# State Of U.P. & Ors v. Ramesh Bahadur Singh - **Citation:** (2016) 5 ILRA 1197 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2015-08-13 - **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ramesh-bahadur-singh-43761 - **Pages:** 5 ## Headnote Service Law - Reinstatement - Parity with co-accused - Scope - Held, parity must operate within factual limits; date of joining cannot be notionally preponed to match comparator. (para7-8, 10-11) Respondent-petitioner directed in earlier writ to receive benefits "to the same extent" as co-accused constable Virendra Kumar Mishra (para5-7); comparator had been reinstated with denial of salary from dismissal till reinstatement (para6). 1198 INDIAN LAW REPORTS ALLAHABAD SERIES Subsequent writ seeking salary from comparator's reinstatement date amounts to fictional equalization - impermissible (para8, para11). Writ Jurisdiction - Article 226 - Finality of writ judgment - Subsequent writ petition - Review or modification - Not permissible. (para3-5, 10-11) Earlier writ judgment dated 4.7.2006 became final; no appeal or review filed- Filing of fresh writ to alter earlier reinstatement terms amounts to indirect review - barred (para11). Doctrine of Finality - Collateral modification - Prohibited- Subsequent writ granting arrears contrary to earlier final judgment constitutes modification in collateral proceedings - impermissible- Remedy lay in appeal/review, not fresh writ petition (para11). Discrimination - Unequal treatment - Test - Distinction based on factual dates of reinstatement - Not discriminatory- Different joining dates cannot be fused to allege discrimination; factual delay due to pendency of writ petition not attributable to State - Fictional retreat of joining date rejected (para11). Administrative Law - Relief in writs - Scope - Writ court cannot create legal fiction to enlarge monetary benefits beyond final judgment conditions. (para10-11) Result - (para12) Appeal allowed Impugned judgment dated 22.9.2011 set aside - Respondent-petitioner entitled only to benefits under judgment dated 4.7.2006 - No arrears from 1999 to 2006. List of Cases cited: 1.Rajendra Yadav v. State of Madhya Pradesh & Ors., 2013 (1) SCC (Lab & Service) 476 ## Text 5 All. State Of U.P. & Ors. Vs Ramesh Bahadur Singh 1197 36. Considering the matter in totality and the fact that the judgment an order dated 23.7.2002 is binding upon the opposite parties, this Court is of the opinion that interest of justice would suffice, if the Secretary, Agriculture, Education & Research, Lucknow, is directed to reexamine the issue in the light of the judgment and order dated 23.7.2002 passed in writ petition No. 4257 (SS) of 1994 and the judgment and order dated 25.11.2003 passed in Special Appeal No. 395 of 2003 read with above referred Government Orders. 37. For the reasons aforesaid, the impugned order dated 17.12.2009 passed by the Secretary, Agriculture, Education & Research, Lucknow is hereby quashed. A writ of Mandamus is issued directing the Secretary, Agriculture, Education & Research, Lucknow to re-examine the issue and pass appropriate orders with respect to petitioners in the light of the judgment and order dated 23.7.2002 passed in writ petition No. 4257 (SS) of 1994, which has binding effect, and the judgment and order dated 25.11.2003 passed in Special Appeal No. 395 of 2003 read with Government Orders dated 13.8.2015 and 24.2.2016 issued with regards to regularization. The entire exercise shall be done within a maximum period of three months from the date of receipt of a certified copy of this order. 38. The writ petition is allowed in above terms. Costs easy. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE VIVEK KUMAR BIRLA, J. Special Appeal No.- 494 Of 2013 State Of U.P. & Ors. ...Appellants Versus Ramesh Bahadur Singh ...Respondent Counsel for the Appellants: M.S. Pipersenia, S.C. Counsel for the Respondent: V.K. Srivastava Service Law - Reinstatement - Parity with co-accused - Scope - Held, parity must operate within factual limits; date of joining cannot be notionally preponed to match comparator. (para7-8, 10-11) Respondent-petitioner directed in earlier writ to receive benefits "to the same extent" as co-accused constable Virendra Kumar Mishra (para5-7); comparator had been reinstated with denial of salary from dismissal till reinstatement (para6). 1198 INDIAN LAW REPORTS ALLAHABAD SERIES Subsequent writ seeking salary from comparator's reinstatement date amounts to fictional equalization - impermissible (para8, para11). Writ Jurisdiction - Article 226 - Finality of writ judgment - Subsequent writ petition - Review or modification - Not permissible. (para3-5, 10-11) Earlier writ judgment dated 4.7.2006 became final; no appeal or review filed- Filing of fresh writ to alter earlier reinstatement terms amounts to indirect review - barred (para11). Doctrine of Finality - Collateral modification - Prohibited- Subsequent writ granting arrears contrary to earlier final judgment constitutes modification in collateral proceedings - impermissible- Remedy lay in appeal/review, not fresh writ petition (para11). Discrimination - Unequal treatment - Test - Distinction based on factual dates of reinstatement - Not discriminatory- Different joining dates cannot be fused to allege discrimination; factual delay due to pendency of writ petition not attributable to State - Fictional retreat of joining date rejected (para11). Administrative Law - Relief in writs - Scope - Writ court cannot create legal fiction to enlarge monetary benefits beyond final judgment conditions. (para10-11) Result - (para12) Appeal allowed Impugned judgment dated 22.9.2011 set aside - Respondent-petitioner entitled only to benefits under judgment dated 4.7.2006 - No arrears from 1999 to 2006. List of Cases cited: 1.Rajendra Yadav v. State of Madhya Pradesh & Ors., 2013 (1) SCC (Lab & Service) 476 (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Vivek Kumar Birla, J.) 1. Heard learned Standing counsel and Sri Vinay Kumar Srivastava, learned counsel for the respondent-petitioner. 2. The State has filed this appeal contending that the learned Single Judge has virtually modified the earlier judgement of another learned Single Judge in relation to the claim of the respondent petitioner with regard to his date of reinstatement. 3. The submission is that the judgement dated 4.7.2006 in Civil Misc. Writ Petition No. 6351 of 2000 directing the extension of benefit to the respondent-petitioner on the same terms as another Constable Sri Virendra Kumar Mishra was on the same terms that was provided for in the 5 All. State Of U.P. & Ors. Vs Ramesh Bahadur Singh 1199 reinstatement order of Virendra Kumar Mishra, and therefore the said terms became final as per the judgment dated 4.7.2006 which could not be altered subsequently by an order in a fresh writ petition that has given rise to this appeal. 4. The background in which the aforesaid grounds have been raised are that the respondentpetitioner Ramesh Bahadur Singh was subjected to a punishment of dismissal while posted as a constable in the Provincial Armed Constabulary of the State of U.P. A dismissal order was passed after a departmental enquiry against which the respondent-petitioner approached this Court by filing writ petition No. 6351 of 2000. The writ petition was considered on both grounds namely that the procedure of the disciplinary proceedings adopted was in violation of that which is prescribed, and the respondent-petitioner having been acquitted in the criminal case was entitled to avail all service benefits with reinstatement; the second ground raised was that another co-accused in the same establishment namely Virendra Kumar Mishra had already been reinstated by the Appellate Authority vide order dated 22.9.1999 and therefore the respondent-petitioner deserves to be at least given the benefit at par with Virendra Kumar Mishra. 5. The dismissal order, the subsequent appellate order and the revisional order that were under challenge came to be set aside by the judgement dated 4.7.2006 but the final relief which was granted to the respondent-petitioner was to the effect that the respondent petitioner shall be entitled to the benefit at par with Virendra Kumar Mishra on the ground that the respondent-petitioner deserves the same treatment. 6. It is undisputed between the parties that Virendra Kumar Mishra had been reinstated in service subject to the condition that he shall not receive salary from the date of dismissal till the date of reinstatement and joining and that he shall stand reduced to the minimum of the pay scale and be reverted accordingly. However, all other consequential service benefits would be available without any benefit of increment. 7. In the case of the respondent/petitioner Ramesh Bahadur Singh what happened was that he filed the writ petition in the year 2000 claiming the same benefits. The writ petition remained pending and was ultimately allowed by the judgement dated 4.7.2006. While allowing the writ petition, the learned Single Judge clarified that the benefit available to the respondent/petitioner would be to the same extent as given to Virendra Kumar Mishra. Thus, the condition of nonpayment of salary from the date of dismissal till the date of joining remained the same under the said judgement. The writ petition was allowed on 4.7.2006, whereafter, the respondent/petitioner was made to join under the aforesaid judgement. He was therefore not paid salary from the date of dismissal till the date of joining in the year 2006. 8. The respondent-petitioner filed a fresh writ petition that has given rise to the present appeal being Civil Misc. Writ Petition No. 63564 of 2006 contending that he should at least also be paid salary with effect from the date of reinstatement of Virendra Kumar Mishra. This argument of the counsel for the respondent-petitioner found favour with the learned Single Judge who allowed the writ petition and has further recorded that the petitioner's reinstatement in service would mean 1200 INDIAN LAW REPORTS ALLAHABAD SERIES that he would be entitled to salary with effect from 22.9.1999. Thus arrears of salary upto 4.7.2006 was also allowed by the Court. 9. Learned counsel for the appellant contends that this was impermissible and this relief could be granted by the learned Single Judge only in the earlier writ petition and no modification was permissible through a second writ petition. Sri Vinay Kumar Srivastava submits that the respondent-petitioner would stand discriminated, inasmuch as Virendra Kumar Mishra had been paid salary from 1999 and merely because the writ petition of the respondent-petitioner was allowed in the year 2006, he could not be denied salary from 1999 onwards as he stands on the same footing as Virendra Kumar Mishra. 10. Having regard to the aforesaid submissions raised and having considered the decision in the case of Rajendra Yadav vs. State of Madhya Pradesh and others {2013 Vol. 1 Supreme Court Cases (Labour and Service)} page 476, we find that the direction in the judgement dated 4th July, 2006 was clearly to the effect that the benefit available to the respondent-petitioner would be only to the extent as given to Virendra Kumar Mishra. The direction in the case of Virendra Kumar Mishra by the Competent Authority at the time of reinstatement was with a clear condition that he was not entitled to salary with effect from the date of dismissal to the date of reinstatement. 11. In our considered opinion, the learned Single Judge could not have modified the aforesaid condition that had already become final in the earlier judgment dated 4.7.2016. No appeal had been filed against the judgment dated 4.7.2016 nor any review was sought in relation thereto. A subsequent writ petition therefore did not lie for reviewing or modifying the judgment dated 4.7.2006. The procedure therefore was impermissible moreso when the respondent petitioner had already accepted the aforesaid terms and conditions as was available in the case of Virendra Kumar Mishra and stood recorded in the judgment dated 4.7.2006. The learned Single Judge could not have introduced an element of fiction by preponing the date of joining of the respondent-petitioner to match it with the date of joining of Virendra Kumar Mishra. The date of joining of the respondent-petitioner and that of Virendra Kumar Mishra factually remained different and they cannot be fused together so as to raise a presumption of discrimination. The date of actual joining of the respondent-petitioner in 2006 could not be shifted backwards to 1999. This fictional retreat to the date of joining was unattributable, nor it could be made the basis of an alleged unequal treatment. Merely because the respondent-petitioner was reinstated in 2006, which was later in point of time on account of the pendency of his writ petition, the same cannot be construed to be an act of discrimination. The only course open to the respondent-petitioner was to have challenged the judgment dated 4.7.2006 or could have sought a review if it was permissible in law. The respondent petitioner could have prayed in the same writ petition at the time when it was disposed of for extending any such benefit which was claimed in the subsequent writ petition. The learned Single Judge therefore by the judgment dated 22.9.2011 could not have entered upon any such modification as it was beyond the terms of the judgment dated 4.7.2006. Consequently, the same cannot be sustained. 5 All. C/M Ram Sunder Junior High School Vs State Of U.P. & Ors. 1201 12. We accordingly allow the appeal and set aside the judgment dated 22.9.2011 with a clarification that the respondent-petitioner will be entitled to all the benefits as was extended to him under the judgment dated 4.7.2006. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SINGH, J. THE HON'BLE VIVEK KUMAR BIRLA, J. Special Appeal No.- 657 Of 2012 C/M Ram Sunder Junior High School ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: Shailendra, Girish Chandra Srivastava Counsel for the Respondents: C.S.C. Education Law - Grant-in-Aid - Eligibility - Application defective - Overwriting in staff/revenue records - Rejection - Validity of.Applicant-institution applied for inclusion in grant-in-aid list pursuant to advertisement dt. 9-9-2006. Objection raised by State regarding overwriting/interpolation in key documents, including staff statement relevant for determining financial liability. Applicant failed to dispute or cure objection either before authorities or before Single Judge; plea raised for first time in intra-court appeal held to be an afterthought. Staff statement being foundational for saddling salary burden on State, defective/incomplete application liable to rejection. Held, rejection justified. (Paras 4, 7, 12-18, 21-22) Administrative Law - Government Orders - Withdrawal - Effect on pending claims. G.O. dt. 27-122006 extended time for submission of applications; G.O. dt. 16-1-2008 withdrew earlier extension. Applicant availed benefit of extended period. Subsequent withdrawal not challenged by applicant. Held, right of reconsideration of claim based on extended period did not survive after withdrawal, and Single Judge rightly declined to direct reconsideration on fresh documents. (Paras 6, 8-9, 18-20) Practice and Procedure - Writ jurisdiction - Judicial Review - Scope - Factual foundation - Requirement of--Challenge on ground that no overwriting existed raised first time in appeal; no such averments in writ petition before Single Judge or in representations before authorities. Held, writ court cannot entertain fresh factual plea in intra-court appeal; burden to establish factual correctness lies on applicant; failure fatal. (Paras 12-13, 21-22) Result - Order of learned Single Judge upholding rejection affirmed; liberty reserved to apply afresh if institution fulfils requisite conditions under future scheme.