JUDGMENT 1. Shri Sheochand Yogi, a police Head Constable, the petitioner, has filed this writ petition and prayed for the following relief : (a) a writ of prohibition be issued against the non-petitioner prohibiting them from taking any further proceedings in pursuance of Ex. 3 and 3A. (b) by an appropriate writ, order or direction the order date 17-2-1979 and the order dated the 1st September, 1979 in so far as they deprive the petitioner of the arrears of salary for the intervening period, may kindly be declared illegal and be quashed and the respondents be directed to pay all arrears of salary to the petitioner between 2-11-1974 and 3-3-1979 with all consequential benefits including increments and other fringe benefits alongwith interest at the rate of 18% per annum from the date the petitioner was dismissed from service. (c) the non-petitioners he directed to send the petitioner to the promotion cadre course immediately in the Jaipur Range and to promote the petitioner to the post of Sub-Inspector allowing all benefits of the post with retrospective effect from 1973, alongwith others situated similarly to him: (d) the provisions of rule 26, 28(1) and the later part of rule 24(1) as referred to in para 8 (iii) supra may be struck down: (e) the seniority of the petitioner be ordered to be maintained according to rules in Jaipur Range. 2. However, during the arguments, Shri M. L. Shrimali the learned counsel for the petitioner, appearing for him, submitted that the principal reliefs, to which he is entitled, are as under:- i that the operative part of the order of the Governor accepting the review application of the petitioner and, directing that the question of in what manner the period of interval between the date of termination of the services and the reinstatement in purusance of this order, should be treated as regular, cannot be finally decided and a direction should be given to the respondents for treating the petitioner as on duty for the entire period from the date of his termination of the service till the date of reinstatement. ii that, the charge sheet issued to the petitioner in pursuance of the order of the Governor should be quashed ; iii that, the respondents should be directed to promote the petitioner on the promotion cadre post of the Sub Inspector without appearing in a qualifying written test and an interview. 3. ii that, the charge sheet issued to the petitioner in pursuance of the order of the Governor should be quashed ; iii that, the respondents should be directed to promote the petitioner on the promotion cadre post of the Sub Inspector without appearing in a qualifying written test and an interview. 3. The present case is very unfortunate one because, the petitioner rightly or, wrongly, has remained under great mental torture on account of the series of the inquiry one after the other and orders of the superior officers. Without mentioning the history of the first inquiry which resulted in his termination, it would be enough to say that the Government has accepted his review petition and by order dated the 17th February, 1979 (Ex.l) it was directed that, as the disciplinary proceedings were taken by the incompetent authority, therefore, the whole inquiry is vitiated. The Governor further directed that the inquiry may be conducted de novo according to the rules and the petitioner should be reinstated. This order of the Governor has been challenged in the present writ petition to the limited extent in respect of the last direction regarding the discretion having been given to the disciplinary inquiry authority to decide in what manner, the intervening period, on which the petitioner remained out of service due to dismissal, would be treated and regularised at the conclusion of the inquiry. 4. Shri M. L. Shrimali, submitted that, according to the order (Ex. 2) fated the 26th August, 1978 of the charges which are subject matter of the de novo inquiry and result of the earlier inquiry which was quashed vide Ex. 1, are covered by all the 13 charges which have been held to be proved by one, Jaber Singh and since Jaber Singh was punished for omissions and commissions made against the petitioner, Sheochand, it would be futile exercise of an inquiry to inquire into the charges against Sheo Chand also now. 5. This contention has been vehemently opposed by Shri M. I. Khan, the learned Government Advocate, appearing for the State of Rajasthan and other respondents, who submitted, that the most of the charges are different. On a careful perusal of the orders marked as Ex. I and Ex. 5. This contention has been vehemently opposed by Shri M. I. Khan, the learned Government Advocate, appearing for the State of Rajasthan and other respondents, who submitted, that the most of the charges are different. On a careful perusal of the orders marked as Ex. I and Ex. 2, dated 26th June, 1978 I have come to the conclusion, to which Shrimali has also agreed, that at least, some of the charges are different and, it cannot be said that all the seven charges which are subject matter here against the petitioner, Sheochand, are covered by the order and inquiry report against one Jaher Singh. To illustrate, charge no. 2 relates to the filing of a case against Poparam, Moti, Sukhdeo, Shrimati Chhoti, Sarswati and Jhunthi etc., on 2nd September, 1971 and arresting the under Section 379 I. P. C., without getting it processed through Sub Inspector, Incharge of the Police Station and on account of which, each of' them were released and the arrest under Section 151 Cr. P. C. was therefore, found to be illegal. 6. Since all the seven charges are not covered by the punishment awarded to Jaber Singh vide order dated 26th June, 1978, it cannot be said that the de novo inquiry, ordered by the Governor in order of review petition cannot take place and in any case, it should be quashed by this Court. I am, therefore, of the view that the order of the Governor, so far it relates to the direction for de novo inquiry is just and proper and should be implemented. 7. The second point relates to the prayer for payment of salary and all other emoluments due during the period of date of dismissal, i.e., 2nd November 1974 to the date of re-instatement, i.e. 3rd March, 1979. In respect of the prayer that, the petitioner should he allowed full pay, salary, alongwith other emoluments, to which he was entitled to get, and which has been allowed by the Governor, reliance was placed on the decision in (I) Devendra Partap v. State of Uttar Pradesh ( AIR 1962 SC 1334 ) , in which their Lordships observed as under : "Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under Article 309 undoubtedly enables the State Government to fix the pay of a public servant where dismissal is set aside in a departmental appeal. But the rule has no application to cases in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which, he would have earned had he been permitted to work." (head note B'). Another reference was also made to the decision of the Supreme Court in H.L. Mehra v. Union of India ( AIR 1974 SC 1281 ) , wherein their Lordships observed as under : "Held-Two conditions must co-exist before action can be taken under R.10(5)(b) : one is that the Government servant must be under continuing suspension and the other is that during the continuance of such suspension "any other disciplinary proceedings" should be commenced against him. When the order of dismissal was passed on 26th October, 1967, the order of suspension dated 11th April. 1963 ceased to exist and it did not revive thereafter by the subsequent setting aside of the order of dismissal by the first part of the impugned order. In the circumstances, the impugned order continuing suspension could not be justified under R. 10 (5)(b). (paras 5,7,10). Neither could the order continuing the suspension be justified under R. 10 (3) or (4), nor sustained by reference to R. 10 (5) (a). (Paras 8,9)" 8. It is not possible to make a deduction from the above two decisions that in all exigencies, where the dismissal is set aside in appeal, it Government civil servant should be allowed to get the entire amount of salary and other allowances for the period during which he remained out of service on account of order of dismissal. Primarily, it depends upon the relevant rules. In Deverdra Pratap's case (supra), their Lordships were interpreting Rule 54 of the Fundamental Rules and while doing so, it was held that this rule has no application to cases in he which the dismissal of a public servant is declared invalid by a civil coot, and he is reinstated. Of course, it was observed that in such cases, the authority cannot deprive a public servant of the remuneration which he would have earned had he been permitted to work. However, we are concerned with a case. Of course, it was observed that in such cases, the authority cannot deprive a public servant of the remuneration which he would have earned had he been permitted to work. However, we are concerned with a case. where the public servant has not been exonerated from the earlier inquiry which was conducted and found to be invalid as it was held to be not conducted by the competent authority and, therefore, the de novo inquiry was directed by the Governor. 9. The question, which emerges now for consideration is where the Governor's order leaving it to the disciplinary authority to decide finally, whether the services should be regularised or not, is valid. The learned counsel for the parties could not point out any specific rule, for that purposes. However, the petitioner's counsel placed reliance upon Rule (4) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as tile CCA Rules') and submitted that in case, the petitioner would have been tinder suspension during the period of inquiry earlier, then after the dismissal when the dismissal order was set aside by clause (4) which is a deeming proviso, it would have been deemed that he was under suspension during all this intervening period. 10. It is common ground that the petitioner was not under suspension during the earlier inquiry which resulted in his dismissal in the year 1979. It is further common ground that even after initiating the second inquiry and after the order of the Governor, the petitioner has not been placed under suspension. This means that the disciplinary authority has not thought that his remaining in service during the inquiry, would be detrimental to the interest of the administration or a fair inquiry. I'll it being so, in case, dismissal order would not have been passed earlier, he would have continued in service upto date of the reinstatement from the date of the dismissal. In other words, he has been deprived from functioning as Head Constable which, he could have functioned even during the inquiry commencing froth the older of the dismissal and ending from the date of his reinstatement, as mentioned above. 11. In other words, he has been deprived from functioning as Head Constable which, he could have functioned even during the inquiry commencing froth the older of the dismissal and ending from the date of his reinstatement, as mentioned above. 11. The principles laid down in the above decision of Devendra Pratap's case (supra), undoubtedly show that in such cases, R. 54 of the Fundamental Rules framed by the State of Uttar Pradesh cannot apply because the authority concerned has deprived the officer concerned from functioning and, of remuneration and salaries which he would have earned had he been permitted to work. Fundamental Rule 54 has been extracted in the decision of the Supreme Court in M. Gopal Krishna Naidu v. State of M. P. ( AIR 1968 SC 240 ) , which is being reproduced for ready reference hereunder:- " 1. When a Government servant who has been dismissed, removed or suspended is reinstated the authority competent to order the reinstatement shall consider and make a specific order:- (a) Regarding the pay and allowance to he paid to the Government servant for the period of his absence from duty; and (b) whether or not the said period shall be treated spent on duty; 2. Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonereted or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be. 3. In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent allowances are admissible : Provided that the payment of allowances under clause(2) or clause (3) shall be subject to all other conditions under which such allowances are admissible; Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53. 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. 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 a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government set van so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant." 12. I find, on a comparison of the Central fundamental Rule 54 which governs the central Government rules and R. 54 of the Rajasthan Service Rules, they are almost identical. In view of the identical nature of the two rules, since in the present case, the Governor, himself, has held that earlier inquiry was held under order of a person who was incompetent and. therefore, the same was liable to be quashed and, therefore, on this finding, the dismissal has been set aside by the governor having declared it invalid. If that is done and, the inquiry held earlier, having been declared illegal or invalid, the observations of their Lordships of the Supreme Court in Devendra Pratap's case (supra), assumes great relevancy and these relevant observations of the Apex court have to be given full weight age, more so, when I am required to decide in respect of the salary and emoluments and other perquisites of a Head Constable of police who is one of the lower ladder in the service and who has remained out of employment from 1974 to 1979 for no fault of his own. 13. Respecting the above observations, I have got no hesitation in holding that R. 54 of tilt Fundamental Rules would lose its relevancy and since later part of the order of the Governor is solely based on R. 54, that part cannot be treated as valid. 14. Even otherwise, I am of the opinion that the charges which hale been framed are not of such a serious nature and that is manifested on the fact that the petitioner was never suspended either, during the inquiry or now. 15. 14. Even otherwise, I am of the opinion that the charges which hale been framed are not of such a serious nature and that is manifested on the fact that the petitioner was never suspended either, during the inquiry or now. 15. The resultant position of the above discussions is that the petitioner is entitled to his salary and all other allowances and other perquisites to which lie was getting before the order of the dismissal for the entire period commencing from the order of dismissal, i. e. 2nd November, 1974 to 3rd March, 1979, the date of reinstatement. 16. So far as the third prayer of the petitioner for promoting him as a Sub Inspector is concerned, I am afraid that it is not possible to give this relief. It is true that on April 10, 1974, in S.B. Civil Writ Petition No 1646/1973. (Shoe Chand v. State of Rajasthan and others) , this Court his given the following directions:- "In the circumstances, I hereby allow this writ petition, quash the impugned order of the Assistant Inspector General of Police (Head Quarter) as embodied in his letter dated 4-5-1973 and direct the respondents to allow the petitioner to take the next qualifying examination and if he successfully passes it then to deal with him for the subsequent stages and if eventfully he is found suitable for promotion, then he should be treated at par with those who had taken the qualifying examination 13. 5.1973. As the petitioner was not pursuing his own case as vigorously as he should have, the parties are left to bear their own costs." 17. It is also true that even though now this fresh writ petition is being decided in the year 1983, almost after the lapse of one decade, the petitioner has not been allowed to appear in the promotion cadre examinations on one ground or the other. It is unnecessary to enter into this controversy raised by the respondents that since no examinations were held for the promotion cadre post in the range in which the petitioner was serving and there was a changed circumstances and, therefore, the petitioner could not be allowed. It is unnecessary to enter into this controversy raised by the respondents that since no examinations were held for the promotion cadre post in the range in which the petitioner was serving and there was a changed circumstances and, therefore, the petitioner could not be allowed. Obviously, a petition for contempt of court has been dismissed by this court on July 1, 1980 and, therefore, it is not possible for me now to reassess and have a fresh decision in the services of this petitioner after a lapse of almost one decade, as to why he has been deprived of in the examination of promotion cadre, and also even after the order dated the 1st July, 1980 dealing in the contempt case., why he has not been pet allowed to appear in the examination and interview. 18. Shri Khan, the learned Government Advocate, submitted that during all this period, no examinations for promotion cadre have taken place in the range of Bikaner, where the petitioner was working. Normally, it is difficult, how for a decade, there have been no examinations held for promotion cadre posts. Be that as it may, in view of the earlier decision of this court in the earlier writ petition decided on April 10, 1974 and further the order of this court dated 1st July, 1980 in contempt petition, now the respondents should permit the petitioner for qualifying the promotion cadre post examination in the Bikaner range. I am riot inclined to give am; reason and enter into this controversy further as one decade has already lapsed and for a head constable it is too precious time which he has lost. That being so, I direct that in case no promotion cadre examination normally takes place in this range, where the petitioner is working or is entitled to work, the respondents should arrange for holding of examination of promotion cadre post. Since there is a confusion about the range, -whether it is Sikar or Bikaner range, it is directed that irrespective of the range, where the petitioner is posted the respondents should arrange the holding of the qualifying examination for the promotion cadre post of Sub Inspector within a period of six months, even if it is normally not due, and then decide the fate the promotion of the petitioner in terms of the orders of this court passed on 10th April, 1974. It is very unfortunate that the order dated 10th April, 1974 which was passed by the court on conclusion of the hearing in the writ petition, has yet remained silent on the file of the Government and no benefit has been given to the petitioner so far. 19. In the net result of the above discussion this writ petition succeeds partially and is accepted to the following extent: 1 . The charge sheet which has been given to the petitioner after the decision of the review petition by the Governor, cannot be quashed and, therefore, the respondents would be at liberty to proceed with the inquiry under it but, keeping in view the orders passed in the case of Jaber Singh, Sub Inspector, if some of the charges are covered in the case of the petitioner, it would be wise to drop that charges and limit it to the other charges only; 2 . The order of the Governor in review petition so far as it relates to postponement of the decision about his status and service conditions alongwith remuneration of the service for the period in which he has remained in service and which was set aside, is set aside. It is ordered that the petitioner should be paid full salary which would amount to full salary and normally due as per his entitlement and which he was drawing earlier to his dismissal and which become due on account of any other revision of pay scales, as the case may be, for all the period from the date of dismissal, i e. 2nd November, 1974 to the exact date of the reinstatement. This amount should be paid to the petitioner within a period of three months from the date of the receipt of this order. 3 . The prayer for his promotion to the post of Sub-Inspector without passing qualifying examination cannot be accepted. However, it is directed that the respondents would arrange the holding of the qualifying examination for the promotion cadre post of Sub Inspector and hold the examination and interview of the petitioner irrespective of the consideration of the range within a period of six months even if it is due or not and, normally it would have been held by them. 20. The parties would bear their own costs. *******