JHA, CJ. - (1.) THIS writ petition by a former member of the Rajasthan Higher Judicial Service (RHJS) has been filed for quashing the punishment of censure awarded to the petitioner vide order No. Estt. (RJS)/06/98 dated 7. 1. 1998. The petitioner has sought number of other reliefs too including quashing of the resolution dated 6. 1. 1995 by which the Full court was made the Disciplinary Authority, direction to pay him full pay and allowances for the suspension period and release of annual grade increment becoming due during the suspension period, and grant of selection grade scale of RHJS from the date his juniors were allowed the scale.
(2.) ORDERS were passed after filing of the writ petition in terms of which petitioner's suspension period from 4. 12. 1992 to 2. 8. 1993 was regularized vide order dated 28. 2. 2000, and the period was treated as spent on duty but only for the purpose of pension, and he was not allowed the pay and allowances except the subsistence allowance already drawn by him during the suspension period. The pay of the petitioner was also revised vide order dated 4. 5. 2000 in the scale of Rs. 16400-450-20000 and his pay was fixed at Rs. 17300/- as on 1. 9. 1996 as per the Rajasthan Civil Services (Revised Pay Scale) Rules, 1998. However he was compulsorily retired from service vide order dated 9. 11. 2000. When the petition was taken up for hearing Shri Sunil Samdaria appearing for the petitioner confined his grievance to non-payment of pay and non-release of annual grade increment during the suspension period. He submitted that having regard to the fact that a minor penalty of censure was imposed, the petitioner should have been paid full pay and allowances, and in any case there was no justification to withhold the annual grade increment during the suspension period. In support of the latter contention, counsel placed reliance on Kan Singh vs. State of Rajasthan & Ors. , 1989 (1) RLR 111 and Smt. Shanti Devi vs. State of Rajasthan & Ors. , 1990 (1) RLR 800. The question as to whether the petitioner was entitled to release of annual grade increment during suspension period need not detain us. No doubt in Kan Singh vs. State of Rajasthan (supra), a Division Bench of this Court took the view that the contract of service continues even during suspension, and increment should be ordinarily allowed to be drawn unless it is withheld by a specific order; on appeal by the State, the Supreme Court in S. L. P. (C) No. 9256/1989 set aside the judgment. The order of the Supreme Court is not reported in any journal but it has been quoted verbatim in Rajasthan State Electricity Board & Anr. vs. Narayan Lal Meena, 1996 III LLJ (supp.) 1152. The order is brief and may be quoted as under:- " Leave granted. Heard learned counsel on both sides. Having regard to the Rules governing the matter, the claim for enhancement of the subsistence allowance in the manner directed by the High Court in this case, is not sustainable. The order dated February 28, 1989, passed by the Rajasthan High Court in W. P. No. 871 of 1988 is set aside and the appeal is disposed of accordingly. No order as to costs. " The judgment in Kan Singh (besides Smt. Shanti Devi) which is the basis of the petitioner's claim having been set aside by the Supreme Court, it is plain that the petitioner cannot claim annual grade increment during the suspension period. The order of the Supreme Court, it would appear, does not set out reasons as to disentitlement of the delinquent employee to annual grade increments during the suspension period perhaps because the reason is too obvious. The entitlement to pay and allowances including annual grade increments during suspension period depends on outcome of the disciplinary proceeding, and as we shall presently see hereinafter, when we notice rule 54 of the Rajasthan Service Rules, where a delinquent employee is not fully exonerated, the rule enjoins upon the competent authority to take a decision regarding the proportion of pay and allowances to be paid to the delinquent employee and also the manner in which the period of suspension is to be treated. Indeed, depending on the outcome of the proceeding, if the employee is dismissed or removed or compulsorily retired from service by way of punishment, pay and allowance except subsistence allowance ordinarily is not paid and the occasion for grant or release of annual grade increments for the suspension period may not arise. The reason being too obvious, the Supreme Court simply set aside the judgment of this Court observing that "having regard to the rules governing the matter" the respondent was not entitled to enhancement of subsistence allowance by taking into account the annual grade increments falling due during suspension period.
(3.) WE now come to the question as to whether the petitioner is entitled to full pay and allowances only because a minor punishment was awarded to him. The claim of the petitioner in this regard is wholly misconceived and contrary to express provisions of rule 54 of the Rajasthan Service Rules. Rule 54 at this stage may be quoted as it stood at the relevant time, as under:- " Re-instatement- (1) When a Government servant who has been dismissed, removed, compulsory retired or suspended is re- instated or would have been re-instated but for his retirement on superannuation while under suspension, the authority competent to order the re-instatement 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 or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spend on duty. (2) Where such competent authority holds 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 dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsory retired as a penalty or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as period on duty unless such that it shall be so treated for any specified purpose: (6) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment, business profession or vocation during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement, where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of restatement, where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation elsewhere, nothing shall be paid to the Government servant. Note:- The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servant are concerned. Provided that if the Government so desires, such authority may directed that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. " From a bare reading of the rule it is manifest that where a government servant has been fully exonerated or, in the case of suspension, it is held that suspension was wholly unjustified, under clause (2) he is entitled to full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be. In other cases, that is to say, where the government servant is not fully exonerated or there is no finding that the suspension was wholly unjustified, he is to be paid under clause (3) "such proportion of such pay and dearness allowance as such competent authority may prescribe. " In other words, where there is no finding of complete exoneration or the suspension being wholly unjustified, the competent authority may decide not to pay him full pay and dearness allowance to he would have been otherwise entitled during the suspension period. No doubt, as held by the Supreme Court in M. Gopal Krishna Naidu vs. State of M. P. , AIR 1968 SC 240, and reiterated in B. D. Gupta vs. State of Haryana, AIR 1972 SC 2472, such an order affects the employee financially and therefore, the order must be passed after an objective consideration and assessment of all the relevant facts and circumstances. The submission of the petitioner that where minor punishment is awarded, the delinquent should be paid full pay and allowances is not borne out from the rule. The rule does not make distinction between major and minor punishments and no such classification can be made. Undoubtedly, as observed by the Supreme Court in the above, mentioned cases, the decision has to be taken on proper consideration of the attending facts and circumstances but whose the delinquent employee is not fully exonerated, he cannot claim full pay and dearness allowance as a matter of right. ;