Neutral Citation No. - 2025:AHC-LKO:9489 Court No. - 5 Case :- WRIT - A No. - 614 of 2020 Petitioner :- Udaiveer Singh Respondent :- State Of U.P.Thru Prin.Secy.Agriculture Deptt. Lko And Ors. Counsel for Petitioner :- Ashwani Kumar Counsel for Respondent :- C.S.C.,N.C.Mehrotra Hon'ble Abdul Moin,J. 1. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of respondent No.1 and Shri N.C. Mehrotra, learned counsel appearing on behalf of respondent Nos.2 to 4. 2. Under challenge is the order dated 31.12.2019, a copy of which is annexure 1 to the petition, whereby the claim of the petitioner for being given the benefits of the 5th and 6th Pay Commission has been rejected. 3. Further prayer is for a mandamus commanding the respondents to provide the benefits of the 5th and 6th in the pay scale of Rs.3050-4590 and Rs.5200-20200 respectively to the petitioner. 4. It is contended by the parties that at an earlier stretch of time, the petitioner, being aggrieved with an order dated 04.04.2015, a copy of which is annexure 8 to the petition, whereby the claim of the petitioner for being granted the benefit of the 5th and 6th Pay Commission had been rejected, had approached this Court by filing Writ Petition No.2305(S/S) of 2015 in Re: Udaiveer Singh vs. State of U.P. and Others. 5. This Court, after detailed hearing and considering the arguments of the respective parties, had passed the judgment and order dated 30.08.2019, a copy of which is annexure 9 to the petition. As the said judgment would have a direct bearing on the order impugned, consequently, for the sake of convenience, the said order is reproduced below: "Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondent no. 1 and Sri N.C. Mehrotra, learned counsel appearing for respondent nos.2 to 4. The petitioner being aggrieved with the order dated 4.4.2015 passed by respondent no.2, a copy of which is Annexure-1 to the petition, is before this Court. By the said order, the claim of the petitioner for being extended the benefits of 5th and 6th Pay Commission has been rejected on certain grounds. A further prayer is for a mandamus commanding the respondents to grant the benefit of the 5th Pay Commission in the pay scale of Rs.3050-4590 with effect from the due date as well as revision of the 6th Pay Commission in the pay scale of Rs.5200-20200 along with Grade Pay of Rs.1900 with effect from due date and provide all attendant benefits as admissible to the petitioner. The case set forth by the petitioner is that he was appointed as Mandi Assistant on 18.11.1995 on a Class IV post. A copy of the appointment order is Annexure-2 to the petition. The appointment of the petitioner was in the pay scale of Rs.775-1025 with a probation period of one year. In pursuance to the appointment order the petitioner submitted his joining on 22.11.1995. Thereafter the petitioner was confirmed on the said post by means of order dated 27.06.1999, a copy of which is Annexure-3 to the writ petition. The confirmation order of the petitioner reads that he is being confirmed on the post of Mandi Assistant in the pay scale of Rs.950- 1500. Subsequently the petitioner continued to work on the post of Mandi Assistant. However, when he was not given the benefit of the 5th and 6th Pay Commission, he represented to the respondents for being given the said benefits but the respondents by means of the impugned order dated 04.04.2015 rejected the claim of the petitioner. Being aggrieved with the said order and on account of not being given the benefits of the 5th and 6th Pay Commission, the present petition has been filed. Learned counsel for the petitioner contends that the impugned order dated 04.04.2015 rejecting the claim of the petitioner for being given the benefits of the 5th and 6th Pay Commission indicates that taking into consideration the Government Orders dated 21.12.2011 and 27.01.2011, only those appointments could be regularized which were made prior to 29.06.1991 and the petitioner having been appointed after 29.06.1991, no permission for regularization had been granted by the Government and consequently the appointment of the petitioner with effect from 22.11.1995 cannot be treated to be regular so as to entail him for being given the benefits of 5th and 6th Pay Commission. Learned counsel for the petitioner contends that the order dated 04.04.2015 whereby the claim of the petitioner for being given the aforesaid benefits has been rejected patently reflects non-application of mind inasmuch the appointment order and the confirmation order of the petitioner dated 27.06.1999 still continues to exist and consequently there is no occasion for the respondents to treat the petitioner as not regularized so as to dis-entitle him for being given the aforesaid benefits. On the other hand, Sri N.C. Mehrotra, learned counsel for respondents on the basis of averments contained in the short counter affidavit argues that as the appointment and subsequent regularization of the petitioner was against the relevant Government orders as referred to in the impugned order and it is only subsequently that the State Government had accorded permission on 21.08.2015 that various persons including the petitioner who were recruited up to 31.03.1996 were regularized by a duly constituted Committee. In the case of the petitioner a regularization order has been issued vide letter dated 20.11.2015, a copy of which has been filed as Annexure D-1 to the short counter affidavit. It is contended that as now the petitioner has been treated as regularized with effect from 20.11.2015 consequently there is no occasion for the respondents to grant any benefits to the petitioner taking into consideration his earlier appointment and the confirmation order dated 27.06.1999. Thus, it is contended that the impugned order of rejection has correctly been passed and the writ petition being misconceived merits to be dismissed. On previous date i.e. 31.07.2019, Sri N.C. Mehrotra, learned counsel, was required to seek instructions as to whether the order dated 4.4.2015 has been cancelled or still continues to exist. Today, Sri Mehrotra on the basis of instructions submits that the order dated 04.04.2015 has been cancelled vide order dated 29.08.2019. Having heard learned counsel for the contesting parties and having perused the records what clearly comes out is that the petitioner after his appointment in the year 1995 has been confirmed as Mandi Assistant vide order dated 27.06.1999, a copy of which is Annexure-3 to the petition. The said order still continues to exist. The regularization order as has been passed by the respondents dated 20.11.2015 regularizing the services of the petitioner with effect from the date he takes over the charge in pursuance to the said order i.e. in November reflects patent non- application of mind inasmuch as once the confirmation order of the petitioner already continues to exist consequently there was no occasion for the respondents to have issued the order dated 20.11.2015. Be that as it may, the fact of the matter remains that the claim of the petitioner for grant of benefits of the 5th and 6th Pay Commission which was rejected by means of the impugned order dated 04.04.2015 already stands withdrawn by the respondents themselves through the order dated 29.08.2019. Thus, the confirmation order of the petitioner dated 27.06.1999 which still continues to exist would entail the petitioner for being given the aforesaid benefits of the 5th and 6th Pay Commission. Accordingly taking into consideration the aforesaid discussion the writ petition is disposed of with a direction to the respondents to consider the claim of the petitioner for being given the benefits of the 5th and 6th Pay Commission with effect from the due date along with all attendant benefits. Let such consideration be done within a period of three months from the date of receipt of a certified copy of this order." 6. From a perusal of the aforesaid order, it emerges that during pendency of the petition of the petitioner itself, the respondents had withdrawn the order dated 04.04.2015 by means of an order dated 29.08.2019 yet despite the petitioner having been confirmed as Mandi Assistant vide order dated 27.06.1999, the respondents were of the view that as the petitioner has been regularized vide order dated 20.11.2015, consequently, he would not be entitled for the benefit of the 5th and 6th Pay Commission. 7. The subsequent order of regularization dated 20.11.2015 did not find favour with the writ Court and the writ Court was of the view that as the confirmation order of the petitioner dated 27.06.1999 still continues to exist, the same would entail the petitioner for being given the aforesaid benefits of the 5th and 6th Pay Commission and accordingly, the writ petition was disposed of with a direction to the respondents to consider the claim of the petitioner for being given the benefits of the 5th and 6th Pay Commission with effect from the due date. 8. Learned counsels for the contesting parties state that the aforesaid judgment has attained finality and it was not challenged by either of the parties. 9. Thus, it is apparent that the judgment and order dated 30.08.2019, as passed by writ Court, has attained finality between the parties. 10. In pursuance to the direction issued by the writ Court dated 30.08.2019, the respondents had passed the order impugned dated 31.12.2019 whereby, on the basis of the order dated 20.11.2015 i.e. the petitioner having been regularized subsequent to his confirmation order dated 27.06.1999, the claim of the petitioner has been rejected. 11. Shri N.C. Mehrotra, learned counsel for the respondents No.2 to 4, while supporting the order dated 31.12.2019, has argued that as the confirmation of the petitioner dated 27.06.1999 had been done by an incompetent authority and was against the service rules, consequently, even if the said confirmation order had been passed and still continues to exist as of date, the petitioner cannot derive any benefit therefrom more particularly considering the regularization order dated 20.11.2015. 12. The aforesaid argument of Shri Mehrotra is found to be patently fallacious and misconceived. The reasons are that the judgment and order dated 30.08.2019, as passed by the writ Court, has attained finality between the parties in which the writ Court, as already indicated above, has specifically indicated that as the confirmation order of the petitioner dated 27.06.1999 still continues to exist, the same would entail the petitioner for being given the aforesaid benefits of the 5th and 6th Pay Commission. Once the order has attained finality and the Mandi Parishad i.e. respondent(s) did not deem it fit to challenge the aforesaid finding of the writ Court, consequently, it is too late in the day for them to deny the petitioner the benefit of the confirmation order dated 27.06.1999 on the basis of regularization order dated 20.11.2015 more particularly when these aspects of the matter have already been considered by the writ Court vide judgment and order dated 30.08.2019 and the same has attained finality between the parties. 13. Keeping in view of the aforesaid discussion, the writ petition is allowed. A writ of mandamus is issued commanding the respondents to extend the benefit of the 5th and 6th Pay Commission to the petitioner. The said benefits would be extended to the petitioner within a period of two months from the date of receipt of a certified copy of this order. 14. Before parting with the case, the Court may consider the peculiar fact that the respondents even now profess to state that the confirmation order dated 27.06.1999 had been passed against the rules yet no action has been taken against the officer who had passed the order impugned and even as of date, the confirmation order dated 27.06.1999 still continues to exist and no action has been taken by the respondents even subsequent to the order of the writ Court dated 30.08.2019 for withdrawing the aforesaid illegal order, if any. Consequently, it is open for the respondent No.1 to initiate an inquiry against the officers who were responsible for such lapses in the Mandi Parishad. In case the inquiry is conducted, it would be open for the respondents to recover the amount, which is payable to the petitioner, from such officers who were found responsible for having passed the order dated 27.06.1999 which has resulted into payment of dues to the petitioner. Order Date :- 13.2.2025 S. Shivhare Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench