1 S.B.CIVIL WRIT PETITION NO. 4054/1994 (T.C.Jain Vs. State of Raj. And ors.) Date of Judgment : 15-10-2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.S.P.Sharma with Mr.Manish Sharma, for the petitioner. Mr.B.L.Awasthi, Addl.G.A. For th eState. Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the order passed by the respondents dated 2.12.1993 by which the respondents have canceled the earlier order dated 4.3.1992 whereby they granted him yearly increments during the period of suspension from 11.5.1983 to 4.8.1987 has been rejected and have further directed for consequential recovery. The subsequent consequential orders for recovery dated 9.6.1994 and 18.6.94 are also under challenge. Learned counsel for the petitioner has argued that the petitioner was suspended in contemplation of an enquiry on 11.5.1983 and he remained under suspension till 4.8.1987. When the petitioner was not granted annual 2 grade increments during the period of suspension, he preferred a writ petition being SBCWP No.3187/1992 (T.C.Jain Vs. State of Raj. And ors.) before this court which was lateron allowed vide order dated 20.7.1992. The writ petition was allowed relying on the Division Bench judgment of this court in Kan Singh Bhati Vs. State of Rajasthan reported in 1989(1) RLR 111. Thus the writ petition was allowed in terms of the law laid down in the judgment passed by Division Bench of this court and accordingly, the petitioner was granted benefit of annual grade increments. Subsequently, however the respondents have sought to withdraw these benefits on the basis of reversal of the judgment of Division Bench in special leave to petition filed by respondents in the case of Kan Singh whereby the Hon'ble Supreme Court has ordered that having regard to the rules governing the matter, the claim for enhancement of the subsistence allowance in the manner directed by the High Court in the aforesaid case is not sustainable. The petitioner in the present case neither challenged the judgment by filing the 3 special appeal nor even filed the review petition before this court which attained finality. Thus the petitioner has prayed that the order of recovery first may kindly be liable to be quashed and set aside. The learned counsel for the respondents has opposed the writ petition filed by learned counsel fro the petitioner and cited the circular dated 24.8.1993 issued by the Finance Department. He has argued that since SLP filed by the State-respondents against the Division Bench Judgment of this court in Kan Singh's case, was allowed and Division Bench Judgment was reversed. The order impugned for recovery was rightly passed because the said order was in effect passed as per old law. Writ petition of the petitioner was allowed by this court as per the law then declared by the Division Bench. The respondent-State did not file any special appeal against the judgment passed by single Bench of this court nor did it file any review petition. Judgment thus attained finality. 4 In the aforesaid facts & circumstances of the case, recovering the amount which was paid to the petitioner in compliance of the judgment of this court cannot be justified. Subsequent reversal of the Division Bench Judgment by the Supreme Court cannot justify such recovery. The respondent-State though challenged the judgment of Division Bench filing the SLP but did not challenge the judgment passed by Single Bench, therefore, that judgment attained finality. The writ petition of the petitioner was allowed as per view then taken by Division Bench and it was that view which then held the field. Judgment of Supreme Court would only have prospective effect atleast qua the cases which have been concluded and attained finality. The respondents on their own could not therefore withdraw the order, which was issued to give effect to the judgment of this court. Impugned orders thus cannot be upheld. In the result, the writ petition is allowed and the impugned orders dated 2.12.1993, 9.6.94 and 18.6.94 are quashed 5 and set aside. Compliance of the judgment be made within three months from the date its copy is served upon the respondents. (MOHAMMAD RAFIQ),J. Sandeep/- item no.s/10