State of U.P. Thru. Prin. Secy. Revenue Deptt. Lko. and 3 Others v. Jag Prasad Chaubey

Page No.1 of 5 Court No. - 2 Case :- SPECIAL APPEAL No. - 191 of 2024 Appellant :- State Of U.P. Thru. Prin. Secy. Revenue Deptt. Lko. And 3 Others Respondent :- Jag Prasad Chaubey Counsel for Appellant :- C.S.C. Counsel for Respondent :- Rama Kant Dixit Hon'ble Rajan Roy,J. Hon'ble Om Prakash Shukla,J.

¶1Heard.

¶2Learned Counsel for the respondent could not deny the fact that the facts in issue are similar to one decided in Special Appeal Defective No.865 of 2023 (State of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. of Revenue Civil Sectt. Lko & 4 Others Vs. Daya Shankar Shukla) vide judgment dated 31.08.2024.

¶3The respondent-petitioner had earlier filed a Writ Petition No.655 (S/S) of 2012 which was decided on 30.07.2012 giving the benefit of the judgment of this Court in Writ Petition No.4031 (S/S) of 2001 (Pratap Narain Pandey Vs. State of U.P. & Ors.). The special appeal against the said judgment bearing Special Appeal Defective No.334 of 2016 was dismissed on the ground of delay on 22.01.2020. This judgment was not challenged by the State any further before the Supreme Court of India. Therefore, according to the learned Counsel for the respondent-petitioner, the said judgment attained finality.

¶4Now he has invited our attention to the operative portion of the judgment in the case of Pratap Narain Pandey (supra), Page No.2 of 5 benefit of which was extended to the respondent-petitioner, which reads as under :- "Accordingly, both the writ petitions are allowed. The order dated 19.09.2000 is hereby quashed and a writ of mandamus is issued to the respondents to allow the petitioner to work as Regular collection Amin as he was duly selected under the Uttar Pradesh Collection Amin Services Rules, 1974. It is made clear that the petitioner shall be treated as a regular Collection Amin in service since 5th June, 1986 for the purposes of seniority etc. except the salary for the period during which he did not work on the principle of 'No work No pay'. There will be no order as to costs".

¶5The submission is that in view of the above, the respondent-petitioner was entitled to be allowed to work as regular Collection Amin, which in fact he was allowed undisputably by the appellant-State and after confirmation of the services of the respondent-petitioner he was further promoted as Revenue Inspector which is the post from which he has retired from service on 31.10.2021. The contention is that there is specific direction in Pratap Narain Pandey (supra) to treat the petitioner therein as a regular Collection Amin in service since 5th June, 1986 for the purposes of seniority etc., which according to him, will include the calculation of qualifying service for pensionary benefits as it has not been specifically excluded. What has been excluded is the arrears of salary for the said period during which he did not work and this has been excluded on the principle of 'no work no pay'. The submission is that merely because arrears of salary is not to be paid on the principle of 'no work no pay', there is no law which says that the said period is to be treated as a break in service or that such service is not to be included in the qualifying service while calculating the same for pensionary benefits. He says that similar controversy has already been decided by this Court vide Page No.3 of 5 judgment dated 31.08.2024 passed in Special Appeal Defective No.865 of 2023.

¶6We have perused the said judgment. Relevant extract of which is quoted hereinunder :- "We asked the learned Counsel for the State to kindly place the relevant provisions of Civil Service Regulation or the U.P. Pensionary Benefits Act, 1961 which may contain any such provision, but he could not place any such provision from the Civil Service Regulation or the U.P. Pensionary Benefits Act, 1961 which contain the substantive provision for calculation of qualifying service, however, he has relied upon the relevant extract of the Government Order dated 28.07.1989 under the heading of '(p) lsaok esa O;o/kku dk izHkko'. This government order, however, relates to break in service. We are not aware of any principle in Service Jurisprudence where if a person is to be treated as regular Collection Amin since 5th June 1986, but arrears of salary is not to be given on the basis of 'no work no pay', the said period would be excluded for the purposes of pensionary benefits nor do we find any such stipulation in the judgment of Pratap Narain Pandey (supra), benefit of which has been given to the respondent-petitioner. This is not a case of break in service. In fact, from the very language and spirit of the judgment dated

19.08.2006 in the case of Pratap Narain Pandey (supra), benefit of which has been given to the respondent-petitioner, the period from 5th June 1986 has to be treated as continuous regular service but only arrears of salary for the period he has not worked is to be given. The opposite parties have clearly erred in interpreting the said judgment and applying the aforesaid government order which does not apply and in any case if this is how the State understand the government order and applies it in the facts of the case, it would be apparently unreasonable and against the provisions of Civil Service Regulation and the U.P. Pensionary Benefits Act, 1961. Page No.4 of 5 As regards reliance placed by the learned Counsel for the State upon the judgment of a Co-ordinate Bench dated 17.01.2023 rendered in Special Appeal No.349 of 2022 (Mata Prasad Tiwari Vs. State of U.P. Thru. Secy. Revenue Deptt. Lko & others) with respect we have gone through the said judgment and we do not find any principle of law or precedent having been discussed therein as to on what basis the conclusion has been arrived at that in the facts as mentioned therein the period in question would be excluded for the purposes of calculation of qualifying service. Therefore, with utmost respect we say that the said judgment of the Co-ordinate Bench has been rendered in the facts of the said case and is not a binding precedent. Moreover, we find that there is another judgment of Co-ordinate Bench, which is dated 02.05.2018, in Special Appeal Defective No.196 of 2018 (State of U.P. Through Secy. Revenue Govt. of U.P. Lko & Ors. Vs. Rajendra Prasad Tiwari) arising out of Writ Petition No.4963 (S/S) of 2015 wherein the law on the subject has been discussed at length which supports the respondent-petitioner's case. We see no reason to refer the decision of the Co-ordinate Bench in Mata Prasad Tiwari (supra) as the said judgment as already observed is purely in the facts of the case and it has not considered the earlier Division Bench judgment in Rajendra Prasad Tiwari (supra). The law of precedents is very clear that if earlier judgment has not been considered in the subsequent judgment by a Co-ordinate Bench then it is the earlier judgment which has to be followed, specially as in this case the subsequent judgment does not lay down any principle of law, therefore, it is not required to be referred to a larger Bench. Moreover, as already stated in the facts of this case, the earlier judgment has attained finality between the parties and the respondent is to be treated in regular service since 05.06.1986 subject to the conditions mentioned therein thus there is no way that the period of service for which he has not been paid the arrears Page No.5 of 5 of salary should not be counted as continuous regular service for pensionary benefits specially when it is to be counted for seniority etc. The use of the word 'etc.' in Pratap Narain Pandey (supra) is also not without significance. We have also perused the impugned judgment. In view of the above discussion, we do not find any reason to interfere with the same. Purely in facts of this case this appeal is dismissed. Pensionary benefits shall be made available to the respondent within two months."

¶7On being confronted, learned Counsel for the State-appellant could not deny the fact that the facts in issue are similar to the aforesaid case.

¶8We, therefore, dismiss this appeal of the State for the same reasons as recorded in the above mentioned appeal pertaining to Daya Shankar Shukla (supra). The respondent herein shall be entitled to the benefit of the observations and directions contained therein on the same terms. Order Date :- 06.09.2024 Anand/- (Om Prakash Shukla, J.) (Rajan Roy, J.) High Court of Judicature at Allahabad, Lucknow Bench