1. Petitioner was appointed as constable in Indo-Tibetan Border Security Force (IT-BSF) on 2.5.1995 and allotted no. 950050214 Const./GD. He was removed from service vide order dated 24.5.2006 on the charge that he had contracted second marriage during subsistence of a marriage. Petitioner questioned order dated 24.5.2006 in petition being SWP no. 837/2006. The writ petition was allowed on 9.8.2007 and the writ court while quashing the order impugned in the petition directed respondents to allow the petitioner to resume his duty.

2. The writ court judgment was assailed in LPA registered as LPA no. 83/2008. The LPA court held the judgment of learned Single Judge to be "short of reasons" and therefore not sustainable. The judgment was accordingly set aside. However, the LPA court in the facts and circumstances of the case discernable from record nonetheless set aside the order dated 24.5.2006. The operative part of judgment reads as under:

"Viewed thus, the order of removal dated 24.5.2006 passed by the appellant is quashed. Resultantly, the respondent (writ petitioner) shall be permitted to resume duties leaving it open to the appellant to initiate action afresh, if he so chooses. Further, the appellant shall be free to settle the intervening period during which respondent (writ petitioner) was out of service by sanctioning leave whatever kind due in accordance with the rules or otherwise as shall be permissible."

3. The petitioner in compliance of LPA court judgment dated 23.9.2011 was reinstated vide order dated 13.4.2012 with effect from 28.3.2012 and posted in Garrison Company, ST Battalion of the Force. His period of absence with effect from 24.5.2006 to 28.3.2012 was directed to be regularized separately in accordance with rules. The respondents by a separate order dated 11.10.2012 treated the period of absence with effect from 24.5.2006 to 28.3.2012 (five years, ten months and five days) as not spent on duty and following the principle `no work no pay' directed it to be regularized as "extraordinary leave". Leave encashment for 39 days earned leave paid to the petitioner was directed to be recovered from him because of his reinstatement.

4. Petitioner throws challenge to order dated 11.10.2012. The main plank of petitioner's case is that though he was always available for performing his duty yet he was not allowed to work on the basis of order dated 24.5.2006 whereby he was removed from service held by court to be arbitrary, against rules and illegal, and therefore, set aside. It is pleaded that once the order dated 24.5.2006 was set aside the respondents instead of allowing the petitioner to resume his duty preferred an LPA against the order of learned Single Judge and the order dated 24.5.2006 was again set aside by the LPA court. It is averred that the respondents instead of complying with the LPA court judgment dated 23.9.11 recommended filing of a special leave petition against the judgment; that the petitioner was again denied an opportunity to discharge his duties; that the petitioner was reinstated on 28.3.2012 only after Ministry of Law, Government of India, gave its opinion against filing of SLP to question the LPA court judgment.

5. It is pleaded that the petitioner's absence from duty was neither wilful nor deliberate and therefore the period of his absence from duty cannot be treated as period "not spent on duty and regularized as extraordinary leave" with further direction to recover leave encashment of 39 days earned leave paid to the petitioner. The petitioner insists that as he had no leave to his credit on the date of his reinstatement the period he did not perform his duties was to be treated as "on duty". He claims to have been immensely prejudiced by the order dated 11.10.2012 inasmuch as not only has the petitioner been deprived of his right to be taken as on duty during the period with effect from 26.5.2006 to 28.3.2012, he has also been downgraded in the seniority list published on 20.10.2012.

6. It is

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