- (1.) A. K. Yog, J. Vijay Pratap Singh filed present petition under Article 226, Con stitution of India, claiming writ of man damus directing the respondents to dis burse the arrears of salary and allowances payable to the petitioner for the period between July 1974 to October 1991. .
(2.) 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 declara tion to the effect that he be treated to be continuing in service with all benefits in cluding 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 af firming 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 counter-affidavit by Opposite parties learned Single Judge passed order dated 5th July, 1996 as follows: "i have perused the counter-affidavit filed on behalf of the respondents. The only reason given in the counter-af fidavit appears to be that the Execution Proceedings initiated by the petitioner were dis missed by the learned Civil Judge, by order dated 22-1-1994. 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 1-7- 1974. The claim petition was allowed. The im pugned order of removal dated 30-9-1976 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 29-11-1991 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 sub ject 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 par ties.
(3.) 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 coun sel 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 16-1-1997 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 posi tion 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 counter-affidavit it is stated that the order of the Tribunal dated 26-4-1991 (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 dis missed vide order dated 29th January, 1994 (Annexure CA-5 ). Both the object, lions contained in the counter-affidavit in opposition to the present petition are un tenable 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 ques tion 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.;