The State of Jharkhand Vs Mansidh Surin

¶1

2025:JHHC:37282-DB

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 190 of 2025

¶3

-----

¶4

The State of Jharkhand.

¶5

Home Department, Government of Jharkhand through its Additional Chief Secretary, having its office at Project Building, P.O. and P.S.-Dhurwa, Dist- Ranchi.

¶6

The Director General -cum-Inspector General of Police, having its office at Police Head Quarter, P.O. and P.S.Dhurwa, Dist-Ranchi.

¶7

The Director General -cum-Commandant General, Home Guard & Fire Extinguishing Services, Jharkhand, having its office at Police Headquarter, P.O. and P.S.-Dhurwa, Dist- Ranchi.

¶8

… … Appellants

¶9

Versus

¶10

Mansidh Surin, about aged 52 years, son of Patras Surin, Resident of Mohalla Krishnapuri Road No.11, P.O. and P.S.- Chutia, District Ranchi.

¶11

Niral Kerketta, aged about 48 years, Son of-Late Simon Kerketta, Resident of Village Murga Patratoli, P.O. Gara, P.S. Kamdara, District- Gumla.

¶12

Md. Javed Iqbal Ansari, aged about 41 years, son of Md. Luqman Ansari, Resident of Jealgora No.16, P.O.Jealgora, P.S.-Jorapokhar, District- Dhanbad.

¶13

Ranjeet Kumar, aged about 40 years, Son of-Late Surendra Pandit, Resident of Village-Ghatamarpur, P.O.-Korkaghat, P.S. Pathargama, District Godda.

¶14

Roshan Oraon, aged about 40 years, Son of Erush Oraon, Resident of Village Chiri, P.O. Chiri, P.S.-Kuru, District- Lohardaga.

¶15

Anand Nayak, aged about 43 years, Son of Budhwa Nayak, Resident of Village Durin, P.O. Hatia, P.S.Dhurwa, District Ranchi.

¶16

Arbind Kumar, aged about 37 years, Son of-Padum Kumar Singh, Resident of Village- Jori, P.O. and P.S. Jori, District Chatra.

¶17

Jaypal Kujur, aged about 45 years, Son of Benjamin Kujur, Resident of Village Konkel, P.O. Konkel, P.S. Raidih, District- Gumla.

¶18

Rajendra Ram Bediya, aged about 42 years, Son ofLate Chakrawati Bediya, Resident of VillageChokarbera, P.O. Sondimra, P.S.-Gola, District Ramgarh.

¶19

1

¶20

2025:JHHC:37282-DB

¶21

Suman Kumar, aged about 49 years, son of Rabindra Nath Singh, Resident of C/o Devendra Prasad, Bihar Colony, Chas, P.O.Godhadih More, Chas, P.S. Chas, District Bokaro.

¶22

Shreya Alankar, aged about 40 years, Son of- Uday Shankar, Resident of-Ashok Vatika Colony, Darku Nagar, P.O. Jodhadih More, Chas, P.S.-Chas, DistrictBokaro.

¶23

Rishikesh aged about 46 years, son of Nand Kumar Pathak, Resident of Village-Neema, P.O.-Naudiha Bazar, P.S.-Chhattarpur, District Palamau.

¶24

Sanjeev Kumar Sharma, aged about 41 years, Son of Nagendra Sharma, Resident of Village Tupudana, P.O.-Hatia, P.S.-Dhurwa, District Ranchi.

¶25

… … Respondents

¶26

¶27

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

¶28

------For the Appellants : Mr. Indranil Bhaduri, S.C.-IV : Mr. Suman Marandi, A.C. to S.C.-IV For the Respondents : Mr. Atanu Banerjee, Advocate ------

¶29

C.A.V. on 21.11.2025 Pronounced on 10/12/2025

¶30

Per Sujit Narayan Prasad, J.

¶31

Prayer

¶32

1. The instant appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 17.01.2025 passed by learned Single Judge in W.P.(S) No. 504 of 2024, whereby and whereunder the learned Single Judge has allowed the writ petition holding the writ petitioners entitled for the benefit with effect from 2012 in the light of Annexure-15 as well as the order of the coordinate Bench in light of W.P.(S) No.2820 of 2016 and also on the principle of reinstatement and on the point of

¶33

2

¶34

2025:JHHC:37282-DB

¶35

equity. Further, the respondent State has been directed to provide the benefit to the petitioners with effect from 2012 within eight weeks.

¶36

Factual Matrix

¶37

2. The brief facts of the case as per the pleading made in the writ petition, which are required to be enumerated, read as under: -

¶38

An Advertisement being Advt. No. 01/2008 was published in the local newspaper inviting applications from the eligible candidates for appointment on the post of Sub Inspector/Sergeant and Company Commander and further to indicate their order of preference. In inter-se seniority in case two of candidates having scored same marks, then it shall be decided on the basis of their performance in written examination as per Clause-13.

¶39

3. The writ petitioners submitted application and were called to appear in the selection process. The petitioners, as per their preference and on the basis of their performance in the selection procedure, were selected and appointed in different category in pursuance of the Advertisement. In the appointment letter it was mentioned that the petitioners would be sent for training for one year which may be extended or curtailed and shall be on probation for two years. Further if their services were found to be unsatisfactory, they would be removed and if found engaged in misconduct,

¶40

3

¶41

2025:JHHC:37282-DB

¶42

furnished any wrong or misleading information, then their services can be terminated without issuance of notice.

¶43

4. The writ petitioners joined their services on 30.11.2012 on the post of Company Commander in the Home Guard Headquarters as contained in Memo No. 1610 dated 24.10.2014.

¶44

5. The training of the petitioners commenced from 13.12.2012 at Police Training Centre College, Hazaribagh and thereafter Final Examination of internal subjects were taken.

¶45

6. Pursuant to an enquiry conducted in relation to the selection of the petitioners, a decision was taken to rectify the earlier select list. After rectification in the earlier select list, direction was issued to remove the petitioners from their services under different categories. 42 candidates including the petitioners were removed from services vide order dated 26.02.2014.

¶46

7. Against the removal order, the petitioners approached before this Court by filing W.P(S) No.1553/2014 with analogous cases. This Court vide order dated 12.08.2016 in W.P(S) No.1562/2014 and analogous writ petitions has been pleased to quash and set aside the order of termination and directed to reinstate the petitioners in services against existing/anticipated future vacancies treating it to be fresh

¶47

4

¶48

2025:JHHC:37282-DB

¶49

appointment, and on their reinstatement, they shall be placed at the bottom of seniority list of the revised merit list.

¶50

8. The respondent State of Jharkhand, preferred an appeal being L.P.A. No.473/2016 against the order dated 12.08.2016 passed in W.P(S) No.1562/2014. The Division Bench vide order dated 18.07.2019 dismissed the said appeal.

¶51

9. The State Government as well as the interveners in the writ petitions, being dissatisfied with the dismissal of the appeal, moved before the Hon'ble Supreme Court of India in various Civil Appeals being Civil Appeal No. 429-430/2021, Civil Appeal No. 431-434/2021, Civil Appeal No. 435/2021, Civil Appeal No. 436-477/2021 and Civil Appeal No. 478/2021.

¶52

10. The aforesaid Civil Appeals were dismissed by the Hon'ble Apex Court by a Common Judgment/Order dated 18.02.2021, upholding the judgment passed by this Hon’ble Court.

¶53

11. During the pendency of the aforesaid Civil Appeals before the Hon’ble Supreme Court, a decision was taken by the Home Department for compliance of the order dated 12.08.2016 passed in W.P(S) No. 1562/2014 and other analogous matters, and the petitioners were reinstated in service in May 2021.

¶54

5

¶55

2025:JHHC:37282-DB

¶56

12. Though as many as 42 candidates including the petitioners were removed by the Police Headquarters vide Memo No. 90/P dated 17.01.2014. However, out of the said 42 candidates including the petitioners, the order of appointment of 15 Sergeants was issued on 21.12.2020 by the order of DGP, Jharkhand vide Memo No. 1332 dated 21.12.2020 under the signature of D.I.G.(Training), Jharkhand.

¶57

13. The order of reinstatement of petitioners/twenty-four Company Commander in service was issued from the Office of the DGP, Jharkhand vide Memo No. 1333 dated 21.12.2020.

¶58

14. Thereafter, the petitioners have given rejoining on the post of Company Commander on 03.06.2021, 23.06.2021, 28.06.2021, 29.06.2021 & 07.07.2021 respectively in their respective place of posting where they were posted at the time of their removal.

¶59

15. The names of the petitioners were included in the gradation list prepared in 2023 with the Company Commanders appointed in the year 2012 in seriatim at the bottom, but the petitioners have not been considered for the purpose of continuity of their services from 2012 and the petitioners have not been given increment of pay since from date of their original appointment 2012.

¶60

6

¶61

2025:JHHC:37282-DB

¶62

16. The provisional seniority list for the Sergeant Cadre has been published on 04.08.2021. The Sergeants who were removed along with petitioners were reinstated pursuant to the order of this Hon'ble Court, they have been given continuity of benefit and consequential benefits and the petitioners are entitled for their salary and back wages for the period they were out of service.

¶63

17. It is the case of the petitioners that the pay increment, since from 2012 ought to have been granted to the petitioners in view of the termination of service of the petitioners being quashed and set aside.

¶64

18. The petitioners being bonafide appointee having undergone training could not be deprived from their legitimate claim of pay increment and consequential monetary benefit.

¶65

19. The petitioners moved before this Court claiming pay increment since from date of their original appointment being made in the year 2012 and consequential monetary benefit.

¶66

20. The respondent-State appeared in the writ petition and filed counter affidavit taking the ground that the petitioners were not in service during the period 12.08.2016 to 04.09.2020 and that in terms of the Order passed by the Hon'ble Court, appointment letter was issued for fresh appointment on the post of Company Commander and as

¶67

7

¶68

2025:JHHC:37282-DB

¶69

such the financial benefits and seniority will be determined from the date of joining.

¶70

21. The fresh appointment letter was issued on 21.12.2020 and the joining on the post of Company Commander by the petitioners entitled them for all financial benefits thereafter.

¶71

22. The stand has also been taken that the financial benefit and seniority of the recruited employees in connection with the advertisement was determined from the date of joining on the given post. Also, in terms of the order dated 12.08.2016 passed in W.P(S) No. 1562/2014, the reinstatement of the petitioners was to be treated as fresh recruitment and they shall be placed at the bottom of seniority list of the revised merit list. Thus, no reliefs could be granted to the petitioners as prayed in the writ petition.

¶72

23. Learned Single Judge, after hearing the parties, has come to the conclusion that the petitioners are entitled for the benefit with effect from 2012 in light of Annexure-15 as well as in the light of the order of the co-ordinate Bench in W.P. (S) No.2820 of 2016 and also on the principle of reinstatement and on the point of equity.

¶73

24. The learned Single Judge has also directed the respondent State to provide the benefit to the petitioners with effect from 2012 within eight weeks.

¶74

8

¶75

2025:JHHC:37282-DB

¶76

25. With the aforesaid direction the writ petition has been allowed vide order dated 17.01.2025 which has been challenged in the present appeal by the State.

¶77

26. The factual aspect reflects that the writ petitioners who have been removed from service vide dismissal orders dated 26.02.2014/26.02.2013, have preferred writ petition being W.P.(S) No.1562 of 2014 and other analogous cases seeking therein issuance of appropriate writ in the nature of certiorari for quashing the, revised result of different posts pursuant to the advertisement dated 08.08.2009 and for issuance of appropriate writ in the nature of certiorari for quashing the orders passed by the respondents pertaining to removal from their services in purported exercise of power under Rule 668 (a) of the Jharkhand Police Manual and further prays for issuance of appropriate writ in the nature of mandamus commanding upon the respondents to reinstate the petitioner after quashing the order of removal alongwith the consequential service benefits.

¶78

27. The writ petition was decided in favour of the respondents-writ petitioners herein on the basis of the reason given in the said order coupled with applying the judgment rendered in the case of Vikas Pratap Singh &

¶79

Others v. State of Chhattisgarh & Others reported in

¶80

(2013) 14 SCC 494 and the following order was passed :-

¶81

9

¶82

2025:JHHC:37282-DB

¶83

“15 In view of the reasons stated in the foregoing paragraphs and as the view of this Court gets fortified by the judgment of the Hon'ble Apex Court rendered in the case of Vikas Pratap Singh (Supra) and as a logical sequitor to the aforesaid reasoning, the impugned order of termination of services of the petitioners are hereby quashed and set aside and the respondents are directed to pass orders for reinstatement of the petitioners in services against existing/anticipated or future vacancies, treating it to be fresh appointments. and on their reinstatement, they shall be placed at the bottom of the seniority list of the revised merit list. The whole exercise be completed expeditiously, preferably within a period of four weeks from the date of receipt/production of a copy of this order.”

¶84

28. The said order was challenged by the State of Jharkhand by preferring Letters Patent Appeal being L.P.A. No.473 of 2016 along with other analogous appeals.

¶85

29. The appeal was dismissed by order dated 18.07.2019, against which Special Leave Petition was filed, converted into appeal being Civil Appeal No.429-430 of 2021 with other analogous Civil Appeals.

¶86

30. The judgment passed by this Hon’ble court has been upheld up to the level of Hon'ble Apex Court by judgment dated 18.02.2021, wherein S.L.P. was dismissed.

¶87

31. The respondent State of Jharkhand, thereafter, has come out with the order of reinstatement of the respondents/writ petitioners in service on 21.12.2020 specially specifying therein as per the terms and conditions as contained in Condition No.2 that the appointees will only

¶88

10

¶89

2025:JHHC:37282-DB

¶90

be able to get the monetary benefit from the date of giving joining and their seniority will be put in the bottom of the seniority list of the other candidates who have been appointed in terms of the said advertisement, for ready reference, the aforesaid condition of the appointment letter is being referred herein :-

¶91

(2) नियु्ሹ क्ቘ िी कमा्ቄ र को आनथिक लाभ योगदाि की निनथ से देय होगा िथा इिकी वरीयिा उ्ሹ नव्ሺापि में पूवि से नियु्ሹ कनमियोों से िीचे से निर्ािररि की जायेगी।

¶92

32. The writ petitioners have joined their services. Thereafter they have raised the claim for back wages by filing writ petition being W.P.(S) No.504 of 2024. The relief as sought for on behalf of the writ petitioners in the writ petitions are being referred herein:-

¶93

“i) For issuance of an appropriate Writ(s)/ Order(s)/Direction(s) particularly a writ in the nature of mandamus commanding upon the concerned Respondent to consider the case of the petitioners for grant of pay increments since from the date of their original appointment being made in the year 2012 and accordingly the current pay of the petitioners may be fixed and consequential monetary benefits may be released in favour of the petitioners.

¶94

AND

¶95

ii) For issuance of an appropriate Writ(s)/Order(s)/Direction(s) particularly a writ in the nature of mandamus commanding upon the concerned Respondent to consider the case of the petitioners for grant of continuity of their services since from the date of their original appointment made from the year 2012 in view of the fact that the services of the petitioners

¶96

11

¶97

2025:JHHC:37282-DB

¶98

reinstated in pursuance of the order and direction of this Hon'ble court passed in W.P(S) No. 1562/2014 and other analogous cases on 12.08.2016 on quashing and setting aside of the order of termination of services of the petitioners.

¶99

AND

¶100

iii) For issuance of an appropriate Writ(s)/Order(s)/Direction(s) particularly a writ in the nature of mandamus commanding upon the concerned Respondent to pay the full pay and allowances in the applicable scale of pay to the petitioners for the period from 26.02.2014 i.e. when the petitioners were dismissed from their services of the State till their reinstatement in pursuance of individual reinstatement letters dated 24.05.2021 and 17.06.2021 respectively of the concerned petitioners and accordingly arrears thereof may be paid to the petitioners.”

¶101

33. The learned Single Judge of this Court, by passing the judgment impugned dated 17.01.2025, has passed order holding the writ petitioners entitled for the benefit with effect from 2012 in the light of Annexure-15 as well as the order of the co-ordinate Bench in light of W.P.(S) No.2820 of 2016 and also on the principle of reinstatement and on the point of equity, the writ petition has been allowed, for ready reference, the operative part of the said order is being referred herein :-

¶102

“29. In view of the above facts, reasons and analysis, this Court comes to the conclusion that the petitioners are entitled for the benefit with effect from 2012 in light of Annexure-15 as well as the order of the co-ordinate Bench in light of W.P. (S) No.2820 of 2016 and also on the principle of reinstatement and on the point of equity, as such this writ petition is allowed.

¶103

12

¶104

2025:JHHC:37282-DB

¶105

The respondent State is directed to provide the benefit to the petitioners with effect from 2012 within eight weeks.”

¶106

34. The State is before this Court by preferring the instant appeal.

¶107

Argument advanced on behalf of Appellant-State

¶108

35. Learned counsel for the appellant-State has taken the following grounds in assailing the impugned judgment passed by the learned Single Judge: -

¶109

(i) The learned Single Judge while passing the order holding the writ petitioners entitled for the benefits from 2012 has not taken into consideration the specific direction passed by the learned Single Judge dated 12.08.2016 in W.P.(S) No.1562 of 2014 and analogous cases wherein while quashing the order of termination, it has specifically been referred therein that the reinstatement of the writ petitioners is to be treated to fresh appointment and on their reinstatement they shall be placed at the bottom of the seniority list.

¶110

(ii) It has been contended that when the specific observation has been made treating the reinstatement to be a fresh appointment, then there cannot be any direction for treating the reinstatement from the date of the order of termination holding the writ petitioners entitled for the back wages for the aforesaid period.

¶111

13

¶112

2025:JHHC:37282-DB

¶113

(iii) It has been contended that the said part of the order has not been challenged by the writ petitioners, rather, the same has been accepted and it has been upheld up to the level of Hon'ble Apex Court and, as such, in that view of the matter, the appointment was to be treated to be fresh appointment and in that view of the matter there cannot be any back wages as has been directed by learned Single Judge by passing the impugned judgment.

¶114

(iv) The learned Single Judge has gone into the premise of the meaning of “reinstatement” as has been dealt with in paragraph 15 of the impugned judgment by making reference of the definition of the word “reinstatement” by taking it from the Black’s Law Dictionary which led the learned Single Judge in coming to the conclusion by taking the implied meaning of the word “reinstatement” and holding the writ petitioners entitled for the back wages which cannot be said to be proper in view of the specific observation made by the learned Single Judge in the order dated 12.08.2016 passed in W.P(S) No.1562 of 2014 holding the appointment of the writ petitioners to be fresh appointees.

¶115

(v) The learned Single Judge has applied the principle laid down by Hon'ble Apex Court in the case of Deepali

¶116

14

¶117

2025:JHHC:37282-DB

¶118

Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. reported in (2013) 10 SCC 324 but on fact the ratio of the said judgment is not applicable particularly in view of the specific observation made by the learned Single Judge treating the appointment of the writ petitioners to be a fresh appointee keeping them in the bottom of seniority list of the appointees who have been appointed in terms of the said advertisement.

¶119

(vi) The learned counsel has submitted that once the observation made by the learned Single Judge has been upheld upto the level of Hon'ble Apex Court, then the same will be merged upon the order passed by the Hon'ble Apex Court the moment the leave has been granted and in that view of the matter, the part of the direction whereby and whereunder the appointment has been treated to be fresh appointment will also be said to be merged with the order of the Hon'ble Apex Court and the appointment of the writ petitioners will be said to be fresh appointment in pursuance to the order dated 12.08.2016 passed in W.P(S) No.1562 of 2014 and in that view of the matter the petitioners cannot be held entitled for the back wages.

¶120

(vii) Learned counsel for the State appellant has further submitted that Condition No.2 of the order dated

¶121

15

¶122

2025:JHHC:37282-DB

¶123

21.12.2020 whereby and whereunder one or the other writ petitioners have been held entitled for the monetary benefit from the date of assuming the charge having not been challenged in the writ petition and directly the prayer was made for issuance of mandamus directing the State to hold the writ petitioners entitled for the back wages is also not proper, reason being that the prayer ought to have been made by seeking quashing of the condition No.2 of the order dated 21.12.2020, thereafter, the consequential relief ought to have been made seeking command upon the State holding one or the other writ petitioners entitled for the back wages.

¶124

36. Learned State counsel, based upon the aforesaid grounds, has submitted that the order impugned, therefore, suffers from an error and fit to be quashed and set aside.

¶125

Argument advanced on behalf of the writ petitioners/ respondents

¶126

37. Per contra, Mr. Atanu Banerjee, learned counsel appearing for the respondents/writ petitioners has taken following ground in defending the impugned judgment: -

¶127

(i) It has been submitted that there is no fault lies on the part of the one or the other writ petitioners in the matter of delay, rather, the same has been caused by the State.

¶128

16

¶129

2025:JHHC:37282-DB

¶130

(ii) Further, one or the other writ petitioners have genuinely been appointed but it is the State who had terminated them from service for no fault of their own and the court having found the aforesaid fact and with the specific observation made therein that no fraud or misrepresentation has been committed, has quashed the order of termination with a direction of reinstatement, meaning thereby, the order of termination is not in existence ever and in that view of the matter, they are entitled for back wages.

¶131

(iii) Learned Single Judge has also taken into consideration the implied meaning of “reinstatement” by taking note and referring the definition of “reinstatement” from the Black Law Dictionary implied meaning of which has been referred therein that the moment the order of reinstatement will be passed the person concerned will be said to be reinstated in the service from the date of termination if the order of termination has been quashed and set aside.

¶132

(iv) The learned Single Judge has also taken into consideration the ratio laid down by Hon’ble Apex Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) &

¶133

Ors. (Supra) wherein it has been held that if the court is coming to the conclusion that the order of

¶134

17

¶135

2025:JHHC:37282-DB

¶136

termination is per se illegal, then one or the other will be entitled for the back wages and the learned Single Judge while adopting the said ratio, the same cannot be said to suffer from an error.

¶137

(v) Learned counsel has submitted that by taking into consideration the aforesaid aspect of the matter if the learned Single Judge has passed the order holding the writ petitioners entitled for back wages, it cannot be said to suffer from an error.

¶138

38. Learned counsel for the writ petitioner/respondents, based upon the aforesaid grounds, has submitted that the order passed by the learned Single Judge, therefore, suffers from no error.

¶139

Analysis

¶140

39. We have heard learned counsel for the parties and gone through the finding recorded by the learned Single Judge as also the material available on record.

¶141

40. The issue which require consideration herein are -

¶142

(i) Whether in the facts and circumstances of the present case, particularly on the basis of the specific observation made by the learned Single Judge in the order dated 12.08.2016 passed in W.P(S) No.1562 of 2014 wherein it has been ordered that the reinstatement of one or the other writ petitioners will be treated to be fresh appointment, are they entitled

¶143

18

¶144

2025:JHHC:37282-DB

¶145

for the back wages for the aforesaid period of termination?

¶146

(ii) Whether the principle as laid down in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra) will be applicable in the facts and circumstances of the present case?

¶147

(iii) Whether the implied meaning of reinstatement as has been considered by the learned Single Judge in the impugned judgment by making reference of the dictionary meaning is applicable in the facts and circumstances of the present case, particularly, when the specific observation has been made treating the reinstatement to be fresh appointment in order dated 12.08.2016 passed in W.P(S) No.1562 of 2014?

¶148

41. Since all the issues are interlinked, as such, are being taken up together.

¶149

42. Before considering the aforesaid issues, this Court needs to refer herein that pursuant to advertisement being Advertisement No.1/2008 for appointment of Sub Inspector / Sergeant and Company Commander the petitioners have applied for that post. The petitioners have qualified in terms of advertisement and they have been issued appointment letters in the year 2012. The petitioners gave their joining on

¶150

19

¶151

2025:JHHC:37282-DB

¶152

30.11.2012 on the post of Company Commander in the Home Guard Head Quarter.

¶153

43. An enquiry was conducted in relation to the selection of the petitioners and decision was taken to rectify the earlier selection list. In view thereof, a direction was issued to remove petitioners from their services under different categories under Rule 668 (Ka) of the Police Manual. The forty-two candidates including the petitioners were removed from services and dismissal orders dated 26.02.2014/26.02.2013 was issued whereby the petitioners were dismissed.

¶154

44. The petitioners, when terminated, have approached by filing writ petitions being W.P.(S) No.1562 of 2014 and analogous cases. The learned Single Judge by order dated 12.08.2016, quashed the order of termination with a consequential direction of reinstatement with specific observation that the reinstatement will be treated to be fresh appointment and they will be placed in the bottom of the seniority list with the appointees who have been appointed in pursuance to the said advertisement. The operative part of the said order, although has been referred hereinabove, but at the risk of repetition the same is being referred herein:-

¶155

“15 In view of the reasons stated in the foregoing paragraphs and as the view of this Court gets fortified by the judgment of the Hon'ble Apex Court rendered in the case of Vikas Pratap

¶156

20

¶157

2025:JHHC:37282-DB

¶158

Singh (Supra) and as a logical sequitor to the aforesaid reasoning, the impugned order of termination of services of the petitioners are hereby quashed and set aside and the respondents are directed to pass orders for reinstatement of the petitioners in services against existing/anticipated or future vacancies, treating it to be fresh appointments. and on their reinstatement, they shall be placed at the bottom of the seniority list of the revised merit list. The whole exercise be completed expeditiously, preferably within a period of four weeks from the date of receipt/production of a copy of this order.”

¶159

45. The said order has been upheld by the Division Bench of this Court in L.P.A. No.473 of 2016 and analogous cases and finally the same has been upheld by the Hon’ble Apex Court vide judgment dated 18.02.2021, passed in Civil Appeal No. 429-430/2021 with other analogous Civil Appeals.

¶160

46. It needs to refer herein that the order passed by the learned Single Judge dated 12.08.2016 in W.P(S) No.1562/2014 and analogous cases has ultimately culminated into Civil Appeal No. 429-430/2021 with other analogous Civil Appeals, in which the aforesaid judgment passed by the learned Single Judge has been upheld, as such, on the principle of merger the judgment passed by the learned Single Judge has been merged with the judgment passed by the Hon’ble Apex Court in Civil Appeal No. 429430/2021 with other analogous Civil Appeals.

¶161

47. The reason for making reference of principle of merger is that the binding effect of the observation of the learned

¶162

21

¶163

2025:JHHC:37282-DB

¶164

Single Judge in the order dated 12.08.2016 passed in W.P(S) No.1562/2014 holding the reinstatement of one or the other writ petitioners to be fresh appointment.

¶165

48. The writ petitioners, in the backdrop of the aforesaid direction passed by the Hon’ble Apex Court, finally have been appointed vide order dated 21.12.2020 referring specific condition therein that one or the other appointees will be entitled for the monetary benefit from the date of joining, the part of the order has been quoted hereinabove.

¶166

49. The admitted position herein is that the writ petitioners joined the service in pursuance to the order dated 12.08.2016 passed in W.P(S) No.1562/2014. It is also admitted fact that the Condition No.2 of the order dated 21.12.2020 has not been challenged seeking a direction for holding one or the other writ petitioners entitled for back wages.

¶167

50. The writ petitions have been filed which is the subject matter of the present appeal seeking specific direction upon the State for holding one or the other writ petitioners entitled for the back wages and the principle as laid down by the Hon’ble Apex Court in the case of Deepali Gundu Surwase

¶168

v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors.

¶169

(Supra) was relied on by the petitioners.

¶170

51. This Court is of the view that once the order dated

¶171

21.12.2020 has been passed in the light of the order passed

¶172

22

¶173

2025:JHHC:37282-DB

¶174

by Hon’ble Apex Court in Civil Appeal No. 429-430/2021 with other analogous Civil Appeals on the subject and when the condition has been stipulated in order dated 21.12.2020, by the State, in compliance to the judgment passed by this Court in the order dated 12.08.2016 passed in W.P(S) No.1562/2014, which finally culminated into direction passed by the Hon’ble Apex Court in the aforesaid Civil Appeals, then it was incumbent upon one or the other writ petitioners to challenge the part of the order also wherein the denial of the monetary benefit for the back period was there making specific reference therein that one or the other writ petitioners will be entitled or the monetary benefit from the date of assumption of charge.

¶175

52. It is settled position of law that if any decision has been taken by way of order passed by the State in terms of the order passed by the Hon’ble Apex Court and if any decision has been taken contrary to the interest of one or the other writ petitioners, it is the bounden duty of one or the other writ petitioners to challenge that part of the order which is adverse to their interest and only doing that the consequential relief ought to have been made.

¶176

53. Herein, the main grievance of one or the other writ petitioners before the writ court was to hold them entitled for the back wages for the period they have not been allowed to discharge their duty. But, the same has been negated by the

¶177

23

¶178

2025:JHHC:37282-DB

¶179

learned Single Judge in order dated 12.08.2016 passed in W.P.(S) No. 1562 of 2014,by making specific observation that their services will be treated to be fresh appointment and in terms thereof, after upholding the said order by Hon’ble Apex Court in Civil Appeal No. 429-430/2021 with other analogous Civil Appeals and on the basis of the merger principle, the same will be said to be an order passed by the Hon'ble Apex Court, the State Government has come out with the condition stipulating in the reinstatement letter dated 21.12.2020,that one or the other writ petitioners will be entitled for the monetary benefit from the date of their joining.

¶180

54. The question is that when the Condition No.2 as contained in the reinstatement letter dated 21.12.2020, has not been challenged, where is the occasion for one or the other writ petitioners to seek a direction for grant of back wages?

¶181

55. According to our considered view, the same is not permissible otherwise if there will be direction holding one or the other writ petitioners entitled for back wages, then what will happen to the decision dated 21.12.2020,so taken by the State holding the writ petitioners for monetary benefit from the date of their joining which is in terms of the order passed by this Court upheld up to the level of Hon'ble Apex Court.

¶182

24

¶183

2025:JHHC:37282-DB

¶184

56. We have already referred herein the principle of merger. The purpose is that the moment this Court has passed order under Article 226 of the Constitution of India and if the same has been upheld by Hon’ble Apex Court granting leave in an appeal, then the order passed by this Court under Article 226 of the Constitution of India will be said to be merged by virtue of principle of merger and in that view of the matter, the order passed by the learned Single Judge will have no existence, rather, the order passed by the Hon'ble Apex Court will be in existence.

¶185

57. The principle of merger is well settled that the moment the order passed by the lower forum is being affirmed by the higher forum, the order passed by the lower forum will lost its existence due to its merger with the order passed by the

¶186

higher forum.

¶187

58. It needs to refer herein that the Hon'ble Apex Court in the case of Kunhayammed & Ors. Vrs. State of Kerala and Anr. (2000) 6 SCC 359, has appreciated the principle of merger wherefrom, it is evident that the Hon'ble Apex Court has delved upon the issue on doctrine of merger and after taking aid of the judgment rendered in U.J.S. Chopra Vrs. State of Bombay, AIR 1955 SC 633 , wherein it has been held:

¶188

"A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a

¶189

25

¶190

2025:JHHC:37282-DB

¶191

full hearing in the presence of both the parties... would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below.'' Further reference of the judgment has been made rendered in the case of S.S. Rathore Vrs. State of M.P., (1989) 4 SCC 582, wherein, a larger Bench of the Hon'ble Apex Court (Seven Judges) has been pleased to hold that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. 59. It has further been held at paragraphs-12, 14, 15, 17, 34, 40, 41, 43 and 44 thereof to the effect which read hereunder as:-

¶192

"12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way -- whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the

¶193

26

¶194

2025:JHHC:37282-DB

¶195

content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.

¶196

The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps: (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in Form No. 28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex parte unless there be a caveat. The court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the SLP. On hearing, the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal

¶197

27

¶198

2025:JHHC:37282-DB

¶199

shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under:

¶200

(1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;

¶201

(2) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;

¶202

(3) If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in the appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent. (4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties.

¶203

Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the

¶204

28

¶205

2025:JHHC:37282-DB

¶206

Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. Dismissal at stage of special leave -- without reasons-- no res judicata, no merger.

¶207

Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of the Supreme Court dismissing a special leave petition. In Workmen v. Board of Trustees of the Cochin Port Trust [(1978) 3 SCC 119 : 1978 SCC (L&S) 438] a three-Judge Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a nonspeaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. That may be due to various reasons. During the course of the judgment, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the tribunal. The decision of the Madras High Court in Western India Match Co. Ltd. v. Industrial Tribunal [AIR 1958 Mad 398, 403 : (1958) 2 MLJ 74 : (1958) 2 LLJ 315] was cited before their Lordships. The High Court had taken the view that the right to apply for leave to appeal to the Supreme Court under Article 136, if it could be called a "right" at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct.

¶208

29

¶209

2025:JHHC:37282-DB

¶210

Thereafter the employer approached the High Court by preferring a petition under Article 226 of the Constitution seeking quashing of the award of the Labour Court. On behalf of the employee the principal contention raised was that in view of the order of the Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the employer to approach the High Court under Article 226 of the Constitution challenging the very same award. The plea prevailed with the High Court forming an opinion that the doctrine of election was applicable and the employer having chosen the remedy of approaching a superior court and having failed therein he could not thereafter resort to the alternative remedy of approaching the High Court. This decision of the High Court was put in issue before the Supreme Court. This Court held that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition. Referring to two earlier decisions of this Court, it was further held: (SCC pp. 148-50, paras 6 & 8) "The effect of a nonspeaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition

¶211

30

¶212

2025:JHHC:37282-DB

¶213

cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork.

¶214

It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the High Court concerned under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rulings already given by this Court in the two decisions aforecited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the

¶215

31

¶216

2025:JHHC:37282-DB

¶217

Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition."

¶218

The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed -- there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits -- in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave -- the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.

¶219

A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The

¶220

32

¶221

2025:JHHC:37282-DB

¶222

expression often employed by this Court while disposing of such petitions are -- "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for

¶223

33

¶224

2025:JHHC:37282-DB

¶225

the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.

¶226

Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the

¶227

34

¶228

2025:JHHC:37282-DB

¶229

merits of the order impugned having been subjected to judicial scrutiny of this Court.

¶230

We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.

¶231

To sum up, our conclusions are:

¶232

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

¶233

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

¶234

(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the

¶235

35

¶236

2025:JHHC:37282-DB

¶237

Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

¶238

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

¶239

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

¶240

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the

¶241

36

¶242

2025:JHHC:37282-DB

¶243

order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

¶244

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."

¶245

60. It is evident from the aforesaid judgment that doctrine of merger is not a doctrine of universal or unlimited application rather it will depend upon the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution of India, the Supreme Court may reverse, modify or affirm the judgment- decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

¶246

61. The decision in Kunhayammed v. State of Kerala (Supra) was followed by a three-Judge Bench decision of Hon'ble Apex Court in Chandi Prasad v. Jagdish Prasad

¶247

37

¶248

2025:JHHC:37282-DB

¶249

reported in (2004) 8 SCC 724 , wherein at paragraphs 23

¶250

and 24 it has been held which read hereunder as:-

¶251

"23. The doctrine of merger is based on the principles of propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.

¶252

It is trite that when an appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court."

¶253

62. The decision in Chandi Prasad v. Jagdish Prasad (Supra) was followed by a two-Judge Bench of Hon'ble Apex Court in Shanthi v. T.D. Vishwanathan reported in (2018) SCC OnLine SC 2196 wherein it has been held at paragraph 7 which reads as under:-

¶254

"7. ... When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time."

¶255

38

¶256

2025:JHHC:37282-DB

¶257

63. Herein, the moment the order dated 12.08.2016 passed in W.P.(S) No. 1562/2014, by this Court has been merged with the order dated 18.02.2021 passed by the Hon'ble Apex Court in in Civil Appeal No. 429-430/2021 with other analogous Civil Appeals and in that view of the matter, if the State has come out with the order of reinstatement dated 21.12.2020, holding one or the other writ petitioners entitled for the monetary benefit from the date of joining, there cannot be any direction contrary to the order passed by Hon'ble Apex Court on the basis of principle of merger and further without challenging the said part of the order of reinstatement dated 21.12.2020, passed by the authority.

¶258

64. So far as the question of challenge to the Condition No.2 of the order of reinstatement dated 21.12.2020, is concerned, although there is no occasion to challenge that once the same has been passed by this Court affirmed in Civil Appeal by the Hon'ble Apex Court, but, even then it ought to have been challenged before seeking a direction by way of command holding one or the other writ petitioners entitled for back wages.

¶259

65. This Court, therefore, is of the view that the question of entitlement for back wages since has been accepted by one or the other writ petitioners as per the direction passed by the learned Single Judge in the order dated 12.08.2016 in W.P(S) No.1562/2014 which has not been challenged by one

¶260

39

¶261

2025:JHHC:37282-DB

¶262

or the other writ petitioners, rather, when the State has challenged the same has been upheld, meaning thereby, one or the other writ petitioners have accepted their status that if they will be appointed in pursuance to the order dated 12.08.2016 passed by this Court in W.P(S) No.1562/2014, upheld by the Hon'ble Apex Court in Civil Appeal No. 429430/2021 with other analogous Civil Appeals, they will be treated as fresh appointees and once they have accepted the status of fresh appointees, it will not be available for them to get entitlement for the back wages.

¶263

66. Adverting to the facts herein, this Court, after going through the impugned judgment dated 17.01.2025 in W.P(S)No. 504 of 2024, passed by the learned Single Judge has found that the learned Single Judge has considered the issue of reinstatement by taking reference of the definition of “reinstatement” in the Black’s Law Dictionary, as has been referred in paragraph-15 of the impugned judgment, which is being referred herein:-

¶264

“ 15. Reading the judgment of learned Single Judge in its entirety, he has come to a finding that the petitioners have not made any fraud or misrepresentation and if any wrong has been committed that was on the part of the State and in the light of that the reinstatement is directed by the learned Single Judge. In the Black’s Law Dictionary “reinstatement” is defined to reinstall, to re-establish, to place again in a former state, condition or office, to restore to a state or position from which the object or person had been removed. The term “reinstatement” has been considered by Hon’ble Supreme Court in the case of Deepali Gundu Surwase v. Kranti

¶265

40

¶266

2025:JHHC:37282-DB

¶267

Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. reported in (2013) 10 SCC 324 wherein, at paragraph No.21 and 22, it has been held as under :

¶268

21. The word “reinstatement” has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; reestablishment. As per Law Lexicon, 2nd Edn., the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per MerriamWebster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., “reinstatement” means:

¶269

“To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.”

¶270

22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of

¶271

41

¶272

2025:JHHC:37282-DB

¶273

education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.”

¶274

61. There is no dispute that if the order of reinstatement is passed, the normal and implied meaning would be that there is no order of termination of one or the other, in whose favour the order of reinstatement has been passed, will be treated to be reinstated in service from the date of termination and in that view of the matter, the court is to give finding that if there is no fault lies on the part of one or the other public servant who have been terminated from service and forcefully have not been allowed to discharge their duty, then in such circumstances they are entitled to get the back wages, as has been held by Hon'ble Apex Court in the case

¶275

42

¶276

2025:JHHC:37282-DB

¶277

of Union of India and Others v. K.V. Jankiraman reported in (1991) 4 SCC 109, for ready reference, the relevant paragraph of the said judgment is being quoted hereunder as :-

¶278

"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases."

¶279

62. Likewise, in Commissioner, Karnataka Housing

¶280

Board Vs. C. Muddaiah reported in (2007) 7 SCC 689 it has

¶281

been held at paragraph 34 as hereunder: -

¶282

"34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected."

¶283

63. The aforesaid principle has been carved out by visualizing the situation that if one or the other public

¶284

43

¶285

2025:JHHC:37282-DB

¶286

servant is willing to discharge duty but has been restrained from discharging duty, then in such circumstances, he will be entitled for back wages holding therein that ‘no work no pay’ cannot be said to be normal rule. However, vice versa to that situation, one or the other employee is not willing to discharge duty, then in such circumstances he will not be entitled for back wages.

¶287

64. Here the situation is totally different, since, the petitioners although have come to this Court by challenging the order of termination in W.P.(S) No. 1562 of 2014,but while quashing the order of termination, this Court has passed specific direction in order dated 12.08.2016, treating the services of one or the other writ petitioners to be fresh appointees, which having not been challenged, rather, has been upheld upto the level of the Hon'ble Apex Court in Civil Appeal No. 429-430/2021 with other analogous Civil Appeals, hence, it is not a case where the implied meaning of “reinstatement” is to be made applicable, rather, it is to be tested on the touchstone of the order passed by the learned Single Judge in W.P.(S) No. 1562 of 2014.

¶288

65. It requires to refer herein that it is also not available to the one or the other writ petitioners to take the ground by questioning the one part of the order passed by the learned Single Judge which suits them and discard the other part of the order which is adverse to their interest on the principle

¶289

44

¶290

2025:JHHC:37282-DB

¶291

that there cannot be approbate and reprobate, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of R. N. Gosain vs. Yashpal Dhir, (1992) 4 SCC 683 . Paragraph-10 of the said judgment is being reproduced as hereunder:

¶292

"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See : Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd, Scrutton, L.J.] According to Halsbury‟s order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)"

¶293

66. In Suzuki Parasrampuria Suitings Private Limited

¶294

vs. Official Liquidator of Mahendra Petrochemicals

¶295

Limited (In Liquidation) and Ors., (2018) 10 SCC 707 the

¶296

Hon'ble Apex Court at paragraphs 12 has laid down which reads as hereunder:-

¶297

"12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh v. Union of India [Amar Singh v. Union of India, (2011) 7 SCC 69], observing as follows: (SCC p. 86, para 50)

¶298

"50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions."

¶299

45

¶300

2025:JHHC:37282-DB

¶301

67. The learned Single Judge in the impugned order dated 17.01.2025 passed in W.P.(S) No.-504 of 2024, has not considered the aforesaid fact and merely has gone through the definition of reinstatement, which according to our considered view, is not fit to be accepted.

¶302

68. The learned Single Judge in the impugned order has also considered the judgment rendered by Hon'ble Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra) .

¶303

69. We have considered the said judgment, particularly, paragraphs 21 and 22, as has been taken note by the learned Single Judge as also paragraph 38 thereof. We, for ready reference, are again referring the aforesaid paragraphs Deepali Gundu Surwase(supra) along with paragraph 38:-

¶304

“21. The word “reinstatement” has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; reestablishment. As per Law Lexicon, 2nd Edn., the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per MerriamWebster Dictionary, the word “reinstate” means to place again (as in possession or in a former position),

¶305

46

¶306

2025:JHHC:37282-DB

¶307

to restore to a previous effective state. As per Black's Law Dictionary, 6th Edn., “reinstatement” means:

¶308

“To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.”

¶309

22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him

¶310

47

¶311

2025:JHHC:37282-DB

¶312

of the obligation to pay back wages including the emoluments.

¶313

XXXXXXXXX XXXXXXX XXXXXXXXXXXX 38. The propositions which can be culled out from the aforementioned judgments are:

¶314

38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

¶315

38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

¶316

38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

¶317

38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the

¶318

48

¶319

2025:JHHC:37282-DB

¶320

employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

¶321

38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

¶322

38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is

¶323

49

¶324

2025:JHHC:37282-DB

¶325

denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [ Hindustan Tin Works (P) Ltd. v. Employees , (1979) 2 SCC 80 : 1979 SCC (L&S)

¶326

53] .

¶327

38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [ Hindustan Tin Works (P) Ltd. v. Employees , (1979) 2 SCC 80 : 1979 SCC (L&S) 53] , [ Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court , (1980) 4 SCC 443 : 1981 SCC (L&S) 16] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.”

¶328

68. The implication of paragraphs 21 and 22 is to be read out along with paragraph 38.5 which we have discussed in another Letters Patent Appeal being LPA No. 189/2023 vide order dated 22.07.2024 and against the said order appeal being Special Leave to Appeal (C) No(s). 23902/2025 had been preferred but the same has been dismissed. The relevant paragraphs of the said order i.e. order dated 22.07.2024 are being referred herein:

¶329

50

¶330

2025:JHHC:37282-DB

¶331

It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.”

¶332

It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed.

¶333

Further, from paragraph-38.4, it would be evident that the Hon'ble Apex Court has been pleased to lay down that the case in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages.

¶334

However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge,

¶335

51

¶336

2025:JHHC:37282-DB

¶337

then there will be ample justification for award of full back wages.

¶338

Further, from paragraph-38.5, it would be evident that the cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

¶339

Further, from paragraph-38.6, it would be evident that in a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with

¶340

52

¶341

2025:JHHC:37282-DB

¶342

certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees.

¶343

It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages. But, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.”

¶344

69. Analysing the aforesaid consideration with the facts of the present case herein, in view of the specific observation made by the learned Single Judge in order dated 12.08.2016 passed in W.P.(S) No. 1562 of 2014, treating the services of one or the other writ petitioners to be fresh appointment and the same having not been challenged by one or the other writ petitioners before the higher forum, rather, they have accepted and in that view of the matter, they cannot be held entitled for back wages for the aforesaid period on the ground that for no fault of their own they have been deprived from service, rather, the aforesaid point ought to have been raised or taken by one or the other writ petitioners by challenging that part of the order of the learned Single Judge treating their services as fresh appointment but one or the other writ

¶345

53

¶346

2025:JHHC:37282-DB

¶347

petitioners have chosen not to do so, meaning thereby that part of the order has been accepted by them. Once accepted, it is not available for one or the other writ petitioners to claim by going back to that direction claiming the back wages for the aforesaid period.

¶348

70. The case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra) is totally on the different premise wherein the question of consideration of back wages in a case of termination simplicitor with a direction of reinstatement on consideration of the hardship was the subject matter. There was no observation in that case and no consideration also of the fact that if the order has been passed by the Court under Article 226 of the Constitution of India holding the appointment to be fresh appointment in a case of direction of reinstatement, as to whether the back wages is to be given.

¶349

71. The learned Single Judge ought to have taken into consideration the aforesaid aspect of the matter, having not taken, hence, the ratio of the judgment Deepali Gundu

¶350

Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed) & Ors. (Supra) , as has been applied in the present case, cannot be said to be proper consideration given by the learned Single Judge.

¶351

72. This Court, in view of the aforesaid and while answering the aforesaid issues, is of the view that the

¶352

54

¶353

2025:JHHC:37282-DB

¶354

judgment passed by the learned Single Judge needs interference.

¶355

73. Accordingly, the instant appeal is allowed and in consequence thereof, the impugned order is hereby quashed and set aside.

¶356

74. In the result, the writ petition stands dismissed.