The main legal point established is that in cases of reinstatement, the treatment of the period of absence from duty should be in accordance with Fundamental Rule 54, and the petitioner should be entitled to salary and benefits for that period if wrongfully retired.

JUDGMENT

Sanjeev Sachdeva, J. (Oral)--Petitioner impugns order dated 18.11.2016 and order dated 19.01.2018 to the extent that the period intervening between 12.01.2016 and 01.11.2016 was treated as extraordinary leave and seeks a direction that the said period be treated as spent on duty for all contents and purposes with all consequential benefits.

2. Learned counsel for petitioner submits that petitioner was wrongfully retired on the ground of physical unfitness w.e.f. 12.01.2016. Subsequently, petitioner was reinstated in service on 01.11.2016 on the ground that his termination was contrary to the rule position and that the Medical Board by which he was declared unfit, had not been properly convened and that the procedure as prescribed under Rule 25 of BSF Rules 1969 was not followed. He submits that despite reinstatement, petitioner has been denied salary and benefits for the said period.

3. Learned counsel appearing for the respondent contends that the order of reinstatement dated 06.10.2016 directed that period of absence of petitioner from the date of his retirement till his re-joining would be regularized in terms of Fundamental Rule 54 (5). He submits that in terms of Fundamental Rule 54 (5) since the petitioner was absent from duty consequent to his retirement, the period is not to be treated as spent on duty unless the competent authority so directs.

4. Petitioner had joined the BSF as constable on 13.10.1993. On 11.01.2016, petitioner was made to retire w.e.f. 12.01.2016 on the ground of physical unfitness. On representation of the petitioner, the case was re-examined and the subject order dated 06.10.2016 was passed wherein it was noticed that Unit had not followed the due procedure as prescribed under Rule 25 of BSF Rules, before issuing the retirement order and consequently, the competent authority found the order to be not sustainable. Order was accordingly set aside. Petitioner thereafter rejoined on 01.11.2016 when he was reinstated in service. It is informed that petitioner thereafter served for nearly six years after his reinstatement when he was once again retired on medical ground.

5. Fundamental Rule 54 reads as under:

F.R 54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal review or would have been so re-instated 9 [but for his retirement on superannuation, while under suspension or not], the authority competent to order re-instatement 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 preceeding his dismissal, removal or compulsory retirement, as the case may 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 re-instatement is of the 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 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 dismissal, removal or compulsory retirement, 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 representations 10 [within 60 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, subject to the provisions of sub-rule (7),be paid for the period of such delay, only such amount 11 [not being the whole] of such pay and allowances as it may determine