1. Heard.

2. Instant petition has been filed challenging the order dated 22.09.2021, a copy of which has been filed as Annexure-14 to the writ petition, to the extent it has denied the back wages and seniority along with promotional benefits to Sri Satya Prakash Rai for the period from 31.08.2009 till 30.01.2021. A further prayer is for a mandamus commanding the respondents to release the back wages to the employee for the aforesaid period and count the said period for the purpose of determination of seniority and all promotional benefits.

3. The case set forth by the learned counsel for the petitioner is that Sri Satya Prakash Rai, the husband of petitioner no.1/1 and father of petitioner no.1/2 who was working as Constable under the respondents was dismissed from service vide order dated 31.08.2009, a copy of which is Annexure-6 to the writ petition. The dismissal order was passed under the provisions of Rule 8 (2)(b) of the U.P. Police Officers of the Subordinate Rank (Punishment & Appeal) Rules, 1991 (hereinafter referred to as the ‘Rules, 1991’). The aforesaid rule gives the power to the authority concerned to dismiss or remove a person where the authority is satisfied for some reasons to be recorded by the authority in writing that it is not reasonably practicable to hold such inquiry. Being aggrieved by the said order, Sri Rai filed Writ-A No.89437 of 2009 in re: Satya Prakash Rai vs. State of U.P. and others, and this Court vide judgment and order dated 17.12.2019, a copy of which is Annexure-7 to the writ petition, was of the view that the termination order could not be passed on the basis of punishment or past service records without providing opportunity of hearing and further while passing any order under Rule 8(2)(b) of the Rules, 1991, the reasons were to be recorded by the authority in writing which were missing and consequently this Court allowed the writ petition and held the order dated 31.08.2009 to be bad in the eyes of law and set-aside the same.

4. A special appeal was filed by the State against the said judgment of the writ Court which was dismissed vide judgment and order dated 29.09.2020, a copy of which is Annexure-11 to the writ petition.

5. In pursuance to the order of the writ Court Sri Rai was reinstated in service and in pursuance of the order of reinstatement he had joined his services on 31.01.2021. However, the respondents did not hold any further departmental proceedings against Sri Rai. A show cause notice was issued to Sri Rai on 03.08.2021, a copy of which is Annexure-12 to the writ petition, under the provisions of Rule 54-A of the Financial Handbook Vol.2 requiring Sri Rai to show cause as to why the period of dismissal from 31.08.2009 to 30.01.2021 should not be treated as not eligible for grant of any back wages on the principle of no work no pay under the provisions of Rule 54-A (2)(i) & (ii).

6. Sri Rai submitted a detailed reply to the said show cause notice vide his reply dated nil, a copy of which is Annexure-13 to the writ petition, which was placed before the authority concerned on 21.08.2021.

7. The competent authority vide the order impugned dated 22.09.2021, a copy of which is Annexure-14 to the writ petition, after considering the reply of the petitioner was of the view that as Sri Rai has not worked during the period of dismissal and on certain other grounds Sri Rai would not be entitled for any back wages for the period of dismissal.

8. Being aggrieved, instant writ petition has been filed.

9. During pendency of the present petition, Sri Rai died on 21.02.2022 and his legal heirs have been substituted as petitioners no.1/1 and 1/2.

10. The contention of learned counsel for the petitioner is that the respondents have patently erred in initially issuing a notice to Sri Rai under the provisions of Rule 54-A(2) (i) & (ii) inasmuch as the case of the petitioner would be governed by the provisions of sub-rule (3) of Rule 54-A of the Financial Handbook inasmuch as when the writ Court vide judgment and order dated 17.12.2019 had set-aside the order of dismissal and the respondents on their own accord did not hold any departmental inquiry against the petitioner consequently the petitioner would be entitled for payment of entire salary for the period of dismissal.

11. In this regard, reliance has been placed on the judgments of the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others – (2013) 10 SCC 324 [LQ/SC/2013/879] and Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and others – (2019) 17 SCC 184 [LQ/SC/2019/1300] .

12. Placing reliance on the aforesaid judgments, the contention of learned counsel for the petitioner is that the Apex Court in the case of Deepali Gundu Surwase (supra) has considered the word ‘reinstatement’ and has held that a reinstatement is to reinstall and to re-establish and to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.

13. Placing reliance on the aforesaid interpretation as given to the word ‘reinstatement’, learned counsel for the petitioner argues that once the respondents reinstated Sri Rai in pursuance to the directions issued by the writ Court as upheld by the Division Bench with the dismissal of the special appeal consequently considering the reinstatement of Sri Rai the consequences are to flow out from the said reinstatement order and Sri Rai would be entitled for entire salary for the aforesaid period of dismissal.

14. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that a perusal of the judgment passed by the writ Court dated 17.12.2019 would indicate that the writ Court has not gone into the merits of the dismissal order rather was of the view that as the order of dismissal of Sri Rai had been passed without affording any opportunity of hearing to him and without recording any reasons as per the provisions of Rule 8(2)(b) of the Rules, 1991 consequently the dismissal order of Sri Rai had been set-aside.

15. The contention is that once the order has not been set-aside on merits rather has been set-aside on technicalities as such setting aside of the dismissal order would not ipso facto result in Sri Rai being entitled for the entire salary for the period of dismissal rather on account of dismissal order being set-aside on technicalities it is Rule 54-A(2) which would be applicable which rule empowers the competent authority to initially issue a show cause notice to the government servant concerned regarding the quantum proposed to be paid for the period an employee remained out of service on account of dismissal order and which would not entail the employee concerned to be paid the salary for the entire period he remained out of service.

16. Elaborating the same, learned Standing Counsel has drawn the attention of this Court towards the provisions of sub-rule (2) of Rule 54-A of the Financial Handbook to contend that rule itself provides that when a dismissal order of a government servant is set-aside by the Court solely on the ground of non-compliance with the requirement of Clause 1 and Clause 2 of Article 311 of the Constitution and where he is not exonerated on merits and no further inquiry is proposed to be held, the government servant shall be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed from service. Such amount would be arrived at after issuance of a show cause notice to the government servant regarding the quantum proposed.

17. Reiterating the fact that the writ Court had not set-aside the order of dismissal of Sri Rai on merits rather had set-aside the dismissal order on the ground of violation of rules of natural justice read with no reasons being recorded in the order of dismissal as provided under the Rules, 1991, learned Standing Counsel has contended that the competent authority correctly proceeded to issue a notice to Sri Rai under the provisions of sub-rule (2) of Rule 54-A of the Financial Handbook and thus it is contended that Sri Rai not having been exonerated on merits by the writ Court there would not be any occasion for Sri Rai for being given the entire salary for the period he remained out of employment.

18. On the said analogy and argument the judgments of the Apex Court in the cases of Deepali Gundu Surwase (supra) and Jayantibhai Raojibhai Patel (supra) have been distinguished.

19. Heard and perused the records.

20. From perusal of records, it emerge that Sri Rai, the husband of petitioner no.1/1 and father of petitioner no.1/2, had been dismissed from service under the provisions of Rules, 1991. Upon a challenge being raised to the dismissal order the writ Court vide judgment and order dated 17.12.2019 set-aside the dismissal order on the grounds namely (a) the order having been passed without providing opportunity of hearing, (b) no reasons having been recorded in the order despite the Rules, 1991 stipulating the same, and (c) order having been passed on the basis of previous service record.

21. The respondents on their own accord did not hold any further departmental proceedings against Sri Rai despite the order of the writ Court having been affirmed with the dismissal of the special appeal rather the respondents reinstated Sri Rai in service vide order dated 31.01.2021. Subsequent thereto a show cause notice was issued to Sri Rai on 03.08.2021 under the provisions of Rule 54-A (2) of the Financial Handbook requiring him to show cause as to why the period of dismissal be not treated as not eligible for grant of any back wages on the principle of no work no pay to which a detailed reply was submitted by Sri Rai which did not find favour with the respondents and the order impugned dated 22.09.2021 was passed whereby Sri Rai was not held entitled for payment of salary for the period he remained out of employment on the principle of no work no pay.

22. Rule 54 and 54-A of the Financial Handbook read as under:-

54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) When the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired, has been fully exonerated the Government servant shall, subject to the provisions of sub-rule (6). be paid the full pay allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be :

Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall. subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.

(3) In a case falling under sub-rule (2) the period of absence from duty Including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) [including cases where the order of dismissal. removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held), the Government servant shall, subject to the provision of sub- rules (6) and (7) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not dismissed. removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be as the competent authority may determine after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.

Note. The order of the competent authority under the preceding proviso shall be absolute and higher sanction shall be necessary for the grant of-

(a) extraordinary leave in excess of three months in the case of temporary Government servant; and

(b) leave of any kind in excess of five years in the case of permanent Government servant.

(6) The payment of allowances under sub-rule (2) of sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.

(7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4), shall not be less than the subsistence allowance and other allowance admissible under Rule 53.

(8) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date his removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employme elsewhere, nothing shall be paid to the Government servant.

Note. Where the Government servant does no, report for duty within reasonable time after the issue of the orders of reinstatement after dismissal. removal or compulsory retirement, no pay and allowances will be paid to him for such period till he actually takes over charges.

54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Cou:t of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.

(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non- compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, and no further inquiry is proposed to be held, the Government servant shall. subject to the provisions of sub-rule (7) of Rule 54. be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed. removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and considering the representation. if any submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.

(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case. the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period. to which he would have been entitled. had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.

(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any. earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.

Note. Where the Government servant does not report for duty within reasonable time after the issue of the orders of reinstatement after the dismissal, removal or compulsory retirement, no pay and allowances will be paid to him for such period till he actually takes over charge.”

23. A perusal of Rule 54- A would indicate, so far as facts of the instant case are concerned, that where dismissal of Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of Sub-rule (2) or (3) subject to directions, if any, of the Court.

24. In the instant case, admittedly there is no order of the writ Court for payment of back wages to the petitioner consequently, the case of Sri Rai would be governed by the provisions of Rule 54-A.

25. Sub-rule (2) of Rule 54-A, under which the notice had been issued to Sri Rai, would indicate that where the dismissal of a Government servant is set aside by the Court solely on the ground of non compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution of India and where he is not exonerated on merits and no further inquiry is proposed to be held, the Government servant shall, subject to the provisions of sub-rule (7) of Rule, 54, be paid such amount (not being the whole) of the pay and allowance to which he would have been entitled had he not been dismissed. The competent authority has to determine, after giving of a notice to the Government servant, of the quantum proposed and considering the representation, if any submitted by a Government employee, the quantum of the amount of back wages to which he would be entitled.

26. In the instant case, the notice as issued to Sri Rai under the provisions of Rule 54-A (2) has not been challenged meaning thereby that Sri Rai acquiesced to the notice being issued to him under Rule 54-A (2) which notice does not include grant of full pay and allowance to the delinquent employee.

27. At this stage, it would also be relevant to mention that it is sub-rule (3) of Rule 54-A which governs payment of full pay and allowance for the period of dismissal, but as already indicated above, notice had been issued to Sri Rai under sub-rule (2) of Rule 54-A (to which he has acquiesced) and not sub-rule (3) of Rule 54-A.

28. Sub-rule (2) of Rule 54-A provides that after issue of notice which would indicate the quantum which is proposed to be paid to the delinquent employee which would not be the whole amount but the amount would be subject to the provisions of sub-rule (7) of Rule 54.

29. Sub-rule (7) of Rule 54 of the Financial Handbook provides that the amount determined under the proviso to sub-rule (2) or sub-rule (4) of Rule 54 shall not be less than the subsistence allowance and other allowance admissible under Rule 53.

30. Sub-rule (2) of Rule 54 deals with the situation where the competent authority to order reinstatement is of opinion that the Government servant who had been dismissed, has been fully exonerated then the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowance to which he would have been entitled, had he not been dismissed.

31. Sub-rule (4) deals with the situation other than those covered by subrule (2) including cases where the order of dismissal has been set aside by the appellate authority on the ground of non compliance of requirements of Clause (1) or Clause (2) of Article 311 of Constitution of India and where no further inquiry is proposed to be held. Both the eventualities as specified under sub-rule (2) and (4) of Rule 54 are not attracted in the facts of the instant case.

32. Thus, the notice as issued under Rule 54-A (2) pertaining to quantum (not being the whole amount) was subject to the provisions of sub-rule (7) of Rule 54 which, keeping in view the specific rule position provided that the amount should not be less than the subsistence allowance and other allowance admissible under Rule 53.

33. A perusal of notice issued to Sri Rai would indicate that the competent authority did not propose to grant any amount to Sri Rai rather entire period of dismissal was being treated as not eligible for payment of any allowance on the principle of no work no pay. Thus, the notice under sub-rule (2) of Rule 54-A adheres to sub-rule (7) of Rule 54 of the Financial Handbook i.e quantum of the amount being not less than the subsistence allowance and other allowance admissible under Rule 53. Therefore, it emerges that the quantum of the amount which was proposed in the notice issued under subrule (2) of Rule 54 (A) i.e the entire period of dismissal as not being eligible for any amount on the principle of no work no pay (except subsistence allowance already drawn by Sri Rai) would obviously be an amount not less than the subsistence allowance already drawn by Sri Rai. However, as no arguments have been advanced on the same by the learned counsel for the petitioner and even the order impugned does not indicate any application of mind on this aspect of the matter as such, keeping in view the order which follows, the said question is left open to be decided by the competent authority.

34. A perusal of the order impugned dated 22.09.2021 would indicate that the respondents have primarily placed reliance on Rule 54(5) of the Financial Handbook while passing the order impugned which indicates that in a case falling under sub-rule (4) the period of absence from duty including the period of suspension preceding dismissal shall not be treated as a period spent on duly unless the competent authority specifically directs that it shall be so treated for any specified purpose. Placing reliance on sub-rule (5) of Rule 54 of the Financial Handbook the respondents have indicated that as the competent authority has not found the period of dismissal of Sri Rai as eligible for the purpose of grant of salary and for any specified purpose and the reinstatement of Sri Rai has also not been done for any specified purpose rather has been done in compliance of the order of the writ court consequently Sri Rai is not entitled for payment of any salary for the aforesaid period.

35. When the competent authority had issued a notice under Rule 54-A (2) of the Financial Handbook consequently he was required to consider the reply as had been submitted by Sri Rai a perusal of which would indicate that Sri Rai had taken various grounds including having placed reliance on various judgments of the Apex Court to indicate that when he had been reinstated in service by the respondents themselves consequently reinstatement would entail counting of the entire period of dismissal from service as a period spent on duty and thus entitling Sri Rai for the salary for the entire period. Strangely the respondents have passed the impugned order without considering the reply of Sri Rai in its true spirit, by placing reliance on sub-rule (5) of Rule 54 of the Financial Handbook to contend that as the competent authority has not found the said period of dismissal from service to be eligible for grant of salary and the competent authority has not indicated the specified purpose consequently Sri Rai would not be entitled for salary for the aforesaid period.

36. As already indicated above, the order impugned dated 22.09.2021 is neither here nor there i.e. the competent authority having passed an order without considering the reply of Sri Rai in the spirit of sub-rule (2) of Rule 54-A of the Financial Handbook rather having gone to the extent of stating that as no order has been passed by the competent authority under sub-rule (2) of Rule 54-A indicating the specified purpose Sri Rai would not be entitled for the salary for the aforesaid period.

37. A further perusal of the order impugned dated 22.09.2021 would indicate that apart from the respondents not having considered the case of Sri Rai in its proper perspective, they have also not determined the amount to be paid to Sri Rai after considering his reply which would run contrary to the provisions of sub-rule (2) of Rule 54-A more particularly when the quantum has been held as being subject to the provisions of sub-rule (7) of Rule 54 which, as already indicated above, makes the quantum of amount to be not less than the subsistence allowance and other allowance admissible under Rule 53.

38. As regards the judgment of the Apex Court in the case of Deepali Gundu Surwase (supra), the said case was where the School Tribunal had itself directed that the employee concerned would be reinstated in service with full back wages i.e. the School Tribunal had quashed the termination order of the employee and had directed for payment of full back wages.

39. As already indicated, this Court while setting aside the dismissal order of Sri Rai never directed for payment of back wages. Even otherwise, the provisions of Financial Handbook were not in issue before the Apex Court and thus the judgment of Deepali Gundu Surwase (supra) would have no applicability in the facts of the instant case.

40. So far as the judgment of Jayantibhai Raojibhai Patel (supra) is concerned, again the provisions of Financial Handbook were not considered while in the instant case the notice itself specifically indicated that Sri Rai would not be entitled for payment of entire back wages which notice has been acquiesced to by Sri Rai and a reply submitted and thus the judgment of Jayantibhai Raojibhai Patel (supra) would also not be applicable in the facts of the instant case. Consequently, there cannot be any direction by this Court for grant of full back wages to Sri Rai for the entire period of dismissal based on the aforesaid judgments.

41. Keeping in view the aforesaid discussion, it is apparent that the order impugned dated 22.09.2021 cannot be said to have been passed in the spirit of sub-rule (2) of Rule 54-A of the Financial Handbook. It is only when an order is passed by the competent authority under the aforesaid provision can the authority proceed further to pass an order under sub-rule (5) of Rule 54 of the Financial Hand Book and not otherwise. Further, the order under subrule (2) of Rule 54-A shall have to adhere to sub-rule (7) of Rule 54 of the Financial Handbook. This has escaped the attention of the competent authority while passing the order impugned dated 22.09.2021.

42. Accordingly, the order impugned dated 22.09.2021, a copy of which is Annexure-14 to the writ petition, is quashed and set-aside. The matter is remitted to the competent authority to pass a fresh order after considering the reply of Sri Rai, a copy of which has been filed as Annexure-13 to the writ petition.

43. Let such an order be passed within a period of two months from the date of receipt of a certified copy of this order.