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

- **Citation:** J. Special Appeal Defective No. 586 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** J. Special Appeal Defective No. 586 of 2019
- **Bench:** Pankaj Kumar Jaiswal, Karunesh Singh Parwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharwan-kumar-v-state-of-u-p-ors-46272
- **Pages:** 9

## Headnote

A. Service - Payment of salary - Code of
Civil Procedure, 1908: Order II, Rule 2 -
An issue, which had been decided in
earlier
litigation,
arising
again
for
determination between the same parties
in a suit based on a fresh cause of action
or where there is continuous cause of
action, is not barred by principles of resjudicata
or
constructive
res-judicata.
(Para 13)

Writ
Petition
was
dismissed
taking
into
consideration
principles
of
resjudicata/constructive
res-judicata.
In
the
present appeal, it was held that the resolution
of the Board of Directors dated 06.06.2018, by
which a decision was taken to make payment of
arrears arising out of 6th Pay Commission
recommendation w.e.f. 01.01.2006 to the
employees of the IITUP and letter dated
21.12.2017, giving details of the burden of
expenditure, were not there in the earlier round
of litigation regarding payment of salary and
increments.

This subsequent resolution gave rise to the fresh
cause of action w.r.t. the payment of salary and
arrears, in the light of sixth pay commission, which
included the petitioner for the first time. (Para 9 to
14)

Appeal partly allowed. (E-4)

Precedent followed:

## Text

3-5 All. Sharwan Kumar Vs. State of U.P. & Ors.
947
appellate court which had attained finality,
following the ratio of G.M. Tank (supra),
that the acquittal in the criminal trial would
render
the
departmental
proceedings
unsustainable, we are of the view that the
impugned order can not be sustained. The two
decisions which have been relied upon by the
learned Single Judge namely Suresh Pathrella
(supra) and D.S. Bishnoi (supra) for the
purpose of upholding the validity of the
impugned orders cannot be applied to the facts
and circumstances of the present case. In the
case of Suresh Pathrella (supra), the
delinquent
officer
was
proceeded
departmentally on the allegation that he had
defrauded a customer thereby causing a loss of
Rs. 10,00,000/- to the bank. He was acquitted
by the criminal court with a finding that no loss
to the bank had occurred. There was no
corresponding finding in the aforesaid case that
the prosecution had failed to prove that the
delinquent employee had defrauded the
customer.

19. Once, the criminal court came to the
conclusion that the prosecution had failed to
prove that either any incident, as alleged, had
taken place on 24.01.1989 or any amount was
found short, the very foundation on the basis of
which departmental proceedings were initiated
against the petitioner/appellant in which he was
found guilty of dereliction of duty, disappeared.
If no such incident on the basis of which charge
of dereliction of duty was framed and found
proved against the petitioner/appellant in the
departmental proceedings had taken place on
24.01.1989, the petitioner/appellant cannot be
held guilty of dereliction of duty. Hence, we
have no hesitation in holding that the finding
recorded by the criminal court will override the
finding recorded against the petitioner/appellant
in the departmental enquiry.

20. Similarly, the principles enunciated in
the case of D.S. Bishnoi (supra) that highest
degree of standards or devotion to duty and
integrity are required to be maintained in order
to maintain public confidence in the case of
banks and the courts should not interfere in
findings of fact recorded by the Enquiry Officer.
Merely because the petitioner has retired, the
nature of misconduct cannot be watered down
especially when the High Court is not permitted
to re-appreciate the evidence which has been
considered by the Enquiry Officer, is also not
applicable to the facts and circumstances of the
present case inasmuch as in the present case, the
criminal court has recorded findings which are
wholly irreconcilable with the findings recorded
in the departmental enquiry with regard to the
incident which was the basis of dismissal of the
petitioner/appellant and his conviction by the
trial court.

21. For the aforesaid reasons, this appeal
is allowed and the impugned judgement and
order dated 22.12.2010 passed by learned
Single Judge of this Court in Civil Misc. Writ
Petition No. 6889 of 1992 (Anand Ram Nagar
Vs. The Banaras State Bank Limited, Varanasi
and another) as well as the orders dated
30.03.1990, 16.07.1990 and 22.10.1990 passed
by respondent nos. 4, 3 and 2 respectively, are
hereby set-aside.
----------

(2020)03-05ILR A947
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PARWAR,
J.

Special Appeal Defective No. 586 of 2019

Sharwan Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Divyanshu Sajay

Counsel for the Respondents:
C.S.C.

A. Service - Payment of salary - Code of
Civil Procedure, 1908: Order II, Rule 2 -
An issue, which had been decided in
earlier
litigation,
arising
again
for
determination between the same parties
in a suit based on a fresh cause of action
or where there is continuous cause of
action, is not barred by principles of resjudicata
or
constructive
res-judicata.
(Para 13)

Writ
Petition
was
dismissed
taking
into
consideration
principles
of
resjudicata/constructive
res-judicata.
In
the
present appeal, it was held that the resolution
of the Board of Directors dated 06.06.2018, by
which a decision was taken to make payment of
arrears arising out of 6th Pay Commission
recommendation w.e.f. 01.01.2006 to the
employees of the IITUP and letter dated
21.12.2017, giving details of the burden of
expenditure, were not there in the earlier round
of litigation regarding payment of salary and
increments.

This subsequent resolution gave rise to the fresh
cause of action w.r.t. the payment of salary and
arrears, in the light of sixth pay commission, which
included the petitioner for the first time. (Para 9 to
14)

Appeal partly allowed. (E-4)

Precedent followed:

1. Hope Plantations Ltd. Vs. Taluk Land Board,
Peermade & anr., (1999) 5 SCC 590 (Para 13)

Appeal against judgment and order dated
17.10.2019, passed in Writ Petition No. 34236
(SS) of 2018.

(Delivered by Hon'ble 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, Sharwan
Kumar vs. State of U.P. and others, whereby
learned Single Judge had dismissed the writ
petition as not maintainable taking into
consideration
principles
of
resjudicata/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, Sharwan 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 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."
3-5 All. Sharwan Kumar Vs. State of U.P. & Ors.
949

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, Sharwan Kumar
vs. 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
judgment
and
order
dated
21.8.2008, Civil Appeal No.8902 of 2010
In re: Sharwan Kumar vs. 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.111 of 2016,
Sharwan Kumar vs. 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. 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 vs. 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,
950 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner filed Special Leave to Appeal
(Civil) No.12015 of 2014, Sharwan Kumar
vs. 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 vs. 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. 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 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." .

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. 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.
3-5 All. Sharwan Kumar Vs. State of U.P. & Ors.
951

8. The petition filed before the
learned Single Judge, the petitioner again
prayed for the relief(s) which he had
already prayed in the earlier round of
litigations along with the prayer that he
may be disbursed the arrears of salary
along
with
the
payment
of
leave
encashment, annual increments, Assured
Career Progression and dearness allowance
in terms of 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. 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.
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 the petitioner in the writ Court.
952 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
3-5 All. Sharwan Kumar Vs. State of U.P. & Ors.
953
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-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
954 INDIAN LAW REPORTS ALLAHABAD SERIES
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.111 of 2016, Sharwan Kumar vs.
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. 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
3-5 All. Janardhan Prasad Yadav Vs. State of U.P. & Ors.
955
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. vs. 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.
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.
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(2020)03-05ILR A955
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR-II, J.

Special Appeal No. 631 of 2007

Janardan Prasad Yadav ...Appellant
Versus
State of U.P. & Ors. ...Respondents