K. N. Singh, J. - (1.) THE petitioner has, by means of this petition under Article 226 of the Constitution, challenged the validity of the notice issued to him by the Station Engineer of All India Radio, Varanasi, dated 31st December, 1975, fixing the petitioner's fee and allowances for the period from 5-4-1971 to 31-7-74 during which he remained out of employment.
(2.) THE petitioner was appointed as Staff Artist, in the All India Radio, Bombay, under an agreement executed by him with the Director General of India Radio initially for a period of three years. His employment was subsequently renewed for a further period of three years. Later on, a clause was added to the agreement that he shall remain in service upto 31st December,1985, on which date he was to attain the age of superannuation. One of the terms of the agreement provided that the petitioner's services will be liable to be terminated on six months' notice on either side. While the petitioner was posted at Varanasi, a notice Mated October 5, 1970, was issued to him intimating him that his services would stand terminated on the expiry of six months' period from the date of the said notice, in accordance with the terms and conditions of service. THE petitioner challenged the validity of this order by means of a writ petition in this Court which was allowed on 12-7-1974. THE learned Judge held that the petitioner was holding civil post under Article 311 of the Constitution and as such his services could not legally be terminated by giving him six months' notice. THE learned Judge quashed the notice of termination and directed the respondents to treat the petitioner in service and to pay him the emoluments to which he was entitled. The Union of India preferred Special Appeal against the judgment of the learned Single Judge before a Division Bench of this Court but the same failed and the order of the learned Single Judge was affirmed. Union of India, thereupon, filed Special Leave Petition before the Supreme Court but that too failed and the judgment of thii Court became final. Meanwhile the petitioner was allowed to join his duties on 1-8-1974. The petitioner claimed his salary and other allowances for the period, 5-4-71 to 31-7-74, during which he remained out of service on account of the termination of his service. The Station Engineer by his order dated 31st December 1975 informed the petitioner that regarding payment of fees and allowances to him from the period 5-4-71 to 31-7-74 it was decided that the petitioner's case was covered by clause (2) of Fundamental Rule 54-A and having regard to the provisions of sub-rules (4), (5) and (7) of Fundamental Rule 54, it was decided that the petitioner be paid fee and allowance equal to the subsistence allowance that may be admissible to him for the period of three years immediately preceding the date of his reinstatement. The order stated that the subsistence allowance would be equal to the leave salary payable under Rule 53 (1) of the Fundamental Rules. The order, further stated that under Fundamental Rule 54 (4) the amount of fee and allowances to which the petitioner was entitled was Rs. 232. 60 per month. The petitioner made representation against the aforesaid order, he asserted that Fundamental Rules 53, 54 or 54-A were not applicable to his case and he was entitled to be paid full salary and allowances along with increments in view of the direction of the Court. The petitioner's representation was not accepted, he was informed that his arrear payment would be made to the extent as intimated to him, The petitioner accepted the payments under protest. Aggrieved the petitioner approached this Court by means of this petition. Learned counsel for the petitioner urged that since the petitioner's services were terminated in accordance with the terms of service contract without any allegations of misdemeanour or misconduct against him. Fundamental Rule 53 or 54-A is not attracted. In view of the direction issued by this Court in the earlier petition, the petitioner is entitled to full pay and allowances. The respondents were buond to carry out and implement the direction of this Court. On behalf of the respondents it is urged that petitioner's case is covered by clause (2) of Fundamental Rule 54-A, and in view of sub-rules (4) and (5) of Fundamental Rule 54 the petitioner is entitled to fees and allowances equal to the subsistence allowances admissible to him under the said provisions had he been placed under suspension for the period 5-4-71 to 31-7-74.
(3.) FUNDAMENTAL Rule 53 provides for determination of payments of subsistence allowance and other allowances to a Government servant under suspension or deemed to have been placed under suspension. The petitioner was never placed under suspension nor was he ever deemed to have been placed under suspension by any order of the appointing authority ; instead, his services were terminated under the terms of the contract of his service. The provisions of FUNDAMENTAL Rule 53 are not applicable for determining the petitioner's salary and allowances. Fundamental Rule 54 confers power on the competent authority to make orders regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty. When the Government servant who may have been dismissed, removed or compulsorily retired is re-instated by the departmental authorities in appeal or review, the authority competent to order reinstatement is invested with power to pass orders for the payment of pay and allowances to the Government servant for the period of his absence from duty and the competent authority is further empowered to determine whether or not the said period shall be treated as period spent on duty. Where dismissal, removal or termination is declared invalid by a court of law and a further declaration is granted that the Government servant continues to be in service, the effect of the adjudication is that the public servant, has been wrongfully prevented from joining his duties as a public servant, and he continues to be in service. In Devendra Pratap's case, AIR 1962 SC 1334 the Supreme Court held that in such an event it would not be open to the competent authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.;