# Dr. Indra Pratap Singh v. B.H.U., Varanasi & Ors

- **Citation:** (2025) 4 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-18
- **Case number:** Writ A No. 18309 of 2006
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-indra-pratap-singh-v-b-h-u-varanasi-ors-53108
- **Pages:** 20

## Headnote

4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
233
Sri A.K. Nigam A.S.G.I., Sri H.P. Singh, Sri
K.S. Chauhan, Sri Kuldeep Singh Chauhan,
Sri Ritvik Upadhya, S.C., Sri V.K. Upadhyay
(Sr. Advocate)

Service Law-Constitution of India, 1950-
Article 226 - The Central Civil Service
Pension Rules, 1972-Rule 26,27 & 28 -
The
Central
Universities
Retirement
Benefit Rules, 1967- Note 2 of Rule 2.9---
Writ petition with prayer to re-fix pension of
petitioner by including his 11 years of prior
service--- In the present case interruption in
service when petitioner joined at Nagpur
University cannot be considered an interruption
caused by reason beyond the control of
petitioner
as
he
has
participated
in
selection process on his own will. It is
undisputed
that
Executive
Council
of
University has not condoned the break.
Therefore, the case of petitioner would also
not fall within the other circumstances of
interruption mentioned in said Note 2 of
Rule 2.9 of Central Universities Retirement
Benefit Rules, 1967---Petitioner after his
three years tenure was over at Banaras
Hindu University, has participated in a fresh
selection process conducted by Nagpur
University
where
he
was
selected,
therefore, it would not be a case of
transfer---
Subsequently
on
a
fresh
appointment
he
had
joined
Banaras
Hindu University, therefore, it would
also
not
a
case
of
transfer---No
negative parity and benefit, if any
granted to other employees contrary to
law, would not entitle petitioner to get
same benefit.

Writ petition dismissed. (Para 37,
41 & 46) (E-15)

List of Cases referred-:

1.Writ Petition No. 3396 of 1985 ,
judgment dated 22.12.1987

## Text

_Characters 0–39,968 of 66,227. This is a partial read: ask again with offset=39968 for what follows._

232 INDIAN LAW REPORTS ALLAHABAD SERIES
Financial Aid
50,000

Total (A)
18,40,163
Total(B)
2,31,500
Net Terminal Dues Received From Bank (A-B) =
16,08,663

(c) Family pension: Rs. 15,087/-

(d) Amount received/likely to be
received from other sources/investments:
nil

(e) At the time of his death Late
Shri Prabhu Dayal, the monthly gross
salary received by the employee was Rs.
42808.92/-

Sl
No.
Details
Amounts in Rs
1
Total Amount of Terminal
dues
18,40,163
2
Total
Amount
of
Bank
Loans
2,31,500
3.
Net Amount of Terminal
Dues (1-2)
16,08,663
4.
Total
Amount
of
other
investments
4,33,000
5.
Loans
against
other
investments, if any
NIL
6.
Net
amount
of
other
investments
4,33,000
7.
Monthly interest on Net
Terminal dues (as at S. No.
3) @ 6.30% (Maximum GD
Intt. Of Bank applicable for
staff as on date of death of
employee)
8,445.48
8.
Monthly income from other
investments (as at S.No. 6)
@ 6.30%
2,273.25
9.
Amount of monthly Family
Pension
15,087.00
10.
Any other income (Monthly
income of Pratipal, Son)
5,000
11.
Total Monthly income (7 to
10)
30,805.73
12.
Notional Gross Monthly
Salary of Deceased for the
month of Aug 2020
42,808.92
13.
Amount of notional Income
Tax deducted
NIL
14.
Salary (Net of notional tax)
42,808.92
15.
Eligible Amount (60% of
14)
25,685.35
16.
Whether
eligible
for
compassionate appointment
?

No
22. The aforesaid chart as disclosed
in the counter affidavit has not been
disputed by the petitioner.

23. The impugned order clearly
discloses the income of the family of the
deceased
from
various
sources
as
contemplated
in
Clause
8
of
the
compassionate ground scheme cited earlier.
The income of the family of the deceased
so calculated is more than 60% of the last
salary drawn by the deceased. The income
of the family so determined establishes that
the
family
does
not
face
financial
destitution as a result of the death of the
employee.
The
respondents
in
the
impugned order have been thus correctly
found that the petitioner does not fulfil the
criteria for grant of compassionate ground
appointment as per the provisions of the
compassionate ground appointment scheme
applicable to the bank.

26. In wake of the preceding
discussion, there is no infirmity in the
impugned order. The writ petition is liable
to be dismissed and is dismissed.
----------
(2025) 4 ILRA 232
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2025
BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 18309 of 2006

Dr. Indra Pratap Singh ...Petitioner
Versus
B.H.U., Varanasi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vivek Kumar Singh, Sri Raunak Tiwari,
Sri B.P. Singh (Sr. Advocate)

Counsel
for
the
Respondents:
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
233
Sri A.K. Nigam A.S.G.I., Sri H.P. Singh, Sri
K.S. Chauhan, Sri Kuldeep Singh Chauhan,
Sri Ritvik Upadhya, S.C., Sri V.K. Upadhyay
(Sr. Advocate)

Service Law-Constitution of India, 1950-
Article 226 - The Central Civil Service
Pension Rules, 1972-Rule 26,27 & 28 -
The
Central
Universities
Retirement
Benefit Rules, 1967- Note 2 of Rule 2.9---
Writ petition with prayer to re-fix pension of
petitioner by including his 11 years of prior
service--- In the present case interruption in
service when petitioner joined at Nagpur
University cannot be considered an interruption
caused by reason beyond the control of
petitioner
as
he
has
participated
in
selection process on his own will. It is
undisputed
that
Executive
Council
of
University has not condoned the break.
Therefore, the case of petitioner would also
not fall within the other circumstances of
interruption mentioned in said Note 2 of
Rule 2.9 of Central Universities Retirement
Benefit Rules, 1967---Petitioner after his
three years tenure was over at Banaras
Hindu University, has participated in a fresh
selection process conducted by Nagpur
University
where
he
was
selected,
therefore, it would not be a case of
transfer---
Subsequently
on
a
fresh
appointment
he
had
joined
Banaras
Hindu University, therefore, it would
also
not
a
case
of
transfer---No
negative parity and benefit, if any
granted to other employees contrary to
law, would not entitle petitioner to get
same benefit.

Writ petition dismissed. (Para 37,
41 & 46) (E-15)

List of Cases referred-:

1.Writ Petition No. 3396 of 1985 ,
judgment dated 22.12.1987

2. Civil Appeal No. 1626 of 1989 1992
Suppl(2) SCC 2

3.
Director
General,
CSIR
Vs
K.
Narayanaswami (Dr), (1995) 3 SCC 124
4. Dr. Rajesh Kumar Sharma Vs U.O.I.&
ors.(Writ-A No. 2315 of 2019), decided on
14.02.2019

5. St. of Raj. & ors.Vs O.P. Gupta (2022)18 SCC
382

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. The petitioner was appointed by
Executive Council of Banaras Hindu
University
as
'Demonstrator'
in
the
Department of Basic Principles, Institute of
Medical
Sciences,
Banaras
Hindu
University, Varanasi by an order dated
19.11.1968 for a time period of 3 years,
which got over on 18.11.1971.

2.
Petitioner
thereafter
was
appointed as a temporary Lecturer on
26.08.1974 in the Department of Basic
Principles, Institute of Medical Sciences,
Banaras Hindu University and his service
was extended upto 31.03.1980 by an order
dated 06/07.08.1980. It appears that no
further extension was granted to petitioner,
however, he had worked till 18.07.1980 but
paid salary only upto 31.03.1980.

3. Thereafter petitioner participated
in a selection process conducted by another
University i.e. Nagpur University (without
proper channel) and he was duly selected
by its selection committee for the post of
Reader in Sanskrit Sanhit Siddhenta (Basic
Principles)
at
Sri
Ayurvedic
Mahavidyalaya,
Nagpur
an
affiliated
College and he joined on 21.07.1980 and
served till 20.09.1982.

4. Thereafter petitioner appeared
before a Selection Committee of Banaras
Hindu University and was selected on the
post of 'Lecturer' at Department of Basic
Principles, Institute of Medical Sciences,
234 INDIAN LAW REPORTS ALLAHABAD SERIES
Banaras Hindu University, against the
substantive post on 22.09.1982.

5. While working as 'Lecturer'
petitioner was granted financial benefit
such as by giving fourteen increments, his
last drawn salary was protected.

6. A dispute arose when, petitioner
claim consideration for promotion on the
post of Reader under 'Merit Promotion
Scheme' and since it was denied that he
had not completed 8 years of continuous
service since his appointment as 'Lecturer'
in Banaras Hindu University was on
22.09.1982, therefore, he has filed a Writ
Petition No. 3396 of 1985.

7. A Single Bench of this Court
considered the sole issue for determination
in said writ petition that whether the
petitioner has completed 8 years of
continuous service in the cadre as required
under the scheme and in this regard Clause
(a) of Para 2 of "Merit Promotion Scheme"
was considered and for reference said part
of the scheme is mentioned hereinafter.

 "2(a). Teacher in the University
departments engaged in advance teaching
and research and whose contribution and
achievements
are
such
as to
merit
recognition must be considered for merit
promotion in the first instance after
completing eight years of continuous
service in their respective cadre of which
atleast four years should be in the
institution where he/she is being considered
for such assessment and merit promotion."

8. A Co-ordinate Bench allowed
Writ Petition No. 3396 of 1985 by a
judgment dated 22.12.1987 and directed
that petitioner be considered for promotion
under "Merit Promotion Scheme" on the
post of Reader. Relevant part of the
judgement is reproduced hereinafter:-

 "9. The petitioner who had
worked in the University from 26-8-1974
till 31-3-1980 and has again joined on the
same post on 22-9-1982 cannot be legally
deprived of his chances of promotion to the
post of Reader' for the only reason at he
was fortunate to have worked on the post of
Reader during the period from 21-7-1980
to 20-9-1982 in Shri Ayurved College. He
cannot be punished for having worked on
the post to which he wants to be promoted
long before he could have otherwise
become eligible for promotion had he not
left the University it will be really
unfortunate to think of the situation in
which a person is deprived of his chances
or the promotion to the post on which he
had already worked for some time in the
past for that very reason.

10. The petitioner had appeared
before the Selection Committee under the
interim order of this Court. However,
recommendation
of
the
Selection
Committee has not so for been considered
by the Executive Council for want of
suitable directions by this Court. In view of
our conclusion that the petitioner was
eligible for being considered for promotion
on the relevant date the recommendation of
the Selection Committee had to be placed
for consideration before the Executive
Council. In case the petitioner has been
selected for promotion by the Selection
Committee and its recommendation is
approved by the Executive Council he will
be entitled for promotion to the post of
Reader with effect from the same date from
which other teachers of the University
interviewed for first round of promotion
were appointed.

11. In the result, the writ petition
succeeds and is allowed. The orders of the
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
235
University rejecting applications of the
petitioner for condoning break in service
and for being considered for merit
promotion are quashed. The University is
directed to place the recommendation of
the
Selection
Committee
before
the
Executive Council in its next meeting. It is
further directed to appoint the petitioner on
the post of Reader in the Department of
Basic Principles in the institute of Medical
Sciences of the University, if he has been
selected for promotion by the Selection
Committee and its recommendation is
approved by the Executive Council with
effect from the same date from which other
teachers of the University interviewed for
first round of promotion were appointed.
We direct the parties to bear their own
costs."

9. The aforesaid judgement was
challenged by Banaras Hindu University
before Supreme Court by way of filing
Civil Appeal No. 1626 of 1989, which was
dismissed
vide
judgement
dated
24.01.1992, reported in 1992 Suppl(2)
SCC 2 and relevant part thereof is
mentioned hereinafter:-

"9. We agree with the learned
counsel for the respondent that the
expression "eight years of continuous
service" para 2 (a) of the scheme should be
understood in a reasonable manner having
regard to the underlying aim and object.
Para 2 (a) itself expressly recognizes that
the eight years' service may be in more
than one institution, the only requirement
being a minimum of four years service in
the institution where he is being considered
for promotion under the scheme. In case of
shift from one university to other or from
one institution to the other it can
reasonably be presumed that there is bound
to be some interval. The interval may be of
a day, a week or a month. What is relevant
is not the length of the interval or break, as
it may be called, but its nature. We do not
mean to say that length of such interval is
totally irrelevant, what we mean however,
is that one must take into consideration the
reason
for
which
break
of
the
circumstances in which such break has
occurred Another factor to be taken into
consideration
in
understanding
and
construing the said expression is the object
underlying the said requirement. According
to us, the object is to ensure eight years'
teaching experience. It is true that there is
a break of three months 20 days in the
respondent's
service
and
teaching
experience. We also take note of the fact
that it was not the vacation time for
academic
institutions.
But
this
circumstance must be weighed against a
counter-veiling circumstance in favour of
the respondent viz., his re-appointment on
a permanent basis in the very same
department in the University in the year
1982. As stated above, he served as a
temporary lecturer from 26.8.1974 till
31.3.1980. From 1.4.1980 to 20.7.1980 he
remained without a job. On 21.7.1980 he
was appointed as a Reader in the Nagpur
University in the very same subject where
he served till 20.9.1982. On 22.9.1982 he
was appointed as a permanent lecturer in
this very University and in the same
category and subject. On this occasion, he
was granted a good number of increments.
The University says that these increments
were granted with a view to protect his late
pay drawn by him in the Nagpur University
while the respondent says that it was
granted not only for the said purpose but
also in the light of his past service in this
University. It is true that he was not given
seniority since 26.8.1974. Even as the
question is whether the gap of three months
20 days is such a long gap as not to merit
236 INDIAN LAW REPORTS ALLAHABAD SERIES
condonation or for that matter to be termed
as a break in service for purposes of para 2
(a) of the scheme."

"16. The respondent has brought
to our notice several instances where the
University has condoned breaks of two
however, think it necessary to examine
these cases except two One Dr. L.K.
Pandey was a teacher in the Department of
Ob. and Gyn in the institute of Medical
Sciences of this University. He was
appointed temporarily on 26.5.1973 and
resigned on 5.2.1975. He was said to be out
of job between 5.2.1975 and 27.04.1975
(for a period of two months 22 days). He
was reappointed as a lecturer in this
University
on
temporary
basis
on
28.4.1975. and on a permanent basis on
16.10.1979. The respondent's case is that
the University has condoned the said gap of
two months 22 days in his case and if so
there is no reason why the gap of three
months 20 days in the case of respondent
should not be condoned. The University
has, however, explained in its counter
affidavit that no such condonation was
made in his case and that his service was
counted only from 28.4.1975. But if his
service is counted from 28.4. 1975 only, it
is significant to notice, he does not
complete eight years service by 15.1.1983
which was the last day of applying vide
University
proceeding
dated
11/21
December, 1982. The other case is for Dr.
A.M. Tripathi who was a teacher in the
department of paediatrics in the Institute of
Medical Sciences of this University He was
appointed
temporarily
on
11.5.1974.
According to the respondent, he resigned
on 12.8.1975 and was out of job till
24.8.1975 when he went to Kabul.
According to him he served at Kabul in a
non-teaching capacity from 25.8.1975 to
8.4.1976 and he was reappointed as a
lecturer in this University on temporary
basis on 9.4.1976 and made permanent on
9.2.1979 The respondent says that the
entire gap between 12.8.1975 to 8.4 1976
was condoned by the University for
considering his case under the scheme. The
appellant's case, however, is different.
According to the appellant-University, he
was sent to Kabul on deputation and that
the break in his service occurring prior to
his going to Kabul has never been
condoned. We find that in the rejoinder
affidavit of the University filed in this
court, there is a certain mix-up of the
relevant dates in the case of these two
teachers. Be that as it may, its case appears
to be that services of these two teachers
were counted only from the date of their re
employment. Then the following significant
statement occurs in the rejoinder-affidavit
filed
in
this
court:
It is true that by 15.1.1983 he had not
completed 8 years of continuous service in
the same cadre. However, in the meanwhile
the vice chancellor as also the Executive
Council decided that eligibility period of
candidature for appointment to teaching
posts under Merit Promotion Scheme be
counted as on the date of interview, as per
existing practice for regular appointments
in view of the fact that the Executive
Council treats posts in both categories on a
part with each other. Accordingly since Dr.
Tripathi
had
completed
8
years
of
continuous service in the same cadre by the
date of interview on 23.6.1983. he was
eligible and was selected by the statutory
Selection Committee. Applying the very
same principle which was approved by the
Executive
Council,
Dr.
L.K.
Pandey
became eligible and was selected"

17. In our opinion, the above
statement in the rejoinder affidavit filed by
the University is very revealing. It shows
that even though the said two teachers had
not completed eight years service by the
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
237
prescribed date i.e. 15.1.1983. the Vice
Chancellor and the Executive Council
decided to extend the eligibility period till
the date of interview so as to make them
eligible for consideration We are not
suggesting
any
malafides
or
any
unreasonable conduct to the University. All
that we are saying is that the University
has been passing appropriate orders
wherever the justice of a case demands. In
our opinion, the same treatment ought to
have been extended to the respondent, in
all the circumstances of the case.

For the above reasons, the appeal
fails, and is accordingly dismissed."

10. In pursuance of above
judgements, the petitioner was granted
promotion by University under "Merit
Promotion Scheme" with retrospective
effect i.e. from 1983.

11. The petitioner reached to
the
age
of
superannuation
on
31.08.2004 and was granted session
benefit as Reader upto 30.06.2004.

12. After retirement pension
was fixed, however, University had
excluded the period when petitioner
had worked as "Demonstrator and
Lecturer"
in
University
between
19.11.1968 to 31.03.1980 (about 9
years) and also the period when he
had worked as 'Reader' in other
University
from
21.07.1980
to
20.09.1982 (about 2 years) as such 11
years of service was not included for
calculating his pensionary benefits.

13.
The
representation
to
include said period of 11 years for
calculating pension remain undecided,
therefore, present writ petition was filed in
the year 2016 seeking following reliefs:-
 "(i) issue a writ, order or
direction in the nature of MANDAMUS
directing the respondent nos. 1 and 2 the
Banaras Hindu University to refix the
pension of the petitioner after including the
service-rendered by him in the University
for about 9 years ie. during the period
between 19:11 1968 and 31.3.1980 and the
period (about two years) he worked in Shri
Ayurved College, Nagpur, an affiliated
college of Nagpur University i.e. from
21.7.1980 to 20.9.1982.

(ii) issue a writ, order, or
direction in the nature of mandamus
commanding the respondent University to
pay the arrear of pension along with
interest from 31.8.2003 after refixation of
the pension of the petitioner taking into
account of past services rendered by the
petitioner from 19.11.1968 and further
direct the respondent University to permit
the petitioner to sell 40 % of the pension
after refixation from 3.8.2003.

(iii) issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and
proper

(iv) award cost of the petition to
the petitioner"

14. Shri B.P. Singh, learned Senior
Advocate assisted by Shri Raunak Tiwari,
learned counsel for petitioner has mainly
rest his arguments on the reasons and
findings given in a judgement passed in
earlier round of litigation (1992 Suppl(2)
SCC 2) so far as interpretation of
"continuous service" and consideration of
the petitioner's earlier service in Nagpur
University and Banaras Hindu University
for 8 years as regular, for consideration for
promotion
under
"Merit
Promotion
Scheme". Learned Senior Advocate has
strenuously
argued
that
on
same
238 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation his entire earlier service of 11
years be calculated for fixation of pension
and other retiral benefits.

15. Learned Senior Advocate also
refer conduct of Respondent-University
that petitioner was single out, whereas
similar benefit was granted to other
employees.
Learned
Senior
Advocate
referred example cited in the above referred
judgement passed by the Supreme Court
(1992 Suppl(2) SCC 2).

16.
Learned
Senior
Advocate
submitted that in the present case Central
Civil Service Pension Rules, 1972 will not
be
applicable
and
instead
Central
Universities Retirement Benefit Rules,
1967 will be applicable and he also
referred certain provisions of it. Learned
Senior
Advocate
has
also
referred
instances of discrimination mentioned in
a
supplementary
affidavit
filed
by
petitioner
as
well
as
rejoinder
to
supplementary counter affidavit. Paras 8,
9 and 10 of writ petition as well as
relevant paras 3 and 4 of supplementary
affidavit and para 6 of rejoinder to
supplementary
counter
affidavit,
are
reproduced hereinafter:

Paras 8, 9 and 10 of Writ Petition

"8. That since the aforesaid
period of service was on probation and the
petitioner
was
not
confirmed,
hence
according to page 87 (2.3) of B.H.U.
Calender, the lien on the post of temporary
Lecturer in B.H.U. would continue. The
said para 2.3 of page 87 provides as
follows:-

"During his probation on higher
grade he shall hold a lien on his post in the
lower grade. Appointment in the higher
grade on probation or after confirmation
shall not affect his privileges as regards
leave nor it will affect the continuity of his
service."

9. That it is further stated that
there is an administrative order dated
29.05.1981 of the Rector of the Banaras
Hindu University who was exercising the
powers of the Vice Chancellor to the
following effect:-

"That the period of break be
condoned in those cases where they have
been substantively appointed on permanent
basis on the recommendation of the
statutory selection committee, by treating
the period of break as leave on loss of pay.
Break in service of University teachers of
I.M.S. have been condoned on the above
basis"

The said order was approved by
the Executive Council of the University.
For the sake of convenience true copy of
the order dated of the Rector dated
29.05.1981 is enclosed herewith and
marked as Annexure - V to this writ
petition.

10. That the petitioner was again
selected
by
the
Statutory
Selection
Committee
of
the
Banaras
Hindu
University and on its recommendation, as
approved by the Executive Council, he was
appointed as Lecturer in the Banaras
Hindu University, Varanasi on 22.09.1982
in permanent basis. Since then he has been
working as such in the Department of
Principles of Institute of Medical Sciences
of the University."
Paras 3 and 4 of Supplementary
Affidavit

"3-
That
the
petitioner's
experience as a Demonstrator has not been
counted while calculating his pension.
However,
in
the
similar
facts
and
circumstances of the case, the University
has counted the service of Dr.L.D.
Dwivedi, who retired as Reader from the
University. Dr. L.D. Dwivedi had worked
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
239
as a Demonstrator in the Department of
Basic Principles w.e.f. 19.11.1968 to
7.10.1971. This period was counted for the
pensionary benefits. Photostat copy of the
order dated 09.05.1998, which has been
issued by the Assistant Registrar under the
RTI Act to one Mr. Asheesh Kumar Mishra
is being annexed herewith and is marked to
this Affidavit as Annexure -SA-1.

4- That one Dr. A.M. Tripathi,
who was a Professor in the Department of
Paediatrics,
had
resigned
from
the
University and he got the employment in
Afganistan. He was re-appointed in the
University and for pensionary benefits, his
entire service prior to the resignation has
also been taken into consideration and the
break in his service was condoned.
Photostat copy of the resignation of Dr.
A.M. Tripathi dated 09.08.1975 and the
letter/information
dated
31.05.2008
furnished by the University under the RTI
Act are being annexed herewith and are
marked to this Affidavit as Annexure SA 2
and 3."

Para
6
of
Supplementary
Rejoinder Affidavit

"6.
That
the
contents
of
paragraph No. 8 of the supplementary
counter affidavit are again misleading. Dr.
A.M. Tripathi has been promoted from
Lecturer to Reader with effect from january
1983. For this promotion, as per the UGC
guidelines, he was required to complete 8
years continuous service on 15.01.1983. He
resigned from Banaras Hindu University
for serving outside the B.H.U i.e. at
Afganistan. He again joined as temporary
lecturer in Banaras Hindu University. This
proves that the breaks-in-service caused
through resignation and service outside the
Banaras Hindu University at Afganistan
have been condoned without asking for
capitalized value for the rendered outside
B.H.U This has been done applying the
order of the Rector dated 29.05.1981 i.e.
much before the introduction of merit
promotion scheme. The breaks have been
condoned only for the pensionary benefits.

Similarly, in number of cases the
respondent university has condoned the
break-in-service of different nature and
duration applying the Rector's order dated
29.05.1981 but only for the petitioner's
case, they are relying Government of India
Rules. This contention of the petitioner is
evident from the stand of the university in
writ petition No. 3396 of 1985. For the
sake of convenience paras 7 & 9 of the
counter affidavit of respondent University
in writ petition No. 3396 of 1985 are
quoted hereunder:-

"7. That in reply to the contents
of paragraph 6 of the supplementary
affidavit, it is stated that Dr A.M. Tripathi
joined as Lecturer on 11.5.1974 on
temporary basis in the Department of
Paediatric,
I.M.S.
He
resigned
w.e.f
24.8.1975 to take up an assignment under
the
government
of
Afganisthan
on
deputation from Government of India. He
worked there from 25.8.1975 to 8.4.1976 as
a lecturer in the grade of Rs.700-1600. Dr.
A.M.
Tripathi
joined
again
in
the
Department of Paediatrics with effect from
9.4.1976 and continued as a temporary
lecturer in the University since then.

(i) As Dr. A.M. Tripathi was
continuing in the cadre of lecturer in the
grade of Rs.700-1600 right from 11.5.1974
when he joined as temporary lecturer in
Banaras Hindu University and was also in
the same cadre while on deputation and he
continued after his joining on 9.4.1976 as
temporary lecturer in the University and
his application for condonation of break in
service of the University on account of
temporary tenure was duly considered and
condoned. The period of breaks considered
by the University and condoned comprised
240 INDIAN LAW REPORTS ALLAHABAD SERIES
of seven days break in between two
temporary
appointments,
which
is
reproduced below"-

1 From 9.3.1977 to 15.3.1977

2 From 16.2.1978 to 22.2.1978

3. From 23.1.1979 to 29.01.1979

ii) It would thus appear that Dr
Tripathi continues in service of the
respondent University in the lecturers'
grade since 11.5.1974.

(iii) The break in his service was
condoned vide order dated 29.5.1981 by
the then Rector discharging the duties and
functions of the Vice Chancellor and was
much before the introduction of the Merit
Promotion Scheme in November 1982. The
candidature of Dr Tripathi for promotion
under the Merit Promotion Scheme was
considered on the basis of 8 years
continuous service in the cadre of Lecturer
in the past. Dr. Tripathi was appointed on
regular basis on probation under Executive
Council Resolution dated 14.2.79 and
joined on 9.2.1979. Thus, in the case of Dr
A.M. Tripathi he continuously worked in
the cadre of Lecturer carrying out a scale
of Rs.700-00 all though since 11.5.1974.
Dr. A.M. Tripathi consequently fulfilled the
requisite eligibility criteria as provided
under
the
guidelines
of
the
Merit
Promotion
Scheme
and
was
rightly
considered by the respondent University for
promotion on the post of Reader under the
Scheme.

The power to condone the delay
vested the Vice Chancellor and as such it
was for the petitioner to have approached
the University for the same."

17. Learned Senior Advocate has
placed reliance on the judgments passed by
Supreme Court in Indian Ex-Services
League and others vs. Union of India,
(1991)2 SCC 104; Prem Singh vs. State
of Uttar Pradesh and others, (2019)10
SCC 516; and, State of Rajasthan and
others vs. O.P. Gupta, (2022)18 SCC 382
as well as this Court's judgment in Dr.
Indra Pratap Singh vs. B.H.U. Varanasi
through
Registrar
and
others,
2023:AHC:175175.

18. Per Contra, Sri V.K. Upadhyay,
learned Senior Advocate assisted by Sri
Ritvik Upadhyay, learned counsel for
Respondent-University
has
referred
following paragraphs of counter affidavit:

"11-That
the
contents
of
paragraph no 9 of the writ petition are
denied as incorrect In reply it is submitted
that in the year of 1984 petitioner applied
for continuity of service by condoning all
the break in various spell of service as
mentioned in the preceding paragraphs for
the period of 1974 1982 and same was
rejected by the University in view of the
relevant Rules of the Government of India.
The Relevant Rules of Government of India
regarding condonation of interruption of
service are quoted below :-

(a) In absence of contrary a
specific indication to the in the service
book, an interruption between two spells of
Civil service rendered and paid out of
Defense service Estimates or Railway
Estimates shall be treated as automatically
condoned and the pre interruption service
treated as qualifying service.

(b) Nothing in clause (a) shall
apply interruption caused by resignation,
dismissal to or removal from service or for
participation in a strike.

(c) The period of interruption
referred to in clause (a) shall not count as
qualifying service.

It is further submitted that as per
Government of India Rules mentioned
above petitioner worked on the post of
temporary Reader at Ayurveda College
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
241
Nagpur during break of service i.e.
21.07.1980 to 20.09.1982 and case of the
petitioner is not covered under the order
passed by Rector dated 29.05.1981 of the
University (already filed as Annexure no. -
V to the writ petition) and rightly period of
break of service was not condoned by the
University."

"15- That in reply to the contents
of paragraph no. 13, 14 & 15 of the writ
petition it is submitted that writ petition no.
3396 of 1985 was filed by the petitioner by
promotion on the post of Reader under the
merit promotion scheme. As per judgment
of this Hon'ble Court and Supreme Court
of India period of temporary service
rendered by the petitioner were counted for
proposes
of
promotion
under
merit
promotion scheme and not for the purposes
of pensionery benefit."

"18- That in reply to the contents
of paragraph no. 18 & 19 of the writ
petition it is submitted that the vide letters
dated 3/4.09.2004, 25.01.2005 (already
filed as Annexure no. -X and XI to the
writ petition) petitioner request for
condonation of break in service and
counting
the
period
21.07.1980-
20.09.1982 for pensionery benefit was
rightly turned down by the University in
view of the fact petitioner worked on
the post of demonstrator was a tenure
post for three years which may not be
counted for pensionery benefit as per
Rules in this behalf.

It is pertinent to mention here
that so far question of condonation of
break in service is concerned it is
submitted that as per Resolution of
Executive Council ECR no 17 dated
20/21.03.1999 which read as under:

"Resolved that the case of pay
fixation and break in service etc. be
disposed of as per Government of India
Rules"

It is further stated that period of
break in service was not condoned by the
University as per Government Rules. Only
one break (i.e. last break) in service can be
considered for condonation. In view of the
fact that during last break in service of the
University
i.e.
from
01.04.1980
to,
21.09.1982 petitioner worked as Reader at
Sri Ayurvedic College Nagpur."

"20. That in reply to the contents
of paragraph no. 21 of the writ petition it is
submitted that in term of the Order passed
by this Hon'ble Court as well as Hon'ble
Supreme Court the temporary services
rendered by the petitioner were counted
only for the purposes of promotion on the
post of Reader under the Merit Promotion
Scheme and not for the pensionery benefit.
It is pertinent to mention here that
petitioner applied in the University on the
post of Lecturer not through proper
channel without seeking prior permission
from
Sri
Ayurvedic
Mahavidyalaya,
Nagpur were he lastly worked."

19.
Learned
Senior
Advocate
referred Rules 13, 26, 27 and 28 of the
Central Civil Service Pension Rules, 1972,
which are reproduced hereinafter:-

"13.
Commencement
of
qualifying
service.-
Subject
to
the
provisions of these rules, qualifying service
of a Government servant shall commence
from the date he takes charge of the post to
which
he
is
first
appointed
either
substantively or in an officiating or
temporary capacity:
 Provided
that
officiating
or
temporary service is followed without
interruption by substantive appointment in
the same or another service or post:

Provided further that-

(a) in the case of a Government
servant in a Group 'D' service or post who
242 INDIAN LAW REPORTS ALLAHABAD SERIES
held a lien or a suspended lien on a
permanent pensiona-ble post prior to the
17th April, 1950, service rendered before
attaining the age of sixteen years shall not
count for any purpose, and

(b) in the case of a Government
servant not covered by Clause (a), service
rendered before
attaining the age of eighteen years shall not
count, except for compensation gratuity."

"26. Forfeiture of service or
resignation.- (1) Resignation from a
service or a port, unless it is allowed to the
withdrawn in the public interest by the
appointing authority, entails forfeiture of
past service.
 (2) A registration shall entail
forfeiture of past service if it has been
submitted
to
take
up
with
proper
permission, another appointment, whether
temporary
or
permanent,
under
the
Government where service qualifies.
 (3) Interruption in service in a
case falling under sub-rule (2), due to the
appointments being at different stations not
exceeding the joining time permissible
under the rules of transfer, shall be covered
by grant of leave of any kind due to the
Government servant on the date of relief or
by formal condonation to the extent to
which the period is not covered by leave
due to him.

(4) The appointing authority may
permit
a
person
to
withdraw
his
resignation in the public interest on the
following conditions, namely:-
 (i) that the resignation was
tendered by the Government servant for
some compelling reasons which did not
involve any reflection in his integrity,
efficiency or conduct and the request for
withdrawal of the resignation has been
made as a result of a material change in
the
circumstances
which
originally
compelled him to tender the resignation;

(ii)
that
during
the
period
intervening between the date on which the
resignation became effective and the date
from which the request for withdrawal was
made, the conduct of the person concerned
was in no way improper:
 (iii) that the period of absence
from duty between the date on which the
resignation became effective and the date
on which the person is allowed to resume
duty as a result of permission to withdraw
the resignation is not more than ninety
days:

(iv) that the post, which was
vacated by the Government servant on the
acceptance of his resignation or any other
comparable post, is available.

(5) Request for withdrawal of a
resignation shall not be accepted by the
appointing authority where a Government
servant resigns his service or post with a
view to taking ap an appointment in or
under a private commercial company or
in or under a corporation or company
wholly
or
substantially
owned
or
controlled by the Government or in or
under a body controlled or financed by
the Government.
 (6) When an order is passed by
the appointing authority allowing a person
to withdraw his resignation and to resume
duty, the order shall be deemed to include
the condonation of interruption in service
but the period of interruption shall not
count as qualifying service.
 (7) A resignation submitted for
the purpose of Rule 37 shall not entail
forfeiture of past service under the
Government.

27. Effect of interruption in
service- (1) An interruption in the service
of a Government servant entails forfeiture
of his past service, except in the following
cases:-

(a) authorised leave of absence,
4 All. Dr. Indra Pratap Singh Vs. B.H.U., Varanasi & Ors.
243

(b)
unauthorised
absence
in
continuation of authorised leave of absence
so long as the post of absence is not filled
substantively
 (c)
suspension,
where
it
is
immediately followed by reinstatement,
whether in the same or a different post, or
where the Government servant dies or is
permitted to retire or is retired on attaining
the age of compulsory retirement while
under suspension,

(d) transfer to non-qualifying
service in an establishment under the
control of the
Government if such transfer has been
ordered by competent authority in the
public interest;

(e) joining time
while on transfer from one post to another.

(2) Notwithstanding anything
contained in sub-rule (1), the appointing
authority may, by order, commute
retrospectively the periods of absence
without leave as extraordinary leave.

28. Condonation of interruption
in service.- (a) In the absence of a specific
indication to the contrary in the service
book, an interruption between (a) In two
spells of civil service rendered by a
Government servant under Government
including civil service rendered and paid
out of Defence Services Estimates or
Railway Estimates shall be treated as
automatically condoned and the preinterruption service treated as qualifying
service.

(b) Nothing in Clause (a) shall
apply
to
interruption
caused
by
resignation, dismissal or removal from
service or for participation in a strike.

(c) The period of interruption
referred to in Clause (d) shall not count at
qualifying service."

20.
Learned
Senior
Advocate
referred a judgment passed by Supreme
Court in Director General, CSIR v. K.
Narayanaswami (Dr), (1995) 3 SCC 124
and
relevant
paragraphs
thereof
are
reproduced hereinafter:-

"7. There are two reasons for our
disagreement. The first is that Rule 28 as
quoted
above
was
substituted
by
notification of even number dated 19-51980. Prior to that, Rule 28 was in the
following language:

"28.
Condonation
of
interruption
in
service.-
(1)
The
appointing
authority
may,
by
order,
condone interruptions in the service of a
government servant:

Provided that-

(i) the interruptions have been
caused by reasons beyond the control of the
government servant;

(ii) the total service excluding
one or more interruptions, if any, is not less
than five years' duration; and

(iii) the interruption, including
two or more interruptions, if any, does not
exceed one year.

(2) The period of interruption
condoned under sub-rule (1) shall not
count as qualifying service.

8. If the aforesaid rule were to
determine the question of condonation,
specific order of the appointing authority
was a prerequisite. Admittedly, there is no
such
order.
Secondly,
even
if
the
substituted rule were to apply because of
the superannuation of the respondent in
1992, by which date substituted rule had
come into force, we are of the view that
rule cannot override what has been
mentioned in the aforesaid proviso to Rule
13. This is for the reason that any contrary
view would make the proviso altogether
otiose. It is a settled rule of interpretation
that where two provisions operate in one
field, both have to be allowed to have their
244 INDIAN LAW REPORTS ALLAHABAD SERIES
play, unless such operation would result in
patent inconsistency or absurdity.