Vijai Pratap Singh vs State of U.P.& Ors.

A.K. Yog, J.—Vijay Pratap Singh filed present petition under Article 226, Constitution of India, claiming writ of mandamus directing the respondents to disburse the arrears of salary and allowances payable to the petitioner for the period between July 1974 to October 1991..

Briefly stated petitioner has filed a petition (claim No. 176 (F) III 82) before U.P. Public Service Tribunal III, Lucknow, for quashing of order of removal dated 30th September, 1976 and other orders passed in appeal and also claimed declaration to the effect that he be treated to be continuing in service with all benefits including recovery arrears of pay etc. w.e.f. 1st July, 1974. After contest, aforesaid claim petition was allowed and the order of removal as well as appellate order affirming the removal order were quashed. Tribunal declared that petitioner shall be deemed to be in continuous in service with all service benefits of pay, etc.

At the time of admission Hon''ble S.R. Singh, J. passed intermit order dated 6th April, 1994 observing that prima facie claim of salary from 1st July, 1974 to 31st October, 1991 appeared to be barred by time but it was observed that relief may, however, be considered after exchange of affidavits and no interim relief was granted at that stage. Subsequently, after filing of counteraffidavit by Opposite parties learned Single Judge passed order dated 5th July, 1996 as follows:

"I have perused the counteraffidavit filed on behalf of the respondents.

The only reason given in the counteraffidavit appears to be that the Execution Proceedings initiated by the petitioner were dismissed by the learned Civil Judge, by order dated 2211994.

The petitioner in his claim petition has prayed for setting the order of removal as also to be declared to be continuing in service with all benefits and for recovery of arrears of pay etc. with effect from 171974.

The claim petition was allowed. The impugned order of removal dated 3091976 was set aside and it was further directed that the petitioner shall be deemed to be in continuous service with all service benefits of pay etc.

The learned counsel for the petitioner submitted that the petitioner has been reinstated with effect from 29111991 at his basic salary. In my opinion, the petitioner is entitled to his full salary of the past period as also all the benefits that have accrued to him during the period he was kept out of employment. The petitioner would also be entitled on his reinstatement, the revised pay scale and all such benefits and have accrued to him during this period. However, as the petition is pending the payment of the aforesaid amount shall be subject to final decision of the writ petition and the petitioner''s post retirement benefits shall not be released in case the petition is not decided till he attains the age of superannuation."

Heard learned counsel for the parties.

Learned counsel for the petitioner Sri AN. Singh, Advocate, submitted that the order passed by Tribunal (Annexure 1 to the petition), having become final since it has not been challenged by any party, the petitioner ought to have been paid the arrears in pursuant to the order of the Tribunal. According to the learned counsel for the petitioner it is a statutory obligation, apart from being incumbent upon the concerned Opposite parties to pay the arrears after the judgment of the Tribunal (Annexure No. 1 to the petition). Learned Standing counsel points out that a Contempt Petition No. 2457 of 1996 was filed by the petitioner in which this Court, vide order dated 1611997 recorded, as fact, that on the basis of statement given by the concerned Officer, the petitioner has been paid his dues. Learned counsel for the petitioner is, however, not in a position to endorse the same, in absence of communication with the client.

Be that as it may, the writ petition has to be decided on merits. In para 10 of the counteraffidavit it is stated that the order of the Tribunal dated 2641991 (Annexure 1 to the petition) contains no specific direction for payment of salary and an execution case was initiated before the Court of Civil Judge by the petitioner but the said execution case has been dismissed vide order dated 29th January, 1994 (Annexure CA5). Both the object, lions contained in the counteraffidavit in opposition to the present petition are untenable and misconceived. Tribunal vide its judgment and order dated 26th April, 1991 (Annexure 1 to the petition) passed a categorical order for entitling petitioner to all service benefit or pay etc. Even otherwise, granting of declaration in favour of the petitioner that he shall be deemed to be in continuous service meant nothing but entitling the petitioner to receive the consequential benefits. The other objection regarding the rejection of Execution case, it will suffice to mention that it was not decided on merit but the Court refused to execute the order on the ground that order of declaration could not be executed as such and there was no question of its being executed. Petitioner, thus, apparently had no remedy but to file writ petition for claiming his dues namely, the arrears of salary etc.

It may be further noted that by exception, when State is the employer, objection of limitation. As defence to the liability to pay salary to its employees is to be taken. In the facts of the present case otherwise it cannot be said the petitioner was sleeping over his right. In view of the fact he had applied for execution in the present case, the right of the petitioner, to claim salary, cannot be said to be barred by limitation; and even otherwise the relief sought by means of the present petition cannot be denied on the ground of laches. It is interesting to note that no objection on the ground of limitation has been raised in the Quinter affidavit filed on be half of the respondents and hence there is no justification for denying the relief to the petitioner on this Court.

In view of the above, interim order passed by this Court dated 15th July, 1996 is made absolute subject to the modification that concerned Opposite parties shall take all steps and measures necessary for payment of post retiral benefits also since petitioner has, admittedly, attained the age of superannuation in August, 1996. The Opposite parties shall first ascertain the total amount payable to the petitioner towards, his salary and pay it, after adjusting the amount already paid against the same head to the petitioner within four months and within the same time all the requisite steps will be taken and papers will be finalised for payment of pension etc. as may be due to the petitioner after attaining the age of superannuation.

The writ petition is allowed subject to the observations made above. No order as to costs.