# Bhanwar Pal Singh v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-01
- **Case number:** Civil Misc. Writ Petition No. 22457 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhanwar-pal-singh-v-state-of-u-p-and-others-40601
- **Pages:** 3

## Headnote

Constitution of India, Art. 226-Servise
law-deduction
from
gratuity
and
pension-petitioner worked on the basis
of interim order-by impugned order
made
to
compulsory
retired-after
dismissal of writ petition-Appellate Court
direct to calculate the retirement benefit
from
the
date
of
retirementConsequently-the authorities deducted
the excess amount of the salary from the
some payable to the petitioner towards
gratuity and pension-held the period
under which petitioner worked on the
basis of interim order-be treated the
extension of service-petitioner entitled
to retain salary-the deducted amount be
refunded to petitioner within 3 monthsfailing which 12% interest would be
paid.

Held: Para-5 and 6

The direction of the Court, did not allow
the respondents to deduct the salary,
which the petitioner had received on the
basis of an interim order. In my view, the
petitioner was justified to receive the
salary because he had worked and
performed is duty during that period. In
my view, this period, should be treated
as an extension of service and, therefore,
the petitioner would be entitled to retain
his salary. The authority while rejecting
the representation of the petitioner had
also referred the matter to the State
Government for its opinion. The State
Government,
By
an
order
dated
04.04.2005
informed
the
Police
Department, that the salary which the
petitioner had received, pursuant to the
interim order, could not be deducted
from his retirement benefits. In view of
the categorical stand taken by the State
Government, it is no longer open to the
Police Department to deduct any amount
from the retirement benefits for which
the petitioner was entitled.

Consequently,
the
writ
petition
is
allowed in respect of the relief as
modified above and a mandamus is
issued to the respondents not to deduct
any amount from the gratuity or from
the pension, in relation to the salary,
which
the
petitioner
had
received,
pursuant to the interim order passed in
Writ Petition No.13578 of 1990. The
amount so deducted shall be refunded to
the
petitioner
within
three
months
without any payment of interest from
the date of production of a certified copy
of this order, failing which, interest
would be paid at the rate of 12%per
annum. It is made clear, that the other
relief's, which the petitioner has claimed,
in the writ petition, has not been pressed
by the petitioner.
3 All] Bhanwar Pal Singh V. State of U.P. and others
875
Case law discussed:
1995 ALJ 1603-distinguished.

## Text

874 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
longer a bounty and is a right of the
individual under Article 21 and 41 of the
Constitution of India.

17. In view of the aforesaid, the writ
petition is allowed. The impugn3ed orders
dated 19.11.1993 and 1.8.2002 are set
aside and the respondents are directed to
pay disability pension to the petitioner
within three months form the date of
production of a certified copy of this
order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 22457 of 2004

Bhanwar Pal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rashtrapati Khare

Counsel for the Respondents:
Sri V.K.Rai.
S.C.

Constitution of India, Art. 226-Servise
law-deduction
from
gratuity
and
pension-petitioner worked on the basis
of interim order-by impugned order
made
to
compulsory
retired-after
dismissal of writ petition-Appellate Court
direct to calculate the retirement benefit
from
the
date
of
retirementConsequently-the authorities deducted
the excess amount of the salary from the
some payable to the petitioner towards
gratuity and pension-held the period
under which petitioner worked on the
basis of interim order-be treated the
extension of service-petitioner entitled
to retain salary-the deducted amount be
refunded to petitioner within 3 monthsfailing which 12% interest would be
paid.

Held: Para-5 and 6

The direction of the Court, did not allow
the respondents to deduct the salary,
which the petitioner had received on the
basis of an interim order. In my view, the
petitioner was justified to receive the
salary because he had worked and
performed is duty during that period. In
my view, this period, should be treated
as an extension of service and, therefore,
the petitioner would be entitled to retain
his salary. The authority while rejecting
the representation of the petitioner had
also referred the matter to the State
Government for its opinion. The State
Government,
By
an
order
dated
04.04.2005
informed
the
Police
Department, that the salary which the
petitioner had received, pursuant to the
interim order, could not be deducted
from his retirement benefits. In view of
the categorical stand taken by the State
Government, it is no longer open to the
Police Department to deduct any amount
from the retirement benefits for which
the petitioner was entitled.

Consequently,
the
writ
petition
is
allowed in respect of the relief as
modified above and a mandamus is
issued to the respondents not to deduct
any amount from the gratuity or from
the pension, in relation to the salary,
which
the
petitioner
had
received,
pursuant to the interim order passed in
Writ Petition No.13578 of 1990. The
amount so deducted shall be refunded to
the
petitioner
within
three
months
without any payment of interest from
the date of production of a certified copy
of this order, failing which, interest
would be paid at the rate of 12%per
annum. It is made clear, that the other
relief's, which the petitioner has claimed,
in the writ petition, has not been pressed
by the petitioner.
3 All] Bhanwar Pal Singh V. State of U.P. and others
875
Case law discussed:
1995 ALJ 1603-distinguished.

(Delivered by Hon'ble Tarun Agarwal, J.)

1. Heard Sri.R.P.Khare, the learned
counsel for the petitioner and Sri V.K.Rai,
the learned standing counsel appearing for
the respondents.

2. Briefly stated, the facts giving rise
to the present writ petition is that the
petitioner was working as a Sub Inspector
and on account of three adverse entries,
was compulsorily retired from the service
on 14.05.1990. The petitioner filed Civil
Misc. Writ Petition No.13578 of 1990
and, initially an interim order was passed
staying the operation of the order of
retirement.
By
another
order
dated
16.12.1991, this court directed that the
petitioner was entitled to his salary during
the pendency of the writ petition.
Eventually,
the
writ
petition
was
dismissed on merit by a judgment dated
16.02.2001,
even
though,
in
the
meanwhile, the petitioner had retired on
30.11.1997 upon reaching the age of
superannuation
at
58
years.
The
petitioner, upon the dismissal of the writ
petition, filed a Special Appeal No.186 of
2001 which was also dismissed and, the
judgment of the learned Single Judge was
affirmed. The Division Bench, while
dismissing
the
appeal,
passed
the
following order:

"However, it is made clear that the
retiral benefits whatever is admissible
according to law on the basis of
compulsory retirement should be made
available to the appellant/petitioner as
early as possible preferably within three
months from the date of communication
of this order."
3. Based on the aforesaid direction,
the retirement benefits were calculated
and certain deductions were made from
his retirement benefits namely, from his
gratuity and certain amount was also
deducted from his pension. Since the
entire amount towards retirement benefits
was not paid, the petitioner filed a
Contempt Petition No.731 of 2003 in
which an order dated 13.02.2004 was
passed directing the petitioner to make a
representation which would be decided by
the
authority
concerned.
This
representation, was rejected by an order
dated 13.05.2004. Consequently, the
present writ petition was filed not only for
the
quashing
of
the
order
dated
13.05.2004, but for the payment of the
revised pay scale, arrears from 1990 to
1992, etc. The petitioner also prayed that
the action of the respondents in deducting
the amount paid to him towards the salary
pursuant to the intenm order granted by
this court from the gratuity and from the
pension was illegal and was liable to be
quashed. The petitioner further prayed
that a mandamus be issued to the
respondents directing them to refund the
amount alongwith the interest.

4. The learned counsel for the
petitioner has, however, confirned his
relief only with regard to the illegal
deductions made by the respondents and
has given up the other reliefs.

5. Admittedly, the petitioner was
paid his salary pursuant to the interirn
order. There is no controversy with regard
to the fact that the petitioner had
performed his work and attended his duty.
Since the petitioner has performed his
duty, in that situation, the petitioner is
entitled for his salary. The petitioner's
writ petition was dismissed and the order
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
of compulsory retirement was affirmed.
The Division Bench of this Court in
Special Appeal categorically issued a
direction to the respondents to calculate
the retirement benefits, on the basis of the
order of compulsory retirement. The
period, which the petitioner had worked,
on the basis of the interim order, was not
to be calculated for the purpose of
calculating the retirement benefits. The
direction of the Court, did not allow the
respondents to deduct the salary, which
the petitioner had received on the basis of
an interim order. In my view, the
petitioner was justified to receive the
salary because he had worked and
performed is duty during that period. In
my view, this period, should be treated as
an extension of service and, therefore, the
petitioner would be entitled to retain his
salary. The authority while rejecting the
representation of the petitioner had also
referred
the
matter
to
the
State
Government for its opinion. The State
Government,
By
an
order
dated
04.04.2005
informed
the
Police
Department, that the salary which the
petitioner had received, pursuant to the
interim order, could not be deducted from
his retirement benefits. In view of the
categorical stand taken by the State
Government, it is no longer open to the
Police Department to deduct any amount
from the retirement benefits for which the
petitioner was entitled.

6. Consequently, the writ petition is
allowed in respect of the relief as
modified above and a mandamus is issued
to the respondents not to deduct any
amount from the gratuity or from the
pension, in relation to the salary, which
the petitioner had received, pursuant to
the interim order passed in Writ Petition
No.13578 of 1990. The amount so
deducted shall be refunded to the
petitioner within three months without
any payment of interest from the date of
production of a certified copy of this
order, failing which, interest would be
paid at the rate of 12 % per annum. It is
made clear, that the other reliefs, which
the petitioner has claimed, in the writ
petition, has not been pressed by the
petitioner.

7. In view of the aforesaid stand
taken by the State Government, the
judgment cited by the standing counsel in
the case of State of U.P. vs. Harendra
Kumar, 1995 ALJ 1603 has no relevance
to the present facts and circumstances of
the case. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.6671 of 2005

Fakhruddin Ali

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Devesh Pandey
Sri Syed wajid Ali

Counsel for the Respondents:
S.C.

Constitution
of
India
Art.
226appointment-petitioner finally selected
on the Post of Police Constable-required
to file affidavit about his character and
antecedent-petitioner
in
affidavit
disclosed the pendancy of Criminal casematter sent for verification of character
to
the
District
Magistrate-who
also
reported about non involvement of any