K.C.Agrawal, J. - (1.) This petition under Article 226 of the Constitution has been filed by the petitioner Baldeo Raj Bhatia seeking, amongst others, the following relief : (i) To issue a writ of certiorari, order or direction in the nature of certiorari calling for the record of the case and quashing the order dated 15th July, 1976. (ii) To issue a writ of mandamus, order or direction in the nature of mandamus directing the respondents to pay the salary and allowances as is admissible under the Rules 54-A(3) to the petitioner at once.
(2.) The petitioner was employed as a Junior Division Clerk (Civilian) in the IVth Battalion, N.C.C. Kanpur. He was dismissed from service by an order of the Officer Commanding IVth Battalion, U.P. NCC, on certain charges of misconduct, on 9.1.1961. His appeal was dismissed by the Group Commander of the National Cadet Corps, Group Headquarters, Kanpur. The petitioner filed Writ Petition No.2368 of 1972 in this Court. The writ petition was allowed on 18.11.1975. The High Court found that as the petitioner had not been given any opportunity to defend himself, his dismissal was void. The relevant observations were: "No show cause notice as contemplated by Rule 55 and Article 311(2) was given to the petitioner. It is well settled that if an order of dismissal is passed in violation of Article 311(2) of the Constitution the order would be void. In the instant case, the petition was denied the constitutional protection and the order of dismissal was passed without affording him opportunity as contemplated by Article 311(2) of the Constitution, hence the order of dismissal is void."
(3.) Upon the writ petition being allowed, the petitioner applied for reinstatement. He was reinstated by the order dated 11.5.1976 with effect from 1.3.1976. The petitioner made a representation for payment of arrears of salary with effect from the date of his dismissal. By the letter dated 15th July, 1976 (Annexure '3') the petitioner was allowed payment of full salary and allowances for a period of three years immediately preceding the date of his reinstatement. The petitioner preferred a representation before the Officer Commanding, IVth Battalion, U.P., NCC for the payment of salary for the full period during which he remained dismissed. The petitioner claimed that since his dismissal order had been found to be void by the High Court, he was entitled to be given the full salary under Rule 54-A(3) of the Uttar Pradesh Fundamental Rules. The representation was rejected by an order dated 15.2.1977. The authority held that as the dismissal order of the petitioner had been set aside by the High Court on the ground of non-compliance of article 311(2) of the Constitution and the punishment was not set aside on merits, the petitioner was not entitled under the Proviso to Fundamental Rule 54-A(2) to get his full salary. The view was that Rule 54-A(3) could apply if the dismissal, removal or compulsory retirement of the petitioner would have been set aside by the High Court on merits. Upon the representation being rejected, the petitioner approached this Court by means of the present writ petition.;