RAMA JOIS, J. ( 1 ) IN this writ petition, the following question of law arises for consideration, namely,"whether an employee, who had been removed from service on the basis of the conduct which led to his conviction by a competent criminal court and was taken back to service after his acquittal in criminal appeal or revision without claim as to salary for the period during which he was out of employment, is entitled to claim salary for such period as of right?" ( 2 ) THE facts of the case, in brief, are these: The petitioner was a Watchman in the service of the Karnataka University. On a charge that he had committed theft of certain articles belonging to the University which were in his custody as a Watchman, he was prosecuted for an offence of theft under Section 381 and also for an offence under Section 414 of the Indian Penal Code. It is not disputed that with effect from 22-11-1977 the petitioner had remained unauthorisedly absent from duty. However, by an order dated 19-5-1978 he was placed under suspension with immediate effect pending disposal of the criminal case against him. In Criminal case No. 542/78 before the Civil Judge and c. J. M. , Dharwad he was convicted for the offences with which he was charged, by an order dated 31-8-1978. Having regard to the serious charges involving moral turpitude for which the petitioner was punished, the university made an order on 16th July 1980 imposing the penalty of removal from service against the petitioner with effect from 22-11-1977. As a result of that order, the petitioner stood removed from service of the university. It appears that the petitioner was unsuccessful in the appeal, but, however his criminal Revision Petition No. 495 of 1980 was allowed by this Court and conviction and sentence against the petitioner was set aside. Thereafter, the petitioner addressed a letter dated 20-6-1981 requesting for reinstatement into service. On 8-8-1981 his request was conceded and an order was made. It reads: "sub:- Reinstatement of services of Sri s. I. Myadar, Watchman (removed ). Ref:- 1. This office order No. 3192 dated 16-7-1980. 2. Order of the High Court of Kar- nataka, Bangalore, dated 19-2- 1981. ( 3 ) ORDERS of the Vice-Chancellor dated 3-8-1981. ( 4 ) HIS letter dated 20-6-1981. It reads: "sub:- Reinstatement of services of Sri s. I. Myadar, Watchman (removed ). Ref:- 1. This office order No. 3192 dated 16-7-1980. 2. Order of the High Court of Kar- nataka, Bangalore, dated 19-2- 1981. ( 3 ) ORDERS of the Vice-Chancellor dated 3-8-1981. ( 4 ) HIS letter dated 20-6-1981. Office Order No. K. 10 (0 DPAR (NT)/3495, Dated: 8th August 1981 consequent on the decision of the High court of Karnataka in Criminal Revision petition No. 495 of 1980, acquitting Sri S. I. Myadar, and by the direction of the Vice chancellor, he is reinstated in the university services from the date of his joining for duty, treating the period of his absence as leave without pay. Further, he is also not entitled to any extra allowance etc. , for the suspension period. He should therefore, report for his duties to the Deputy Registrar, DPAR, immediately. Sd/- registrar. " as can be seen from the above order, the university directed that the period of absence should be treated as leave without pay. 3. Another order was also passed on 2nd january, 1982, which reads:-"memo sri S. I. Myadar, Peon, is hereby sanctioned leave as shown below for his suspension period. 1. Earned leave for 55 days from 22-11-1977 to 15-1-1978. 2. Half pay leave for 62 days from 16-1- 1978 to 11-3-1978. 3. Extra-ordinary leave for 65 days from 12-3-1978 to 18-5-1978. The period from 19-5-1978 to 30-8-1978 has been treated as on duty and he is eligible for payment of salary equal to subsistance allowance as per Memo No. K. (10) (f) EST (NT)/8662 dated 23-2-1979, and as per order of reinstatement order no. K. 10 (f) DPAR (NT)/3495 dated 8-8-1981. Further, the period from 31-8-1978 to 7-8-1981 i. e. from the date of his removal to the date of joining is treated as leave without pay. He will be paid accordingly. Sd/- registrar. "aggrieved by these orders, the petitioner has presented this petition. 4. The contention of the petitioner is that as the petitioner, though convicted by the trial Court as also the appellate Court, was acquitted by the High Court in revision, the entire period of suspension including the period subsequent to the date on which the order of removal was made, was to be treated as duty. 4. The contention of the petitioner is that as the petitioner, though convicted by the trial Court as also the appellate Court, was acquitted by the High Court in revision, the entire period of suspension including the period subsequent to the date on which the order of removal was made, was to be treated as duty. In support of this contention, the petitioner relies on Rule 101 of the karnataka Civil Service Rules. Though these rules are framed by the Governor of the state under proviso to Article 309 of the constitution of India, it is common ground that these rules have been adopted by the university. ( 5 ) RULE 101 of the Karnataka Civil Services Rules reads:"101. A Government servant against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention, should be considered as under suspension for any periods during which he is detained in custody or in undergoing imprisonment and not allowed to draw any pay and allowances other than any subsistance allowance that may be granted in accordance with the principles laid down in Rule 98 for such periods until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin duty, as the case may be. An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of the blame or (if the proceedings taken against him were for his arrest for debt) of its being proved that the officer's liability arose from circumstances beyond his control. In cases where the arrest is for detention under a law providing for preventive detention the full amount of allowances for the period of detention, shall be given only when such detention is held by any competent authority to be unjustified. " ( 6 ) RULE 101 of the rules on which the petitioner relies, provides that if a civil servant is arrested and detained on a criminal charge, he is deemed to be under suspension until it is revoked and if ultimately he is acquitted he will be entitled to full salary and allowances for the suspension period. " ( 6 ) RULE 101 of the rules on which the petitioner relies, provides that if a civil servant is arrested and detained on a criminal charge, he is deemed to be under suspension until it is revoked and if ultimately he is acquitted he will be entitled to full salary and allowances for the suspension period. This rule would have been attracted if the petitioner had not been convicted and he had not been removed from service. But in the present case, not only he was convicted but he was also removed from service, on the basis of the conduct which led to his conviction by order made on 16th July 1980. The resultant position was the petitioner was no longer in the service of the University on and after the said date. Therefore Rule 101 had no application to his case. The facts of this case show that long after his removal from service, after his revision petition was allowed by the High Court and the petitioner was acquitted as a result, he requested the university for his reinstatement. Though there was no rule requiring the University to reinstate the petitioner, it decided to reinstate the petitioner, but subject to the condition that the period of absence till the date he reported for duty pursuant to the order dated 8-8-1981, be treated as leave without pay. There is also no rule, on which the petitioner relies, which gives him the right to claim salary for the period during which he had been removed from service. ( 7 ) RULE 101 would have been applicable if, even after conviction of the petitioner by the trial Court, the University had continued the petitioner under suspension until he was acquitted by this Court in revision. That is not the position here. He was removed from service on 16-7-1980 and that order had not been challenged by the petitioner and the same is not even challenged even in this writ petition. That is not the position here. He was removed from service on 16-7-1980 and that order had not been challenged by the petitioner and the same is not even challenged even in this writ petition. In fact, the petitioner could not challenge the legality of the said order, for the reason, at the time when the said order was made there was an order of conviction against the petitioner in respect of offences under Sections 381 and 414 of the I. P. C. and the University was acting on the basis of the conduct which led to his conviction on such criminal charge and the rules regulating the civil services of the State which had been adopted by the University clearly empowered the imposition of penalty on the basis of the conduct which led to conviction. This position in law is explained by this court in the case of Mahalinga P. v D. I. G. of police (W. P. No. 38840/1982, DD: 8-11-1982 ). That was a case in which the petitioner therein a Sub-Inspector of Police was convicted for an offence under Section 353 i. P. C. He had preferred an appeal in which the execution of sentence was stayed. On the basis of the conduct which led to misconduct the disciplinary authority imposed penalty of dismissal against him. Thai order was challenged on the ground that the action was illegal as the criminal appeal was pending. The ground was negatived. The relevant part of the Judgment reads:-"6. Learned Counsel's interpretation of the stay order in criminal appeal and of rule 9 is as follows:- For the time being, there is no imposition of the penalty at all. Therefore no action under Rule 9 aforesaid was permissible as the rule can be invoked only after the penalty is imposed. 7. The contention is fallacious. Firstly, the words 'penalty imposed' used in Rule 9 (1) has reference to the penalty imposed in a departmental inquiry and not in criminal trial. The wording of the rule 'where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority shall inform the police officer of the proposal to take action against him and of the allegations'. Clearly indicates that it speaks of an action initiated by the disciplinary authority only. Clearly indicates that it speaks of an action initiated by the disciplinary authority only. The opening part of the rule is no doubt not happily worded. It should have been 'where a penalty is proposed to be imposed' etc. However, a reading of the rule which prescribes the procedure for imposing penalty on the basis of the conduct which had led to the conviction of a civil servant clearly shows that whenever penalty is proposed to be imposed under that special circumstance, without an inquiry, under that rule, the limited opportunity contemplated by that rule should be given. This rule is nothing but reproduction of the exception to clause (2) of Article 311 of the Constitution incorporated in clause (a) of the proviso thereunder. Secondly, the fact that the execution of the sentence is suspended does not mean that sentence is not imposed. On the other hand, because the sentence is imposed against the petitioner the necessity arose for him to seek the suspension of its execution. Hence, it is clear that when the petitioner has been convicted for an offence under Section 353 IPC and sentence has been imposed, the disciplinary authority was perfectly competent to take action under Rule 9 of the Rules read with the proviso (a) to clause (2) of Article 311 of the constitution. 8. The principle, that so long the conviction stands, any disqualification arising out of such conviction continues to exist, is also supported by the observations of the supreme Court in the case Vidyacharan shukla v Purushottam Lal Kaushik ( AIR 1981 SC 547 ). In that case, the Supreme court held that if the nomination of a candidate, who was, on conviction for an offence sentenced to imprisonment for two years or more and who therefore suffered a disqualification imposed by law to be a candidate at an election to the Lok Sabha, had been accepted at an election to Lok sabha and he was elected in the election, and his election was challenged in an election petition, if before the election petition was decided, the conviction had been set aside in appeal, the election could not thereafter be set aside on the ground of such disqualification. Having taken that view the supreme Court observed that the position in a converse case might not be the same i. e. , a case where the nomination of a candidate had been rejected on the ground of such conviction. The relevant portion of the judgment of the Supreme Court decision, is contained in para-37 which reads:- 37. It is possible that, difficult and anomalous situations may arise if the rule in Manni Lal v Formal Lal is applied to a converse hypothetical case wherein the candidate whose nomination is rejected on account of his disqualification viz. conviction and sentence exceeding two years' imprisonment existing as a fact on the date of scrutiny of nominations, brings an election petition challenge the election of the returned candidate on the ground that his nomination was improperly rejected, as his qualification had been, as a result of his subsequent acquittal by an appellate court, annulled and obliterated with retrospective force. ' the above observations, indicate that in such a case, it would be difficult to say that the returning officer had improperly rejected the nomination of such a candidate as on the date when he took that decision, the conviction and the disqualification following therefrom did exist, because he cannot be expected to anticipate that in the criminal appeal preferred by such person the conviction and sentence would be set aside. The present case is anologous to the converse case referred to in para 37 of the aforesaid judgment of the Supreme Court. Therefore having regard to the plain wording of Rule 9 of the Rules read with proviso to clause (2) of Article 311 of the Constitution, i find it difficult to accept the contention urged for the petitioner that the disciplinary authority has no power to take disciplinary action on the basis of the conduct of the petitioner which had led to his conviction. I am also unable to agree that just because the execution of the sentence has been suspended the action was impermissible. As already stated, the punishment imposed by the disciplinary authority is based on the conviction which is in force are not on the basis of the sentence the execution of which is suspended. 9. Learned Counsel submitted that if the petitioner were to succeed in the appeal, but in the meanwhile he stands dismissed he would suffer irretrivably. As already stated, the punishment imposed by the disciplinary authority is based on the conviction which is in force are not on the basis of the sentence the execution of which is suspended. 9. Learned Counsel submitted that if the petitioner were to succeed in the appeal, but in the meanwhile he stands dismissed he would suffer irretrivably. It is no doubt true that would be the position, because the rules, as they stand now, are silent as to what should happen to the penalty if the conviction is set aside in appeal. It is for the rule making authority to examine this aspect and to frame an appropriate rule, like providing for reinstatement of the civil servant so removed if ultimately the conviction is set aside and the civil servant concerned is honourably acquitted, treated the intervening period as leave without allowance and subject to such other specified conditions. Till such a rule is made, it might also be open to the appellate or revisional authorities under the police act and the rules framed thereunder to give appropriate relief, if they consider it just and expedient to do so in any appeal or revision, if preferred by the petitioner against the order of dismissal. It is also open for the petitioner to request the authority to keep his appeal or revision pending till the decision in the criminal appeal whatever that may be, there is no legal infirmity in the impegned order. "from the above judgment it follows that the order of the University imposing the penalty removal was legal and valid. ( 8 ) THE learned Counsel for the petitioner, however, raised two other contentions. Though the order of dismissal was passed on 16-7-1980, the petitioner was removed from service with effect from 22-11-1977 and this could not have been done and consequently the order dated 2-1-1982 sanctioning different kinds of leave for the period commencing from 22-11-1977 to 18-5-1978, though the petitioner had not applied for leave for the said period, cannot be sustained. ( 9 ) IT is well settled that no penalty of removal or dismissal from service can be imposed with retrospective effect and if such an order is made, the order to the extent of retrospective effect alone is illegal and to the extent of prospective effect, if it is otherwise legal, it would stand. ( 9 ) IT is well settled that no penalty of removal or dismissal from service can be imposed with retrospective effect and if such an order is made, the order to the extent of retrospective effect alone is illegal and to the extent of prospective effect, if it is otherwise legal, it would stand. (See: Jewarathran v state of Madras, AIR 1966 S. C. 951 ). In the present case, therefore, the order dated 16th july 1980 to the extent it directed that the petitioner stood removed from service with effect from 22-11-1977 has to be regarded as ineffective and the removal should be regarded as having come into effect only with effect from 16-7-1980. ( 10 ) IT is also well settled from the decision of this Court in Jayadevaiah D. S. v secretary, 1971 (2) Mys. LJ. Short Notes 103, that leave cannot be forced on an employee. In other words, leave cannot be sanctioned unless it is applied for by the employee concerned. Therefore, the order dated 2-1-1982 sanctioning leave commencing from 22-11-1977 upto 18-5-1978 is liable to be set aside and a direction has to be issued to the university to regulate the said period in accordance with the rules regulating conditions of service. However, it should be made clear that the order of reinstatement dated 8-8-1981 in so far as it states that the period of absence from 16-7-1980 upto the date of reinstatement be treated as leave without pay, should be allowed to remain unaffected for the reason, by setting aside that part of the order it would result in disadvantage to the petitioner, as it would result in break of service. In other words, what actually the University has done is to give the benefit of continuity of service to the petitioner without salary for the period during which he stood removed from service. ( 11 ) AS far as the claim of the petitioner for the salary for the said period is concerned, no writ of mandamus can be issued, for the reason there is no rule making it obligatory for the University to pay salary from the date on which he was validly removed from service until he was reinstated pursuant to a representation made by him after an order of acquittal by this Court in a criminal revision petition. ( 12 ) IN the result, I make the following order: (i) The Writ Petition in so far as it relates to the claim for salary between the period commencing from 16-7-1980 till the date he joined duty pursuant to the order dated 8-8-1981 is concerned, it is dismissed; (ii) There shall be a direction to the university to give effect to the order of dismissal dated 16-7-1980 only from the said date; (iii) The order dated 2-1-1982 sanctioning different kinds of leave commencing from 22-11-1977 upto 18-5-1978 is set aside with a direction to the University to regulate the said period in accordance with law; (iv) The petitioner shall be at liberty to apply for leave for the said period, if he so choses, and if it becomes necessary, and the University shall consider such request on its merits. Writ Petition partly allowed. --- *** --- .