Parmendra Kumar Rai vs State of U.P. and Others

A.P. Sahi, J.—Heard learned Counsel for the petitioner and learned Standing Counsel.

Affidavits have been exchanged between the parties and a supplementary-affidavit has been filed bringing on record the relevant Government Orders. The petitioner has filed this writ petition praying for a mandamus commanding the respondents to release the arrears of salary and to award annual increments, selection grade and super selection grade which have been denied to the petitioner and is other wise admissible under the relevant Government Orders.

The background of the controversy is that the petitioner was involved in a criminal case and the trial whereof was concluded on 23.8.2004 with his acquittal. The copy of the judgment of the trial court has been brought on record. The respondent � State has filed an appeal against the said acquittal which is stated to be pending before this Court.

A counter-affidavit has been filed and paragraph No. 7 of the counter-affidavit recites as under:

That the contents of para 15 of the writ petition are not admitted as stated, hence denied. In reply it is stated that the Government Order No. Be-Aa-2-560/10-45 (M)-99 dated 2nd December 2000 provides that after 8 years continuous satisfactory service after 1.1.1996, the incumbent shall be entitled under periodical salary, shall be entitled to the benefit of selection grade and likewise 14 years continuous satisfactory service and after the confirmation of the post, the incumbent shall be entitled to selection grade and super selection grade. Since the State of U.P. has filed the criminal appeal in the Hon''ble High Court against the Judgment of the Session Judge, Ghazipur dated 23.8.2004 and the said appeal is pending, hence the services of the petitioner can not be regarded as continuous satisfactory service, hence the petitioner is not entitled to the benefits sought by him. A Photostat copy of the Government Order dated 2nd December 2000 is being filed herewith as Annexure-CA-1 to this Affidavit.

The matter was taken up on a previous occasion and the petitioner was directed to file a supplementary-affidavit bringing on record the Government Order dated 30.6.1993 which has been referred to in the Government Order dated 2.12.2000 relied upon by the learned Standing Counsel.

The stand taken by the respondents is clearly to the effect that the petitioner was suspended and again reinstated after 5 years on account of his being involved in the criminal case. The respondents submit that since a criminal appeal has been filed, therefore, the petitioner shall not be entitled to the benefit of the said period of service for being counted as satisfactory service in order to determine his arrears of salary and other emoluments as claimed by him.

Learned Counsel for the petitioner submits that neither the Government Order dated 2.12.2000 nor the Government Order dated 30.6.1993 spells out any such provision which may deny the petitioner the benefits claimed by him. It is submitted that the respondents have failed to pass any order with regard to payment of salary and arrears as indicated by them in the reinstatement order dated 4.1.1999.

Having heard learned Counsel for the parties, the facts that emerge indicate that the petitioner was suspended on 28.9.1994 on account of his involvement in the criminal case. As noted above, the petitioner has already been acquitted in the criminal case on 23.8.2004. The petitioner was, however, reinstated in service much prior to that on 4.1.1999 and the said order recites that so far as the payment of salary of the period of suspension and other emoluments are concerned, separate orders shall be passed after the decision of the criminal court. Learned Counsel, therefore, is right in submitting that once the decision has been taken by the criminal court on 23.8.2004 acquitting the petitioner, the respondents are bound to pass appropriate orders for release of the emolument to which the petitioner was entitled. In the opinion of the Court, the respondents have failed to discharge their obligation and act in accordance with the direction issued vide order dated 4.1.1999.

Apart from this, the stand taken in the counter-affidavit that since a criminal appeal has been filed against the order of acquittal, therefore, the past services of the petitioner cannot be treated to be satisfactory, is not borne out from the perusal of the Government Order dated 2.12.2000 read with Government Order dated 30.6.1993.

Learned Standing Counsel has been unable to point out any provision in both the Government Orders which may indicate that the pendency of the criminal appeal before this Court can be taken as relevant for deciding the claim by the petitioner.

Accordingly, this writ petition is disposed of with a direction to the respondent No. 3 to proceed to pass an order in accordance with law in the light of the observations made herein above within 2 months from the date of production of a certified copy of this order before the said respondent. In the event the petitioner is found entitled for the payments as claimed, the same shall be released forthwith.