioners in breach of principles of
natural justice. It is also alleged that these
petitioners are low paid employee and if the
aforesaid amount is allowed to be recovered,
they would suffer great financial constraint
and hardship. They also relied on the order of
this Court dated 08.01.2018 passed in Writ
Petition No. 31262/2017 (Ramesh Chandra
Vs. State of U.P. and others), whereby similar
impugned order was set-aside and it was left
open to the respondents to pass fresh orders.

(27) Counter-Affidavit was filed on
06.03.2020 by the respondents, narrating
the admitted facts and the litigation
between the parties. It has been submitted
by the respondents that after having been
regularized on the post of tube well
operators and on attaining the age of
superannuation, the petitioners have retired
from the services and as such just in order
to protect the money of the public
exchequer the amount as mentioned in the
impugned order has been withheld from the
gratuity, although the remaining dues as
well as pension was being paid to the
petitioners regularly. It has been submitted
that the amount has been withheld subject
to the decision of the writ petition No. 5188
(S/S) of 2017.

E. Arguments of the parties

(28) Mr. A.M. Tripathi, Mr. R.C.
Tiwari,
Mr. Y.K.
Mishra, Advocates
appearing for the writ petitioners in their
usual erudite manner submitted that the
petitioners were getting their salary in the
said pay scale in accordance with the
judgments and in compliance of this
Hon'ble Court. The petitioners were not
heard before any re-fixing of the pay scale
by the respondent and since the re-fixing of
the salary resulted in civil consequences of
reduction of salary and proposed recovery,
a chance of hearing was obligatory on the
part of the Respondent/state. They have
also submitted that in the present cases not
only the petitioners have been getting
salary from 31-03-1989 to 18-05-1994
under Court's order, but also the Hon'ble
Apex Court has not directed recovery of
such payments. Further, they were not a
party to the Supreme Court order dated
04.01.2016, in which the Hon'ble Apex
Court had given clarification relating to the
date of applicability of the pay-scale.
According to them, the order granting the
pay scale with effect from 31.03.1989 by
the High Court has merged with the
Hon'ble Apex Court in view of the doctrine
of merger and in their own case and in any
case, the issue relating to the applicability
of the pay scale stands settled and the same
cannot be re-opened again as the same
would be barred by the principles of res
judicata. They also relied on the judgment
of Babloo Singh & Ors V/s State of U.P :
(2019) 12 SCC 403 for doctrine of merger
and Judgment passed by Apex Court in (i)
Pradeep Kumar Maskara Vs State of
U.P. ( 2015) 2 SCC 653 & (ii) Kalinga
Mining Corporation Vs. Union of India,
(2013) 5 SCC 252 for principle of res
judicata.

(29) A second line of argument has
also been taken by the learned Counsel for
the petitioners that as a consequence to the
revision of the pay-scale, the salary of the
petitioners have not only reduced but now
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
547
the Government has issued notices for
recovery of the excess payment made
during the period of 31.03.1989 to
18.05.1994 and in that directions has also
illegally withheld the gratuity amount
payable to them. They have relied on the
case of State of Punjab and others Versus
Rafiq Masih reported in 2014 (8) SCC 883
to submit that since tube well operators are
Class-III employees, the salary paid is not
recoverable. Further, according to the
learned Counsel, withholding of amount of
gratuity is absolutely in violation of
provisions of payment of Gratuity Act and
even otherwise the gratuity of petitioners
cannot be withheld except in accordance
with the provisions of Regulation 351A of
Civil Services Regulations as the gratuity is
treated to be the part of post retiral dues.
According to them the respondent has not
proceeded to take any action against them
as per the said regulations and as such the
same was illegal. Thus, the petitioners have
relied on the judgment of Jaswant Singh
Gill Vs. Bharat Coking Coal Ltd. &
Others, (2007) 1 SCC 663 and Netram
Sahu Versus State of Chhattisgarh and
another, (2018) 5 SCC 430.

(30) On the other hand, Shri Ramesh
Kumar Singh, learned Additional Advocate
General, assisted by Shri Sanjay Sarin,
Additional Chief Standing Counsel and
Shri
Tushar
Verma,
learned
Special
Counsel led the arguments on the side of
the respondent-State. Written submissions,
have been also filed by the respondents. In
nutshell, it has been submitted that
numerous litigations which also includes
the litigation of the petitioners in the
present bunch of writ petitions have been
concluded by the orders passed in the
leading SLP no. 186 of 2014 by order dated
22/01/2016 by which the Hon'ble Supreme
Court while considering the bunch of SLP's
has settled after looking into the entire
history of litigation with regard to the
dispute being every now and then raised by
the part-time tube well operators with
regard to the grant of regular pay scale in
pursuance of the judgment rendered in the
case of Suresh Chandra Tiwari (Supra).

(31) The doctrine of merger as argued
by the learned Counsel for the petitioners,
have been refuted by the learned Additional
Advocate General by referring to the
judgment of the Hon'ble Apex Court passed
in the case of Kunhayammed & Ors vs
State Of Kerala & Anr : (2000) 6 SCC
359. It has been argued by him that the
doctrine of merger is neither a doctrine of
constitutional law nor a doctrine of
statutorily recognized as the same could be
founded on the principles of proprietary in
the hierarchy of justice delivery system.
The learned Senior Counsel referred and
argued that the SLP filed by the state
challenging in the petitioner's case had
been dismissed in limine and as such the
same does not merge with the order of the
Single Judge. He vividly relied on the
conclusion part of the said judgment. Thus,
it has been argued by the learned Senior
Counsel that since the order passed on SLP
and relied by the petitioners in their own
case had been dismissed in limine without
any findings, the doctrine of merger would
not apply.

(32) It has been further argued that
the reliance of the petitioners on certain
dismissal order passed by the Hon'ble
Supreme Court in similarly situated writ
petitioners would apply with equal force to
them is also not correct as it is a settled
legal proposition that Article 14 of the
Constitution is not meant to perpetuate
illegality or fraud, even by extending the
wrong decisions made in other cases. The
548 INDIAN LAW REPORTS ALLAHABAD SERIES
said provision does not envisage negative
equality but has only a positive aspect.
Thus, if some other similarly situated
persons have been granted some relief/
benefit inadvertently or by mistake, such an
order does not confer any legal right on
others to get the same relief as well.

(33) The learned Additional Advocate
General has emphatically tried to bring
home the point that since the petitioners
have got the benefit of pay scale w.e.f.
31/3/1989 and have now superannuated,
thus the respondent/State has withheld the
gratuity amount, as it was found that excess
payment had been made to the petitioners
after passing of the re-fixation/revision
order, which was duly intimated to the
petitioners. Thus, as such just in order to
protect the money of the public exchequer
the amount as mentioned in in the
impugned orders has been withheld from
the gratuity and further whatever the
remaining dues were there they have been
paid and the regular pension is also being
paid to the petitioners.

(34) Further, as to the reliance of the
petitioners on regulation 351-A of the Civil
Service Regulations relating to the only
provisions under the regulations wherein
gratuity payable to a retired government
servant could be withheld is concerned, the
learned
Senior
Counsel
referred
to
Regulation 922 of the Civil Service
Regulations, which entailed that any
government dues which can be ascertained
can also be recovered from the death cum
retirement gratuity and as such it has been
argued that withholding of gratuity is
legally permissible and in accordance with
law.

(35) As to the applicability of the
judgment of the Apex Court in the case of
State of Punjab vs Rafiq Masih (supra)
referred by the petitioners, the learned
Senior Counsel submitted that the case of
the petitioners is distinguishable and the
aforesaid judgment is not applicable in the
present cases in view of the judgment
recently rendered in Civil Appeal no. 2229
of 2022 (Mekha Ram & Others v/s State of
Rajasthan
&
Others
decided
on
29/03/2022). Thus, it has been argued that
these petitions are devoid of any merits and
should be dismissed.

(36) This court while issuing notice to
the respondents in the lead matter had
passed an Interim order dated 08.03.2017,
wherein the current salary of the petitioners
was made payable in terms of the
impugned order, however, no recovery
pursuant to thereto of the amount already
paid to the petitioner was directed by this
court. It was also directed that the said
interim order would be subject to further
outcome of the writ petition.

F. Discussion & Findings

(37) Having heard the learned
counsels for the parties at length, this court
is of the view that the main controversy
revolves around the factum of applicability
and
consequences
of
order
dated
04.01.2016 and 22.01.2016 passed by the
Hon'ble Apex Court to the present set of
petitioners. The issue is no longer res
integra that with the passing of the
judgment and order dated 18.05.1994 in
writ petition No. 3558 (S/S) of 1992(
Suresh Chandra Tewari and others Vs. State
of U.P. and others ) and 49 others similar
writ petitions, the issue relating to pay
parity of part time tube well operators with
that of regular part time tube well
operators, garnered an impetus and the
issue was finally set at rest with the
4 All. Awadhesh Kumar Singh & Ors. Vs. State of U.P. & Ors.
549
dismissal of the Appeal filed by the
Respondent/State
before
the
Division
bench of this Court as well as the Hon'ble
Apex Court vide SLP(C) No. 16219/1994
decided on 22.03.1995. Further, even the
review petition filed against the said order
of the Hon'ble Apex Court stands dismissed
vide an order dated 18.10.1995 with the
observation of the principal of "Equal pay
for Equal Work".

(38) Apparently, the Government of
U.P issued an order on 27.10.1995
providing the same pay-scale, which were
given to the regular Tube well operators, to
all the petitioners (part time tube-well
operators) covered by judgment and order
dated 18.5.1994 passed by this Hon'ble
Court from the date of judgment i.e.
18.5.1994 only. A separate Government
order dated 10.11.1995 was also issued,
giving same pay-scale, for all those
persons, who were covered by the labour
court Award.

(39) Further, after the issuance of
aforesaid Government orders, several writ
petitions including Writ Petition No.
103/1996 (Jai Karan Singh & Others Vs
State of U.P. & Others), came to be filed
before this court by similarly situated part
time
tube
well
operators
and
their
associations, which were all allowed vide
an Order dated 25.04.1996 by a single
Bench of this court, granting the benefit of
pay-parity as that of the Suresh Chand
Tiwari
case
with
prospective
effect.
However, it seemed this part time tube well
operators (as well as the association) were
not happy with the said judgment of the
Single Judge as far as it held the benefit of
regular pay-parity prospectively and as
such filed appeals before a division bench
of this court. The Division bench of this
court vide an order 04.12.1998 acceded to
the request of these tube well operators and
modified the order of the Single Judge to
the extent that the benefit of pay-parity
would be available from the date of passing
of the judgment of the Suresh Chand
Tewari Case. Thus, regular pay came to be
paid to all the similarly situated tube well
operators with effect from 18.05.1994 only.

The
conundrum
relating
to
the
effective date

(40) In view of the Judgment of the
Division Bench ( mentioned supra), primafacie it seemed by the year 1999-2000 the
issue with regard to the date of applicability
of the benefit arising out of the Suresh
Chand Tewari Case stood settled. However,
apparently, the whole confusion started,
after some six years, with the filing of a
writ petition No. 7489 (S/S) of 2000
(Awadhesh Kumar Singh & Ors Vs State of
U.P & Ors.) before this court ( "Secondary
Order"'). The said writ petition was decided
on the very first date on 21.12.2000,
wherein a Single Judge of this court
granted the benefit of regular pay scale to
the petitioners of the said writ petition with
effect from 31.03.1989 and not from
18.05.1994, although the order mentioned
that the relief was granted in terms of
Suresh Chand Tewari Case. The confusion
was further aggravated, when the special
appeal filed by the State of U.P against the
said order of the Single Judge was
dismissed vide order dated 22.05.2009 by
the Division Bench of this court and even
the review order was also dismissed vide
order dated 20.07.2010.

(41) Although the State of U.P filed
an SLP (Civil) No. 17690/2010 against the
orders of Division Bench, however the
same was dismissed by the Hon'ble Apex
Court vide an order dated 29.11.2010 on
550 INDIAN LAW REPORTS ALLAHABAD SERIES
the ground of delay. Even the review
preferred before the Apex court was
dismissed vide order dated 13.10.2011.

(42) Thus, the confusion which
started with the passing of order dated
21.12.2000 in the Awadhesh Kumar Singh
case reached its zenith with the dismissal of
the review order by the Hon'ble Apex
Court, however it is apparent from the
records that in Awadhesh Kumar Singh
Case, the Single Bench noted & referred to
order/judgment dated 30.05.1997 modified
vide order dated 23.03.1999 passed by the
Hon'ble High Court at Allahabad in Writ
petition No. 2679/1993 ( Rajeshwar Prasad
Shukla & 47 others V/s State of U.P) (
"primary order"). In the Rajeshwar Prasad
Shukla case, it was directed that the
payment would be made with effect from
the date of payment of similarly situated
next junior to the petitioners, however in
modification application it was mentioned
that in Suresh Chand Tewari Case the
benefit of grant of regular pay scale had
been given with effect from 31.03.1989 and
as such in view of the said the Single
Bench modified its earlier order to give
effect of pay-parity from 31.03.1989 vide
its modification order dated 23.03.1999.

(43) Apparently, the order dated
04.12.1998 passed by a division bench of
this court in Jai Karan's Case (supra) was
not brought to the notice of the Ld.