IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.25309 of 2008 Between: Mr.M.A Aleem S/o. M.A Wahab Village&Mandal Kondangal Dist Mahabubnagar H.No.8-3-234/66/16 Laxmi Narasimha Nagar Hyderabad ..... PETITIONER AND 1 The Union India Rep.by The director of General Of EME(EME Pers) Master General of the Old Branch Integrated HQ of MOD(Army) DHQ PO New Delhi- 110011 2 The Chief Record Officers OIC EME Records Secunderabad- 500021 3 The Controller of Defence Accounts(ORS) Office of the Controller of Defence Accounts(ORS) Secunderabad-500015 4 The Bridge Commander Head Quarters 33 ARTY BDE C/o. APO .....RESPONDENTS Counsel for the Petitioner:MR.BAJRANG SINGH THAKUR Counsel for the Respondents:MR. S.S.VARMA The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare the action of respondent Nos.1 to 3 in not paying salary to the petitioner from February, 1997 to 17.10.2008, as illegal and arbitrary. The petitioner, who was working as Naik in Army service, was discharged from service by respondent No.4. Following the said order, movement orders were passed removing the petitioner from service on 14.02.1997. The petitioner filed Writ Petition No.22230 of 1997 questioning the said two orders. The said writ petition was initially dismissed by the learned Single Judge of this Court. However, in Writ Appeal No.865 of 2007, the Division Bench set aside the order of the learned Single Judge by order, dated 12.10.2008 and remitted the matter to the learned Judge for fresh consideration. After remand, the learned Single Judge vide his order, dated 26.03.2008 allowed the writ petition by quashing the discharge order and giving liberty to the respondents for passing a fresh order in accordance with law. Thereafter, the respondents passed a fresh order of discharge on 23.09.2008. In this writ petition, the petitioner claimed salary for the period from February, 1997 till his receipt of the fresh order of discharge. In the counter-affidavit filed by the Chief Record Officer, the claim of the petitioner that since discharge order was set aside by this Court, he is deemed to have been in continuous service is denied as baseless on the ground that he was drawing the pension right from the date of discharge and while quashing the discharge order, the respondents were permitted to pass a fresh order by this Court. In my considered view, the plea of the respondents that the petitioner is not deemed to be in service cannot be sustained. When once the earlier order of discharge has been set aside, by legal fiction, the petitioner is deemed to be in service till he is discharged by a fresh order. Though the petitioner may not have been in actual service, yet, he is deemed to be in service. In this view of the matter, by receiving the pension amount during the period of out of service, the petitioner’s legal status as employee is not affected. Therefore, the petitioner is entitled to the salary for the period between his first discharge and later discharge. The respondents are, hence, directed to pay the salary to the petitioner by treating the pension paid to him as part of the salary and duly giving credit to the amount so paid to him. The writ petition is accordingly, allowed. As a sequel to disposal of main petition, WPMP.No.33065 of 2008 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 24th APRIL, 2009. kvni