Hon’ble Mrs. Sangeeta Chandra, J.—This special appeal has been filed by the appellant challenging the judgment and order dated 12.2.2007 passed by Hon’ble Single Judge in Writ Petition No. 30455 of 1990 (Ramakant Tiwari v. State of U.P and others). By means of the impugned order dated 12.2.2007, the Hon’ble Single Judge has dismissed the writ petition and has held on the basis judgments of the Hon’ble Supreme Court that the Principle of restitution shall be applicable and it was the duty of the Court to restore back the benefits to the respondents which were given to the petitioner in pursuance of an interim order dated 19.11.1990 staying the operation of the order of dismissal of the petitioner No. 1 dated 1.11.1990. The writ petition was dismissed with cost.

2. Counsel for the petitioner/appellant while arguing the matter before us has relied upon three main grounds, which were also urged before the learned Single Judge. It has been argued that during the pendency of the disciplinary proceedings the petitioner who had initially been appointed on a temporary basis, had completed his probation satisfactorily and having rendered satisfactory service and being confirmed, it cannot be said that during the same time, the petitioner committed any misconduct and disciplinary proceedings could not be allowed to continue after his confirmation.

3. Learned Single Judge has dealt with the said argument raised by the writ petitioner and has held that the reliance placed upon the judgment of the Hon’ble Supreme Court in the case of Girish Bihari v. State of U.P., 1982 LIC 1500, was misplaced.

4. It is admitted fact that the judgment rendered in the case of Girish Bihari (supra) related to a matter of promotion and the writ petitioner therein had been promoted during the pendency of disciplinary proceedings, and therefore, the said case was clearly distinguishable on facts. Learned Single Judge has rightly held that the petitioner was appointed on a temporary basis as Excise Inspector on 22.8.1983 and departmental proceedings had been initiated during his period of probation and were pending against him and charge-sheet had been served, but enquiry report had not been submitted and no final orders were passed. Therefore, on the date of confirmation of the petitioner, who was on probation, it was not certain as to whether the petitioner was guilty of misconduct or not, hence, to avoid any complication and undue hardship for the petitioner, he was confirmed during pendency of disciplinary proceedings.

5. We have considered the view of the learned Single Judge and we find that the department had acted in favour of the petitioner, while confirming him, during the pendency of the disciplinary proceedings and by mere confirmation, it cannot be said that the employee, who was otherwise facing disciplinary proceeding was absolved of all misconduct. The charge of misconduct had yet to be proved and the petitioner would certainly have suffered in terms of the seniority and further chances of promotion, in case his confirmation was held back by the Authorities till he was exonerated. The confirmation order of the petitioner during the pedency of the disciplinary proceedings only shows bona fide conduct of the employers.

6. This Court may at this stage refer to judgments rendered by the Hon’ble Supreme Court in matters relating to compulsory retirement. It had earlier been held that promotion of an employee would mean that the work and conduct of such employee was satisfactory, but the Supreme Court in State of Punjab v. Guru Dev Singh, 1998 (4) SCC 92 and again in State of U.P. v. Vijay Kumar Jain, 2002 (3) SCC 641 and in State of U.P. v. Lalsaram, 2001 (3) SCC 389, have held that mere promotion of an employee would not render the whole service tenure of the employee concerned as satisfactory, and adverse entries even before promotion can be taken into consideration for the purpose of compulsory retirement.

7. Counsel for the petitioner/appel