S.K. Mal Lodha, J.
1. This is a bunch of twenty eight writ petitions before me which involve identical questions. They were heard together and I consider it convenient to dispose them of by a common order.
2. I will facts of S.B. civil Writ Petition No. 2361 of 1983 (Deshraj v. Union of India.)
3. The petitioner was given compulsory retirement. A review petitioner was filed. The review petition was accepted. The petitioner was ordered to be reinstated by order Anx. 1 dates March 22, 1983. Anx. 1 inter alia contains the following order:
On review he is reinstated in service. The intervening period is to be treated as leave due.
The petitioner is aggrieved of that part of the order by which the intervening period was ordered to be treated as leave due. He has filed the writ petition that the aforesaid part of the order may be quashed, and the non-petitioners (1) Union of India, (2) General Manager Northern Railway, Bikaner House, New Delhi (3) Divisional Railway Manager, Northern Railway, Bikaner (4) Divisional personnel Officer, Northern Railway, Bikaner may be directed to pay the salary to the petitioner for the period he was kept out of employment.
4. A show cause notice was ordered to be issued on October 3, 1983. No reply has been filed.
5. The facts in the other writ petitions are substantially the same.
6. The petitioners in all the writ petitions have prayed for a similar directions to the non-petitioner.
7. Learned Counsel for the parties stated on January 5, 1984 that the writ petition may be finally disposed of at the admission stage.
8. I have heard the learned Counsel for the parties on January 10, 1984 and dictation of the order was deferred for one day at the request of the learned Counsel for non-petitioners.
9. Today, I proceed to dictate the order.
10. The contention of the learned Counsel appearing for the petitioner in all the writ petitions is that the order that the intervening period is to be treated as leaved due is illegal and also discriminatory, for, no such order could be made and that under Rule 2044 under the Indian Railway Establishment Code Vol. II the Authority which ordered the reinstatement should have ordered for the payment of pay and allowance payable to the petitioners from the date of compulsory retirement until the date they were reinstated. On the other hand, Mr. A.K. Mathur learned Counsel for the non-petitioners supported the order Anx. 1 that the intervening period is to be treated as leave due.
11. Before I proceed to examine the rival contentions decision in Kanhaiyalal v. Union of India, 1982 (2) SLR 84 may be noticed. The writ petition was f(sic)iled for quashing the order of compulsory retirement. The writ petition was allowed and the order of compulsory retirement was quashed. The judgment was confirmed in Union of India v. Kanhaigalal D.B. Civil Special Appeal No. 325 of 1981 decided on November 13, 19(sic)81). After the aforesaid decision the employees who were compulsorily retired were taken back on duty and were paid all their does, as if the orders of compulsory retirement were not made. The petitioners in the writ petitions have stated that in regard to the employees of the Bikaner Division who were compulsorily retired, the non-petitioners did not pay the salary from the date of compulsory retirement until the date, they were reinstated. Learned Counsel appearing for the non-petitioners submitted that after passing of the order of reinstatement the non-petitioners under Rule 2044B of the Indian Railway Establishment Code, Vol. II could pass the order that the intervening period is to be treated as leave due. The material part of Rule 2044 of the Indian Railway Establishment Code Vol. II reads as under:
2044(P.N. 54).--(1) When a railway servant who has been dismissed removed or compulsorily retired is re-instated as a result of appeal or review or would have been so re-instated but for his retirement an superunuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order re instatement shall consider and make a specific order
(a) regarding the pay and allowance to be paid to the railway servant for the period of his absence from duty including the period of suspension preceding his-dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose;
Provided that if the railway servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the railway servant..
(8) Any payment made under this rule to a railway servant on his re-instatement shall be subject to adjustment of the amount, if any earned by h m through an employment 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 else where, nothing shall be paid to the railway servant.
It is clear that under Sub-rule (1) of Rule 2044 when a railway servant who has been compulsorily retired is reinstated as a result of review, the authority competent to order reinstatement is required to consider and make a specific order (i) in regard to the pay and allowances to be paid to the railway servant for the period for which he remained absent from duty including the period of suspension preceding compulsory retirement and (ii) whether the said period is to be treated as period spent on duty or not. Both discretions are contemplated under Sub-rule (1) of Rule 2044 when a reinstatement is ordered after the compulsory retirement of railway servant on review. The competent authority who made the reinstatement order did not do so. A perusal of the proviso to Sub-rule (5) of Rule 2044 mikes it clear that when a railway servant desires, the competent authority who made the order of reinstatement can direct that the period of absence from duty inclusive of the period of suspension preceding his compulsory retirement may be converted into leave of any kind admissible to him. There is a note appended to the proviso which fixes the limit regarding grant of period for leave in case of temporary railway servants and permanent servants. Under Sub-rule (1) of Rule 2044 no order can be made like the one which was made in the case of the petitioners that intervening period is treated as leave due. Proviso to Sub-rule (5) of Rule 2044 is not applicable. Sub-rule (5) of Rule 2014 makes mention of Sub-rule (4) of Rule 2044.
12. It is abundantly clear that Rule 2044B is attracted in the case of the railway employees who have been suspended and are ordered to be reinstated In this case the provisions of Rule 2044B cannot be invoked for the simple reason that the petitioners were not suspended and, therefore, its provision's cannot be brought into aid. Learned Counsel for the non-petitioners could not show any other rule in the Indian Railway Establishment Code Vol. II except Rule 2044B under which a direction after setting aside the order of compulsory retirement reinstating a railway employee a direction could be given by the competent authority that the intervening period is to be treated as leave due particularly when the petitioners have not asked that it should be treated as such.
13. It is not in dispute that the-railway employees who had approached this Court for quashing their orders compulsory retirement were granted the relief of reinstatement after quashing the orders of compulsory retirement and directions for the payment of the salary and others allowances, from the date of the compulsory retirement until the date of reinstatement were also given. There is no sound reason as to why the petitioners who had not challenged their orders of compulsory retirement in a law court and on review their orders of compulsory retirement have been set aside and they were ordered to be reinstated should be deprived of the payment of their salary and other allowances from the date of their compulsory retirement until the reinstatement. In this connection reasoning given in Sengara Singh and Ors. v. State of Punjab and Ors. : (1984)ILLJ161SC may be usefully be adopted. In the aforesaid case their lordships ordered that the appellant must receive the same benefit which those reinstated received in the absence of any distinguishing features in their cases and accordingly they were ordered to be reinstated service. No orders for treating the intervening period as leave due could be made after the orders of reinstatement in service were made in favour of the petitioners. The order in case of each of the petitioners that the intervening period is to be treated as leave due is quashed. As the non-petitioners have failed to make the order as envisaged by Sub-Rule (1) of Rule 2044, they are, therefore, directed to make payment to the petitioners the salary and other allowances under Rule 2044(1) from the date of compulsory retirement until they were reinstated.
14. The writ petitions are allowed. The part of the order in Anx. 1 in cases of the each of the petitioners 'the intervening period is to be treated as leave due' is set aside, and the non-petitioners are directed to pay the salary and other allowances admissible to them from the date of order of compulsory retirement until the date they were reinstated.
15. In the circumstances of the case the parties are left to bear their own costs.