IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 12462 of 2008 Date of decision: 01.04.2011 ________________________________________________________________ Ashok Kumar Gupta. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: None for the petitioner. For the respondents: Mr. Anil Jaswal, Dy. AG. V.K. Sharma, J. (Oral). Notice issued to the petitioner has been received back unserved with the report that he is presently residing at Jammu and used to visit the place mentioned in the given address rarely. 2. The petition has been filed on the following prayers vide para 7(i) to 7(vii): “7(i) That the act of the respondents in considering the pendency of appeal against the judgment of acquittal dated 2-2-2002 (Annexure/A-4) as continuation of proceedings and act of the respondent No. 4 in not regularising the period of suspension of the applicant and in not providing other due and admissible service benefits under the Rules to the applicant, may kindly be declared illegal, arbitrary, contrary, invalid, unwarranted, unjust, unreasonable and unconstitutional and unsustainable in the eyes of law and consequently the orders dated 4-6-2002 (Annexure /A-6), letter/order dated 10-6-2002 (Annexure / A-8), order/letter dated 30-9-2002 (Annexure /A-10), order / letter dated 20-11-2003 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... (Annexure / A-12), order dated 3-7-2004 (Annexure /A-13) and order/letter dated 21-7-2004 (Annexure .A-14) issued by the respondent No. 4 may kindly be quashed. (ii) That the respondent No. 4 may kindly be directed to consider and regularise the period of suspension for 2110 days treating it as a period spent on duty for all purposes with full pay and allowances to which the applicant would have been entitled, had the applicant not been suspended, alongwith all consequential benefits. (iii) That the respondent No. 4 may kindly be directed to release all the annual increments due and admissible under the Rules to the applicant right from 1-1-1993 onwards alongwith arrears. (iv) That the respondent No. 4 may further be directed to provide the benefit under Assured Career Progression Scheme for J.E. Category, of the applicant, on completion of 24 years of service w.e.f. the date the applicant completed 24 years of service. (v) That the respondent No. 4 may please be directed to release the benefit of next higher scale of pay to the applicant which had become due to the applicant in the year 1993 alongwith arrears. (vi) That the respondent No. 4 may further be directed to provide the re-designation as Additional Assistant Engineer, Class-II Gazetted w.e.f. due date alongwith all consequential benefits. (vii) that the respondents may please be directed to pay the interest at the rate of 18% per annum on the arrears of pay and allowances to the applicant w.e.f. due dates.” 3. In reply, the respondents have taken the following stand vide paras 2 and 3: “2. It is correct to say that the applicant had been re- instated vide an order dated 13.08.08 by revoking the order of suspension pending finalization of the criminal proceedings, under clause-(c) of sub-Rule-(5) of Rule-10 of CCS/CCA Rule-1965 to be read with FR-51-B(6) in which, it was inter-alia mentioned tht the intervening period between suspension and joining for 2110 days from 06.11.92 to 16.08.98 will be issued separately, which order has not yet been issued under FR-54B(1)(a)(b) because, the criminal proceedings which had been ended by way of ...3... acquittal as per judgement/decision dated 02.02.2002 issued by the Hon'ble Chief Judicial Magistrate, Chamba have been challenged in the Hon'ble High Court of Himachal Pradesh by preferring as Appeal by the respondent State and the appeal has been admitted on 25.06.02 as per RA-I. As no final decision under FR-54-B(1)(a)(b) has been announced by the respondent as yet because pending appeal for adjudication in the Hon'ble High Court of Himachal Pradesh, no cause of action has been arisen to the applicant. As there is no cause of any action, the OA as filed by the applicant is un-called for/un-warranted and needs no action and it is humbly prayed that the same may kindly7 be dismissed at the threshold stage being devoid of any merit, as the respondent State is aware that further course of action in view of FR-54(6) will be taken on its own motion after the conclusion of the criminal proceedings by the Hon'ble High Court of Himachal Pradesh and on receipt of the judgement (if not appealable in next Hon'ble Court), action will be taken as per FR-54 B(1)(a)(b) being statutory Rules having the force of law. 3. It is correct to say that period of suspension for 2110 days has been treated as dies-non/non-duty period vide order dated 03.07.04 appended with the OA which is purely on adhoc order for the purpose of calculating the 1st and subsequent increments(s) after joining the duty on revocation of the suspension order, which order is on notional basis and the same is not to be construed to be a final order. On the other hand, the order dated 03.07.04, Annexure-13 appended with the OA has fully benefited the applicant by receiving 1st and subsequent increment(s) by him after suspension with liberty for its revision on the conclusion of the criminal proceedings after receipt of the decision/judgement from the Hon'ble High Court of Himachal Pradesh. As the suspension period has been treated as non- duty period on notional basis with liberty to the applicant for its revision and the same is surely benefiting the applicant, the OA is liable to be dismissed on this sole ground too.” 4. In view of the above reply, in case the petitioner still has any surviving grievance with regard to the factual and legal position, he may certainly point out the same before respondent No. 2/competent authority by way of appropriate representation alongwith copy of this judgment within one month from today, who ...4... shall consider the same and take a final decision in the matter in accordance with law within next three months, after affording an opportunity of being heard to the petitioner, if so desired. 5. In view of the above, the petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 1st April, 2011 (virender)