# Shiv Bachan Gautam v. State Public Services Tribunal, Lucknow & Ors

- **Citation:** (2025) 9 ILRA 747
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-10
- **Case number:** Writ A No. 4470 of 2023
- **Bench:** Rajan Roy, Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-bachan-gautam-v-state-public-services-tribunal-lucknow-ors-53976
- **Pages:** 10

## Headnote

Shikhar Anand, C.S.C.

Issue for consideration
How is the decision regarding pay and
allowances (from the date of dismissal till his
reinstatement) of a government servant made
in case the order of his dismissal from service is
set aside?

Headnotes
A. Service Law - Financial Hand Book
Volume-II (Part II to IV): Fundamental
Rule 54-A(3) - In cases where the order of
dismissal from service of a government
servant is set aside by any court, the
decision in respect of pay and allowances
to the said government servant from the
date of his dismissal till the date of his
reinstatement
is
taken
as
per
the
provisions made in the Fundamental Rule
54-A of the Financial Hand Book VolumeII (Part II to IV). (Para 19)

Fundamental Rule 54-A(2)(i) provides
that in case of setting aside of the order of
dismissal from service of a government
servant on procedural grounds, he shall 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, as the competent authority
may determine after giving notice. (Para
20, 22)

The
Superintendent
of
Police
(Railways),
Prayagraj passed the punishment order on
07.12.2007
whereby,
the
petitioner
was
dismissed from service. Order was upheld by
appellate
and
revisional
authorities.
The
petitioner challenged the punishment order
dated 07.12.2007, the appellate order dated
18.08.2012 and the revisional order dated
25.08.2013 by filing Claim Petition No.555/2014
and the learned Tribunal had allowed the said
claim petition and had set aside the punishment
order dated 07.12.2007 by which the petitioner
was dismissed from service. The learned
Tribunal in its judgment and order dated
27.10.2016
passed
in
Claim
Petition
No.555/2014 had recorded a finding that the
punishment
of
dismissal
from
service
is
748 INDIAN LAW REPORTS ALLAHABAD SERIES
shockingly disproportionate to the alleged
misconduct and therefore, is unsustainable in
the eyes of law. Learned Tribunal further
granted liberty to the disciplinary authority to
impose any lesser punishment on the petitioner.
(Para 16, 17)

After passing of the judgment and order
dated 27.10.2016 by the learned Tribunal in
Claim Petition No.555/2014, the respondents
instituted a preliminary enquiry but did not
impose
any
punishment
against
the
petitioner in terms of the liberty granted by
the learned Tribunal and the petitioner was
reinstated in service on 07.03.2017. In
respect of pay and allowances for the period
from
11.12.2007
to
07.03.2017,
the
disciplinary authority issued a show cause
notice on 04.11.2018, whereby the petitioner
was required to show cause as to why he
may not be denied pay and allowances of his
post for the period from 11.12.2007 to
07.03.2017 on the principle of 'No Work No
Pay'. The petitioner filed his reply and
thereafter the competent authority passed
an order on 13.12.2018 whereby, the
petitioner has been denied the pay and
allowances for the period from 11.12.2007 to

## Text

9 All. Shiv Bachan Gautam Vs. State Public Services Tribunal, Lucknow & Ors.
747

67. Even if it is assumed that the
petitioner had mentioned in her application
that she was pursuing a Ph.D. and had
prefixed 'Dr.' to her name, the same by
itself cannot be construed as misconduct,
particularly when these aspects have
neither been examined nor established in
the course of the enquiry.

68. Having considered the arguments
advanced by learned counsel for the parties
and perusal of record, this Court finds that
a case is made out in favour of the
petitioner. The order impugned dated
14.12.2024
passed
by
the
Registrar,
Gautam Buddha University, Greater Noida,
Gautam Budh Nagar is quashed. The
respondent University - Registrar, Gautam
Buddha University, Greater Noida, Gautam
Budh Nagar is directed to allow the
petitioner to function as Staff Officer to
Vice Chancellor.

69. With the aforesaid directions, writ
petition stands allowed.

70. There shall be no order as to costs.
----------
(2025) 9 ILRA 747
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.09.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 4470 of 2023

Shiv Bachan Gautam ...Petitioner
Versus
State Public Services Tribunal, Lucknow &
Ors. ...Respondents

Counsel for the Petitioner:
Om Prakash Misra
Counsel for the Respondents:
Shikhar Anand, C.S.C.

Issue for consideration
How is the decision regarding pay and
allowances (from the date of dismissal till his
reinstatement) of a government servant made
in case the order of his dismissal from service is
set aside?

Headnotes
A. Service Law - Financial Hand Book
Volume-II (Part II to IV): Fundamental
Rule 54-A(3) - In cases where the order of
dismissal from service of a government
servant is set aside by any court, the
decision in respect of pay and allowances
to the said government servant from the
date of his dismissal till the date of his
reinstatement
is
taken
as
per
the
provisions made in the Fundamental Rule
54-A of the Financial Hand Book VolumeII (Part II to IV). (Para 19)

Fundamental Rule 54-A(2)(i) provides
that in case of setting aside of the order of
dismissal from service of a government
servant on procedural grounds, he shall 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, as the competent authority
may determine after giving notice. (Para
20, 22)

The
Superintendent
of
Police
(Railways),
Prayagraj passed the punishment order on
07.12.2007
whereby,
the
petitioner
was
dismissed from service. Order was upheld by
appellate
and
revisional
authorities.
The
petitioner challenged the punishment order
dated 07.12.2007, the appellate order dated
18.08.2012 and the revisional order dated
25.08.2013 by filing Claim Petition No.555/2014
and the learned Tribunal had allowed the said
claim petition and had set aside the punishment
order dated 07.12.2007 by which the petitioner
was dismissed from service. The learned
Tribunal in its judgment and order dated
27.10.2016
passed
in
Claim
Petition
No.555/2014 had recorded a finding that the
punishment
of
dismissal
from
service
is
748 INDIAN LAW REPORTS ALLAHABAD SERIES
shockingly disproportionate to the alleged
misconduct and therefore, is unsustainable in
the eyes of law. Learned Tribunal further
granted liberty to the disciplinary authority to
impose any lesser punishment on the petitioner.
(Para 16, 17)

After passing of the judgment and order
dated 27.10.2016 by the learned Tribunal in
Claim Petition No.555/2014, the respondents
instituted a preliminary enquiry but did not
impose
any
punishment
against
the
petitioner in terms of the liberty granted by
the learned Tribunal and the petitioner was
reinstated in service on 07.03.2017. In
respect of pay and allowances for the period
from
11.12.2007
to
07.03.2017,
the
disciplinary authority issued a show cause
notice on 04.11.2018, whereby the petitioner
was required to show cause as to why he
may not be denied pay and allowances of his
post for the period from 11.12.2007 to
07.03.2017 on the principle of 'No Work No
Pay'. The petitioner filed his reply and
thereafter the competent authority passed
an order on 13.12.2018 whereby, the
petitioner has been denied the pay and
allowances for the period from 11.12.2007 to
07.03.2017. (Para 18)

Fundamental Rule 54-A(3) provides that if
the order of dismissal from service of a
government servant had been set aside by
the court on merits of the case, he shall be
entitled for full pay and allowances for the
period starting from the date of dismissal
from service till his reinstatement. (Para
23)

B. The Tribunal has failed to appreciate
the matter in correct perspective. Learned
Tribunal in the impugned judgment and order
dated 22.03.2023 has recorded a finding that
the Tribunal vide its earlier order dated
27.10.2016
passed
in
Claim
Petition
No.555/2014 had set aside the order of
dismissal from service on the ground that the
punishment imposed against the petitioner was
disproportionate to his alleged misconduct,
therefore,
the
setting
aside
of
the
punishment order is neither on merits of
the case nor on procedural grounds, as
such, the petitioner would not be entitled
for any benefit of pay and allowances
either admissible under Fundamental Rule
54- A(2)(i) or 54-A(3) of the Financial
Hand Book. (Para 24)

Assuming for a moment that Fundamental Rule
54-A(2)(i) and (3) were not applicable and there
was no provision which was applicable to the
peculiarity of the situation, the Tribunal had to
step in and decide the case as per principles of
equity, good conscience and justice. Some
decision
had
to
be
taken
regarding
regularization of period from the date of
dismissal till reinstatement, as also, the pay and
allowances
payable
for
the
said
period.
Guidance could be taken in this regard from the
provisions
and
principles
contained
in
Fundamental Rule 54-A. (Para 25, 26)

There is no doubt that the petitioner could
not have been totally denied pay and
allowances for the relevant period on the
principle of 'No Work No Pay' as, the
petitioner was kept out of service on
account of punishment of dismissal which
was
illegal
and
excessive
and
was
ultimately set aside. (Para 27)

The petitioner in all fairness submitted that only
50% of the admissible pay and allowances for
the period from 11.12.2007 to 07.03.2017 may
be paid to the petitioner. A fair and reasonable
amount is to be paid to the petitioner subject to
the petitioner furnishing a certificate by him
stating therein that he was not gainfully
employed at any place from the date of
dismissal till his reinstatement. (Para 28, 29)

Writ petition allowed. (E-4)

List of Acts
Financial Hand Book Volume-II (Part II to IV).

List of Keywords
Service, disciplinary proceedings, punishment,
dismissal, reinstatement.

Appearances for Parties
For Petitioner: Om Prakash Misra
For Respondent: Shikhar Anand, C.S.C

(Delivered by Hon'ble Manjive Shukla, J.)
9 All. Shiv Bachan Gautam Vs. State Public Services Tribunal, Lucknow & Ors.
749

1. Heard Shri Om Prakash Misra,
learned counsel for the petitioner and Shri
Kumar Sambhav, learned Standing Counsel
appearing for the respondent nos.2 to 5.

2. The captioned writ petition has been
filed assailing therein, the judgment and
order dated 22.03.2023 passed by the
learned State Public Services Tribunal,
Indira Bhawan, Lucknow in Claim Petition
No.1332/2020 (Shiv Bachan Gautam vs.
State of U.P. and others) whereby, the
claim petition had been dismissed.

3. The facts of the case, in brief, are
that initially disciplinary proceedings were
conducted against the petitioner and a
punishment
order
was
passed
on
27.02.2004 whereby, punishment in the
form of reversion at the basic pay for one
year was imposed against him. The
petitioner preferred an appeal against the
order
dated
27.02.2004
which
was
dismissed on 02.08.2004, and thereafter, a
revision was filed which was allowed vide
order dated 04.03.2005 with direction to
the Superintendent of Police, Agra to
prepare a fresh charge-sheet against the
petitioner and conduct fresh enquiry in the
matter.
Thereafter,
again
disciplinary
proceedings were conducted against the
petitioner and the Superintendent of Police
(Railways),
Prayagraj
passed
the
punishment
order
dated
07.12.2007
whereby, the petitioner was dismissed from
service. Again, the petitioner preferred an
appeal which was dismissed vide order
dated 18.08.2012, and thereafter, the
revision filed by the petitioner was also
dismissed vide order dated 25.08.2013.

4. The petitioner in the aforesaid
circumstances challenged the punishment
order dated 07.12.2007, the appellate order
dated 18.08.2012 and the revisional order
dated 25.08.2013 by filing Claim Petition
No.555/2014 before the learned State
Public Services Tribunal, Indira Bhawan,
Lucknow. The learned Tribunal after
considering the entire material in detail,
allowed the Claim Petition No.555/2014
vide judgment and order dated 27.10.2016
and set aside the order of punishment of
dismissal from service along with the
appellate order and the revisional order
with a liberty to the respondents to impose
appropriate
punishment
against
the
petitioner. The learned Tribunal in its
judgment and order dated 27.10.2016 had
recorded a categorical finding that the
punishment of dismissal from service was
shockingly disproportionate to the alleged
misconduct and found that the disciplinary
authority
had
awarded
excessive
punishment of dismissal to the petitioner.

5. The judgment and order dated
27.10.2016 passed by the learned Tribunal
in
Claim
Petition
No.555/2014
was
complied with by the respondents and the
petitioner was reinstated in service on
07.03.2017. Thereafter, the respondents
instituted
a
preliminary
enquiry
and
proceeded to take decision in respect of the
matter of payment of salary to the
petitioner for the period from 11.12.2007 to
07.03.2017, as per the applicable rules. It is
noteworthy that after setting aside of the
order of dismissal from service by the
learned Tribunal, the respondents have not
imposed any punishment against the
petitioner.

6. The Superintendent of Police
(Railways), Prayagraj issued a show cause
notice on 04.11.2018 to the petitioner
whereby he was required to file his reply
on the issue as to why he may not be
denied
salary
for
the
period
from
11.12.2007 to 07.03.2017 on the principle
750 INDIAN LAW REPORTS ALLAHABAD SERIES
of 'No Work No Pay'. The petitioner
submitted his reply on 30.11.2018. The
Superintendent of Police concerned had
passed an order on 13.12.2018 whereby, he
has denied salary to the petitioner for the
period from 11.12.2007 to 07.03.2017 on
the principle of 'No Work No Pay'. The
Superintendent of Police in his order dated
13.12.2018 had recorded a finding that the
petitioner was dismissed from service vide
order dated 07.12.2007 and the said
punishment order had been set aside by the
learned Tribunal only on the ground of
proportionality of the punishment and not
on the merit of the charges levelled against
him
therefore,
since
the
petitioner
admittedly had not worked for the period
from 11.12.2007 to 07.03.2017, he is not
entitled for salary of the said period on the
principle of 'No Work No Pay'. The
petitioner filed an appeal against the order
dated
13.12.2018
which
had
been
dismissed vide order dated 06.11.2019 and
thereafter, he filed a revision which had
also been dismissed vide order dated
07.09.2020.

7. The petitioner in the aforesaid
circumstances filed the Claim Petition
No.1332 of 2020 (Shiv Bachan Gautam vs.
State of U.P. and others) before the learned
Tribunal challenging therein, the order
dated 13.12.2018, the appellate order dated
06.11.2019 and the revisional order dated
07.09.2020. The petitioner in his claim
petition
took
the
ground
that
the
Fundamental Rule 54-A(3) of the Financial
Hand Book Volume-II (Part II to IV)
provides that if the dismissal order of a
government servant is set aside by the court
on
merits
of
the
case,
the
period
intervening the date of dismissal and the
date of reinstatement shall be treated as
duty for all purposes and the government
servant shall be paid the full pay and
allowances for the said period. Learned
Tribunal considered the grounds raised in
the claim petition and has dismissed the
claim petition vide judgment and order
dated 22.03.2023.

8. It has been submitted on behalf of
the
petitioner
that
the
order
dated
07.12.2007 whereby, he was dismissed
from service had been set aside by the
learned Tribunal vide judgment and order
dated 27.10.2016 passed in Claim Petition
No.555/2014 on the ground that on the
basis of the alleged misconduct, the
petitioner could not have been dismissed
from service and the punishment of
dismissal from service is shockingly
disproportionate, therefore, it is apparent
that the learned Tribunal had interfered
with the punishment of dismissal from
service on merits of the punishment. It has
further been submitted that the learned
Tribunal vide its judgment and order dated
27.10.2016 passed in Claim Petition
No.555/2014 had granted liberty to the
respondents to impose any proportionate
punishment against the petitioner but the
respondents
have
not
imposed
any
punishment, as such it is apparent that there
was no material available against the
petitioner on the basis of which any
punishment could have been imposed.

9. Shri Om Prakash Misra, learned
counsel appearing for the petitioner has
argued that where the order of dismissal
from service is set aside by the court, the
decision in respect of the pay and
allowances for the period from the date of
dismissal from service till the date of
reinstatement of the government servant is
to be taken under Fundamental Rule 54-A
of the Financial Hand Book Volume-II
(Part II to IV) and Fundamental Rule 54A(2)(i) provides that in the case the order
9 All. Shiv Bachan Gautam Vs. State Public Services Tribunal, Lucknow & Ors.
751
of dismissal is set aside by the court not on
merits but on procedural grounds, the
government servant will be paid such
amount (not being the whole) of the pay
and allowances which he would have been
entitled, had he not been dismissed from
service, as the competent authority may
determine after giving notice to the
government
servant
and
further
Fundamental Rule 54-A (3) provides that if
the dismissal order of a government servant
is set aside by the court on merits of the
case, the period intervening the date of
dismissal and the date of reinstatement
shall be treated as duty for all purposes and
he shall be paid full pay and allowances for
the period to which he would have been
entitled, had he not been dismissed from
service. It has further been argued that the
petitioner's order of dismissal from service
had been set aside by the learned Tribunal
on the ground that the punishment of
dismissal from service was shockingly
disproportionate to the alleged misconduct
and therefore, setting aside of the order of
dismissal from service is on merits, more
particularly
when
the
respondents
themselves
have
not
imposed
any
punishment
against
the
petitioner,
therefore, the case of the petitioner is to be
dealt with under Fundamental Rule 54-A(3)
of the Financial Hand Book Volume-II
(Part II to IV) and he is entitled for full pay
and allowances for the period from the date
of order of dismissal from service till the
date of his reinstatement in service.

10. Shri Om Prakash Misra, learned
counsel appearing for the petitioner has
also argued that the learned Tribunal, in the
impugned judgment and order dated
22.03.2023, had recorded a finding that the
setting aside of the order of dismissal from
service is neither on merits nor on
procedural
grounds,
therefore,
the
petitioner's case is not covered either under
Fundamental Rule 54-A(2)(i) or under
Fundamental
Rule 54-A
(3) of
the
Financial Hand Book Volume-II (Part II to
IV) whereas, the said finding on its face is
erroneous as it is apparent that the learned
Tribunal found that on merits of the case
the punishment of dismissal imposed
against the petitioner was shockingly
disproportionate and thereby set aside the
punishment order, therefore, in view of the
provisions made in Fundamental Rule 54A(3) the petitioner is entitled for full pay
and allowances for the period from the date
of order of dismissal from service till the
date of his reinstatement in service.

11. Shri Om Prakash Misra, learned
counsel appearing for the petitioner,
however,
has
submitted
that
if
the
petitioner is paid 50% of the pay and
allowances admissible to him for the period
from
11.12.2007
to
07.03.2017,
the
petitioner would gracefully accept it.

12. Shri Kumar Sambhav, learned
Standing
Counsel
appearing
for
the
respondents has argued that the order by
which the petitioner was dismissed from
service had not been set aside by the
learned Tribunal on merits; rather it found
the punishment of dismissal from service
disproportionate to the alleged misconduct,
and therefore, the petitioner's case does not
fall in the ambit of Fundamental Rule 54-A
(3) of the Financial Hand Book Volume-II
(Part II to IV).

13. It has further been argued that
since Fundamental Rule 54-A(2)(i) of the
Financial Hand Book provides that in the
cases where punishment order is set aside
by the court on procedural ground, the
government servant shall be paid the pay
and allowances (not being the whole) for
752 INDIAN LAW REPORTS ALLAHABAD SERIES
the period from the date of order of
dismissal from service till the date of
reinstatement,
as
determined
by
the
competent authority but since in the case of
the petitioner the order of dismissal from
service had not been set aside on
procedural ground, therefore, he is also not
entitled to get the benefit of the provisions
made in Fundamental Rule 54-A (2)(i).

14. Shri Kumar Sambhav, learned
Standing
Counsel
appearing
for
the
respondents has also argued that a show
cause notice was issued to the petitioner
whereby he was required to file his reply
on the point as to why he may not be
denied the pay and allowances for the
period from 11.12.2007 to 07.03.2017 on
the principle of 'No Work No Pay' and
thereafter the competent authority, after
considering the reply of the petitioner, had
passed the order dated 13.12.2018 wherein
it had been stated that admittedly the
petitioner has not worked for the period
from 11.12.2007 to 07.03.2017 therefore,
he is not entitled for the pay and allowance
for the said period on the principle of 'No
Work No Pay'. It has thus been argued that
there is neither any illegality nor infirmity
in the judgment and order dated 22.03.2023
passed by the learned Tribunal in Claim
Petition No.1332/2020 therefore, the writ
petition filed by the petitioner is liable to be
dismissed by this Court.

15. We have considered the rival
arguments
advanced
by
the
learned
counsels appearing for the parties and have
perused the documents available in the
record of the writ petition.

16. We find that the disciplinary
proceedings against the petitioner were
initiated and the disciplinary authority
passed an order on 27.02.2024 whereby,
the punishment in the form of reversion to
the basic pay for one year was imposed
upon him. Later on, the said punishment
order was set aside by the revisional
authority vide his order dated 04.03.2005
and
direction
was
issued
to
the
Superintendent of Police to issue fresh
charge-sheet,
and
conduct
fresh
disciplinary enquiry and pass a punishment
order.
The
Superintendent
of
Police
(Railways),
Prayagraj
passed
the
punishment order on 07.12.2007 whereby,
the petitioner was dismissed from service.
The petitioner preferred a statutory appeal
against the punishment dated 07.12.2007
which was dismissed on 18.08.2012, and
thereafter revision was filed, that too was
dismissed vide order dated 25.08.2013.

17. The petitioner challenged the
punishment order dated 07.12.2007, the
appellate order dated 18.08.2012 and the
revisional order dated 25.08.2013 by filing
Claim Petition No.555/2014 and the
learned Tribunal had allowed the said claim
petition and had set aside the punishment
order dated 07.12.2007 by which the
petitioner was dismissed from service. The
learned Tribunal in its judgment and order
dated 27.10.2016 passed in Claim Petition
No.555/2014 had recorded a finding that
the punishment of dismissal from service is
shockingly disproportionate to the alleged
misconduct and therefore, is unsustainable
in the eyes of law. Learned Tribunal further
granted liberty to the disciplinary authority
to impose any lesser punishment on the
petitioner.

18. We further find that after passing
of the judgment and order dated 27.10.2016
by the learned Tribunal in Claim Petition
No.555/2014, the respondents instituted a
preliminary enquiry but did not impose any
punishment against the petitioner in terms
9 All. Shiv Bachan Gautam Vs. State Public Services Tribunal, Lucknow & Ors.
753
of the liberty granted by the learned
Tribunal and the petitioner was reinstated
in service on 07.03.2017. In respect of pay
and allowances for the period from
11.12.2007 to 07.03.2017, the disciplinary
authority issued a show cause notice on
04.11.2018, whereby the petitioner was
required to show cause as to why he may
not be denied pay and allowances of his
post for the period from 11.12.2007 to
07.03.2017 on the principle of 'No Work
No Pay'. The petitioner filed his reply and
thereafter the competent authority passed
an order on 13.12.2018 whereby, the
petitioner has been denied the pay and
allowances for the period from 11.12.2007
to 07.03.2017.

19. It is noteworthy that in the cases
where the order of dismissal from service
of a government servant is set aside by any
court, the decision in respect of pay and
allowances to the said government servant
from the date of his dismissal till the date
of his reinstatement is taken as per the
provisions made in the Fundamental Rule
54-A of the Financial Hand Book VolumeII (Part II to IV). For ready reference the
Fundamental Rule 54-A of the Financial
Hand Book Volume-II (Part II to IV) is
extracted as under:-

"54-A (1) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by a court
of Law and such Government servant is
reinstated without holding any further
inquiry, the period of absence from duty
shall be regularised and the Government
servant shall be paid pay and allowances in
accordance with the provisions of sub-rule
(2) or (3) subject to the directions, if any, of
the court.

(2) (i) Where the dismissal,
removal or compulsory retirement of a
Government servant is set aside by the
court solely on the ground of noncompliance with the requirements of clause
(1) or clause (2) of article 311 of the
Constitution,
and
where
he
is
not
exonerated on merits, and no further
inquiry is proposed to be held, the
Government servant shall, subject to the
provisions of sub-rule (7) of rule 54, 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.

(ii)
The
period
intervening
between the date of dismissal, removal or
compulsory retirement including the period
of suspension preceding dismissal, removal
or compulsory retirement, as the case may
be, and the date of judgment of the court
shall be regularised in accordance with the
provisions contained in sub-rule (5) of rule
54.

(3) If the dismissal, removal or
compulsory retirement of a Government
servant is set aside by the court on the
merits of the case, the period intervening
between the date of dismissal, removal or
compulsory retirement including the period
of suspension preceding such dismissal,
removal, or compulsory retirement, as the
case may be, and the date of reinstatement
shall be treated as duty for all purposes
and he shall be paid the full pay and
allowances for the period, to which he
754 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(4) The payment of allowances
under sub-rule (2) or sub-rule (3) shall be
subject to all other conditions under which
such allowances are admissible.

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

20. Fundamental Rule 54-A(2)(i) of the
Financial Hand Book Volume-II (Part II to
IV) provides that in case of setting aside of
the order of dismissal from service of a
government servant on procedural grounds,
he shall 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, as the competent authority may
determine after giving notice.

21. The provisions of Fundamental
Rule 54-A(2)(i) of the Financial Hand
Book Volume-II (Part II to IV) are subject
to the provisions of Fundamental Rule 54
(7) which reads as under:-

"54 (7). The amount determined
under the proviso to sub-rule (2) or under
sub-rule (4), shall not be less than the
subsistence allowance and other allowance
admissible under Rule 53."

22. Thus, from the provisions made in
Fundamental
Rule
54-A(2)(i)
of
the
Financial Hand Book, it is apparent that if
the order of dismissal from service of a
government servant had been set aside by
the court on procedural grounds and
thereafter he is reinstated in service, the
government servant concerned shall be paid
pay and allowances for the period from the
date of dimissal from service till the
reinstatement, which would not be less than
the subsistance allowance admissible to
him, if he would have been placed under
suspension, meaning thereby it can be more
than the subsistence allowance admissible
to him, what exactly should be the amount
is to be determined by the competent
authority taking into consideration relevant
facts and circumstances.

23. Fundamental Rule 54-A(3) of the
Financial Hand Book on the other hand
provides that if the order of dismissal from
service of a government servant had been
set aside by the court on merits of the case,
he shall be entitled for full pay and
allowances for the period starting from the
date of dismissal from service till his
reinstatement.

24. Learned Tribunal in the impugned
judgment and order dated 22.03.2023 has
recorded a finding that the Tribunal vide its
earlier order dated 27.10.2016 passed in
Claim Petition No.555/2014 had set aside
the order of dismissal from service on the
ground that the punishment imposed
against the petitioner was disproportionate
to his alleged misconduct, therefore, the
9 All. Shiv Bachan Gautam Vs. State Public Services Tribunal, Lucknow & Ors.
755
setting aside of the punishment order is
neither on merits of the case nor on
procedural grounds, as such, the petitioner
would not be entitled for any benefit of pay
and allowances either admissible under
Fundamental Rule 54-A(2)(i) or 54-A(3) of
the Financial Hand Book.

25. Assuming for a moment that
Fundamental Rule 54-A(2)(i) and (3) were
not applicable and there was no provision
which was applicable to the peculiarity of
the situation, the Tribunal had to step in
and decide the case as per principles of
equity, good conscience and justice. After
all some decision had to be taken regarding
regularization of period from the date of
dismissal till reinstatement, as also, the pay
and allowances payable for the said period.
Guidance could be taken in this regard
from
the
provisions
and
principles
contained in Fundamental Rule 54-A.

26. Once the Tribunal vide judgment
dated 27.10.2016 held that the punishment
of
dismissal
was
shockingly
disproportionate and accordingly set aside the
dismissal order dated 07.12.2007 albeit with
liberty to impose a lesser punishment but, no
punishment, what to say, a lesser punishment
was imposed even after conducting a
preliminary enquiry post the order dated
27.10.2016, the setting aside of the dismissal
order was certainly not on procedural grounds,
it was on the ground of quantum of
punishment i.e. the punishment was excessive
and disproportionate. In fact, the State
authorities by their conduct in not imposing
any punishment inspite of the liberty granted
by the Tribunal negated the entire disciplinary
proceedings. The Tribunal has failed to
appreciate the matter in correct perspective.

27. Without going into the question
any
further
as
to
applicability
of
Fundamental Rule 54-A (2) (i) & (3), we
have no doubt that the petitioner could not
have
been
totally
denied
pay
and
allowances for the relevant period on the
principle of 'No Work No Pay' as, the
petitioner was kept out of service on
account of punishment of dismissal which
was
illegal
and
excessive
and
was
ultimately set aside.

28. The learned counsel appearing for
the petitioner in all fairness submitted that
only 50% of the admissible pay and
allowances for the period from 11.12.2007
to 07.03.2017 may be paid to the petitioner.

29. In view of the discussion made
hereinabove, we are of the view that in the
facts and circumstances of the case, this
would be a fair and reasonable amount to
be paid to the petitioner subject to the
petitioner furnishing a certificate by him
stating therein that he was not gainfully
employed at any place from the date of
dismissal till his reinstatement.

30. In view of the aforesaid reasons,
this writ petition is allowed. The impugned
order dated 22.03.2023, passed by the
learned State Public Services Tribunal,
Indira Bhawan, Lucknow in Claim Petition
No.1332/2020 (Shiv Bachan Gautam vs.
State of U.P. and others), is hereby set
aside and the claim petition is allowed. The
orders dated 30.11.2018, 06.11.2019 and
07.09.2020 are also quashed. We direct the
respondents to pay 50% of the pay and
allowances admissible to the petitioner for
the period from 11.12.2007 to 07.03.2017
within two months from the date of
presentation of a certified copy of this
order. Needless to say that the aforesaid
payment shall be made to the petitioner
subject to furnishing a certificate by him
stating therein that he was not gainfully
756 INDIAN LAW REPORTS ALLAHABAD SERIES
employed at any place from the date of
dismissal till his reinstatement.
----------
(2025) 9 ILRA 756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.09.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 6045 of 2024

Surendra Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Singh

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

Issue for consideration
 Which date of birth shall be deemed to be
correct, where a government servant has not
passed High School or equivalent exam?

Headnotes
A.
Service
Law
-
Uttar
Pradesh
Recruitment to Services (Determination of
Date of Birth) Rules, 1974: Rules 2 & 3 -
Where a government servant has not
passed High School or equivalent exam,
his DOB recorded in his service book shall
be deemed to be his correct DOB. The
DOB, as recorded in the service book,
would be conclusive in all respects, more
particularly when there is no interpolation
made in the service book as far as the
DOB is concerned. (Para 18, 20, 21)

The petitioner, who was engaged on 16.02.1986
as a daily wager and was regularized vide order
dated 16.04.2011, is before this Court raising a
challenge to the order dated 05.04.2024,
whereby the petitioner has been informed that,
as per his date of birth of 15.01.1964, he would
stand retired on 31.01.2024. As per the
petitioner, the DOB is 01.12.1965, as duly finds
place in the service book, and thus it is prayed
that once the service book, prepared in the year
2010, has all along indicated the DOB of the
petitioner as 01.12.1965, the impugned order
retiring
the
petitioner
with
effect
from
31.01.2024 be set aside, and the respondents
be directed to continue the services of the
petitioner as per the DOB of 01.12.1965 till
31.12.2025. (Para 16)

However, the respondents have placed reliance
on a seniority list issued on 24.12.2003, which
recorded
the
DOB
of
the
petitioner
as
15.01.1964, as well as on the quarterly
progression report, which also recorded the
DOB of the petitioner as 15.01.1964 and the
Aadhaar Card of the petitioner. (Para 19)

There is no dispute that the DOB as recorded in
the service book is 01.12.1965 and also that
there is no interpolation in the service book so
far as it pertains to the DOB of the petitioner.
Merely because the respondents had
issued a seniority list on 24.12.2003 i.e.
much prior to preparation of the service
book in the year 2010 and the quarterly
progression report, which indicated the
DOB of the petitioner as 15.01.1964,
which
incidentally
are
all
those
documents issued both prior to and
subsequent to the preparation of the
service book in the year 2010, cannot
give any advantage to the respondents,
more
particularly
when
both
the
seniority
list
and
the
quarterly
progression report indicating the DOB
of the petitioner as 15.01.1964 are
contrary to the entry as recorded in the
service book, which entry has to be treated
as final keeping in view the fact that the
petitioner is not High School pass rather
class-V pass and as per Rules 2 & 3 of Rules,
1974, where a government servant has
not passed High School or equivalent
exam, his DOB recorded in his service
book shall be deemed to be his correct
DOB. (Para 21, 30)

B. In case of no fault of the employee, if
he
is
kept
away
from
work,
the
respondents cannot be allowed to say that
the principle of no work no pay would be
applicable. (Para 34)