Vijay Kumar Yadav vs State of U.P.

Rajes Kumar, J.—Heard Sri H.P. Mishra, learned Counsel for the petitioner and Sri Vishwajeet Sahai, learned Standing Counsel.

The brief facts giving rise to the present petition are that; the petitioner was appointed through selection process on the post of Gram Panchayat Adhikari. After completing the probation period, the petitioner continued on the said post ft appears that on the basis of certain adverse entries, the petitioner''s services was terminated on 2.7.1991. The petitioner challenged the aforesaid termination order in Writ Petition No. 21775 of 1991. On 23.8.1991, this Court entertained the writ petition and stayed the operation of the impugned order dated 2.7.1991. The petitioner claimed that after the impugned order, he had been allowed to join on 24.8.1991. The said writ petition has been finally allowed vide order dated 9.11.1998 and the termination order dated 2.7.1991 has been quashed.

On the plea that final order in the writ petition came to knowledge of the petitioner only in the year 2002, therefore petitioner filed copy of the order passed in the aforesaid writ petition vide registered post on 8.3.2002. The petitioner claimed the reinstatement of his services and salary for the past period and other consequential benefits, It appears that on the basis of the order passed by this Court, the petitioner has been reinstated on 16.7.2003. The petitioner''s claim for the salary for the past period has been rejected by the District Raj Panchayat Adhikari vide order dated 16.7.2003.

Being aggrieved by the order, the petitioner filed the appeal before the Regional Deputy Director (Panchayat), Gorakhpur Region, Gorakhpur. The claim of the petitioner for the past period during which he was absent was denied It has been held that there was no reason for filing the copy of the order after three years by registered post on 8.3.2002.

Learned counsel for the petitioner submitted that the petitioner has been treated as a fresh appointee on 16.7.2003 in the pay-scale of Rs. 3050-75-3950-80-4590 which is patently illegal. He submitted that once the termination order has been set aside, his services deemed to have been restored from the date of the termination.

He further submitted that if an employee is reinstated, his services should not be treated as a fresh appointment He further submitted that after the interim order, he had been allowed to join on 24.8.1991 but he had not been allotted any work, therefore, he is entitled for the salary for the entire period even for those period during which he had not worked. He further submitted that in any view of the matter when the order of this Court was served upon the authority concerned vide registered post on 8.3.2002, he should have been immediately reinstated and the salary should be given from 8.3.2002.

Learned Standing Counsel submitted that the petitioner has never worked after 24.8.1991. He further submitted that it is wholly unbelievable that the order passed by this Court on 9.11.1998 came in the knowledge of the petitioner in the year 2002. He submitted that the petitioner has deliberately withheld the final order of this Court. He further submitted that the petitioner has never attended the office and has not put his signature on the attendance register. Therefore, the petitioner is not entitled for the salary for the past period. He further submitted that it is wrong to say that the petitioner has been treated as a fresh appointee w.e.f. 16.7.2003. He has been reinstated not being fresh appointed.

Having heard learned Counsel for the parties, I have considered the rival submissions and perused the impugned order.

Once the termination order is set aside, the petitioner is deemed to be in continuous service. After the final order passed by this Court in the year 1998, the petitioner should be considered as reinstated and he cannot be considered as a fresh appointee. Therefore, the petitioner is entitled for all the benefits of the service which is available to the petitioner as an employee appointed from the very beginning.

Reliance is placed on the decision of the Apex Court in the case of The Director General, I.C.M.R. v. D.K. Jain and Anr. reported in AIR 2007 SC 2408.

So far as the salary for the period during which the petitioner has not worked, I am of the view that the petitioner has not acted bonafidely and the conduct of the petitioner was such that he is not entitled for the salary during which he has not worked. There is no evidence on record to show that after the interim order being passed by this Court, the petitioner has visited the office and put his signature on the attendance register. This shows that the petitioner has deliberately not attended the office. Moreover, It is also not believable that the petitioner came to know about the final order passed by this Court on 9.11.1998 after three years. In this view of the matter, the petitioner is entitled for the salary only for the period during which he has put his attendance in the attendance register and not for those period during which he did not attend the office.

In the case of M.L. Binjolkar Vs. State of Madhya Pradesh, it has been held by the Apex Court that the full back wages are no longer a natural corollary of an order of reinstatement rather, grant and quantum of back wages would depend upon several factors and Court has to weigh pros and cons of each case and take a pragmatic view. In the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , the Apex Court held that there is no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and

circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically. This view has been subsequently followed by the Apex Court in the case of State of M.P. and Others Vs. Arjunlal Rajak,

With the aforesaid observation, the writ petition stands disposed of.