Murlidhar, J. - (1.) This is a plaintiffs second appeal. Plaintiff Hub Narain Sharma was a teacher in a Zilla Parishad Junior High School. He came to be suspended on 21-3-63 and finally dismissed from service by Adhyaksha, Zilla Parishad on 5-4-64. He preferred an appeal against the order of Adhyaksha, Zilla Parishad before the Commissioner, Allahabad. The Commissioner per order, dated 16-5-65 allowed the appeal and directed reinstatement with full back wages. Zilla Parishad, however, did not implement the order whereupon the plaintiff on 1-6-67 filed a suit for recovery of Rs. 5595.50 salary from 21-3-63 to 21-9-66 as well as future salary from 22-9-66 onwards. It was alleged in the plaint that Zilla Parishad having not complied with the Commissioners order, the plaintiff was entitled to his full salary. The trial court per judgment, dated 20-2-68 decreed the suit for recovery of Rs. 4556.69 emoluments till 21-9-66 and also granted a declaration that the plaintiff continued to be in service. Decree for pendante lite emoluments was also awarded subject to payment of court-fee. The lower appellate court relying upon the Division Bench decision dated 16-4-68 of this Court in Second Appeal No. 344 of 1967 and other connected appeals found that the Commissioner had no jurisdiction to hear any appeal from the disciplinary orders passed by Adhyaksha, Zilla Parishad because no service rules had been framed for Zilla Parishad employees. The plaintiff, thereupon, filed the present second appeal.
(2.) While this appeal was pending on 3-4-70, Uttar Pradesh Zilla Parishad Service Rules were enforced by the Governor in exercise of powers under Section 237 of the U. P. Kshettra Samiti and Zilla Parishad Adhiniyam 1961. Under R. 42, the appellate power of Commissioner against the orders regarding dismissal etc. of Zilla Parishad employees was extended to orders passed before the enforcement of these rules. The plaintiff thereupon preferred another appeal against his dismissal order under Rule 42 read with R. 40. This appeal was allowed by the Commissioner per order dated dated 27-3-72. Now R. 35 of the aforesaid rules runs as follows:- "35. Determination of subsistence allowances and treatment of the period of suspension in case of reinstatement:- Where suspension is ordered pending inquiry, the procedure for determining the subsistence allowances that shall be paid during such period and the manner in which the period of suspension shall be treated in case of reinstatement of a servant under suspension shall be the same as may from time to time be applicable to the servants of the State Government." Rule 54 of Financial Handbook, Parts II to IV, Chap. 8 is the rule governing emoluments of a reinstated Government servant. This runs as follows:- "54. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly' unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; Provided that the payment oi allowances under cls. (2) and (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under cl. (2) the period of absence from duty shall be treated as a period spend on duty for all purposes. (5) In a case falling under cl. (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose."
(3.) A certified copy of the Commissioners order, dated 27-3-72 allowing the appellants appeal was shown to me. Although he allowed the appeal, set aside the order of Adhyaksha, Zilla Parishad and directed reinstatement with the direction that the whole period of suspension be counted as period of service for all purposes, so far as the emoluments go, he observed that no salary shall be paid to the appellant for this period because he had not worked for the Parishad and it would not be proper to burden Zilla Parishad financially. He observed that this whole suspension period be treated as leave without pay.;