# Sharwan Kumar v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** Service Single No.34236 of 2018
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharwan-kumar-v-state-of-u-p-ors-44826
- **Pages:** 14

## Headnote

A. Service Law - Payment of Salary -
Constitution of India - Article 226 r/w
Civil Procedure Code, 1908 - Order II Rule
2 - Maintainability of present/second
petition - Held - Relief now claimed was
barred on principle of res-judicata or
constructive res-judicata as that relief was
not sought in earlier petition filed by the
petitioner.
Consequently,
the
present
petition would not be maintainable. (Para
22, 23)

The relief prayed by the petitioner pertain to
fixation of salary in terms of 5th and 6th Pay
Revision along with consequential benefits of
dearness allowance, salary, gratuity, leave
encashment, annual increments etc. The
petitioner had approached this Court by filing
two petitions, namely, WP (S/S) No. 2766 of
2011 and WP (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

## Text

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218 INDIAN LAW REPORTS ALLAHABAD SERIES
view of the material available on record
and also in the light of the decision of
Division Bench of this Court in re: Ashok
Kumar Singh (supra), he could not
defend the said order.

16. Considering the rival submissions
of learned counsel for the parties and
perusing the material available on records
as well as the judgment of Division Bench
of this Court in re: Ashok Kumar Singh
(supra), I am of the considered opinion that
since the suspension order dated 14.08.2019
has not been passed by the Competent
Authority, therefore, it is liable to be
quashed and accordingly the impugned
suspension order dated 14.08.2019, which
is contained as Annexure No.1 to the writ
petition, is hereby quashed.

17. However, the liberty is given to the
Competent Authority to pass appropriate
orders, if it is so warranted, considering
the seriousness of the allegations but that
order should be passed strictly in
accordance with law.

18. The writ in the nature of
mandamus is issued commanding the
opposite parties reinstate the petitioner
and post him at any place where the
Competent Authority deems fit and
proper but such order shall be passed with
expedition preferably within a period of
two weeks from the date of production of
a certified copy of this order and the
petitioner shall be entitled for all
consequential
benefits
ignoring
the
suspension order dated 14.08.2019.

19. The writ petition is allowed.

20. No order as to cost.
----------
(2019)11ILR A218
ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE ABDUL MOIN , J.

Service Single No.34236 of 2018

Sharwan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Srivastava, Sri Divyanshu
Sahay.

Counsel for the Respondents:
C.S.C.,Sri Sudeep Seth.

A. Service Law - Payment of Salary -
Constitution of India - Article 226 r/w
Civil Procedure Code, 1908 - Order II Rule
2 - Maintainability of present/second
petition - Held - Relief now claimed was
barred on principle of res-judicata or
constructive res-judicata as that relief was
not sought in earlier petition filed by the
petitioner.
Consequently,
the
present
petition would not be maintainable. (Para
22, 23)

The relief prayed by the petitioner pertain to
fixation of salary in terms of 5th and 6th Pay
Revision along with consequential benefits of
dearness allowance, salary, gratuity, leave
encashment, annual increments etc. The
petitioner had approached this Court by filing
two petitions, namely, WP (S/S) No. 2766 of
2011 and WP (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.
(Para 22, 23)

B. Administrative Law - It is settled
preposition of law that whatever is
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
219
prohibited by law to be done, cannot
legally be affected by an indirect and
circuitous
contrivance.
-
If
certain
resolutions have been passed for extension of
the benefit which has already been denied,
the same would not give rise to any fresh
cause of action as the said orders can only be
considered to be a consequence to the initial
order. (Para 24, 27)

C. Constitution of India - Article 226 -
Scope upon earlier decision by Supreme
Court - Liberty granted by the Apex
Court in the order deciding Contempt
Petition would only have to be seen in
the context of what was there before the
Apex Court when the said liberty was
granted i.e. what was prayed in the
petition, against the order of which, the
contempt petition was filed. Cannot be
enlarged. (Para 20, 26)

Writ Petition dismissed (E-4)

Precedent followed: -

1. Farhat Hussain Azad Vs St. of U.P. & ors.,
(2005) (2) AWC 1221 (Para 24)

2. P. Bandopadhya Vs U.O.I., (2019) SCC
Online SC 398 (Para 25)

Precedent distinguished: -

1. U.O.I. Vs Assc. of Unified Telecom Service
Providers of India & ors., (2011) 10 SCC 543
(Para 16, 26)

2. U.O.I. Vs Balbir Singh Turn (2018)

3. (11) SCC 99 (Para 16, 22)

(Delivered by Hon'ble Abdul Moin, J. )

1. Supplementary affidavit filed
today by learned counsel for the petitioner
be kept on record.

2. Heard Sri Divyashnu Sahay,
learned counsel for the petitioner, learned
Standing Counsel and Sri Himanshu
Hemant Gupta, learned counsel appearing
for the respondents/Corporation.

3. By means of the present petition,
the petitioner has prayed for the following
reliefs:-

"(i) Issue an appropriate writ
mandamus direction or order to the
Respondents directing them to disburse
arrears of salary alongwith emoluments,
gratuity, leave encashment as also annual
increments to the petitioner in terms of
the G.O. dated 10.7.1998 read with G.O.
dated 17.12.1998 and Office Order dated
28.1.2017 (Annexure-16) and G.O. dated
08.12.2008
read
with
G.O.
dated
29.12.2016
and
Resolution
dated
06.06.2018 of ITTUP (Annexure-23) after
giving benefit of the policy of Assured
Career Progression notified by G.O.
dated
02.12.2000;
and
dearness
allowance payable in terms of G.O. dated
22.9.2005 but not paid since 01.01.2001.

(ii)
Issue
an
appropriate
mandamus direction or order to the
Respondents pay interest at the rate of
15% p.a. to the arrears of salary due to
the Petitioner on account of Fifth Pay
Revision w.e.f. 01.01.1996, Sixth Pay
Revision w.e.f. 1.01.2006, and dearness
allowance withheld from 01.01.2001.

(iii) Allow the present writ
mandamus with costs.
(iv) Pass any other order as this Hon'ble
Court may deem fit and necessary in the
interest of justice"

4. The case set forth by the
petitioner is that the petitioner is an
employee of the Institute of Tool Room
Training U.P. (hereinafter referred to as
the ITTUP) who retired on 30.4.2011.
220 INDIAN LAW REPORTS ALLAHABAD SERIES
Earlier, the petitioner had filed Writ
Petition No.375 of 1985 In re: Sharvan
Kumar vs. 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 atleast 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."

5. The said writ petition was
disposed of with a direction to the
respondents to consider the representation
of the petitioner. When the representation
of the petitioner was rejected, the
petitioner filed Writ Petition No.9651 of
1988 In re: Sharvan Kumar vs. State of
U.P. and others, which writ petition was
dismissed vide judgment and order of this
Court dated 27.7.1999. Though the copy
of the said judgments dated 27.7.1999 and
21.8.2008 have not been filed yet the
learned counsel for the petitioner has
passed on a copy of the said judgments
which are taken on record. Upon a
challenge being raised to the said
judgment
dated
27.7.1999
by
the
petitioner by filing Special Appeal
No.354 of 1999, the said special appeal
was also dismissed vide judgment and
order dated 21.8.2008. The judgment and
order dated 21.8.2008 passed in the
special appeal was challenged by the
petitioner by filing Civil Appeal No.8902
of 2010 In re: Sharwan Kumar vs. State
of U.P. and others before the Hon'ble
Apex Court. The Hon'ble Apex Court
vide order dated 29.7.2015, a copy of
which is Annexure-6 to the writ petition,
did not interfere with the judgment dated
21.8.2008 passed in special appeal, but
considering the submission of the learned
counsel for the appellant that the salary of
the appellant (Sharvan Kumar) was
withheld for about 10 years and it was
released only after the contempt petition
was filed, 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. For the sake of
convenience, the order of the Hon'ble
Apex
Court
dated
29.7.2015
is
reproduced below:-

"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 withheld for about 10 years and it was
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
221
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."

6. It is contended that when the
compliance of the said order of the
Hon'ble Apex Court dated 29.7.2015 was
not made, the petitioner was constrained
to file Contempt Petition (C) No.111 of
2016 In re: Sharwan Kumar vs. Mahesh
Kumar Gupta and others before the
Hon'ble Apex Court. Incidentally in
paragraphs 1 and 2 of the contempt
petition, a copy of which has been filed as
Annexure SA-4 to the supplementary
affidavit 17.10.2019, following averments
have been made:-

"1. That this Hon'ble Court vide
its order dated 29.7.2015 passed in Civil
Appeal No.8902 of 2010, inter alia,
passed the following order:

"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
withheld 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 look 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."

True copy of the order dated
29.7.2015 passed by this Hon'ble Court in
Civil Appeal No.8902 of 2010 is filed
herewith and marked as ANNEXURE P-1
(Pg.14 to 16.).

2.
That
present
contempt
petition has been filed as the aforesaid
order
has
been
violated
by
Alleged/Contemnor No.1, 2 & 3 by not
paying the revised pay scales and
increments to appellant as directed by
this Hon'ble Court.".

7. A counter affidavit to the contempt
petition was filed by the respondents to
which a rejoinder affidavit was also filed
and ultimately the contempt petition was
disposed of by the Apex Court vide order
dated 27.11.2017, a copy of which is
Annexure-7 to the writ petition, whereby
the Hon'ble Apex Court recorded its
satisfaction that the order has been
satisfactorily complied with. However, it
was also 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. For the sake
of convenience, order of the Hon'ble Apex
Court dated 27.11.2017 passed in contempt
petition is reproduced below:-

"We have seen the reply filed by
the respondent no.3.
222 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

8. Meanwhile, the petitioner filed
Writ Petition (S/S) No.2766 of 2011 In re:
Sharwan Kumar vs. State of U.P. and
others
challenging
an
order
dated
18.4.2011 passed by the ITTUP whereby
the petitioner was retired at the age of 58
years instead of 60 years. Apart from the
other reliefs, the petitioner in the said writ
petition had also prayed for payment of
salary on the basis of 5th and 6th Pay
Commission. The said writ petition was
disposed of by this Court 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. Copy of the judgment and
order dated 29.1.2014 is Annexure-1 to
the writ petition.

9. Aggrieved against the said
judgment and order dated 29.1.2014, the
petitioner filed Special Leave to Appeal
(Civil) No.12015 of 2014 In re: Sharwan
Kumar vs. State of U.P. and others which
was
dismissed
as
withdrawn
after
extending the time to enable the petitioner
to submit a representation in pursuance to
the judgment of this Court vide order
dated 8.5.2014, a copy of which has been
filed as Annexure-2 to the writ petition.

10. When the representation of the
petitioner was rejected, he filed Writ
Petition (S/S) No.217 of 2015 In re:
Sharwan Kumar vs. State of U.P. and
others,
inter
alia,
praying
for
the
following reliefs:-

"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. 1and 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. 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
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
223
and pay the difference amount of
encashment of leave forthwith, along with
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."

11.

In
the
said
petition,
a
preliminary objection was taken by the
learned
counsel
for
the
respondents/Corporation of the petition
being not maintainable based on the
principles of res-judicata and constructive
res-judicata as regards the maintainability
of the second writ petition. This Court,
after considering all aspects of the matter
disposed of the said writ petition vide
judgment and order dated 28.1.2016, a
copy of which is Annexure-5 to the writ
petition. So far as the payment of revised
pay scale was concerned, with which the
present controversy is concerned, the
Court was of the view that as this issue
(i.e. issue of benefits of payment of 5th
and 6th Pay Commission) was raised by
the petitioner in the earlier writ petition,
therefore, it was not open for the
petitioner to raise it all over again as
the same would be barred by the
principles res-judicata or constructive
res-judicata.

12. Now, by means of the present
petition, the petitioner has prayed for the
reliefs as have already been quoted above.

13. Sri Gupta, learned counsel for
the respondents/Corporation has taken a
preliminary objection that the present
petition primarily seeks the same relief
pertaining to the 5th and 6th Pay
Commission which in the earlier round of
litigation,
more
particularly
in
the
judgment and order dated 28.1.2016, has
already been held to be barred by
principles of res-judicata or constructive
res-judicata. As regards the prayer of the
petitioner
for
payment
of
leave
encashment, annual increments, assured
career
progression
and
dearness
allowance, Sri Gupta contends that once
the petitioner had retired from service on
30.4.2011 and had earlier approached this
Court by filing two petitions and the
aforesaid reliefs had not been prayed for
by him in the said petitions, consequently
taking into consideration the provisions of
Order II Rule 2 of the C.P.C. which are
applicable in writ proceedings also, the
present petition praying for the aforesaid
reliefs would not be maintainable.

14. Replying to the aforesaid, Sri
Sahay submits that the present petition
has been filed taking into consideration
the liberty granted by the Apex Court in
its order dated 27.11.2017 and in view of
the fresh resolution of the ITTUP dated
6.6.2018, a copy of which is Annexure-23
to the writ petition, as well as the Office
Memorandum dated 20.1.2017 along with
letter dated 16.11.2015, copies of which
224 INDIAN LAW REPORTS ALLAHABAD SERIES
have been filed as Annexure-16 and 15
respectively to the writ petition. It is also
argued that this Court vide judgment and
order dated 28.1.2016 had considered the
order of Apex Court dated 29.7.2015 and
had observed that the respondents are
bound to comply with the same.

15. Replying to the aforesaid, Sri
Gupta,
learned
counsel
for
the
respondents/Corporation submits that the
liberty dated 27.11.2017 as had been
granted by the Hon'ble Apex Court has to
be read in consonance to what had been
directed by the Apex Court in its initial
order against which the contempt petition
had been filed. Sri Gupta submits that the
earlier order of the Apex Court dated
29.7.2015, which has already been
reproduced above, was for the purpose of
payment of salary for a period of 10
years as per the revised pay scale and
increments
if
not
granted
to
the
petitioner, which order had been passed in
Civil Appeal No.8902 of 2010 against the
order of this Court dated 27.7.1999
passed in Writ Petition No.9651 of 1988
as upheld in Special Appeal No.354 of
1999 vide judgment and order dated
21.8.2008. The petitioner when filed
Contempt Petition (C) No.111 of 2016
although
against
the
order
dated
29.7.2015 yet has indicated before the
Apex Court in the contempt petition that
the contempt petition is being filed on
account of the violation by the alleged
contemnor by not paying the revised pay
scales and increments to the appellant.
Once there was no such order of the Apex
Court for grant of revised pay scale rather
the order was for grant of salary for a
period of 10 years, consequently it is
apparent that the correct pleading had not
been made in the Apex Court while filing
the contempt petition. Even otherwise, Sri
Gupta argues, that even if the liberty
granted by the Apex Court is seen, the
said liberty was granted after seeing the
reply
of
the
respondents.
In
the
meanwhile, the petitioner had already
approached this Court praying for grant of
5th and 6th Pay Commission and two
judgments had already been passed,
although the first judgment only pertained
to disposal of the representation but in the
second petition itself it had been held
conclusively by this Court that the prayer
made by the petitioner for grant of 5th
and 6th Pay Commission was barred by
the
principles
of
res-judicata
and
constructive res-judicata. Thus Sri Gupta
argues that the liberty granted by the
Apex Court through the order dated
27.11.2017 cannot be construed in the
manner in which the learned counsel for
the petitioner has argued.

16. To this, Sri Sahay argues that
the order of the Apex Court dated
27.11.2017 has to be seen in the context
of the order dated 23.10.2017 that had
been passed in the contempt petition,
copy of which has been filed as Annexure
SA-9 to the supplementary affidavit dated
17.10.2019, and the liberty cannot be seen
in isolation. It is contended that the Apex
Court was fully conscious while requiring
the respondents to file reply to the issues
before it and thus the said liberty dated
27.11.2017 would entail the petitioner to
approach this Court again despite the
earlier two rounds of litigation and in the
judgment and order dated 28.1.2016 the
writ Court having conclusively held that
the reliefs of the petitioner so far as it
pertains to grant of 5th and 6th Pay
Commission was barred on the principles
of res-judicata and constructive resjudicata. It is also contended that the
judgment and order dated 28.1.2016 as
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
225
passed by the writ Court had also been
brought to the knowledge of the Apex
Court and considering all the facts the
said liberty had been granted. In this
regard, Sri Sahay has placed reliance on a
judgment of the Apex Court in the case of
Union
of
India
and
others
vs.
Association of Unified Telecom Service
Providers of India and others reported in
(2011)10 SCC 543 to contend that once
once a liberty has been granted by the
Apex Court, consequently all issues are
open to be agitated. Reliance has also
been placed on the judgment of the Apex
Court in the case of Union of India vs.
Balbir Singh Turn reported in 2018(11)
SCC 99 to argue that the relief of ACP
prayed for by the petitioner is a part of
pay structure as even if it was not prayed
for in the earlier petitions and it is being a
part of the pay structure, would also be
covered by the liberty granted by the
Apex Court vide order dated 27.11.2017.

17. Heard learned counsel for the
parties and perused the record.

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.
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.111 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
226 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
227
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. 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
along
with
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
along
with
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-
228 INDIAN LAW REPORTS ALLAHABAD SERIES
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 resjudicata or constructive res-judicata and
principle of Order II, Rule 2 of the C.P.C.

24. Suffice to state that it is no
longer res-integra that the principle of
constructive res-judicata enshrined in
Order II, Rule 2 of the C.P.C. would also
be applicable in writ proceedings. In this
regard, the Full Bench of this Court in the
case of Farhat Hussain Azad vs. State of
U.P. and others reported in 2005((2)
AWC 1221 has held as under:-

"69.
What
is,
however,
disturbing us is the fact that some of the
petitioners had earlier filed writ petitions
for quashing the seniority list dated
14.12.2001
and
even
though
these
petitions had been dismissed by a detailed
judgment and order dated 27.2.2004, the
said petitioners have again filed these
writ petitions claiming in substance the
same releifs, i.e., re-determination of the
seniority as referred to above herein.

70. Even if it is accepted that
these reliefs had not been prayed for earlier
as sought now, as contended by the learned
Counsel for the petitioners, we are of the
view that petitions are barred by the
principles of constructive res judicata
enshrined in Order II, Rule 2 of the Code of
Civil Procedure (hereinafter called 'CPC').
The said Rule provides that suit must
include the whole claim. If a relief which
could have been claimed is not claimed,
party cannot claim it in a subsequent suit.
(Mohd. Khalil Khan v. Mahbub Ali Mian,
AIR 1949 PC 78).

71. The Rule is directed to
securing the exhaustion of the relief in
respect of a cause of action and not to the
inclusion in one and the same action of
different causes of action, even though
they arise from the same transaction. One
great criterion, when the question arises
as to whether the cause of action in the
subsequent suit is identical with that in
the first suit, is whether the same evidence
will maintain both actions.

72. A Constitution Bench of
Hon'ble Supreme Court in Gurubux Singh
3 All. Sharwan Kumar Vs. State of U.P. & Ors.
229
v. Bhooralal, AIR 1964 SC 1810, held
that even if a party does not pray for the
relief in the earlier writ petition, which he
ought to have claimed in the earlier
petition, he cannot file a successive writ
petition claiming that relief, as it would
be barred by the principle of constructive
res judicata enshrined in Explanation IV
to Section 11 and Order I, Rule 2 of the
Code of Civil Procedure. In Order II,
Rule 2 CPC, as has been explained, in
unambiguous and crystal clear language
by the Hon'ble Supreme Court in D.
Cawasji and Co. v. State of Mysore, AIR
1975 SC 813; Commissioner of Income
Tax v. T.P. Kumaran, (1996) 10 SCC
561;Union
of
India
and
Ors.
v.
Punnilal and Ors., (1996) 11 SCC 112;
Dilip Singh v. Mehar Singh Rathee and
Ors., (2004) 7 SCC 650; and Executive
Engineer ZP Engineering Division and
Anr. v. Digambara Rao and Ors., (2004)
8 SCC 262.
73. It is settled proposition of law that
what cannot be done "per directum is not
permissible to be done per obliquum"
meaning thereby, whatever is prohibited
by law to be done, cannot legally be
affected by an indirect and circuitous
contrivance on the principle of "quando
aliquid prohibetur, prohibetur at omne
per quod devenitur ad ilud".

74. In Jagir Singh v. Ranbir
Singh, AIR 1979 SC 381, the Apex Court
has observed that an authority cannot be
permitted to evade a law by "shift or
contrivance". While deciding the said
case, the Hon'ble Supreme Court placed
reliance on the judgment in Fox v. Bishop
of Chester, (1824) 2 B 7 C 635, wherein it
has been observed as under :

"To carry out effectually the
object of a statute, it must be considered
as to defeat all attempts to do or avoid
doing in an indirect or circuitous manner
that; which it has prohibited or enjoined."

75.
Law
prohibits
to
do
something indirectly which is prohibited
to be done directly. [Vide Commissioner
of Central Excise v. ACER India Ltd.,
(2004) 8 SCC 173]. Similar view has been
reiterated by the Apex Court in M.C.
Mehta v. Kamal Nath and Ors., AIR 2000
SC 1997, wherein it has been held that
even the Supreme Court cannot achieve
something indirectly which cannot be
achieved directly by resorting to the
provisions
of Article
142 of
the
Constitution, which empowers the Court
to pass any order in a case in order to do
"complete justice."

76. In view of the above, it is
not permissible
to
seek
the
relief
indirectly, for which earlier petitions have
already been dismissed/pending."

25. Recently, the Apex Court in the
case of P. Bandopadhya vs. Union of
India reported in 2019 SCC Online SC
398 has held as under:-

"61.
The
decision
in S.V.
Vasaikar & Ors. v. Union of India & Ors.
[2003 (2) Mh. L.J. 691 : 2003 (4) Bom
CR 79] was not challenged before the
Supreme Court, and has since attained
finality. Therefore, the relief sought by the
Appellants before the High Court was
barred by the principle of res judicata.

62. Reference can be made to
the decision of the Constitution Bench in
Direct Recruit Class II Engineering
Officers' Association
v.
State
of
Maharashtra & Ors. wherein Sharma, J.,
on behalf of the five-judge bench, held:
230 INDIAN LAW REPORTS ALLAHABAD SERIES

"35...It is well established that
the principles of res judicata are
applicable to writ petitions. The relief
prayed for on behalf of the petitioner in
the present case is the same as he would
have, in the event of his success, obtained
in the earlier writ petition before the High
Court. The petitioner in reply contended
that since the special leave petition before
this Court was dismissed in limine
without giving any reason, the order
cannot be relied upon for a plea of res
judicata.