JUDGMENT :

1. The matter comes up on an application preferred by the respondent-petitioner under Article 226(3) of the Constitution of India for vacation of ex parte interim order dated 14.03.2023 passed by this Court, however, with consent of the counsel for the parties, the Special Appeal itself is taken up for hearing.

2. Heard learned counsel for the parties.

3. The present appeal has been filed against the order dated 12.10.2022 passed by the learned Single Judge of this Court, whereby, the writ petition of the respondent-petitioner was allowed and the action of the appellant-Department in reducing the qualifying service of the respondent-petitioner by 3128 days has been quashed and set-aside. Further, the order of recovery dated 22.06.2021 amounting to Rs.9,97,118/-has also been quashed and set-aside.

4. Brief facts necessary to be noted for disposal of the present appeal are that the respondent-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 respondent-petitioner at Police Station-Surajgarh, District Jhunjhunu and accordingly, he was arrested on 04.01.2001 and was consequently placed under suspension w.e.f. 04.01.2001. The respondent-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 respondent-petitioner, he was dismissed from the service w.e.f. 18.04.2002 by order dated 19.04.2002. The respondent-petitioner filed an appeal before the High Court, which came to be dismissed. Whereafter, the respondent-petitioner approached the Hon’ble Supreme Court, who by its order dated 13.04.2011, acquitted the respondent-petitioner. The respondent-petitioner was reinstated vide order dated 04.08.2011 which reads as under :-

“Dated, the 04 Aug 2011

ORDER

Whereas, the representation dated 05.05.2011 submitted by No.89644707 Ex-Const Satyapal Singh of STS BSF Tigri Camp requesting for re-instatement in service, on his acquittal from the offences u/s 302/34 IPC, has been examined in detail;

2. Whereas, after careful consideration of all the points raised in the representations, fact and circumstances of the case and judgment dated 13th April 2011 passed by Hon’ble Supreme Court of India, the Competent Authority is pleased to set-aside the dismissal order No. Estt/STS/Disc/SPS/2002/848-950 dated 10.04.2002 passed by the DIG STS BSF Tigri Camp, and re-instated No.89644707 Ex-Const Satyapal Singh of STS BSF Tigri Camp, in service with immediate effect.

3. Whereas, the period of absence i.e. from the date of dismissal to the date of acquittal, may be regularized by granting leave of kind due i.e. EL, HPL & EOL as per rules and no back wages may be allowed to the individual for the said period of absence.”

5. After the respondent-petitioner was reinstated, he served the appellant-Department and thereafter, took voluntary retirement from services. It is at this point of time, the appellant-Department while issuing the Pension Payment Order (PPO), treated the period of 3128 days from 20.04.2002 to 15.08.2011 as dies non. This period was not counted for qualifying service, hence the respondent-petitioner preferred a writ petition before this Court which was allowed vide order impugned dated 12.10.2022.

6. Learned counsel for the appellants vehemently argued that the period for which the respondent-petitioner did not serve the Department and was out of job, cannot be considered as a qualifying period of service and, therefore, the appellants were right in treating the same as dies non and hence, the PPO was rightly issued by the Department.

7. Learned counsel for the appellants further submitted that even as per Rule 25 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as “the Rules of 1972”), if a Government Servant is dismissed or removed or compulsorily retired as a consequence of the disciplina