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Judgment
Hon'Ble Manish Kumar, J.
Heard.
The present writ petition has been preferred with the following main prayers:
"(i)Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 22.01.2026 and 23.01.2026 upto the extent the calculation of qualifying services as mentioned in clause-4 of the impugned order as contained in Annexure No.1 to this Writ Petition.
(ii)a writ, order or direction in the nature of mandamus commanding respondents to refix the Provisional Pension / Family Pension calculating the regular services of petitioner's husband w.ef 30.07.1985 to 31.05.2020 and make payment of Revised Pension and Family Pension arrear."
Learned counsel for the petitioner has submitted that the husband of the petitioner was initially appointed on 30.07.1985 on the post of Junior Clerk in the office of Circle Superintending Engineer, Irrigation, Faizabad (Ayodhya) on regular basis and he was promoted on the post of Senior Clerk on 9.4.1999, on the Head Assistant on 22.09.2014 and on the post of Administrative Officer on 28.08.2017. During the service period the husband of the petitioner was placed under suspension by order dated 3.9.2007, against which the husband of the petitioner had preferred a Writ Petition No.2237 of 2007 in which an order has been passed on 4.9.2008 and in pursuance thereof he was reinstated in service on 16.09.2008. On 31.05.2020 the husband of the petitioner after attaining the age of superannuation had retired.
It is further submitted that the husband of the petitioner has expired on 22.10.2022 and by that time no pension was given to the husband of the petitioner. The petitioner being wife of the employee has made a representation for payment of family pension, which was decided by order dated 22.01.2026 and treated 11 years 8 months and 15 days as qualifying service for payment of pension from the date of reinstating the husband of the petitioner on 16.09.2008 and the services rendered by the husband of the petitioner since 30.07.1985 till 15.09.2008 has not been counted as qualifying service for grant of pension. So, feeling aggrieved by the same the present writ petition has been filed for quashing of the said part of the order with a direction to the respondent to add the total period of service of the husband of the petitioner since the year 1985 till the date of his retirement as qualifying service for the purpose of payment of pension and other retiral dues.
On the other hand, learned Standing Counsel on the basis of counter affidavit has submitted that as per Rule 54 B of the U.P. Fundamental Rules and Regulation 422 of the Civil Service Regulations, the services prior to the reinstatement could not be counted for the purposes of qualifying services of the husband of the petitioner because it is an interruption between the two periods of service, hence the order has rightly been passed.
After hearing learned counsel for the parties and going through the record of the case, it is found that it is an admitted case in the counter affidavit that the previous services of the husband of the petitioner since 30.07.1985 till 15.09.2008 was not counted as qualifying service for the purpose of determining the pension as the husband of the petitioner was suspended by order dated 3.9.2007 and was reinstated on 16.09.2008, ignoring completely that the suspension does not mean that there is an interruption between the two period of services. The purpose of suspension is to treat the employee in a continuous service, so it is not the break in service as understood by the officer passed the impugned order and filed the counter affidavit. Reliance placed upon Rule 54B of the U.P. Fundamental Rules has also wrongly placed by the respondent; Rule 54B is regarding the payment and allowances during the suspension period. For convenience Sub - Clause (1) and (2) of Rule 54B is quoted hereinbelow :
"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order 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 suspension ending with reinstatement or the date of his retirement or superannuation as the case may be; and
(b)whether or not the said period shall be treated as a period spent on duty.
(2)Notwithstanding anything contained in Rule 53, where a Government servant under suspension does before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid."
Rule 54B is with regard to the payment and salary benefits for the suspension period on reinstatement or retirement on superannuation.
Reliance placed upon Regulation 422 of the Civil Service Regulation has also wrongly been applied, which deals with interruptions in service either between two spells of permanent and temporary service or between a spell of temporary service or permanent service or vice versa may be condoned by the pension sanctioning authority. For convenience, the relevant portion of the Regulation 422 is quoted hereinbelow :
"[422. Interruptions in service, either between two spells of permanent and temporary service or between a spell of temporary service and permanent service or vice versa may be condoned by the pension sanctioning authority subject to the following conditions, namely -
(1)the interruptions should have been caused by reasons beyond the control of the Government servant concerned;
2)service preceding the interruptions should not be less than five year's duration and in cases where there are two or more such interruptions, the total of service, pensionary benefits in respect of which will be lost if the interruptions are not condoned, should not be less than five years, and
(3)interruption should not be more than of one year's duration and in cases where there are two or more such interruptions, the total of the periods of all interruptions sought to be condoned should not exceed one year.]"
Hence, the impugned order passed by the Respondent No.2 is on the wrong premise and deprived the petitioner from her lawful claim of family pension after the demise of her husband taking into consideration the service period since 1985.
In view of the facts, circumstances and discussion made hereinabove, the impugned order dated 22.012026 is quashed to the extent for treating the qualifying services of the husband of the petitioner for the purposes of pension since 19.09.2008 to 31.05.2020 i.e. for the period of 11 years, 8 months and 15 days and issue a writ of Mandamus to the Respondent No.2 to re-fix the family pension of the petitioner taking into account the service of the husband of the petitioner since 30.07.1985 till the date of retirement of the husband of the petitioner i.e. 31.05.2020. The said exercise shall be made within two months from the date of certified copy of this order is served and the payment shall be made within a period of one month thereafter.
The writ petition is, accordingly allowed.