By the Court.—Heard Shri Shatrughan Choudhary learned Additional Chief Standing counsel and Shri B.N.Rai for the respondents.

2. Instant petition preferred under Article 226 of the Constitution of India has been preferred against the impugned judgement and order passed by the U.P. Public Services Tribunal as contained in Annexure-1 to the writ petition. According to learned counsel for the petitioner earlier petitioner was punished by order dated 7.2.1996 followed by order dated 19.4.1996 with dismissal from services. Order of the punishment was impugned before the tribunal in claim petition No. 198 of 1996 decided by judement and order dated 7.6.2005. The operative portion of the judgement and order dated 7.6.2005 is reproduced as under :

“The claim petition succeeds and is hereby allowed and the order dated 7.2.1995 and 19.4.1996 are hereby quashed and the opposite parties are directed to reconsider the petitioner’s case in respect of imposition of penalty to the petitioner in the light of the observations made and the case law referred too in the body of judgement. In the circumstances of the case parties shall bear their own costs.”

3. It appears that while reconsidering the case of claimant respondent afresh with regard to penalty in the light of observation made by the tribunal lesser punishment has been awarded, with forfeiture of one month salary.

The subsequent punishment awarded was impugned before the tribunal in claim petition No. 1249 of 2007. The tribunal allowed the claim petition by judgement and order dated 3.4.2012, a copy of which has been filed as Annexure 1 to the writ petition. While allowing the claim petition the tribunal had recorded a finding that salary was incorrectly fixed of the claimant respondents and after setting aside of the order of punishment and being restored in service he is entitled for payment of entire salary. The tribunal further held that while deciding the controversy earlier tribunal had not recorded a finding and issued direction thereon that the period during the petitioner was not in service should be treated as discontinuation of service. Accordingly tribunal had allowed the claim petition with regard to forfeiture of salary of about a month.

4. While assailing the impugned order it has been submitted by learned Additional Chief Standing counsel that subsequent claim petition was barred by principle of constructive res judicata. Learned counsel for the petitioner has relied upon a Full Bench judgement of this Court in Surya Deo Mishra, etc.v. State of U.P. and others etc., 2006 (1) ADJ 467 (FB). Full Bench of this Court held that the petition shall be maintainable to quash subsequent illegal order regarding payment of post retiral dues as it would be a fresh cause of action. For convenience para 24 of the Full Bench judgement (surpa) is reproduced as under :

“In the result the answers to the questions formulated for decisions by us are as follows :

(1) The petitioner is entitled to the salary for the period that he has worked under the interim order of the Court in view of the law laid down in Subh Nath’s case while has not been overruled. We have therefore, modified the order passed in the first petition.

(2) where a writ petition in which interim orders were granted is dismissed without any reference to the salary for the period that the petitioner had worked under the interim orders of the Court, a second writ petition for claiming the salary of the same period is not maintainable. However, it may be maintainable to quash any subsequent illegal order regarding payment of post retirement benefit, as it would be a fresh cause of action.”

5. The other judgement relied upon by the petitioner’s counsel is in Bhanu Kumar Jain v. Archana Kumar and another, 2005 (1) SCC 787. Their lordship of Hon’ble Supreme Court in the case of Bhanu Kumar Jain (supra) held as under :

“The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitt