An employee cannot be penalized for the State's error, but an undertaking not to claim benefits for an intervening period is binding.

Order :

1. Since the common question of law and facts are involved in these petitions, hence with the consent of both the parties, both these matters are taken up together and are decided by this common order and for the sake of convenience, the facts pleaded in S.B. Civil Writ Petition No.7501/2017 titled as Pushpendra Singh Katela vs. The State of Rajasthan & Anr. and the prayer mentioned therein is taken into consideration, the instant writ petition has been preferred with the following prayer:-

"It is therefore, most respectfully prayed that your Lordship may graciously be please to allow the writ petition and further be please to call the entire record of the case and after examining the same by an appropriate writ order or direction the order dated 22.11.2016 may kindly be modified and the petitioner held entitled for the all consequential benefits for the intervening period from 19.06.2000 to 19.05.2004 and arbitrary conditions mentioned in the order dated 18.05.2004 including treating the intervening period from 19.06.2000 to 19.05.2004 as dies-non may kindly be declared illegal and arbitrary and same may kindly be quashed and set aside and respondents be directed to grant for the intervening period full financial and service benefits along with all consequential benefits to the petitioner along with interest.

Any other order which this Hon'ble Court deemed fit in the circumstances of the case may kindly be passed in favour of petitioner.

If any prejudicial order to the interest of the petitioner is passed during the pendency of the writ petition, same may kindly be taken on record and be pleased to quashed and set aside."

2. Learned counsel for the petitioner submits that the petitioner was given compulsory retirement with effect from 19.06.2000 in terms of the notification dated 05.07.2000. Counsel submits that prior to the aforesaid notification, the qualifying service for passing the order of compulsory retirement was 25 years and after enforcement of the aforesaid notification dated 05.07.2000, the qualifying period of 25 years was reduced to 15 years. Counsel submits that this fact is not in dispute that the petitioner has not completed 25 years of service, hence, under these circumstances, the order of compulsory retirement should not have been passed by the respondents.

3. Counsel submits that subsequently the mistake was realized by the State and the compulsory retirement order of the petitioner was withdrawn by the respondents and the petitioner was reinstated back in service on 18.05.2004.

4. Counsel submits that while taking the petitioner back in service, subsequently, an order was passed on 22.11.2016 and the period commencing from 19.06.2000 till 18.05.2004 was treated as 'dies-non'. Counsel submits that there was no fault of the petitioner, and he never denied to work in the intervening period and the fault lies with the State Authorities as they did not allow the petitioner to work in the intervening period. Counsel submits that under these circumstances, the intervening period could not be treated as dies-non.

5. In support of his contentions he has placed reliance upon the following orders passed by the Co-ordinate Benches of this Court

(i) Jaswant Singh Tanwar vs. State of Rajasthn & Anr.; S.B. Civil Writ Petition No.7283/2005 decided on 22.02.2017

(ii)Jagdish Narain Pandey vs. The State of Rajsthan; S.B. Civil Writ Petition No. 3246/2002 reported in 2017(1) WLC (Raj.) UC 121 and Amarjeet Singh vs. State of Rajasthan & Anr.; S.B. Civil Writ Petition No.4557/2009 decided on 02.03.2016.

6. Counsel submits that before taking the petitioner back in service and before his reinstatement, a forceful undertaking was taken from him, for not claiming the benefit of the intervening period including the wages. Counsel submits that the petitioner was left with no other option except to submit the aforesaid undertaking and the same