# Sushil Kumar Srivastava v. IVth A.D.J., Gorakhpur and others

- **Citation:** (2006) 1 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-23
- **Bench:** Yatindra Singh, Sunil Ambwani, Devendra Pratap Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-srivastava-v-ivth-a-d-j-gorakhpur-and-others-40765
- **Pages:** 10

## Headnote

(A) Constitution of India, Art. 226Payment of Salary-working on basis of
interim order-even after the dismissal of
writ petition-held-entitled for salary for
the period of working under interim
order.

Held: para 24 (1)

The petitioner is entitled to the salary for
the period that he has worked under the
interim order of the Court in view of the
law laid down in Shobh Nath ''s case
which has now been overruled. We have
therefore, modified the order passed in
the first petition.
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(B) Allahabad High Court Rules 1952Chapter XXII rule-7-Second writ petition
for arrear of salary-earliar writ petition
dismissed without reference to salary-on
the basis of interim order-held-cardinal
Rule
of
Policy
to
discourage
the
multiplicity of proceedings-second writ
petition-not maintainable.

Held: Para 24 (2)

Where a writ petition in which interim
orders
were
granted
is
dismissed
without any reference to the salary for
the period that the petitioner had
worked under the interim orders of the
Court, a second writ petition for claiming
the salary of the same period is not
maintainable.
However,
it
may
be
maintainable to quash any subsequent
illegal order regarding payment of post
retirement benefit, as it would be a fresh
cause of action.
Case law discussed:
1995 ALJ 1603
1998 (8) SCC 102
1995 (2) SCC-98
1995 (4) SCC-172
1998 (3) UPLBEC-1954
AIR 1992 SC-1439
AIR 1968 Alld-139
AIR 1975 Alld.-280
1986 (4) LCD-196
AIR 1994 (Alld) 273
1980 (2) SCC-191
2003 (8) SCC-648
1996 (1) SCC-597
1994 (2) SCC-521
1995 (Supple) 149
1997 J.T. (1) 353
W.P. No. 18104 of 1988 decided on 18.1.89
W.P. No. 19223/90 decided on 7.2.91
1998 (4) SCC-284
1993 (2) SCC-495

## Text

1 All] Sushil Kumar Srivastava V. IVth A.D.J., Gorakhpur and others
477
be illegal and no benefit can accrue to the
petitioner tenant. Reliance is placed upon
a decision of this Court in the case of
Ayodhya Nath Dubey Versus XIII the
Addl.
District
&
Sessions
Judge,
Kanpur Nagar reported in 1991(1)
ARC 268 wherein this Court held that
once willingness is expressed by the
landlord to accept the rent and the tenant
despite the same continues to deposit in
Court under section 30(1) of the Act, the
tenant would not be entitled to claim
benefit of such deposit.

14. In the present case there is
categorical finding recorded by both the
Courts below that the tenant never
tendered the rent after receipt of notice
and there was no denial/refusal by the
landlord to accept the rent after notice
was given. This finding is not challenged
by the petitioner nor is there any averment
in the petition that rent was tendered after
receipt of notice and the landlord refused
to accept the same and therefore, the
deposit under section 30 (1) of the Act
continued. I am, therefore of the view that
petitioner was not entitled to the benefit
of deposit made by the petitioner under
section 30 of the Act In the circumstances
the Courts below rightly disallowed the
benefit of the deposits made under section
30(1) of the Act by the tenant.

15. The last contention of the
petitioner is that electricity charges could
not have been included while determining
the validity and sufficiency of the deposit
made under section 20(4) of the Act and
even if considered the deficit would be
very small and could be ignored in order
to advance substantial justice and the
petitioner would be entitled to benefit of
the protection from eviction under section
20 (4) of the Act. This contention loses its
significance in view of the finding
recorded with regard to benefit of the
deposit under section 30 (1) of the Act.

16. In the result the writ petition
fails
and
is
accordingly
dismissed,
however there will be no order as to costs.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 23.12.2005

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DEVENDRA PRATAP SINGH, J.

Civil Misc. Writ Petition No. 12776 Of 1999

Surya Deo Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh
Sri M.D. Mishra
Sri R.C. Tripathi

Counsel for the Respondents:
Sri Sudhir Agrawal, Addl. A.G.
Sri S.P. Kesarwani, S.C.

(A) Constitution of India, Art. 226Payment of Salary-working on basis of
interim order-even after the dismissal of
writ petition-held-entitled for salary for
the period of working under interim
order.

Held: para 24 (1)

The petitioner is entitled to the salary for
the period that he has worked under the
interim order of the Court in view of the
law laid down in Shobh Nath ''s case
which has now been overruled. We have
therefore, modified the order passed in
the first petition.
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(B) Allahabad High Court Rules 1952Chapter XXII rule-7-Second writ petition
for arrear of salary-earliar writ petition
dismissed without reference to salary-on
the basis of interim order-held-cardinal
Rule
of
Policy
to
discourage
the
multiplicity of proceedings-second writ
petition-not maintainable.

Held: Para 24 (2)

Where a writ petition in which interim
orders
were
granted
is
dismissed
without any reference to the salary for
the period that the petitioner had
worked under the interim orders of the
Court, a second writ petition for claiming
the salary of the same period is not
maintainable.
However,
it
may
be
maintainable to quash any subsequent
illegal order regarding payment of post
retirement benefit, as it would be a fresh
cause of action.
Case law discussed:
1995 ALJ 1603
1998 (8) SCC 102
1995 (2) SCC-98
1995 (4) SCC-172
1998 (3) UPLBEC-1954
AIR 1992 SC-1439
AIR 1968 Alld-139
AIR 1975 Alld.-280
1986 (4) LCD-196
AIR 1994 (Alld) 273
1980 (2) SCC-191
2003 (8) SCC-648
1996 (1) SCC-597
1994 (2) SCC-521
1995 (Supple) 149
1997 J.T. (1) 353
W.P. No. 18104 of 1988 decided on 18.1.89
W.P. No. 19223/90 decided on 7.2.91
1998 (4) SCC-284
1993 (2) SCC-495

(Delivered by Hon'ble D.P. Singh, J.)

1. An important issue, which is often
confronting courts, falls for determination
by this Full Bench. An employee,
continues
in
service
beyond
the
superannuation age of 58 years on the
strength of an interim order, is fastened
with deduction of the amounts paid as
salary from his retiral benefits on the
dismissal
of
the
writ
petition
as
infructuous.

2. A learned Single Judge of this
Court was confronted with the decisions
of the Apex Court in the case of State of
U.P. Vs. Harendra Kunwar [1995
A.L.J. 1603] and State of J&K Vs.
Pirzada Ghulam Nabi [(1998) 8 SCC
102] where it was held that an incumbent
who has continued in service beyond the
age of superannuation on the strength of
an interim order, may not be entitled to
retain or receive salary in case the writ
petition is ultimately dismissed either on
merits or as infructuous. And the contrary
view also of the Apex Court in the case of
Collector of Madras and another Vs.
K.M. Rajamanikkan [1995 (2) SCC 98]
and Burn Standard Company Limited
and
others
Vs.
Deen
Bandhu
Majumdar and others [1995 4 SCC
172] both followed by a learned Single
Judge of our Court in Ram Khelawan
Pathak Vs. State of U.P. and others
[1998 (3) U.P.L.B.E.C. 1954] where it
was held that an employee who actually
worked on the strength of an interim order
would be entitled to his salary even
though the writ petition may have been
dismissed subsequently. Thus, he referred
the issue to a Larger Bench.

3. Minimal facts, necessary for
deciding the issue in this petition are:

4. Petitioner, a driver in the
Irrigation Department of State of Uttar
Pradesh
challenged
a
notice
dated
8.12.1993 retiring him on 31.1.1994 on
attaining the age of 58 years, through writ
1 All] Surya Deo Mishra V. State of U.P. and others
479
petition no. 3308 of 1994 claiming that
retirement age was 60 years. A Learned
Single Judge of this Court stayed the
operation of the said notice but clarified
that the petitioner would be allowed to
continue only uptil the age of 60 years.
This petition was dismissed as infructuous
on 7.8.1996. But as no retiral benefits
were released, he preferred writ petition
no. 34927 of 1996 which remains
pending. A third writ petition no. 5649 of
1998 for release of retiral benefits was
again filed but was finally disposed off on
19.12.1998 directing the respondent to
decide the representation with regard to
the claim of retiral benefits treating the
retirement age as 58 years. In pursuance
thereof, by an order dated 25.9.1998,
claim was decided holding that the retiral
benefits
could
be
released
after
adjustment of Rs.81,836/-, the amount
received by the petitioner as salary for
two years on the strength of the aforesaid
interim order in the first writ petition.
This order was subjected to challenge in
the fourth writ petition no. 12776 of 1999
when the Learned Single Judge referred it
to a Larger Bench.

5. When these petitions were taken
up on 20.10.2004, we framed the
following two questions:

i)
Whether the petitioner is entitled to
get salary for the period that he has
worked under the interim orders of
the Court even if the writ petition (in
which the interim order is granted) is
dismissed, as infructuous or after
holding that he was not so entitled to
work?

ii) In case the writ petition in which
interim
order
was
granted
is
dismissed without any reference to
the salary for the period that the
petitioner had worked under the
interim orders of the Court then,
whether a second writ petition is
maintainable for the salary of that
period?

6. We have heard learned counsel
for the parties.

7. Before we proceed to answer the
two questions framed by us, it would be
appropriate to examine the law with
regard to interim orders.

8. The interim orders cannot but
merge with the final orders passed in the
proceedings as has been held by the Apex
Court in the case of Shree Chamundi
Mopeds Limited Vs. Church of South
India Trust [ AIR 1992 SC 1439]. The
three Judge Bench was considering
whether the rent decree against a
company wound up can be enforced
where winding up order of the Appellate
Authority
under
Sick
Industrial
Companies (Special provision) Act has
been stayed. The Court, finding that
interim order staying operation of an
order under challenge, and, quashing of
an order are two different things, held;

"quashing of an order results in the
restoration of the position as it stood on
the date of the passing of the order which
has been quashed. The stay of operation
of an order does not, however, lead to
such a result. It only means that the order
which has been stayed would not be
operative from the date of the passing of
the stay order and it does not mean that
the said order has been wiped out from
the existence."
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
9. In the case of State of U.P. Vs.
Harendra Kunwar (Supra), the Apex
Court
sounded
a
note
of
caution
considering that a large number of
unscrupulous employees go scot free by
availing the benefits under the interim
order even after the dismissal of the
petition
as
infructuous.
It
throws
considerable light on the first question. In
this case, on the strength of an interim
order, the incumbent had continued in
service uptil 60 years though the actual
retirement age was 58 years, but he got
the writ petition dismissed as infructuous
with an observation for payment of retiral
benefits after continuing till 60 years on
the strength of the interim order. The
Apex Court held that the High Court
should have considered whether the
incumbent deserved benefits under the
Rules and the issue whether the retirement
age was 60 years or 58 years ought to
have been decided because that will
directly relate to the settlement of retiral
benefits, and thus, it allowed the appeal
and remanded the matter to the High
Court to consider deduction of the salary
already paid for those two years to deter
people from questioning their date of birth
at belated stages.

10. More than three and a half
decades ago a Division Bench of our
Court in the case of Shyam Lal Vs.State
of U.P. [AIR 1968 (Alld) 139] was
considering whether an incumbent who
had been compulsorily retired but was
being paid his salary on the strength of an
interim order without actually working,
could retain the amount so paid even after
dismissal of the writ petition. The Bench
held that the interim order merges in the
final order and it does not exist by itself
and once the writ petition is dismissed the
order of compulsory retirement would
take effect from the date it was passed and
therefore the incumbent could not retain
the amount. This view was consistently
reiterated by our Court in the case of Sri
Ram Charan Das Vs. Pyare Lal [AIR
1975 (Alld.) 280, Shyam Manohar
Shukla Vs. State of U.P. [1986 (4) LCD
196] and M/s. Karoria Chemicals and
India Limited Vs. U.P.S.E.B. and
others [AIR 1994 (Alld.) 273].

11. In Grindlays Bank Limited Vs.
IOC [(1980) 2 SCC 191], the Supreme
Court affirmed the principle that any
undeserved and unfair advantage obtained
by a party invoking the jurisdiction of the
Court must be neutralized. In South
Eastern Coalfields Ltd. Vs. State of
M.P. [2003 (8) SCC 648] it has reiterated
the principle that none should suffer by an
act of court and explained the concept of
restitution. In this case it was confronted
with a situation where royalty of coal was
increased
which
was
subjected
to
challenge and interim orders were passed
but finally the enhancement in royalty
was upheld by it and when interest for the
period of non-payment of the enhanced
royalty was sought to be recovered,
another set of litigation started and the
Supreme Court came down heavily,
observing that litigation may turn into a
fruitful industry, in the following words:-

"Unscrupulous litigants may feel
encouraged to approach the courts,
persuading the court to pass interlocutory
orders favourable to them by making out
a prima facie case when the issues are yet
to be heard and determined on merits and
if the concept of restitution is excluded
from application to interim orders, then
the litigant would stand to gain by
swallowing the benefits yielding out of the
interim order even though the battle has
1 All] Surya Deo Mishra V. State of U.P. and others
481
been lost at the end. This cannot be
countenanced. We are, therefore, of the
opinion that the successful party finally
held entitled to a relief assessable in
terms of money at the end of the litigation,
is entitled to be compensated by award of
interest at a suitable reasonable rate for
the period for which the interim order of
the court withholding the release of
money had remained in operation."

12. In the case of State of J&K Vs.
Pirzada Ghulam Nabi, (Supra), the
Apex Court was considering the claim of
salary by an incumbent who continued to
render service on the strength of an
interim order but was not paid after the
dismissal of the petition even on the basis
of two earlier judgments of that court in
Collector
of
Madras
and
Burn
Standard Company (Supra). It refuted
the claim, after distinguishing the two
decisions, and held:

"In the present case, however, no
amount has been paid by the appellant to
the respondent for the service rendered by
the
respondent
after
the
date
of
superannuation. The department was
throughout contesting the claim of the
respondent. It agreed to hold a fresh
inquiry regarding his date of birth, but
did not agree to payment of any salary
after the respondent's superannuation as
per their records. We fail to see how we
can direct any payment for any service
rendered during the period this inquiry
after the date of superannuation. When
salary
is
already
paid
under
any
misapprehension
the
court
may
be
reluctant to order recovery from a retired
employee who may be put to hardship if
he has to repay the amount. But these
considerations do not operate in present
situation. Hence the appeal is allowed
and the impugned order is set aside. The
writ petition is dismissed."

13. In Kerala State Electricity
Board Vs. M.R.F. Limited [(1996) 1
SCC 597], the Apex Court while
upholding a notification enhancing the
electricity
tariff,
while
considering
whether the consumer was liable to pay
penal charges for the period the interim
order operated in their favour, though it
found that they were liable but it held that
such action by way of restitution was not
an inflexible rule and the relief would
depend on facts of each case, it went on to
hold;

"But in giving such relief, the Court
should not be oblivious of any unmerited
hardship to be suffered by the party
against whom action by way of restitution
is taken. In deciding appropriate action
by way of restitution, the court should
take pragmatic view and frame relief in
such a manner as may be reasonable, fair
and practicable and does not bring about
unmerited hardship to either of the
parties."

14. But in the case of Collector,
Madras and another Vs. K. Raja
Mallikkam (Supra) while considering the
case of an employee who remained in
office on the strength of an interim order
even after his superannuation on the basis
of the recorded date of birth in the service
record, the apex Court directed that the
salary already paid for the said period
when he had worked would not be
recovered but the retiral benefits should
be computed from the date on which he
stood superannuated on the strength of the
service record. This case was noted and
considered subsequently in Pirzada's case
(Supra), but distinguished on the ground
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
that no salary had been paid in Pirzada's
case.

15. Again, a three Judge Bench of
the Apex Court in the case of Shyam
Babu Verma and another Vs. Union of
India and others [1994 (2) SCC 521]
was confronted with a situation where
several incumbents had been drawing
higher pay scale without their fault, but
subsequently the scale was reduced, it
refused adjustment in the following
words:-

"Accordingly, we direct no steps
should be taken to recover or to adjust
any excess amount paid to the petitioners
due to the fault of the respondents, the
petitioners being in no way responsible
for the same."

16. Yet again in Gabriel Saver
Fernandes and others Vs. State of
Karnataka and others [1995 (Suppl. 1)
S.C.C. 149], while considering whether
the higher scale illegally granted to the
incumbent should be recovered after their
retirement, it directed that since they had
been paid the higher scale and had retired
since then, the difference should not be
recovered from the salary even though
they were not eligible to receive it.

17. In Mahmood Hasan Vs. State
of U.P. [1997 (1) J.T. 353], a three Judge
Bench of the Apex Court was confronted
with interim and final orders of the High
Court
which
formed
the
basis
of
promotion of juniors who had been paid
higher pay scale, but while passing final
orders it held;

"However, those who will have to
step down on account of this correctional
process need not to refund the pecuniary
and other benefits enjoyed by them for
they had actually worked as Supply
Inspector during that period."

18. Thus, broadly speaking, the
principle which can be culled out from
these decisions is that in commercial
matters, the successful party is not only
entitled to the amount withheld on the
basis of the interim order, but it is also
entitled to interest thereon. However, in
service matters, if the incumbent has
worked and has been paid, unless his
claim
was
fraudulent,
based
upon
frivolous grounds or upon acute factual
dispute, the amount so paid ought not to
be recovered. Even in cases of excess
payment, it cannot be recovered unless
said payment is result of the employee's
mistake or on his showing. But, if the
employee has been paid without working
or has not been paid though has worked,
he would not be entitled to it if the
petition is dismissed as infructuous. We
hasten to add, that the court cannot draw a
exhaustive list of such situation, as each
case is to be decided on its facts.

19. Let us apply the aforesaid
principle to the facts of this case.

20. From the record it is evident that
the claim of the petitioner that the
retirement age of the drivers in the
department was 60 years is solely based
on a Division Bench judgment of this
Court rendered in the case of Subh Nath
Dubey Vs. State of U.P. (Writ Petition
No. 18104 of 1988) decided on 18.1.1989
and subsequent Single Judge decision
following the aforesaid Division Bench in
the
case
of
Srikant
Shukla
Vs.
Executive Engineer (Writ Petition No.
19223 of 1990) decided on 7.2.1991.
While entertaining the petition and
1 All] Surya Deo Mishra V. State of U.P. and others
483
granting interim order, this Court had
granted six weeks time to the Standing
Counsel to file counter affidavit, in vain.
Till the pendency of the writ petition, no
counter affidavit was filed and it was
dismissed on 7.8.1996 as infructuous
since during the pendency of the petition
the petitioner had already attained the age
of 60 years on 31.1.1996. It is settled law
that the right of the parties are to be
determined on the date of initiation of the
proceedings
and
its
judgment
is
retrospective
''inter
se'
parties
but
prospective for the rest of the world. The
Apex Court in Atma Ram Mittal Vs.
Ishwar Singh Punia [1998 (4) SCC 284]
has held:-

"It is well settled that the right of the
parties will have to be determined on the
basis of the right available to them on the
date of the suit......"

Thus, as the law propounded by this Court
in the aforesaid two judgments was that
the retirement age of drivers in the
department was 60 years, the petition was
rightly dismissed as infructuous.

21. However, Sri Sudhir Aggrawal,
learned Additional Advocate General for
the State respondent has urged that the
two cases of Shubh Nath Dubey and
Srikant
Shukla
(Supra)
were
not
correctly decided. He has urged that the
age of superannuation for Government
servants is provided under Rule 56 (3) of
the Fundamental Rules Chapter II part 2
to 4. The age of superannuation of all the
Government servants of inferior category
was 60 years. Clause (1) of the amended
Government
Order
dated
28.7.1987
provides that the age of retirement of all
Government servants is 58 years but those
employees who were appointed in Group
''D' prior to 5.11.1985, would retire at the
age
of
60
years.
Nevertheless,
Government
vide
an
order
dated
14.6.1984 declared drivers to be members
of technical service and in 1986 they were
given higher pay scale, therefore, he has
rightly urged, that the drivers were no
longer member of Group ''D' service and
they
became
group
''C'
employees
therefore the proviso to Rule 56(3) was
not applicable to them. A perusal of the
decisions in Shubh Nath Dubey and
Srikant Shukla (Supra) shows that the
provision relating to higher pay scale and
treating drivers as ''technical employees'
were neither brought to the notice of the
Court nor were considered. No doubt, the
petitioner
was
appointed
prior
to
5.11.1985 and earlier he was drawing a
salary of less than Rs.354/- and belonged
to group ''D', but after reclassification of
the post of Driver and increase in salary
he ceased to be a member of Group ''D'
service and thus was not entitled to the
benefit of the proviso to Rule 56 (3). In
Our opinion, the aforesaid two decisions
have not been correctly decided and as
such they are hereby over-ruled.

22. Sri M.D. Mishra, learned
counsel for the petitioner has filed an
application in writ petition no. 3308 of
1994 to modify the order dated 7.6.1996
claiming that he should be paid the retiral
benefits treating his date of retirement as
31.1.1996. We have already held that the
ratio in Subh Nath Dubey and Srikant
Shukla (Supra) was incorrectly decided,
therefore, there is no question of treating
the retirement age of the petitioner as
31.1.1996. Nevertheless, the interim order
in writ petition no. 3308 of 1994 was
neither obtained by misrepresentation nor
on fraud but having been based on a
Division Bench decision of this Court, the
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
benefit accrued to the petitioner on the
strength of the interim order should not be
denied. In view of this, we allow the
modification application partly and the
order dated 7.8.1996 in the first writ
petition is modified to the effect that the
petitioner would only be entitled to his
retiral benefits treating his age of
superannuation to be 58 years but salaries
paid to him during the pendency of the
first petition for the work performed may
not be deducted from his post retirement
benefits.

23. The second question need not
detain us any longer. In the first writ
petition relief of mandamus was sought
not to retire the petitioner on 31.1.1994
instead of 31.1.1996 and salary was also
claimed. The writ petition was dismissed
as infructuous. He therefore, cannot be
permitted to take up the same issue by
means of any subsequent writ petition.
The rules of this Court clearly prohibit
such course of action. Rule 7 of Chapter
XXII of the Allahabad High Court Rules
1952 provides that, where an application
has been rejected, it shall not be
competent for the applicant to move a
second application on the same fact. Even
if the petitioner has withdrawn the earlier
writ petition without a prayer to file a
fresh writ petition, a second writ petition
for the same cause of action is not
maintainable. This cardinal rule of public
policy to discourage multiplicity of
proceedings, also incorporated in Order 2
Rule 2 of the Code of Civil Procedure, the
principles whereof are also applicable to
writ proceedings, is too well settled to
merit any elaboration. For this, it will be
sufficient to refer to the judgments in
B.N. Singh Vs. State of U.P; [1979 ALJ
1184]; Dr. Ramji Dwivedi Vs. State of
and others [AIR 1984 SC 1506]
equivalent to 1983 UPLBEC 426;
Niranjan Rai Vs. District Inspector of
Schools [(1991) 2 UPLBEC 1416; Sahib
Ram Vs. State of Haryana [JT 1995(1)
SC 24; Harish Chandra Srivastava Vs.
State of U.P. and others [(1967) 3
UPLBEC 1840 (DB); Keshav Tripathi
Vs. State of U.NP. and others [1997
ALJ 28 (DB) and S.L. Bathla Vs. State
Bank of India [(1999) 1 UPLBEC 233].
This rule was succinctly explained in
State of U.P. and another Vs. Labh
Chand [(1993) 2 SCC 495] by the Apex
Court in paragraph 20 as follows:-

"20. When a Judge of Single Judge
Bench of a High Court is required to
entertain a second writ petition of a
person on a matter, he cannot, as a matter
of course, entertain such petition, if an
earlier writ petition of the same person on
the same matter had been dismissed
already by another Single Judge Bench or
a Division Bench of the same High Court,
even if such dismissal was on the ground
of laches or on the ground of non availing
of
alternative
remedy.
Second
writ
petition cannot be so entertained not
because the learned Single Judge has no
jurisdiction to entertain the same, but
because entertaining of such a second
writ petition would render the order of the
same court dismissing the earlier writ
petition
redundant
and
nugatory,
although not reviewed by it in exercise of
the recognized power. Besides, if a
learned Single Judge could entertain a
second
writ
petition
of
a
person
respecting a matter on which his first writ
petition was dismissed in limine by
another learned Single Judge or a
Division Bench of the same court, it
would encourage an unsuccessful writ
petition to go on filing writ petition after
writ petition in the same matter in the
1 All] Surya Deo Mishra V. State of U.P. and others
485
same High Court, and have it brought up
for consideration before one Judge and
another. Such a thing, if is allowed to
happen, it could result in giving full scope
and encouragement to an unscrupulous
litigant to abuse the process of the High
Court exercising its writ jurisdiction
under Article 226 of the Constitution in
that any order of any bench of such court
refusing to entertain a writ petition could
be ignored by him with impunity and
relief sought in the same matter by filing a
fresh writ petition. This would only lead
to introduction of disorder, confusion and
chaos relating to exercise of writ
jurisdiction by Judges of the High Court
for there could be no finality for an order
of the court refusing to entertain a writ
petition. It is why, the rule of judicial
practice and procedure that a second writ
petition shall not be entertained by the
High Court on the subject matter
respecting which the first writ petition of
the same person was dismissed by the
same court even if the order of such
dismissal was in limine, be it on the
ground of laches or on the ground of nonexhaustion of alternative remedy, has
come to the accepted and followed as
salutary
rule
in
exercise
of
writ
jurisdiction of courts."

24. In the result the answers to the
questions formulated for decisions by us
are as follows;
1. The petitioner is entitled to the salary
for the period that he has worked
under the interim order of the Court
in view of the law laid down in
Shobh Nath ''s case which has now
been overruled. We have therefore,
modified the order passed in the first
petition.

2. Where a writ petition in which
interim orders were granted is
dismissed without any reference to
the salary for the period that the
petitioner had worked under the
interim orders of the Court, a second
writ petition for claiming the salary
of
the
same
period
is
not
maintainable. However, it may be
maintainable
to
quash
any
subsequent illegal order regarding
payment of post retirement benefit,
as it would be a fresh cause of action.

25. In view of our discussions;
(i) Writ petition no. 34927 of 1996 is
dismissed.

(ii) The application to modify the order
dated 7.8.1996 in writ petition no.
3308 of 1994 is partly allowed. The
order dated 7.8.1996 is modified to
the extent that the respondent shall
not recover/adjust the salary paid to
the petitioner in pursuance of interim
order however his post retirement
benefit may be calculated treating his
age of retirement to be 58 years.

(iii) Writ petition no. 12776 of 1999 is
partly allowed and order dated
25.9.1999 is quashed. Respondents
shall pass fresh order regarding post
retirement benefits in accordance
with the order dated 7.8.1996 as
modified by us today and pay it to
the petitioner at an early date if
possible within three months of date
of receipt of certified copy of this
order, failing which the petitioner
would be entitled to simple interest
@ 6% per annum after expiry of
three months from the date of receipt
of the order.
---------
486 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE (MRS.) SAROJ BALA, J.

Civil Misc. Writ Petition No. 3521 of 2003

Smt. Meena Sahu @ Meenu Sahu

...Petitioner
Versus
Life Insurance Corporation of India and
another

 ...Respondents

Counsel for the Petitioner:
Sri R.S. Pandey
Sri Rajesh Kesarwani

Counsel for the Respondents:
Sri R.G. Padia
Sri Prakash Padia

Constitution of India, Art. 226-Benefit of
Insurance Policy-Policy purchased on
31.10.98-died
on
14.1.2000-ause
of
death brain heamorhage-claim denied on
the ground of incorrect particulars given
in the form-as the assured was suffering
from various liver disorders-cirrhosis
recurrent
Jaundice
and
hepatic
encephalopathy
since
1997-held-the
Development
Officer
including
the
medical practitioner had examined the
insured-LIC can not dine the payment for
act and omission of his officers-direction
issued to pay the assured with 10%
interest within one month.

Held: Para 9

The L.I.C. of India, its agents and other
staff owe a responsibility to the person
to whom they sell insurance and they are
presumed to be acting in the interest of
the Corporation. The L.I.C. of India
cannot disclaim the liability to make
payment of assured amount under life
policy no. 310786680 for the acts and
omissions
of
its
agent
or
medical
practitioner appointed by it to examine
the
deceased
before
accepting
the
proposal.
Case law discussed:
AIR 1962 SC-814 distinguished.

(Delivered by Hon'ble R.K. Agrawal, J.

1. This writ petition, under Article
226 of the Constitution of India, has been
filed for issuance of a writ, order or
direction in the nature of mandamus
commanding the respondents to make
payment of Rs.50,000/- P.T. 124-15 with
interest under the Life Insurance Policy
no.310786680.

The facts leading to the writ petition
put briefly are these:

2. The petitioner's husband Ashok
Babu Sahu had purchased Life Insurance
Policy no. 310786680 on 31.10.1998 for a
sum of Rs.50,000/-. The petitioner's
husband who was admitted in Anand
Hospital, Allahabad on 10.1.2000 expired
on 14.1.2000 at 8 a.m. due to brain
heamorrhage.
The
petitioner/nominee
filed
assurance
claim
before
the
respondents which was repudiated on the
score that the answers given to the
question no. 11 (a) (b). (d) and (i) of
proposal for insurance were incorrect as
the assured suffered from various liver
disorders such as cirrhosis, recurrent
jaundice
episode
and
hepatic
encephalopathy since June 1997 and was
operated for piles in July 1998. The
petitioner filed a writ petition against the
order of repudiation of claim dated
30.8.2000 before this Court which was
registered as Civil Misc. Writ Petition No.
43751 of 2001-Smt. Meena Sahu alias
Meenu Sahu Versus Life Insurance
Corporation of India and others. This
Court vide order dated 21.12.2001 finally