The main legal point established in the judgment is that the period of absence ordered to be regularized by granting leave had to be counted as qualifying service, as per Rule 25 of the Central Civil Services (Pension) Rules, 1972, and any recovery or deduction contrary to this provision is not sustainable.

ORDER :

1. This writ petition has been filed by the petitioner aggrieved against the Pension Pay Order (PPO) dated 14.06.2021 (Annex.P/7) and seeking direction to the respondents to issue a fresh PPO after counting the period from the date dismissal to the date of reinstatement as in service with all consequential benefits and that the order of recovery dated 22.06.2021 (Annex.P/9) be quashed and set aside.

2. It is, inter-alia, indicated that the petitioner was enrolled in BSF on 16.10.1989 as a Constable (GD) at STC, BSF, Jodhpur. While in service, an FIR No. 207/2000 under Section 302/34 IPC was lodged against the petitioner at Police Station-Surajgarh, District Jhunujhunu and accordingly, the petitioner was arrested on 04.01.2001 and was consequently placed under suspension w.e.f. 04.01.2001. The petitioner came to be convicted by Sessions Court, Jhunjhunu vide judgment dated 11.02.2002 and was sentenced to life imprisonment. Based on the conviction of the petitioner, he was dismissed from the service w.e.f. 18.04.2002 by order dated 19.04.2002. The petitioner filed appeal before the High Court, which came to be dismissed. Whereafter, the petitioner approached the Hon’ble Supreme Court, who by its order dated 13.04.2011 (Annex.P/2) acquitted the petitioner.

3. By order dated 04.08.2011 (Annex.P/6) the petitioner was reinstated in service and it was directed that the period of absence i.e. from the date of dismissal to the date of acquittal be regularized by granting leave of kind due under the Rules and no back wages be allowed for the said period of absence.

4. An order dated 27.08.2011 (Annex.P/4) was passed regularizing the services of the petitioner for the period 20.04.2002 to 15.08.2011 by granting E/L, HPL and EOL for 135 days, 142 days and 3128 days respectively. Whereafter, the petitioner by order dated 30.07.2020 (Annex.P/5) was granted voluntary retirement w.e.f. 31.10.2020 as per Rule 48 (A) of the Central Civil Services (Pension) Rules, 1972 (Rules of 1972) with pension and other benefits, as admissible under the Rules.

5. The respondents issued PPO (Annex.P/7) by counting his qualifying service at 21 years 11 months and 3 days. Further, a recovery order (Annex.P/9) was issued, inter-alia, indicating that a sum of Rs. 9,97,118/- was to be recovered from his pensionary benefits i.e. Rs. 3,47,118/- from commutation amount, Rs. 4,05,000/- and Rs. 2,45,000/- from the amount of death cum retirement gratuity and leave encashment of the petitioner, respectively. Further, till filing of the petition by the petitioner even as per the PPO issued by the respondents, the petitioner was not paid the pension.

6. Learned counsel for the petitioner made submissions that the action of the respondents in issuing the PPO (Annex.P/7) by taking the qualifying service of the petitioner at 21 years 11 months and 3 days, is ex-facie incorrect. It was submitted that the respondents apparently have deducted a period of absence i.e. from the date of dismissal to the date of acquittal from the qualifying service of the petitioner, which is contrary to the order dated 04.08.2011 (Annex.P/3), which was passed while reinstating the petitioner wherein, it was directed that the said period of absence be regularized by granting leave to the petitioner and only back wages were denied. Whereafter, on 27.08.2011 (Annex.P/74) the leave for the said absence period in fact was sanctioned by the competent authority and therefore, the deduction in qualifying service and ordering for recovery from the petitioner is ex-facie illegal.

7. Submissions were made that the provisions of Rule 25 of the Rules of 1972, which deal with counting of the past service on reinstatement are very specific, which provides that a Government servant dismissed from the service on reinstatement, is entitled to count his past service as qualifying service and that the period of interruption in the service between the date of dismissal and the date of reinstatement is to be regulariz