Hon’ble Devendra Pratap Singh, J.—An important issue, which is often confronting courts, falls for determination by this Full Bench. An employee, continues in service, beyond the superannuation age of 58 years on the strength of an interim order, is fastened with deduction of the amounts paid as salary from his retiral benefits on the dismissal of the writ petition as infructuous.

2. A learned Single Judge of this Court was confronted with the decisions of the Apex Court in the case of State of U.P. v. Harendra Kunwar, [1995 A.L.J. 1603] and State of J&K v. Pirzada Ghulam Nabi, [(1998) 8 SCC 102] where it was held that an incumbent who has continued in service beyond the age of superannuation on the strength of an interim order, may not be entitled to retain or receive salary in case the writ petition is ultimately dismissed either on merits or as infructuous. And the contrary view also of the Apex Court in the case of Collector of Madras and another v. K. Rajamanickam, [1995 (2) SCC 98] and Burn Standard Company Limited and others v. Deen Bandhu Majumdar and others, (1995) 4 SCC 172 both followed by a learned Single Judge of our Court in Ram Khelawan Pathak v. State of U.P. and others, 1998(2) ESC 1303 (All) where it was held that an employee who actually worked on the strength of an interim order would be entitled to his salary even though the writ petition may have been dismissed subsequently. Thus, he referred the issue to a Larger Bench.

3. Minimal facts, necessary for deciding the issue in this petition are :

4. Petitioner, a driver in the Irrigation Department of State of Uttar Pradesh challenged a notice dated 8.12.1993 retiring him on 31.1.1994 on attaining the age of 58 years, through writ petition No. 3308 of 1994 claiming that retirement age was 60 years. A learned Single Judge of this Court stayed the operation of the said notice but clarified that the petitioner would be allowed to continue only uptil the age of 60 years. This petition was dismissed as infructuous on 7.8.1996. But as no retiral benefits were released, he preferred writ petition No. 34927 of 1996 which remains pending. A third writ petition No. 5649 of 1998 for release of retiral benefits was again filed but was finally disposed off on 19.12.1998 directing the respondent to decide the representation with regard to the claim of retiral benefits treating the retirement age as 58 years. In pursuance thereof, by an order dated 25.9.1998, claim was decided holding that the retiral benefits could be released after adjustment of Rs. 81,836/-, the amount received by the petitioner as salary for two years on the strength of the aforesaid interim order in the first writ petition. This order subjected to challenge in the fourth writ petition No. 12776 of 1999 when the learned Single Judge referred it to a Larger Bench.

5. When these petitions were taken up on 20.10.2004, we framed the following two questions:

(i) Whether the petitioner is entitled to get salary for the period that he has worked under the interim orders of the Court even if the writ petition (in which the interim order is granted) is dismissed as infructuous or after holding that he was not so entitled to work?

(ii) In case the writ petition in which interim order was granted is dismissed without any reference to the salary for the period that the petitioner had worked under the interim orders of the Court then, whether a second writ petition is maintainable for the salary of that period?

6. We have heard learned counsel for the parties.

7. Before we proceed to answer the two questions framed by us, it would be appropriate to examine the law with regard to interim orders.

8. The interim orders cannot, but merge with the final orders passed in the proceedings as has been held by the Apex Court in the case of Shree Chamundi Mopeds Limited v. Church of South India Trust, AIR 1992 SC 1439. The three Judge Bench was considering whether the rent decree against a company wound up ca