- (1.) PURSUANT to the order of the court, the Executive Engineer is present in Court and has also filed a counter affidavit. Since no factual controversy is involved, the writ petition is being decided at this stage without calling for a rejoinder affidavit. The petitioner along with several others petitioners filed writ petition No. 3976 (S/S) of 1997, Nirmal Singh and Others vs. State of U.P. and Others before the Lucknow Bench of this Court praying for a writ of mandamus commanding the respondents to provide them a pay scale of 1200-2040 as revised to 4000-6000 with effect from 1.1.1996 on the basis of the Fifth Pay Commission. The said writ petition was allowed by a judgment dated 13th September, 2005 and a mandamus in terms of the relief claimed was issued.
(2.) THE petitioner, Sri Narayan Soni and seven others also filed writ petition no. 29935 of 1998 before this Court praying for a similar relief. This Court allowed the writ petition of the petitioner by a judgment dated 28th July, 2006 in terms of the judgment in Nirmal Singh's case (supra). The petitioner has filed the present writ petition praying that inspite of the judgment of this Court in his favour, the benefits are not being provided to the petitioner in terms of the said judgment. The petitioner accordingly, has prayed that the respondents be directed to provide all the benefits pursuant to the judgment passed by this Court on 22nd July, 2006 and further pay retiral benefits along with arrears plus interest at the rate of 18% per annum, since the petitioner, in the meanwhile, had retired on 31st January, 2012. The counter affidavit reveals that the State Government filed Special Appeal against the judgment in Nirmal Singh's case which was allowed by a judgment dated 18th December, 2008 and the order of the learned Single Judge was set aside. Nirmal Singh's and Others have filed a Special Leave Petition before the Supreme Court of India and which has been entertained in which an interim order dated 13th April, 2009 was passed staying the operation of the impugned order, i.e., the order of the Appellate Court. In so far as the order dated 28th July, 2006 is concerned passed in petitioner writ petition No. 29935 of 1998, a Special Appeal has also been filed by the State Government before this Court which is pending in which no interim order has been passed.
(3.) IN the light of the aforesaid admitted facts, the learned counsel for the petitioner submitted that in view of the interim order passed by the Supreme Court, the judgment passed by the learned Single Judge, in the matter of Nirmal Singh, revives and becomes operative and consequently, the petitioner is entitled to the relief in terms of that judgment. The submission of the learned counsel for the petitioner seems to be attractive in the first blush, but on a closer scrutiny, the Court is of the opinion that the argument raised by the learned counsel for the petitioner is bereft of merit. The reason is not far to see. At the moment, there is no judgment which can be enforced in the eyes of law. The judgment of the learned Single Judge, in the matter of Nirmal Singh has been set aside in a Special Appeal by judgment dated 18th December, 2008. The effect of the order of the Division Bench in Special Appeal means that it has set aside the order of the learned Single Judge, and has wiped out from its existence. Consequently, no judgment exists in the eyes of law. The jugement of the Division Bench which has been stayed by the Supreme Court does not mean that the judgment of the Division Bench has been wiped out from its existence. It only means that the implementation of that judgment has been stayed till further orders of the Court. By merely staying the order of the Division Bench, does not, in the opinion of the Court, revives a non-existent order of the learned Single Judge. This view of the Court is fortified by a decision of the Supreme Court in the case of Sri Chamundi Mopeds Ltd. vs. Church of South India Trust Association 1992 Volume (3), Supreme Court cases (1) paragraph 10 wherein the Court has dealt at length the effect of an interim order passed by a Court. The Supreme Court held:- "While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. 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 existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending." ;