Vikram Nath, J.@mdashHeard Sri R.N. Tripathi, learned Counsel for the applicant and Sri D.N. Mishra, learned Standing Counsel appearing for the opposite parties.
2. At the outset it has been pointed out by Sri D.N. Mishra, learned Standing Counsel that the present incumbents on the posts of opposite parties have not been arrayed. The Court is not inclined to accept such objection in view of the facts and circumstances of this case mentioned hereinafter.
3. The Writ Petition No. 38533 of 1999, filed by the applicant was allowed vide judgment and order dated 5.11.1999. The termination order was quashed. The writ had been allowed relying upon another order of this Court in the case of Mahendra Nath Tewari v. State of U.P. and Ors. Writ Petition No. 13710 of 1999. Further the writ petition of Mahendra Nath Tewari was allowed relying upon another judgment of this Court in the case of Vijay Bahadur Singh v. State of U.P. and Ors. Writ Petition No. 46061 of 1993. Thus in effect the applicant was entitled to the same relief as granted in the case of Vijay Bahadur Singh. The operative portion of the order dated 26.9.1997, passed in the case of Vijay Bahadur Singh is quoted hereunder:
The writ petition is allowed. The order of termination of petitioner''s services dated 14.11.1973 (Annexure-1 to the writ petition) is hereby quashed and the respondents are directed to reinstate the petitioner in service with full benefits of his service with retrospective effect. There is no order as to costs.
4. Against the aforesaid order the State of U.P. filed special appeal. A Division Bench of this Court vide judgment and order dated 15.11.2002 dismissed all the special appeals filed by the State of U.P. Against the judgment of the Division Bench, the State of U.P. preferred petitions for special leave to appeals before the Apex Court. With regard to the applicant''s case the SLP was dismissed vide judgment and order dated 7.5.2003.
5. According to the learned Counsel for the applicant, after the dismissal of the special leave to appeal by the Apex Court, the respondents reinstated the applicant in the month of June, 2003 at the minimum of pay-scale and soon thereafter he was superannuated on 31.10.2003. He was paid salary only for the period from June to October, 2003. The applicant has not been paid any consequential benefits, as directed by the learned Single Judge, which stood affirmed right up to the Apex Court. More than six years have passed since the applicant superannuated. He has still not been able to reap the benefits of the judgment of this Court since 1999 i.e. for the last ten years.
6. Prima facie the Court is of the view that there has been deliberate non-compliance of the judgment of this Court by the State. It has been pointed out by the learned Counsel for the applicant that presently Kunwar Fateh Bahadur Singh is the Principal Secretary (Home), Government of U.P. It is his responsibility, in the opinion of the Court, to have ensured that the judgment of this Court is fully complied with and well within time.
7. At this stage Sri D.N. Mishra, learned Standing Counsel referred to the paragraph Nos. 6 and 8 of the affidavit of S.K. Agarwal, the then Principal Secretary (Home), State of U.P. dated 6.8.2007. In the said paragraphs there is a reference of special appeal pending before the Apex Court in the case of Mahendra Nath Tewari, at that time, and in which there was an interim order by the Apex Court. He has further placed before the Court the judgment of the Apex Court dated 17.12.2009 in the case of Mahendra Nath Tewari. The Apex Court did not interfere with the judgment of the Division Bench of this Court. However, in view of the fact that the counsel for the respondent in the appeal before the Apex Court accepted that the respondent therein would not be entitled to back wages, the Apex Court disposed of the appeal clarifying that the respondent therein would not be entitled to back wages. The Apex Court had also observed that there was no direction for awarding back wages in the judgment of the learned Single Judge in the case of Vijay Bahadur Singh as also affirmed by the Division Bench and further on the concession on the learned Counsel for the respondent therein had clarified regarding back wages. However, I find that the applicant in the present case although may not be entitled to any back wages from the date of termination till the date of filing the writ petition or the judgment of this Court in the writ petition but in any case he would be entitled to salary from the date of the judgment in the writ petition i.e. 5.11.1999.
8. Prima facie the Court is of the view that the applicant was entitled to salary from the date of the judgment of the learned Single Judge i.e. 5.11.1999. No such payments have been made till the reinstatement in June, 2003. Further the applicant would also be entitled to the full benefits of service with retrospective effect as per the judgment of the learned Single Judge, which according to the applicant have also not been extended. It is at best only the back wages from the date of termination till the date of the judgment of the learned Single Judge, allowing the writ petition to which the applicant may or may not be entitled, in view of the argument advanced by the learned Standing Counsel relying upon the direction of the Apex Court in the case of Mahendra Nath Tewari.
9. Sri D.N. Misra, learned Standing Counsel has prayed for some reasonable time to obtain instructions. Time prayed for is allowed. Let instruction be obtained within five weeks.
10. List this case on 15.2.2010. By the said date if the orders of this Court are not fully complied with and the payments due to the applicant under the said orders are not made, Kunwar Fateh Bahadur Singh, Principal Secretary (Home), Government of U.P. or whoever is presently posted on the said post shall remain present before this Court to explain the delay and for framing of the charges.
