State Of U.P. Thru. Prin. Secy. Deptt. Revenue U.P. Lko. And Others vs Yamuna Prasad Gupta

AFR
Reserved

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CIVIL MISC REVIEW APPLICATION No. - 11 of 2026
State Of U.P. Thru. Prin. Secy. Deptt. Revenue U.P. Lko.
And Others
.....Applicant(s)
Versus
Yamuna Prasad Gupta
.....Opposite Party(s)
Counsel for Applicant(s) : C.S.C.
Counsel for Opposite Party(s) : Shrawan Kumar Verma
Court No. - 9
HON'BLE RAJESH SINGH CHAUHAN, J.
HON'BLE SHREE PRAKASH SINGH, J.
1. Heard Mr. Shailendra Kumar Singh, learned Chief Standing Counsel,
assisted by Mr. Vivek Shukla, learned Additional Chief Standing Counsel
and Mr. Yogesh Kumar Awasthi, learned Standing Counsel for the review-
applicants and Mr. H.G.S Parihar, learned Senior Advocate, assisted by Mr.
S.K. Verma, learned counsel for the opposite party.
2. The instant review application has been preferred assailing the Judgment
and Order dated 30-08-2022, passed by coordinate Division Bench of this
court, in Writ A No. 5482 of 2022 (State of U.P. through Principal Secretary,
Department of Revenue, Civil Secretariat, Lucknow and Others Vs Yamuna
Prasad Gupta).
3. Brief factual matrix of the case are that the opposite party/Yamuna Prasad
Gupta had instituted Claim Petition bearing no. 1026 of 2018, before the
State Public Services Tribunal, Lucknow (hereinafter referred to as
'Tribunal') for computation of his services w.e.f. 05-06-1986. i.e. the date
prior to regularization of his services. He was regularized with effect from
16-01-2013. The claim petition was allowed vide Judgment order dated 13-
06-2017. The State being aggrieved with the order dated 13-06-2017, passed
by the 'Tribunal', instituted Writ A No. 5482 of 2022 (State of U.P. & Others

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2
Vs Yamuna Prasad Gupta) before the coordinate Division Bench of this
court. The writ petition so instituted has been allowed by the coordinate
Division Bench of this court, vide Judgment and Order dated 30-08-2022,
while upholding the Judgment and Order passed by the learned 'Tribunal', on
the ground that the opposite party is entitled for the benefit, which has been
provided to the petitioner of Writ Petition No. 4031(S/S) of 2001. The State
being aggrieved filed an S.L.P. bearing no. 29497 of 2023, before the
Hon'ble Apex Court, which was dismissed.
4. Now, the present review application has been moved challenging the
Judgment and Order dated 30-08-2022 passed in Writ A No. 5482 of 2022.
5. Mr. H.G.S. Parihar, learned Senior Counsel appearing for the opposite
party has raised a preliminary objection regarding the maintainability of this
review application on the ground that since the writ petition filed by the
review applicants against the Judgment and Order passed by the 'Tribunal'
has been dismissed and further more, the S.L.P. filed by the review
applicants have also been dismissed, therefore, it is not open for the review
applicants to maintain the review application. Thus, submission is that the
review application is liable to be dismissed.
6. It is argued by the learned counsel for the review-applicants that the
Division Bench of this court could not consider the existence of Validation
Act,2021, which provides that if the initial services are not as per the rules,
the same will not be counted for the purpose of the pensionary benefits of an
employee. It is contended that the issue that whether the services of the
Seasonal Collection Amins are liable to be counted for the purpose of the
pensionary benefits or not is dealt with, in Civil Misc. Review Application
bearing no. 121 of 2022 alongwith Special Appeal (Defective) No. 307 of
2022 including the other connected matters, wherein it has been held that the
services rendered as Seasonal Collection Amins are not liable to be counted
for the purpose of pensionary benefits.
7. Adding his arguments, he submitted that since the Hon'ble Apex Court
while passing the Judgment and Order in S.L.P. No. 29497 of 2023, has
observed that the question of law is open to be considered, therefore, the
present review application is maintainable for it's adjudication on the legal
issues, which have been left to be redressed by this court, in Writ A No.

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3
5482 of 2022.
8. Upon considering the submissions of learned counsels for the parties and
after perusal of the records, two sets of issues are cropped up for
consideration. Firstly that whether after the S.L.P. is dismissed by the
Hon'ble Apex Court, the review application is maintainable or not? and
secondly that whether the question of law, which has been opened to be
considered in abovenoted S.L.P. will apply between the parties or other than
the parties.
9. Fact remains that the opposite party instituted the Claim Petition before
the 'Tribunal' against the order dated 13-06-2017 passed by the District
Magistrate, Amethi, whereby the representation of the opposite party was
disposed of, declining the calculation of the services rendered by the
opposite party prior, 16-01-2013.
10. Being aggrieved, the opposite party instituted Claim Petition before the
'Tribunal' bearing Claim Petition No. 106 of 2018, which was decided finally
vide Judgment and Order dated 12-10-2020. The operative portion of the
Judgment and Order dated 12-10-2020, passed by the 'Tribunal', is given as
follows :-
"
आदेश
आलोच्य आदेश दिनांकित 13-06-2017 (संलग्नक सं0-1) निरस्त किया जाता है।
विपक्षीगण को निर्देशित किया जाता है कि वे याची के सेवा निवृत्तिक लाभ के सम्बन्ध में
माननीय उच्च न्यायालय द्वारा प्रताप नारायण पाण्डेय बनाम उ०प्र० राज्य व अन्य में दिये गये
निर्णय के आधार पर याची को दिनाँक 05-06-1986 से नियमित संग्रह अमीन मानते हुए
उपलब्ध शासनादेशों के आधार पर निर्णय की सत्यप्रतिलिपि प्राप्त होने के दो माह के अन्दर

पुनः विधि सम्मत, तर्क संगत व मुखरित आदेश पारित करें।
उभय पक्ष वाद व्यय स्वयं वहन करेंगे।"
11. Vide the abovenoted order, the learned 'Tribunal' has set aside the order
passed by the District Magistrate, Amethi and directed that the opposite
party/claim petitioner is entitled for the post retiral dues and consideration of
his services as Regular Collection Amin since 05-06-1986, in parity with
Pratap Narain Pandey (in Writ Petition No. 4031 (S/S) of 2001).

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12. The review applicants have instituted Writ A No. 5482 of 2022, which
was dismissed vide Judgment and Order dated 30-08-2022 and thereafter,
the S.L.P. (Civil) bearing no. 29497 of 2023 was instituted before the
Hon'ble Apex Court, that too, has been dismissed. The order dated 14-08-
2023 passed by the Hon'ble Apex Court in the S.L.P. (Civil) no. 29497 of
2023 reads as under :-
"Delay condoned.
2. In the peculiar facts and circumstances of the case, we do not find any merit in the
Special Leave Petition. Accordingly, the same is dismissed.
3. However, the question of law, if any, is kept open.
4. Pending application(s), if any, shall stand disposed of."
13. From bare reading of the abovenoted order, it reveals that in the facts and
circumstances of the case, the matter was considered and Hon'ble Apex
Court did not find any merit in the S.L.P., therefore, it resulted into
dismissal. The subsequent observation after dismissal of the S.L.P. is that
'the question of law, if any, is kept open'. After dismissal of the S.L.P by the
Hon'ble Apex Court, the instant review application has been moved, wherein
the preliminary objection has been raised by the learned counsel for the
opposite party regarding its maintainability.
14. The maintainability of the review application in the given situation has
been settled by the Hon'ble Apex Court in the case of
Kunhayammed And
Others Vs State of Kerala And Another, reported in (2000) 6 Supreme
and the conclusion has been sum up in paragraph no. 44 of
Court Cases 359
the said Judgment, which is extracted as under :-
"44. To sum up, our conclusions are:
(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.

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(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.
(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 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.
(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.
(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

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is the only order binding as res judicata in subsequent proceedings
between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of
Supreme Court has been invoked the order passed in appeal would attract
the doctrine of merger; the order may be of reversal, modification or
merely affirmation.
(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."
15. From bare reading of Sub. clause (iv) of paragraph no. 44, it emerges
that in the event of speaking and non speaking order, while refusing the
Special Leave to Appeal, the doctrine of merger would not attract, as the
refusal of the Special Leave to Appeal means that the court was not inclined
to exercise it's discretion and nothing else. It has further been observed that
in case of refusing the Special Leave to Appeal by a speaking order, it has
two implications; firstly that the law is declared within the meaning of
Article 141 of the Constitution of India and secondly, other than the
declaration of law, but, it does not amount to merger of the orders of the
court below in the orders of the Hon'ble Apex Court. It is more particularly
held in the Judgment that once Leave to Appeal is granted, it amounts to
invoke the appellate jurisdiction by the Hon'ble Apex Court and under these
circumstances, the orders passed in the Civil Appeal, would attract the
merger.
16. Hon'ble Supreme Court in the case of
Khoday Distilleries Limited(Now
Known as Khoday India Limited) And Others Vs Sri Mahadeshwara
Sahakara Sakkare Karkhane Limited Kollegal (Under Liquidation)
Represented by the Liquidator reported in (2019) 4 Supreme Court
has reiterated the law rendered in the case of
Cases 376, Kunhayammed
(Supra) . The relevant paragraphs no. 18,19 & 20 of the said Judgment are
extracted as follows :-
Explaining the doctrine of merger, the Court held that logic behind this doctrine is
18.
that there cannot be more than one decree or operative orders governing the same

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subject-matter at a given point of time. When a decree or order passed by an inferior
court, tribunal or authority is subjected to a remedy available under law before a
superior forum, then, though the decree or order under challenge continues to be
effective and binding, nevertheless, this finality is to put in jeopardy. Once the
superior court disposes of the dispute before it in any manner i.e. either by affirming
the decree or order or by setting aside or by modifying the same, it is the decree of the
superior court, tribunal or authority which is the final binding and operative decree
and the decree or order of the lower court, tribunal or authority gets merged into the
order passed by the superior forum. The Court also clarified that this doctrine is not
of universal or unlimited application. The nature of jurisdiction exercised by the
superior forum and the content or subject-matter of challenge laid or which could
have been laid will have to be kept in view. The Court thereafter discussed the
provision pertaining to the appellate jurisdiction that is exercised by the Supreme
Court conferred upon it by Articles 132 to 136 of the Constitution of India. Insofar as
jurisdiction under Article 136 is concerned, it explained that Article 136 opens with a
non obstante clause and conveys a message that even in the field covered by the
preceding articles, jurisdiction conferred by Article 136 is available to be exercised in
an appropriate case. It is an untrammelled reservoir of power incapable of being
confined to definitional bounds; the discretion conferred on the Supreme Court being
subjected to only one limitation, that is, the wisdom and good sense or sense of justice
of the Judges. No right of appeal is conferred upon any party; only a discretion is
vested in the Supreme Court to interfere by granting leave to an applicant to enter in
its appellate jurisdiction not open otherwise and as of right.
Exercise of jurisdiction under Article 136 and the manner in which it is dealt with
19.
is clarified as under : (Kunhayammed case [Kunhayammed v. State of Kerala, (2000)
6 SCC 359] , SCC pp. 371-72, para 14)
"14. 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 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

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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 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:
(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;
(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;
(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. Once leave
to appeal has been granted, the finality of the judgment, decree or order

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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 Court may pass
a specific order staying or suspending the operation or execution of the
judgment, decree or order under challenge."
20. The Court thereafter analysed number of cases where orders of different nature
were passed and dealt with these judgments by classifying them in the following
categories:
(i) Dismissal at the stage of special leave petition — without reasons — no res
judicata, no merger.
(ii) Dismissal of the special leave petition by speaking or reasoned order — no
merger, but rule of discipline and Article 141 attracted .
(iii) Leave granted — dismissal without reasons — merger results .
17. In paragraph no. 20 of Judgment and Order of
Khoday Distilleries
Limited (Supra), three categories enumerated. In the first category, it has
been observed that if the Special Leave Petition is dismissed without giving
reasons, the doctrine of res-judicata or merger would not attract,whereas in
case the Special Leave Petition is dismissed with speaking and reasoned
order, there would be no merger, but, rule of discipline and Article 141 of
the Constitution of India would attract and under third situation, when the
Leave is granted and the dismissal is without reasons, even then, the merger
will apply.
18. The case in hand is of the first category, where the Special Leave
Petition has been dismissed without giving any reason and therefore, the
doctrine of merger would not attract in the instant case. The rights of the
review applicants for instituting the review application undoubtedly is
uninterrupted and maintainable. Thus, we do not find substance in the
preliminary objection raised by the other side, therefore, the same stands
rejected.
19. Now, coming to the merit of the review application, it is apparent that
opposite party was appointed in the year 1986 on the post of Seasonal
Collection Amin and his services were regularized in the year 2013 and in
the year, 2016, he has been retired. For counting the services for payment of
the pensionary benefits from the date of initial appointment of the opposite
party was found genuine and therefore, 'Tribunal' has passed the order which

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has been upheld by the writ court. It is also not irrelevant to consider here
that one of the identically situated employee of the department namely,
Pratap Narain Pandey, instituted Writ Petition No. 4031(S/S) of 2001,
whereby he has been given the benefit of computation of his services
rendered as Seasonal Collection Amin and likewise the other employees of
the department were also given the benefit of the same. The opposite party
has also been given all the benefits including the pensionary benefits, in
compliance of the order of writ court. Thus, on the other counts also that
once other employees of the department have been given the pensionary
benefits while computing their services rendered as Seasonal Collection
Amins, why the opposite party be deprived of the same at this stage, more
particularly when the department has already given all the benefits to him.
20. It is of worth consideration that while filing the written submissions
before the 'Tribunal', the review applicants did not take the objection
regarding the effect and operation of the Validation Act, 2021. The
'Act,2021' provides that if initial services are not as per the rules, those will
not be counted for the purpose of grant of pensionary benefits. Further more,
at the time of instituting the writ petition before this court, the said ground
was also not taken and even it was not raised before the Hon'ble Apex Court
and now, for the first time, at the stage of review, the 'Act,2021' brought into
the notice of the court and contention raised that the tribunal and the writ
court have ignored the relevant provision of the 'Act,2021'.
21. We have noticed that Hon'ble the Apex Court while dismissing the
Special Leave to Appeal has opened the question of law to be considered.
We find from the observations of the Hon'ble Apex Court that the Hon'ble
Apex Court has gone into the merits of the case and the S.L.P. has been
dismissed. Therefore, the question of law is not open to be considered in
between the same parties, of the S.L.P.
22. In view of the aforesaid submissions and discussions, the questions
formulated in preceding paragraphs are answered as follows :-
(i) The review application is maintainable even the SLP is dismissed to the
extent it is concluded by the Apex Court in case of Kunhayammed (supra)
and (supra).
Khoday Distilleries Limited

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(ii) In facts and circumstances of the instant case, the question of law is not
open between the parties of the SLP (Civil) No. 29497 of 2023. However, it
must open for other parties, in future.
23. Consequently, the instant review application is hereby dismissed .
24. Consigned to records.
(Shree Prakash Singh,J.) (Rajesh Singh Chauhan,J.)
November 6, 2026
AKS/Mayank
Digitally signed by :-
MAYANK PRATAP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench