JUDGMENT S.H.A. Raza, J. 1. A short question 'which is involved in this writ petition is as to whether the suspension order having merged in the dismissal order and no subsequent order of suspension having been passed to place the petitioner again on suspension with effect from the date of order of dismissal it Is open to the opposite party to treat the petitioner under suspension and reduce the payment to 1/4th of his salary. 2. The facts giving rise to this petition are that the petitioner was charged with an offence involving embezzlement of Rs. 37/00/- and on 17-6- 1969 a FIR was lodged against the petitioner. The police during the investigation found that one Sri P. L. Cnaturvedi who was then working on the post of Deputy Director was also involved in the offence of the said embezzlement, f he police took cognizance of the offence and charge sheet was submitted against the petitioner as well as Sri P. L. Chaturvedi. The petitioner as well as Sri Chaturvedi are standing trial for the said offence of embezzlement. Lateron a departmental enquiry was contemplated against the petitioner alone. It is pertinent to mention here that by means of the order dated 9_6-l969 the petitioner was suspended and after disciplinary enquiry he was dismissed from service with effect from 7-6-1975. No subsequent order of suspension was ever passed placing the petitioner under suspension with effect from the date of order of dismissal. Aggrieved, against the order of dismissal, the petitioner filed a claim petition in the year 1978 questioning the validity and legality of the order of dismissal and also prayed for quashing of the suspension order though it was not necessary as the suspension order merged with the dismissal order. On 21-10-1987 the U. P. Public Services Tribunal allowed the claim petition and quashed the order of dismissal dated 7-6-1979, The Tribunal quashed the enquiry report as well as the dismissal order and directed that the petitioner would be deemed to be in service and entitled to receive allowances and subsistence allowance as the department may decide. 3. The petitioner has claimed that after enquiry report and dismissal order was quashed, he became entitled to full salary with effect from 9-7-1969 i.e. the date when he was suspended. 3. The petitioner has claimed that after enquiry report and dismissal order was quashed, he became entitled to full salary with effect from 9-7-1969 i.e. the date when he was suspended. It was averred that during the entire disciplinary proceedings the petitioner was not paid a single shell as subsistence allowance inspite of the fact that he had completed all the formalities required for drawing subsistence allowance. 4. Rule 49A of Classification, Control and Appeal Rules, 1930, reads as under : "49-A (1). A Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority Provided that in the case of any Government servant or Class of Government servants, not belonging to a State Service, the appointing authority may delegate its power under this sub-rule to next lower authority Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this sub-rule : Provided also that in the case of a member of a judicial service (within the meaning of Article 236 of the Constitution), the Governor may delegate his powers under this sub-rule of the High Court : (I-A). A government servant in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Appointing Authority under whom he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. (2) A Government servant shall be deemed to have been placed or, as the case may be continued to be placed under suspension by an order of the appointing authority- (a) with effect from the date of his detention, if he is detained in custody whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours; and (b) with effect from the date of his conviction, if in the [event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation-The period of forty eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment if any, shall be taken into account. (3) where a penalty of dismissal or removal andfrom service imposed upon a Government servant is set-aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such directions as aforesaid, be deemed to have continued in force on and from the date of the 'original order of dismissal or removal; (b) if he was not under suspension, he shall if so directed by the appellate or reviewing authority, be deemed to have been placed under suspension by an order of the Appointing Authority on and from the date of the original order of dismissal or removal ; Provided that nothing in this sub-rule shall be construed as affecting the power of the competent authority, in a case where a penalty of dismissal or removal from service imposed upon a Government servant is set-aside in appeal or. on review under these rules on grounds other than the merits of the allegations on which the said penalty was imposed but the case is not remitted for further inquiry or action or with any directions, to pass an order of suspension pending further inquiry against him on those allegations, so, however, that any such suspension shall not have retrospective effect. (4) when a penalty of dismissal or removal from service imposed upon a Government servant is set-aside or declared or rendered void in consequence of or by a decision of a court of law and the Appointing Authority, on a consideration of the circumstances of the case, decides to hold a further Inquiry against him on the allegations on which the penalty of dismissal or removal was originally impose whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted- (a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the Appointing Authority, be deemed to have continued in force on the from the date of the original order of dismissal or removal ; (b) if he was not under such suspension, he shall, if so directed by the Appointing Authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal. (5) (a) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain in force until It is modified or revoked by any authority specified in sub-rule (1). (b) where a Government servant is suspended or is deemed to have been suspended whether in connection with any disciplinary proceeding or otherwise and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension till the termination of all or any of such proceedings. (6) Subsidiary Rule 199, Financial Handbook, Volume II, Parts II to IV, shall cease to apply to Government servants governed by this rule. N. B.- As a rule, suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Suspension, where deemed necessary, should, as far as possible, immediately precede the framing or charges and their communication to the Government servant Charged. Suspension, where deemed necessary, should, as far as possible, immediately precede the framing or charges and their communication to the Government servant Charged. This note has been deleted vide Notification No. 18/3-1973 Appointment- 3, date 23rd March. 1974." 5. A perusal of the aforesaid sure clearly indicates that if dismissal of a government servant is set aside or rendered void in consequence of or by a decision of a Court of Law and the appointing Authority on a consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified or their particulars better specified or any part thereof of a minor nature omitted, the order of suspension shall subject to any direction of the appointing authority be deemed to have continued in force on and from the date of original order of dismissal or removal. 6. It was submitted that on the passing of the dismissal/removal order the order of suspension has merged in the final order. This being so the petitioner cannot be deemed to be under, suspension after his dismissal from service irrespective of the fact whether or not the dismissal order remains intact or is set-aside by a court of law. Therefore, unless the delinquent employee is again suspended, he is bound to be treated as an suspended employee in the event of the dismissal order being set-aside subject to further orders of suspension passed by the appointing/punishing authority. Till the date of the filing of the present writ petition the opposite party did not pass any order placing the petitioner under suspension. In these circumstances it is neither open or legal to deem the petitioner as continuing under suspension. Any observation to the contrary in the judgment is absolutely vitiated and cannot be enforced. The petitioner has relied upon on that part of the judgment of the Public Services Tribunal which dealt with his case that the charge as levelled in the charge sheet which was served during the continuance of the disciplinary proceedings were identical with the allegations contained in the criminal trial which were being faced both by the petitioner and Sri P. L. Chaturvedi and hence the departmental enquiry could not be legally initiated in the matter. 7. 7. It seems that after the judgment of the Tribunal the petitioner submitted his joining report and started the wheel of the execution in the Civil Court after obtaining certificate under Section 5 (7) of the U. P. Public Services Tribunals Act, for his re-instatement as well as the recovery of the amount of salary in accordance with the said judgment. Although the opposite party deposited a sum of Rs. 59,863.35 in the court of the learned District Judge, Lucknow an objection was filed under Section 47 of the Code of Civil Procedure in which a contention was raised that the petitioner was entitled only to the subsistence allowance to the extent of l/4th of his salary as fixed on the date of his suspension in the year 1969. A copy of the order dated 3-10-1989 passed by the opposite party regarding payment of l/4th of his pay as fixed on the date of his suspension in the year 1969 contained in Annexure-5 has been challenged in this writ petition. 8. The learned District Judge on the basis of the objections filed under section 47 of the Code of Civil Procedure directed the execution to be struck off in full satisfaction mainly on the ground that the execution court could not go beyond the degree. It was averred that the District Judge also ignored the relief of re-instatement claimed by the petitioner in the execution application. The petitioner has submitted that he will seek his remedy against the order passed by the District Judge in other proper forum. In the counter affidavit it has been averred that the Tribunal by means of its order dated 20-10-1987 has left the question of suspension open upon the decision of the department and in this view of the matter the suspension order which was passed earlier could be sustained to suspension allowance paid to the petitioner. The services Tribunal had only quashed the order of dismissal but did not set-aside the order of suspension. Keeping in view the fundamental rules the petitioner is entitled only to the extent of subsistence allowance. It was further averred that the law laid down by this court in Dharmvir Singh v. Director of Agriculture (Writ Petition No. 6336 of 1980) decided on 30-11-1985 by a Division Bench of this Court, is not applicable to the facts of this case. 9. It was further averred that the law laid down by this court in Dharmvir Singh v. Director of Agriculture (Writ Petition No. 6336 of 1980) decided on 30-11-1985 by a Division Bench of this Court, is not applicable to the facts of this case. 9. In the case of Dharmvir Singh (supra) which has been cited on behalf of the petitioner the petitioner was dismissed from service by means of order dated 24-7-1978. The order was challenged by the petitioner before the U. P. Public Services Tribunal which allowed the claim petition on 30-1- 1985 setting aside the order of dismissal, no payment of balance of pay for the period of suspension and the recovery. It was ordered that the petitioner- will be deemed to have been in continuous service from the date of his suspension. After the judgment was pronounced the government took a decision to start fresh proceedings against the petitioner and by means of order dated 5-8-1985 the petitioner was placed under suspension with effect from the order of suspension passed during the course of enquiry. Having considered the effect of sub-rule (4) of Rule 49A of the Civil Service (Classification, Control and Appeal) Rules, this court indicated as under :- "A perusal of the provisions quoted above clearly indicates that the petitioner could have been placed under suspension only from the date of the order of dismissal. The impugned order of suspension shall therefore be taken to have come into force from the date of the original order of dismissal, i.e. 24-7-1978, and not from the date of original order of suspension, i.e. 28-7- 1970. In this situation, the direction of the Tribunal that the petitioner shall be treated to be in continuous service from the date of suspension can be given effect to by making payment of full salary to the petitioner for the period from 28th September, 1970, to 24th July, 1978." 10. Although in Dharmvir's case (supra) after the pronouncement of the judgment passed by the Tribunal setting aside the order of dismissal, the department passed an order placing him under suspension with effect from the original order of suspension but in the instant case no such order was passed. Although in Dharmvir's case (supra) after the pronouncement of the judgment passed by the Tribunal setting aside the order of dismissal, the department passed an order placing him under suspension with effect from the original order of suspension but in the instant case no such order was passed. Even if the petitioner is suspended now by the appointing/punishing authority he cannot be deprived of his full salary for the period between the date of his original suspension and the date of his dismissal from service. The petitioner can at best be placed under suspension only on passing a fresh order with effect from the date of his dismissal from service and he cannot be deprived of his full salary from the period 9-7-1969 to 7-6-1975. In view of what has been stated above the writ petition deserves to be allowed and is accordingly allowed. A writ in the nature of certiorari is issued quashing the order dated 3-10-1989 passed by the opposite contained in Annexure-5. A writ in the nature of mandamus, commanding the opposite parties to make the payment of petitioner's entire salary with allowances and increments which fell due to the petitioner in the intervening period after adjusting the payment of Rs. 598 3.35 is also issued. In the circumstances of the case there will be no order as to costs. Petition allowed.