# Gorakhnath Shukla v. State of U.P.& Ors. 446 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 2 ILRA 445
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-19
- **Case number:** Writ-A No. 2077 of 2025
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gorakhnath-shukla-v-state-of-u-p-ors-446-indian-law-reports-allahabad-series-54538
- **Pages:** 8

## Headnote

A. Service Law - Financial Hand Book -
Rules 53 & 54 - ReinSt.ment in service -
Entitlement of back-wages - Relevant
issue, which is required to be take into
consideration - No allegation of delaying
the expeditious disposal of disciplinary
proceeding
was
there
-
Effect
-
Respondent
considered
the
gainful
employment
after
dismissal
-
Permissibility
-
Held,
only
relevant
consideration in reducing the back wages
paid to a government servant, if any, on
his reinSt.ment after dismissal, removal or
compulsory retirement, would be the fact
that he had not obstructed in expeditious
disposal of the disciplinary proceedings -
The ground considered by the respondents
was wholly irrelevant for the purpose of
grant of back-wages - The petitioner
would be entitled to full back wages from
the date of his suspension to the date of
his reinSt.ment. (Para 14, 15 and 18)

Writ petition allowed. (E-1)

## Text

2 All. Gorakhnath Shukla Vs. State of U.P. & Ors.
445
Government may consider recruiting persons
not
immediately
meeting
the
minimum
educational qualification standards. Government
may engage them as trainees who will be given
the regular pay bands and grade pay only on
acquiring the minimum qualification prescribed
under the recruitment rules".

16. Master Circular No. 16 issued by the
Railway Board contained a provision for
relaxation of educational qualification which
says that: -

"The
educational
qualification
prescribed for the post should not relaxed.
However, if on the merits of the individual case,
General Manger feels such a relaxation on the
minimum qualification absolutely necessary,
such cases may be referred to the Ministry of
Railways. The Railway Board will consider
these cases on merits subject to the stipulation
that the candidates shall acquire the requisite
qualification within the prescribed time limit.
Such cases will carry the following stipulations,
in the offer of appointment: -

(i) The period to be allowed for
acquiring the qualification will be two years.

(ii) Such a person will not be
confirmed in service till he acquired the
qualification.

(iii) He will not be eligible for
promotion till such time he acquired the
qualification.

(iv) If any junior is promoted before
the senior compassionate appointee acquires
the qualification, such promotion of the junior
will be treated as regular. In other words, the
compassionate appointee will lose seniority in
the higher grade to such of his juniors as may
have been promoted to the next higher grade,
before he acquires the prescribed qualification.

(Emphasis added)

17. This provision contained in the
Master Circular issued by the Railway
Board is applicable to all persons who were
dependent on a deceased employee and that
is not limited in its application to the
widows of the deceased employees.

18. The respondent no. 1 was the only
child of his parents. His father died on
17.04.2021 and his mother also died on
23.04.2021. The aforesaid facts prima facie
make out exceptional circumstances in the case
of the petitioner, which ought to have been
taken into consideration while considering his
claim for compassionate appointment by
granting relaxation of education qualification in
view of the aforesaid provisions contained in
the Office Memorandum dated 11.12.2009
issued by the Department of Personal and
Training and the Master Circular No. 16 issued
by the Railway Board.

19. We are of the considered view that
the Central Administrative Tribunal has
rightly allowed the original application and
has directed the petitioners to reconsider
the case of the respondent no. 1 for
compassionate appointment in light of the
aforesaid Office Memorandum and the
Master Circular.

20. Accordingly, the writ petition
lacks merit and the same is dismissed at
the admission stage.
----------
(2025) 2 ILRA 445
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 2077 of 2025

Gorakhnath Shukla ...Petitioner
Versus
State of U.P.& Ors. ...Respondents
446 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Pradeep Kumar Shukla, Manish Kumar Rai

Counsel for the Respondents:
C.S.C.

A. Service Law - Financial Hand Book -
Rules 53 & 54 - ReinSt.ment in service -
Entitlement of back-wages - Relevant
issue, which is required to be take into
consideration - No allegation of delaying
the expeditious disposal of disciplinary
proceeding
was
there
-
Effect
-
Respondent
considered
the
gainful
employment
after
dismissal
-
Permissibility
-
Held,
only
relevant
consideration in reducing the back wages
paid to a government servant, if any, on
his reinSt.ment after dismissal, removal or
compulsory retirement, would be the fact
that he had not obstructed in expeditious
disposal of the disciplinary proceedings -
The ground considered by the respondents
was wholly irrelevant for the purpose of
grant of back-wages - The petitioner
would be entitled to full back wages from
the date of his suspension to the date of
his reinSt.ment. (Para 14, 15 and 18)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Manish Kumar Rai,
learned counsel for the petitioners and the
Standing counsel for the respondents.

2. The grievance raised in the present
writ petition is with regard to the impugned
order
dated
28.2.2023
whereby
Sub
Divisional
Magistrate,
Mankapur
has
withheld 30 per cent of the salary of the
petitioner towards back-wages to be paid to
the
petitioner
consequent
to
his
reinstatement after setting aside of the
order of dismissal as well as order dated
27.11.2024 whereby the appeal of the
petitioner against the order dated 28.2.2023
has been rejected.

3. The facts in brief are that the petitioner
was working as Collection Amin when he was
suspended by means of order dated 7.12.2000
in
contemplation
of
a
departmental
proceedings Subsequently on conclusion of
the disciplinary proceedings the petitioner was
removed from services vide order dated
12.2.2002, against which the petitioner had
filed a writ petition before this Court bearing
Writ Petition No.3592 of 2003 (S/S). The said
writ petition was allowed by means of order
dated 12.5.2008 and the order of removal as
well as the appellate order was set aside and
the matter was remitted back to the inquiry
officer to proceed from the stage of
submission of reply by the petitioner,.

4. In compliance of the judgment and
order dated 12.5.2008 an inquiry was
conducted again and two charges out of six
were partially proved but the disciplinary
authority was of the view that the charges
which are proved were not so grave and
accordingly vide order dated 21.8.2008 the
petitioner was reinstated in service without
awarding any penalty and in light of the
order dated 21.8.2008 he continued in
service till his superannuation.

5. It has been submitted that while
passing the order dated 21.8.2008 the
disciplinary authority did not pass any
orders pertaining to payment of back wages
to the petitioner from the date of his
suspension to the date of reinstatement and
accordingly the petitioner had preferred a
representation to the District Magistrate
stating that back-wages has not been
forfeited and consequently he would be
entitled for payment of full back-wages.
The District Magistrate vide order dated
17.3.2012 rejected the representation of the
petitioner only on the ground that during
the said period the petitioner had not
worked.
2 All. Gorakhnath Shukla Vs. State of U.P. & Ors.
447

6. The petitioner challenged the
aforesaid rejection before this Court by
filing Writ Petition No.3845 of 2012 (S/S)
which was allowed on 18.7.2018 with a
direction to the District Magistrate to
decide the representation afresh in terms of
the directions issued by this Court vide its
order dated 18.7.2018. The representation
of the petitioner was again rejected by Sub
Divisional Magistrate vide order dated
21.8.2008 holding that the principle of no
work no pay would apply for consideration
of payment of wages from the period of
suspension till his reinstatement. and
consequently the petitioner would not be
entitled to any back wages.

7. The said order dated 21.8.2008 was
again challenged by the petitioner before this
Court by filing writ A No.6064 of 2019
wherein this Court was of the view that the
respondents have not decided the matter in
accordance with law nor was there any
averments with regard to gainful employment
of the petitioner during the said period of
suspension and consequently remitted the
matter back for consideration afresh in
accordance with law. It is in compliance of the
judgment and order of this Court dated
17.10.2022 that the present set of orders have
been passed rejecting the representation again.

8. It is necessary to mention that in the
fresh round of the orders which have been
passed by the respondents, it has been held
that it is actually the fault of the petitioner,
who did not submit any affidavit to the
effect that during the period when he was
under suspension he was not gainfully
employed and as the petitioner himself has
not given any certificate to the effect that
he was not gainfully employed no orders
for payment of full back-wages can be
passed and accordingly have rejected the
said representation.

9. Learned counsel for the petitioner
submits that the orders dated 28.2.2023 and
27.11.2024 are illegal and arbitrary and
dehors
the provisions
of
the Rules
contained in Financial Handbook Volume
II to IV. He submits that the actual facts as
to whether a government servant on
reinstatement would be entitled to full back
wages or part of the back-wages has to be
decided in terms of Rue 54 of the Financial
Handbook Volume II to IV.

10. Once a government servant has
been reinstated then the ordinary rule is that
he would be entitled to payment of full
back-wages and only reason which can
persuade the authority concerned in not
passing orders for payment of full backwages would be the fact that the delinquent
government servant was responsible for
prolonging the disciplinary proceedings
and in case it is so proved then he can pass
appropriate
orders
deducting
certain
amount from the backwages to be paid. He
submits
that
the
respondents
have
misdirected themselves by considering the
aspect of gainful employment of the
petitioner during the period of suspension
till the date of his reinstatement. He
submits
that
this
aspect
of
gainful
employment would be relevant only when
the respondents are considering payment of
subsistence allowance to a delinquent
government servant during the period of his
suspension. He submits that this aspect of
the matter is provided for in Rule 53, sub
clause 2 where when a certificate is
furnished by the government servant that
he was not gainfully employed in business
or profession or vocation then only the
subsistence allowance can be paid. It has
been submitted that there is no dispute in
the present case that, in fact, the petitioner
was paid subsistence allowance despite the
fact that he furnished certificate to the
448 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfaction of the concerned authority. The
subsistence allowance could have been
stopped but in absence of any such
certificate furnished by the petitioner
pertaining to the fact that the was not
engaged in any other business, profession
or vocation, the aforesaid hurdle was
crossed when subsistence allowance was
paid
to
the
petitioner
again
and
subsequently at the stage when the
petitioner has been reinstated after being
not inflicted upon the punishment of
removal the only aspect of the matter which
remains to be considered is pertaining to
the delay caused by the petitioner during
the disciplinary proceedings. It is in
aforesaid fact that he submits that the
impugned
order
suffers
from
non
application of mind and is illegal, arbitrary
and accordingly cannot be sustained.

11. Learned State counsel, on the other
hand, has opposed the writ petition but
does not dispute the aforesaid facts.

12. Having heard the rival contentions,
the only issue which falls for consideration
by this Court is as to whether when a
government servant is reinstated in service
after being inflicted with the punishment of
dismissal or removal, the two provision
which are necessary for consideration are
53 and 54 of the Financial Hand Book
which are quoted herein as under for the
sake of ready reference:-

"53. (1) A government servant
under suspension or deemed to have been
placed under suspension by an order of the
appointing authority shall be entitled to the
following payments, namely:?

(a) a subsistence allowance at an
amount equal to the leave salary which the
government servant would have drawn if he
had been on leave on half average pay or
on half pay and in addition, dearness
allowance, if admissible on the basis of
such leave salary:

Provided that where the period of
suspension exceeds three months, the
authority which made or is deemed to have
made the order of suspension shall be
competent
to
vary
the
amount
of
subsistence allowance for any period
subsequent to the period of the first three
months as follows:?

(i) the amount of subsistence
allowance may be increased by a suitable
amount, not exceeding 50 per cent of the
subsistence allowance admissible during
the period of first three months, if, in the
opinion of the said authority, the period of
suspension has been prolonged for reasons
to be recorded in writing, not directly
attributable to the government servant;

(ii) the amount of subsistence
allowance may be reduced by a suitable
amount not exceeding 50 per cent of the
subsistence allowance admissible during
the period of the first three months, if, in
the opinion of the said authority, the period
of suspension has been prolonged due to
reasons, to be recorded in writing, directly
attributable to the Government servant;

(iii)
the
rate
of
dearness
allowance will be based on the increased
or, as the case may be, the decreased
amount
of
subsistence
allowance
admissible under sub-clauses (i) and (ii)
above.

(b)
Any
other
compensatory
allowance admissible from time to time on
the basis of pay of which the Government
servant was in receipt on the date of
suspension:

Provided that the government
servant shall not be entitled to the
compensatory allowances unless the said
authority is satisfied that the government
2 All. Gorakhnath Shukla Vs. State of U.P. & Ors.
449
servant continues to meet the expenditure
for which they are granted.

(2) No payment under sub-rule
(1) shall be made unless the Government
servant furnishes a certificate that he is not
engaged
in
any
other
employment,
business, profession or vocation:

Provided that in the case of a
Government servant dismissed or removed
from service, who is deemed to have been
placed or to continue to be under
suspension from the date of such dismissal
or removal and who fails to produce such a
certificate for any period or periods during
which he is deemed to be placed or to
continue to be under suspension, he shall
be entitled to the subsistence allowance
and other allowances equal to the amount
by which his earnings during such period
or periods, as the case may be, fall short of
the amount of subsistence allowance and
other allowances that would otherwise be
admissible to him; where the subsistence
and other allowances admissible to him are
equal to or less than the amount earned by
him, nothing in this proviso shall apply to
him.

(This amendment shall be deemed
to have come into force with effect from
December 26, 1981).

Orders
of
the
Governor
regarding rule 53

1. The suspending authority may
appoint a substitute in place of a
government servant under suspension,
provided that the period of suspension does
not
exceed
six
months.
The
word
?substitute? here means the substitute
appointed in the resultant vacancy or at the
bottom in the chain of arrangements.

2. Departments of the government
are authorized to appoint a substitute in
place of a government servant under
suspension for more than six months.

3. The Board of Revenue is
authorized to appoint a substitute in place
of a government servant under suspension
for more than six months under intimation
to Government every three months.

4. Commissioners of Divisions
are authorised to appoint a substitute in
place
of
government
servant
under
suspension for more than six months under
intimation to the Board of Revenue every
three months.

NOTE?The authority sanctioning
such employment shall draw the special
attention of the Accountant General to the
sanction.

(Effective with effect from July
13, 1974)
 *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 a
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 be; and

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

(2)
Where
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 and allowances to which
he would have been entitled, had he not
been dismissed, removed or compulsorily
retired or suspended prior to such
450 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissal,
removal
or
compulsory
retirment, 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

*This amended rule is effective
from May 3, 1980.

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 subrule (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
noncompliance 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 provisions 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 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
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 subrule (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.
 (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 subrule (4), shall not be less than the
subsistence
allowance
and
other
allowances admissible under rule 53.

(8) 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 his removal, dismissal
2 All. Gorakhnath Shukla Vs. State of U.P. & Ors.
451
or compulsory retirement, as the case may
be,

*This amended rule is effective
from February 19, 1986.

and the date of reinstatement.
Where the emoluments admissible under
this rule are equal to or less than the
amounts 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 dismissal,
removal or compulsory retirement, no pay
and allowances will be paid to him for such
period till he actually takes over charge.

13. Rule 53 provides for payment of
subsistence allowance during the period the
government servant has been placed under
suspension whereas Rule 52 provides that
no payment shall be made unless a
government servant furnishes certificate
that he was no gainfully employed while
Rule 54 provided for payment of backwages when a government servant who has
been dismissed, removed or compulsorily
retired is reinstated as a result of
intervention in appeal or review and clause
2 provides that when the said government
servants is reinstated having been fully
exonerated then he is liable to be paid full
allowance to which he was entitled had he
not
been
dismissed,
removed
or
compulsorily
retired.
subject
to
the
limitation of such clause 6 which provides
that payment of allowance shall be subject
to other conditions under which such
allowances are admissible. Proviso to sub
clause 2 provides that where such authority
is of the 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 be paid for the period of such
delay only such amount (not being the
whole) of such pay and allowances as it
may determine.

14. Accordingly the only relevant
consideration in reducing the back wages
paid to a government servant, if any, on his
reinstatement after dismissal, removal or
compulsory retirement, would be the fact
that he had not obstructed in expeditious
disposal of the disciplinary proceedings.

15. In the present case, a perusal of the
orders passed by the respondents did not
disclose that this issue was even raised or
considered at any point by the authority but
the only issue which was considered by
them was pertaining to gainful employment
by the petitioner from the date of his
suspension to the date of his reinstatement.
This Court is of the considered opinion that
the ground considered by the respondents
was wholly irrelevant for the purpose of
grant of back-wages.

16. Considering the fact as we have
already discussed the only issue pertaining
to
delay
in
disciplinary
proceedings
attributable to the government servant is
the only relevant issue. The said issue of
back wages is liable to be dealt with again
considering the fact that no such allegations
are attributed against the petitioner in either
of the orders. We find no reason for
withholding of the back-wages of the
petitioner from the date of his suspension to
452 INDIAN LAW REPORTS ALLAHABAD SERIES
the date of his reinstatement. Accordingly,
the impugned orders dated.27.11.2024
passed by District Magistrate, Gonda and
28.2.2023 passed
by
Sub
Divisional
Magistrate, Mankapur, District Gonda, are
quashed.

17. The writ petition is allowed.

18. The petitioner would be entitled to
full back wages from the date of his
suspension to the date of his reinstatement
which may be paid to him expeditiously,
preferably within a period of two months
from the date a certified copy of this order
is placed before the competent authority.

19. In the aforesaid circumstances, we
have no doubt that once no punishment has
been awarded to the petitioner, the period
so spent under suspension is liable to be
duly considered as a period spent on duty
as provided for in proviso to Rule 54. Apart
from the above, there is no reason for the
respondents not to grant benefit as provided
in sub clause 3 of Rule 54 declaring the
period of his suspension till the date of his
reinstatement to be treated as a period spent
on duty for all purposes. It is, therefore,
provided that the period spent under
suspension by the petitioner shall be
deemed to be spent on duty.
----------
(2025) 2 ILRA 452
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 2211 of 2025

Dineshwar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Surya Mani Singh, Arun Pratap Verma

Counsel for the Respondents:
C.S.C., Abhinav Trivedi

A. Service Law - UP Government Servants
(Discipline and Appeal) Rules, 1999 - Rule
9 - Punishment - Stoppage of two
increments
-
Inquiry
report
was
submitted - However, the disciplinary
authority, while holding the petitioner
guilty, relied upon some independent
report of other authority - Permissibility -
Held, the disciplinary authority is bound to
consider only the material, which has
been
adduced
during
the
inquiry
proceedings. If on perusal of the material
which has been adduced during the
inquiry proceeding, lead him to take a
different stand what has been recorded by
the inquiry officer, he is within his
competence to issue a notice to the
petitioner disagreeing with the findings of
the inquiry officer but at this stage he
cannot enlarge the scope of inquiry and
take the opinion from a third person and
relying on the said material imposed
punishment upon the government servant
- Rule 9 of the Rules of 1999 has been
grossly violated. (Para 13, 15 and 16)

Writ petition allowed. (E-1)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Surya Mani, learned
counsel for the petitioner as well as
Standing counsel for the respondent.

2. With the consent of the parties, the
petition is being decided at the admission
itself.

3. The petitioner has approached this
court being aggrieved by the order dated
23.9.2024 passed by Principal Secretary,
Sugar Cane Department thereby inflicting
punishment of stoppage of two increments