State Of U.P. Thru Secy. Sachivalaya ... vs Uma Shanker S/S 341 /2007
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Allahabad High Court

State Of U.P. Thru Secy. Sachivalaya ... vs Uma Shanker S/S 341 /2007 on 20 November, 2025

Author: Rajan Roy

Bench: Rajan Roy

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:75420-DB
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW 
 
SPECIAL APPEAL DEFECTIVE No. - 199 of 2008   
 
   State Of U.P. Thru Secy. Sachivalaya Prashasan And 2 Ors.    
 
  .....Appellant(s)   
 
 Versus  
 
   Uma Shanker S/S 341 /2007     
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Standing Counsel   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Manish Mishra, Namit Sharma   
 
     
 
 Court No. - 1
 
   
 
 HON'BLE RAJAN ROY, J.  

HON'BLE ZAFEER AHMAD, J.

(C.M. Application No.29918 of 2008)

1. This is an application seeking condonation of delay in filing the appeal.

2. Heard.

3. We have gone through the affidavit in support of the application for delay. Cause shown is sufficient. Accordingly, the application is allowed. Delay is condoned.

(Order on memo of appeal)

4. After hearing Sri Raghuvanshi, learned Standing Counsel for the State and perusing the records what comes out is that the services of respondent-petitioner was terminated vide order dated 03.08.1993 which was challenged by him in Claim Petition No.738 of 1993. The said petition was allowed on 03.02.1997 by setting aside the termination order dated 03.08.1993 and directing the respondents therein to reinstate the claimant-petitioner on his original post with a further direction that the petitioner shall be entitled for his regular salary from the date of his reinstatement, however, for the intervening period i.e. the year 1973 to the date of reinstatement i.e. 1993, liberty was given to the respondents to take decision on the leave application of the petitioner. The tribunal further held that claimant-petitioner would not get back wages from the date of termination till reinstatement. This order was challenged by the State Government by means of Writ Petition No.1112 (S/B) of 1997 and Writ Petition No.1113 (S/B) of 1997. Two writ petitions were filed because in fact two claim petitions filed by the respondent-petitioner were decided by the judgment dated 03.02.1997. The other claim petition pertained to payment of salary which had been filed prior to his termination. Sri Raghuvanshi, learned Standing Counsel says that these two writ petitions were subsequently dismissed.

5. Be that as it may, as there was no stay of the judgment of the tribunal dated 03.02.1997 in the above mentioned writ petitions therefore, the respondent-petitioner was allowed to join the service w.e.f. 29.09.1998 and salary was also paid to him.

6. During pendency of the above writ petitions, a review application was filed by the respondent-petitioner before the tribunal which was disposed of on 20.12.2002. In fact, it was allowed to the extent that the period during which the petitioner kept out of service will be treated as continuous but shall be counted only for retiral benefit if available in the service rules.

7. The State challenged the aforesaid order dated 20.12.2002 passed by the tribunal on review application by filing Writ Petition No.1200 (S/B) of 2003 [State of U.P. & Ors. vs. Uma Shankar & Anr.] which was dismissed by the Division Bench of the High Court on 11.09.2003 with a specific observation that once the tribunal has set aside the order of termination from service and directed reinstatement of respondent no.1 in service, the natural lawful consequence would be that the petitioner shall be deemed to be in continuous service even for the period during which he remained out of job. The order of reinstatement means that the claimant has been reinstated in service, which cannot be taken as fresh appointment but would mean joining the service in continuation of his previous service. Merely not allowing the back wages for the aforesaid period would not mean that the service stands discontinued. In no case reinstatement would mean a fresh service or fresh appointment of the claimant. It upheld the clarification of its earlier order by the tribunal in the review application and dismissed the writ petition. Therefore, this issue attained finality.

8. In the meantime, the respondent-petitioner attained the age of superannuation and retired on 31.03.2003.

9. The order dated 11.09.2003 passed in Writ Petition No.1200 (S/B) of 2003 was challenged by the State before the Supreme Court by means of S.L.P No.7982 of 2004 which was dismissed.

10. After dismissal of the S.L.P., the State Government passed an order on 24.05.2004 holding that the period from 20.04.1973 to 03.08.1993 shall be treated as continuous service for the purpose of calculation of the period for computing pension. The relevant extract of the said order has been quoted in the judgment of the writ court which is impugned herein.

11. Once the writ petition of the State against the order passed by the tribunal on review application stood dismissed which was upheld upto Hon'ble the Supreme Court then the pendency of the two writ petitions referred hereinabove at that point, though they were dismissed subsequently, was rendered superfluous. In any case, Sri Raghuvansi, learned Standing Counsel admits that the said writ petitions were subsequently dismissed as infructuous on 11.02.2015 and 24.02.2015 respectively for obvious reasons.

12. Inspite of the aforesaid, the Principal Secretary, Food and Civil Supply passed an order on 27.04.2005 holding that in view of Regulation 361 of C.S.R., respondent-petitioner was not entitled to pension as he was not paid salary for the period 20.04.1973 to 03.08.1993 i.e. the date of termination to the date of reinstatement.

13. Learned Single Judge has held that in view of the earlier order dated 24.05.2004 of Secretary, Food and Civil Supply for counting the intervening period from 20.04.1973 to 03.08.1993 for purposed of computation of pension and observation made by the Division Bench in the judgment dated 11.09.2003 in Writ Petition No.1200 (S/B) of 2003, it was not open for the Principal Secretary, Food and Civil Supply to pass the subsequent order dated 27.04.2005 taking a contrary view in the matter based on Regulation 361 of Civil Service Regulations. With reference to a catena of decisions, learned Single Judge has opined that Principal Secretary, Food and Civil Supply could not have passed such an order and the same was without jurisdiction. As regards Regulation 361 of Civil Services Regulations, the Principal Secretary took shelter of condition no.3 which mentions that service must be paid by the government wholly oblivious of the observations made by the Division Bench of this Court while dismissing Writ Petition No.1200 (S/B) of 2003. The said condition will not apply in a case where the termination order is set aside, but, for the intervening period, back wages/ arrears of salary are not payable though it is treated to be a period during which he shall be understood as having been in continuous service. The Principal Secretary while passing the order dated 27.04.2005 misunderstood and wrongly applied the said third condition in the facts of this case. Learned Single Judge has considered this aspect of the matter at length and has opined that the expression used in Regulation 361 i.e. service must be paid by the Government means the members of service governed under particular service must be paid their salary from the State Exchequer and it will not mean that the service rendered for a particular period is paid by the State Exchequer, as has been understood and held by Principal Secretary (Food and Civil Supply). We concur with the reasoning given by learned Single Judge. What condition No.3 of Regulation 361 means is that the services must have been payable by the government for the period the respondent-petitioner was kept out of service on the basis of an illegal order of termination which was quashed by the tribunal at least in the facts and circumstances of this case. Learned Single Judge has rightly held that it is not in dispute that the petitioner is serving under the State Government and the salary is being paid from State Exchequer, therefore, it is immaterial whether for a particular period he has been paid salary or not. Non-payment of salary for a particular period will not amount to discontinuation in case of reinstatement and for the purpose of computation of pension. It will be treated as continuous in service throughout.

14. We are of the opinion that this is all the more so because the respondent-petitioner was kept out of service on the basis of an illegal order of termination which was set aside by the tribunal with a further clarification that the intervening period he was kept out of service though he was not to be paid back wages, it will be treated as continuous service for the purpose of pensionary benefit. Once the services for the period 1973 till 1993 are treated as continuous then there is no break in service for the purposes of calculation of qualifying service and payment of pensionary benefits. Regulation 361 cannot be applied in the facts of this case the way it was applied by Principal Secretary, Food and Civil Supplies as has rightly been held by learned Single Judge and any other understanding of the situation and application of rules, will result in grave miscarriage of justice.

15. For all these reasons, we are of the opinion that purely in the facts of this case, no interference is called for with the impugned judgment. If it has not been complied then it shall be complied within the next three months. If it has already been complied then the matter shall rest as it is.

16. Accordingly, the special appeal is dismissed.

(Zafeer Ahmad,J.) (Rajan Roy,J.)

November 20, 2025

Shanu/-